US v. City of Columbus
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IN THE UNITED STATES DISTRIcSScfifitfefrl PH l : 0 9

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION U.S. QISTRICT COURT

SOUTHERN DIST. OHIO

UNITED STATES OF AMERICA,

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EAST. OIV. COLUMBUS,

Plaintiff,

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CITY OF COLUMBUS, OHIO,

Defendant.

COMPLAINT

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The United States of America alleges: 1. The United States brings this action under 42 U.S.C. § 14141 to remedy a pattern or practice of conduct by law enforcement officers of the Columbus, Ohio Division of Police that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. Defendant City of Columbus has engaged in a pattern or practice of subjecting individuals to excessive force, false arrests and charges, and improper searches and seizures. The City has tolerated this conduct through its failure to adequately train, supervise, and monitor police officers, and its failure to adequately accept citizen complaints of misconduct, investigate alleged misconduct, and discipline officers who are guilty of misconduct.

DEFENDANT 2. The City of Columbus ("City") is a municipality in the State of Ohio, and operates the Columbus Division of Police ("CDP") , a law enforcement agency.
JURISDICTION AND VENUE 3. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1345. 4. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 14141. 5. Venue is proper in the Southern District of Ohio pursuant to 28 U.S.C. § 1391, as the defendant resides in and the claim arose in the Southern District of Ohio.
FACTUAL ALLEGATIONS 6. CDP officers have engaged and continue to engage in a pattern or practice of using excessive force against persons in Columbus. This use of excessive force includes, but is not limited to:
a. use of excessive force in effecting arrests or detaining persons suspected of engaging in criminal activity; and
b. use of excessive force against persons who are carrying out a routine activity and either have not committed any crime or infraction or have committed a minor infraction.
7. CDP officers have engaged and continue to engage in a pattern or practice of falsely arresting and charging persons in Columbus. These false arrests and charges include, but are not limited to:
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a. falsely arresting or charging persons who witness incidents of police misconduct or who otherwise are observing police conduct;
b. falsely arresting or charging persons who are believed likely to complain of police misconduct; and
c. falsely arresting or charging persons who behave or speak in a manner that is perceived by a CDP officer to be disrespectful but which does not constitute criminal behavior.
8. CDP officers have engaged in and continue to engage in other misbehavior, including, but not limited to:
a. falsifying official reports; and b. conducting searches without lawful authority or in an improper manner 9 . The City of Columbus has tolerated the misconduct of individual officers, described in paragraphs 6-8 above, through its acts or omissions. These acts or omissions include, but are not limited to: a. failing to implement a policy on use of force that appropriately guides the actions of individual officers; b. failing to train CDP officers adequately to prevent the occurrence of misconduct; c. failing to supervise CDP officers adequately to prevent the occurrence of misconduct; d. failing to monitor CDP officers adequately who engage in or who may be likely to engage in misconduct;
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e. failing to establish a procedure whereby citizen complaints are adequately investigated;
f. failing to investigate adequately incidents in which a police officer uses lethal or non-lethal force;
g. failing to fairly and adequately adjudicate or review citizen complaints, and incidents in which a police officer uses lethal or non-lethal force; and
h. failing to discipline adequately CDP officers who engage in misconduct.
CAUSE OF ACTION 10. Through the actions described in paragraphs 6-9 above, the City of Columbus has engaged in and continues to engage in a pattern or practice of conduct by CDP officers that deprives persons in Columbus of rights, privileges, or immunities secured or protected by the Constitution (including the Fourth and Fourteenth Amendments) or the laws of the United States, in violation of 42 U.S.C. § 14141.
PRAYER FOR RELIEF 11. The Attorney General is authorized under 42 U.S.C. § 14141 to seek declaratory and equitable relief to eliminate a pattern or practice of law enforcement officer conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. WHEREFORE, the United States prays that the Court: a. declare that defendant City of Columbus has engaged in a pattern or practice by CDP officers of depriving persons of
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rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, as described in paragraphs 6-9 above;
b. order the City to refrain from engaging in any of the predicate acts forming the basis of the pattern or practice of conduct as described in paragraphs 6-9 above;
c. order the City to adopt and implement policies, practices, and procedures to remedy the pattern or practice of conduct described in paragraphs 6-9 above, and to prevent officers from depriving persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States,- and
d. order such other appropriate relief as the interests of justice may require.
Respectfully submitted,
JANET RENO Attorney General/of t)
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SHARON J. ZEALEY

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United States Attorney

Southern District of Ohio

Two Nationwide Plaza

4th Floor

280 North High Street

Columbus, Ohio 43215

(614) 469-5715

BILL LANN LEET Aating Assistant Attoi ey
/General Civil Rights Division U.S. Department of Justice

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STEVEN tf. ROSENBAUM Chief Special Litigation Section Civil Rights Division U. Sj__pep a r t metrtr~o^s.Jus t i c e
'MARK A. POSNER AttorneySpecial Litigation Section Civil Rights Division U.S. Department of Justice P.O. Bex 6S400 Washincton, D.C. 20035-64 00 (202) 307-1388
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 US v. City of Columbus
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IN THE UNITED STATES DISTRICT COURT L ^

FOR THE SOUTHERN DISTRICT OF
EASTERN DIVISION

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UNITED STATES OF AMERICA,

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Plaintiff,

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Civil Case No. C2-99-1097

v.

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JUDGE HOLSCHUH

CITY OF COLUMBUS, OHIO,

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MAGISTRATE JUDGE KTNG

Defendant.

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DEFENDANT CITY'S MOTION TO DISMISS The defendant City of Columbus hereby moves to dismiss the complaint filed by the United States in this litigation pursuant to Rules 12(b)(l) and 12(b)(6) of the Federal Rules of Civil Procedure. The United States has brought this lawsuit under 42 U.S.C. § 14141, which was enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, and which has never before been upheld, construed, or applied by any court. Defendant contends that before this litigation can be permitted to proceed, this Court must first determine: (1) whether this statute was enacted within Congress's proper constitutional authority and whether it would unduly infringe upon the sovereign authority guaranteed to state and local officials by the Tenth Amendment; (2) whether the allegations made in this complaint are sufficient to satisfy the statutory requirement that the United States must demonstrate "a pattern or practice of conduct by law enforcement officers," with due regard to how the Court's construction of the statutory language bears on the foregoing constitutional inquiry; and (3) whether the allegations made in this complaint that are supposed to constitute the necessary "pattern or practice of conduct" must be circumscribed by the statute of limitations governing claims for deprivation of constitutional rights under 42 U.S.C. § 1983.

Defendant further asserts that when these determinations are made by the Court, they will provide grounds for dismissal of the complaint either because the Court lacks jurisdiction to adjudicate the United States', claims or because the United States has failed to state a proper claim upon which relief may be granted. For these reasons, as set forth more fully in the accompanying Memorandum, defendant respectfully requests that the Court grant the motion to dismiss this complaint.
Respectfully submitted:

Dated: February 9, 2000

Janet fe. Jackson ^ Attorney

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Glenn B) Redick Chief Litigator

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Timothy J. Mangan Senior Litigation Attorney 90 West Broad Street, Roomi Columbus, Ohio 43215 (614) 645-7385 Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Civil Case No. C2-99-1097

v. CITY OF COLUMBUS, OHIO,

JUDGE HOLSCHUH MAGISTRATE JUDGE KING

Defendant.

DEFENDANT CITY'S MEMORANDUM IN SUPPORT OF THE MOTION TO DISMISS INTRODUCTION
The United States brought this lawsuit under 42 U.S.C. § 14141, a statute that is brand-new and has never before been upheld, construed, or applied by any court. The statute, as enacted, is virtually devoid of any legislative history and consists merely of two paragraphs. They provide that the United States may bring a civil action to seek equitable and declaratory relief against any governmental authority whose law enforcement officers engage in a pattern or practice of conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. See 42 U.S.C. § 14141. The statute contains no definitions of any of these terms, and thus is silent about what must be proved to establish the requisite "pattern or practice of conduct" that is an essential element of the Government's single claim in this case.
The statute was enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, Title XXI, § 210401, 108 Stat. 2071, (1994). Another provision of the same legislation has been struck down on the grounds that Congress lacked the proper constitutional authority to enact it, and that issue is now awaiting decision before the United States

Supreme Court. See Brzonkala v. Virginia Polytechnic Inst., 169 F.3d 820 (4th Cir. 1999), cert, granted, 120 S. Ct. 11 (1999) (U.S. Nos. 99-5 & 99-29). Yet another provision of the same legislation was challenged on Tenth Amendment grounds; it recently was upheld, but only after that case also made its way to the Supreme Court. See Reno v. Condon, 120 S. Ct. 666 (2000).
Defendant contends that before this litigation can be permitted to proceed, this Court must resolve the same kinds of jurisdictional issues by determining whether this statute was enacted within Congress's proper constitutional authority and whether application of the statute would unduly infringe upon the sovereign authority guaranteed to state and local officials by the Tenth Amendment. In light of these constitutional concerns, defendant further contends that the "pattern or practice" language of the statute must be construed to impose a strict threshold of proof upon the Government, and that the bare and generalized allegations made in this complaint are not sufficient to satisfy that strict threshold. Moreover, defendant notes that the allegations made in this complaint that are supposed to constitute the necessary "pattern or practice of conduct" must be circumscribed by the pertinent (2-year) statute of limitations that governs claims for deprivation of constitutional rights under 42 U.S.C. § 1983 that occur in Ohio. Because the complaint is devoid of details of any specific incidents, it nowhere addresses whether the supposed factual predicates for this lawsuit can meet that limitation. For each of these reasons, and in combination, defendant respectfully requests that the Court grant its motion to dismiss the complaint.
STATEMENT OF THE CASE . October 21, 1999, the plaintiff (hereafter "United States" or "the Government") filed a complaint alleging that defendant City of Columbus is subject to equitable and declaratory relief under 42 U.S.C. § 14141. See Complaint ^ | 10-11. The complaint generally alleges that defendant,
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through the Columbus Division of Police, has "engaged in a pattern or practice of subjecting individuals to excessive force, false arrests and charges, and improper searches and seizures." Id. f 1. No facts to support these assertions are alleged anywhere in the complaint: no names are provided, no dates or locations are alleged, and no description, details, or facts of any specific incidents are presented. Instead, the Government has simply offered sweeping generalizations alleging, among other things, that defendant has "tolerated" this unspecified conduct by failing adequately to train, supervise, monitor, investigate, and discipline its police officers. Id.
After the complaint was filed, this litigation was initially stayed so that the parties could consider any grounds for possible settlement of the issues. The stay expired on December 20, 1999, and thereafter the parties agreed that defendant's answer date would be set for February 10, 2000. Other proceedings have been held on the motion of the Fraternal Order of Police, Capital City Lodge No. 9, to intervene as a defendant in this case, and that motion is currently under submission to the Court. Defendant now has moved to dismiss the complaint on grounds of subject-matter jurisdiction and for failure to state a claim upon which relief may be granted.
STANDARD OF REVIEW For purposes of deciding a motion to dismiss, the Court must accept as true the allegations made in the complaint. Nonetheless, the motion will be granted if the complaint is without legal merit or there is an insurmountable legal bar to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 699-701 (6th Cir. 1978). A motion that challenges subject-matter jurisdiction may attack the allegations on their face or may attack the facts which underlie the allegations. See Ohio Nat 7 Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). The plaintiff bears the burden at
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all times of demonstrating that the Court has jurisdiction over the subject matter. See RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134-35 (6th Cir. 1996).
In addition, the complaint must contain allegations with respect to every material element necessary to sustain the relief requested on some viable legal claim. See Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997); Scheidv. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436-37 (6th Cir. 1988). The Court is not required to accept as true the bare assertion of legal conclusions or unwarranted factual inferences. See Lewis v. ACB Business Servs., Inc., 135 F.3d 389, 405 (6th Cir. 1997); Scheid, 859 F.2d at 436-37; Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Where the complaint fails to state a proper claim upon which relief may be granted, it should be dismissed without proceeding to a trial. See, e.g., Lewis, 135 F.3d at 406-07; Scheid, 859 F.2d at 436-37; Morgan, 829 F.2d at 12.
LAW AND ARGUMENT Before this litigation can go forward, the Court must first decide: (1) whether this statute was enacted within Congress's proper constitutional authority and consistent with the Tenth Amendment; (2) whether the allegations in this complaint meet the threshold for demonstrating "a pattern or practice of conduct by law enforcement officers," with due regard to how this language must be construed to avoid any constitutional infirmities; and (3) whether the 2-year statute of limitations for section 1983 claims circumscribes the permissible allegations in this complaint. On the basis of these points, defendant respectfully urges that this complaint, which contains only vague and generalized allegations that are utterly devoid of any concrete factual content, should be dismissed.
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I. Congress Lacked Proper Constitutional Authority to Enact This Statute Beginning with United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court has acted
with increased frequency to invalidate a variety of federal statutes, either on their face or as applied, because Congress lacked proper constitutional authority to enact them. In reinvigorating the core doctrine of federalism that the Congress is vested only with the powers enumerated in Article I of the Constitution, the Court has indicated that it will not accept sweeping assertions of general federal authority either on commerce clause grounds or on the "catch-all" grounds that Congress is acting to enforce the terms of the Fourteenth Amendment. See, e.g., Lopez, supra (invalidating the GunFree School Zones Act as not properly authorized under the Commerce Clause); City ofBoerne v. Flores, 521 U.S. 507 (1997) (invalidating the Religious Freedom Restoration Act as not properly authorized under section 5 of the Fourteenth Amendment); Florida Prepaid Postsecondary Educ. Expense Bd v. College Savings Bank, 119 S. Ct. 2199 (1999) (invalidating the Patent Remedy Act's attempt to waive state sovereign immunity as not properly authorized under section 5 of the Fourteenth Amendment); Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000) (invalidating the Age Discrimination in Employment Act's attempt to waive state sovereign immunity as not properly authorized under section 5 of the Fourteenth Amendment). This basic constitutional infirmity has now been found in another important component of the same legislation that is the source of the statute under scrutiny here. See Brzonkala v. Virginia Polytechnic Inst., 169 F.3d 820, 830-889 (4th Cir. 1999), cert, granted, 120 S. Ct. 11 (1999) (U.S. Nos. 99-5 & 99-29) (invalidating the civil action created in the Violence Against Women Act of 1994 as not properly authorized under the Commerce Clause or section 5 of the Fourteenth Amendment).
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In addition, the Supreme Court has become increasingly aggressive in invoking the Tenth Amendment to strike down federal statutes that intrude upon the functions and operations of state and local governments. See, e.g., New York v. United States, 505 U.S. 144 (1992) (invalidating portions of the Low-Level Radioactive Waste Policy Amendments Act of 1985 on Tenth Amendment grounds); Printz v. United States, 521 U.S. 898 (1997) (invalidating portions of the Brady Handgun Violence Prevention Act on Tenth Amendment grounds). In the wake of these decisions, it is clear that the long period of freewheeling congressional power to address any and all policy concerns, regardless of the effect on the constitutional balance between federal power and state and local authority, is now past.
At the time that 42 U.S.C. § 14141 was enacted, however, this seismic shift in the Supreme Court's jurisprudence was not yet apparent. As a result, this statute contains no clear identification of the source of constitutional authority that Congress relied upon to enact it. The legislative history is virtually barren, and contains no findings that would have justified Congress in invoking any particular source of constitutional authority. For these reasons, and because of the substantial extent to which any application of this statute would intrude upon state and local authorities, it cannot be upheld in the face of such a constitutional challenge.
A. This Statute Is Not Justified on Commerce Clause Grounds In Lopez, the Supreme Court identified three proper categories of federal legislation under the Commerce Clause: laws regulating the channels of interstate commerce, laws regulating the instrumentalities of interstate commerce, and laws regulating activities which substantially affect interstate commerce. See Lopez, 514 U.S. at 558-59. Here, as in Lopez, the first two categories of congressional authority are "quickly disposed of," since it is clear that 42 U.S.C. § 14141 does not
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regulate either the "channels" or "instrumentalities" of interstate commerce. Id. at 559; see also Brzonkala, 169 F.3d at 831 n.4.
This statute also cannot be justified on the basis that it "substantially affects" interstate commerce. As in Lopez, which considered the constitutionality of the Gun-Free School Zones Act, the activity being regulated here is non-economic in nature and "is not an essential part of a larger regulation of economic activity." 514 U.S. at 561; see also id. at 559-67. And the statute at issue here, like the ban on guns in the vicinity of schools that was struck down in Lopez, cannot be sustained "under our cases upholding regulation of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." Id. at 567. Indeed, even the fact that the guns at issue in Lopez were originally sold in interstate commerce did not save the constitutionality of that law. Because the connection to interstate commerce is even more tenuous here, this statute does not fall "within the fair ambit of the Court's practical definition of commercial regulation." Id. at 573-74 (Kennedy, J., concurring); see also Brzonkala, 169 F.3d at 834-36 (same).
Moreover, this statute shares the fundamental procedural defects that the Court identified with the law struck down in Lopez. As was true of the Gun-Free School Zones Act, this statute lacks ajurisdictional element. See 514 U.S. at 561; see also Brzonkala, 169 F.3d at 831-33, 836. Thus, Congress did not even attempt to assert that this statute was authorized under the Commerce Clause. Moreover, this statute shares the fundamental defect that the Court emphasized in Lopez, fox here as there Congress made no. findings to establish the necessary factual.connection to justify, this measure as "having a substantial relation to interstate commerce." Id. at 558-59. The Lopez Court noted that such legislative findings "would enable [the Court] to evaluate the legislative judgment
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that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye," and stated that the lack of any such findings was crucial to its decision to invalidate the challenged measure. Id. at 563. Without this essential foundation, the courts are simply left "to pile inference upon inference" in order to sustain this statute on commerce clause grounds. This the Court refused to do in Lopez because the Constitution confers no "general police power" upon Congress. Id. at 567. For all of these reasons, this statute cannot be upheld as a valid exercise of congressional authority under the Commerce Clause.
B. This Statute Is Not Justified Under Section 5 of the Fourteenth Amendment Although there is no jurisdictional element in 42 U.S.C. § 14141 to link it to congressional exercise of the enforcement power conferred under section 5 of the Fourteenth Amendment, the Government likely will assert this basis as the constitutional authority to justify this statute. In the past several years, the Supreme Court has developed a new test for determining whether Congress may permissibly invoke this authority to justify its legislative enactments, and has applied that test vigorously to invalidate the application of several statutory provisions. See, e.g., City ofBoerne, 521 U.S. at 516-36; Florida Prepaid, 119 S. Ct. at 2205-11; Kimel, 120 S. Ct. at 644-50; see also Brzonkala, 169 F.3d at 861-889. The test for applying section 5 has two parts. First, under the guise of enforcing the Constitution, Congress may not "define its own powers by altering the Fourteenth Amendment's meaning." City of Boerne, 521 U.S. at 529. This statute does not appear to suffer from that infirmity. Second, "[w]hile preventive measures are.sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved." Id. at 530. "Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one."
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Id. Of particular concern are statutes whose "[s]weeping coverage ensures [their] intrusion" upon state and local governments, "pervasively prohibiting] constitutional state action in an effort to remedy or to prevent unconstitutional state action." Id. at 532-33. Such enactments are not valid under section 5 because they reflect "a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved." Id. at 533.
This requirement of "proportionality" and "congruence" between the "means-end fit" is the constitutional problem presented by 42 U.S.C. § 14141 as an exercise of Congress's authority under section 5. The stated purpose of the Court's new test is to preserve "vital principles necessary to maintain separation of powers and the federal balance." Id. at 536. This untested statute, as wielded by the Government in its complaint in this case, flunks that constitutional test of "proportionality" and "congruence."
One means of making this determination is "by examining the legislative record containing the reasons for Congress' action." Kimel, 120 S. Ct. at 648. Here, as in Kimel, this examination turns up little or nothing to indicate that this statute is more than an "unwarranted response to a perhaps inconsequential problem." Id. at 648-49. As noted earlier, there is no legislative history at all to support the rationale for this provision as contained in the 1994 legislation. A predecessor proposal that was not enacted had generated one brief committee report, which referred to a handful of examples of such alleged police misconduct around the country, including anecdotal and affidavit submissions, and referred to two cases adjudicated in Washington and North Carolina that had resulted in large damage awards against the offending departments and officers. See H.R: Rep. No. 242, 102d Cong., 1st Sess, at 402-03 (1991). As the Supreme Court found in Kimel, this sparse evidence "falls well short of the mark," relying largely on undocumented allegations and failing "to
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identify a widespread pattern" of unconstitutional conduct that had gone unredressed. Kimel, 120 S. Ct. at 649-50. "The appropriateness of remedial measures must be considered in light of the evil presented. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one." Id. (quoting City o/Boerne, 521 U.S. at 530). Therefore, as in Kimel, a full review of this statute's legislative history "confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field." Id. at 650; see also Florida Prepaid, 119 S. Ct. at 2210 ("The legislative history thus suggests that the Patent Remedy Act does not respond to a history of 'widespread and persisting deprivation of constitutional rights' of the sort Congress has faced in enacting proper prophylactic legislation.") (quoting City ofBoerne, 521 U.S. at 526).
Another matter to consider in making this constitutional determination is the proposed application of this statute in this case. In its complaint, the Government asserts that the defendant, through the Columbus Division of Police, has engaged in a "pattern or practice of conduct" that has violated the constitutional rights of individual citizens. See Complaint f 1. Yet the complaint provides absolutely no concrete facts to support these assertions. No numbers, description, details, or facts of any specific incidents are presented. Instead, the Government simply makes sweeping generalizations alleging, among other things, that defendant has "tolerated" this unspecified conduct. Id. On this conclusory basis, it is apparent that the Government seeks a broad structural injunction that would allow federal officials to assert pervasive control over the Columbus Division of Police. The federal control would extend to all aspects of the police officers' authority to exercise the police powers by training new and current officers, supervising their performance of their duties, monitoring their daily responsibilities, investigating all complaints filed by any individual, and by assuming control of the manner in which police officers are disciplined — thereby displacing the
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operation of city charter provisions, municipal ordinances, department policies, and existing labor agreements. The clear effect of the relief sought by the Government in this case would be precisely what the Court directly condemned in the City ofBoerne case as unacceptably disproportionate: to "pervasively prohibit constitutional state action in an effort to remedy or to prevent unconstitutional state action." Id., 521 U.S. at 532-33; see also Florida Prepaid, 119 S. Ct. at 2210; Kimel, 120 S. Ct. at 649-50.
The "proportionality" and "congruence" of such sweeping relief is thus highly questionable. In any instance where an officer engages in conduct that violates an individual's constitutional rights, the aggrieved party already can sue the officer in federal court under 42 U.S.C. § 1983 for compensatory damages, appropriate injunctive relief, and full payment of attorney's fees. Indeed, as explained further below, the same predicate showing what is necessary to prevail in such a lawsuit must be established in this case for each asserted violation that is alleged to form part of the "pattern or practice" of which the Government complains. See Section II, infra. In addition, the Federal government can respond to any egregious violations of individual rights by prosecuting the offending officers under the federal criminal laws that have long protected individual citizens against the abuse of their civil rights. See 18 U.S.C. §§ 241, 242^ These existing provisions are carefully tailored to remedy the effects of specific violations of individual rights. They are strikingly different from the much broader institutional response embodied in 42 U.S.C. § 14141, which is frankly disproportionate to any perceived justification for this statute, and is being invoked by the Government in this case in an effort to obtain a structural injunction that would authorize it to control the daily activities, policies, and decisions of the Columbus Division of Police.
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The Supreme Court has squarely stated its own disapproval of such broad institutional remedies imposed by the federal courts in the context of the state and local police power. In Rizzo v. Goode, 423 U.S. 362 (1976), the Court considered whether to uphold the terms of a broad preventive injunction that the lower courts had imposed upon the Philadelphia Police Department in a class action alleging a pervasive pattern of illegal and unconstitutional police mistreatment of minority citizens. The substance of the allegations related to 28 incidents over the course of a year, and the Supreme Court accepted for purposes of its decision that 16 of the incidents were established as instances where individual police officers committed violations of constitutional rights. Id. at 367-68. Based on these incidents, the lower courts entered an injunction mandating a "comprehensive program for dealing adequately with civilian complaints," which included revisions to the existing police manuals and procedures and revisions to the procedures for processing, investigating, and adjudicating complaints against officers.
The Supreme Court noted that injunctive relief was proper under 42 U.S.C. § 1983, but overturned this structural injunction, holding that the "scope of federal equity power" should not be extended "to the fashioning of prophylactic procedures for a state agency designed to minimize this kind of misconduct on the part of a handful of its employees." Id. at 378. The Court also noted that "important considerations of federalism are additional factors weighing against" the imposition of such relief, for when "the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law." Id. (quotation omitted). This is especially true, the Court emphasized, when the police power and the criminal justice process would be affected by such relief, for "a major continuing intrusion of the equitable power of the federal courts
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into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this Court has recognized." Id. at 379-80 (quoting O'Shea v. Littleton, 414 U.S. 488, 502 (1974)). The Court thus overturned the injunction, holding that it imposed an impermissibly "sharp limitation on the department's latitude in the dispatch of its own internal affairs." 423 U.S. at 379 (quotation omitted).
The same concerns are obviously just as pertinent in this case. In this case, the Government seeks to impose injunctive restrictions against the Columbus Division of Police that are even more sweeping than those struck down in Rizzo — restrictions that would dictate the training, supervision, and monitoring of officers' daily activities, the investigation and adjudication of all complaints, and the processes used to discipline officers. Here, as in Rizzo, such broad relief would impose an impermissibly "sharp limitation on the department's latitude in the dispatch of its own internal affairs" that would contravene "important considerations of federalism." Id. at 378-80. The mere fact that Congress has authorized equitable relief under 42 U.S.C. § 14141, just as it has done under 42 U.S.C. § 1983, does not justify an intrusive structural injunction of the type that the Government is seeking in this case. See Rizzo, 423 U.S. at 378-80.
C. Application of This Statute in This Case Would Violate the Tenth Amendment Finally, the imposition of a broad structural injunction in this case to control the everyday affairs of the Columbus Division of Police would run afoul of the Tenth Amendment. In Printz, the Court struck down portions of the Brady Handgun Violence Prevention Act on the grounds that it improperly altered the constitutional federal-state balance by effectively commandeering state and. local officials into the service of federal policy objectives. See id., 521 U.S. at 904-33. While an individualized injunctive remedy that was carefully tailored to prevent a specific harm would not
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necessarily run afoul of this provision, a broad structural injunction that would place federal officials effectively in charge of the routine details of the activities, decisions, and policies of the local police in the exercise of their duties cannot be upheld under the Tenth Amendment. See id. at 921 ("municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere") (quotation omitted); id. at 922 (the Federal Government's power "would be augmented immeasurably if it were able to impress into its service — and at no cost to itself—the police officers of the 50 States."); see also Rizzo, 423 U.S. at 378-80 (such broad equitable relief imposed to control the practices and procedures of local police departments would contravene "important considerations of federalism"). II. In Any Event, the Allegations in This Complaint Do Not Suffice to Establish
a "Pattern or Practice of Conduct," as This Language Must Be Construed Even if the Court were to uphold 42 U.S.C. § 14141 on its face as having been enacted within Congress's proper legislative authority, there are grave difficulties in construing this statute so as to avoid constitutional infirmities in its application. Most importantly, the requisite "pattern or practice of conduct" must be strictly construed in order to prevent this statute from running afoul of the proportional "means-end" fit that the Supreme Court has now formulated and applied as the basic test for determining whether Congress had the necessary authority to legislate under section 5 of the Fourteenth Amendment. When that strict standard of proof is correctly applied in this case, it is apparent that the vague and generalized allegations presented in the Government's complaint do not meet its threshold burden for surviving a motion to dismiss.
A. The Supreme Court Has Strictly Defined a Statutory "Pattern or Practice" -14-

The language of 42 U.S.C. § 14141 has never before been construed or applied by any court. Nonetheless, the Supreme Court has definitively interpreted the same critical phrase — "pattern or practice" of unlawful conduct — in addressing the elements of proof necessary to establish a valid claim under section 703(a) of Title VII. See International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977). In that decision, the Court held that to bear its burden of showing a "pattern or practice" of violations under Title VII, "the Government ultimately had to prove more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts." Id. at 336. Instead, the Government had to establish that such unlawful conduct "was the [defendant's] standard operating procedure — the regular, rather than the unusual, practice." Id.; see also Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 (1984) (same). In the Teamsters case, the Court concluded that the Government had carried its burden by presenting detailed statistical evidence of illegal discrimination, along with individual testimony that established more than forty specific instances of unlawful conduct. See 431 U.S. at 337-43.
The Seventh Circuit applied this holding more recently in King v. General Elec. Co., 960 F.2d 617 (7th Cir. 1992). In King, several former employees brought a class lawsuit against their employer alleging that they had been targets of age discrimination. Although they marshaled a limited amount of statistical evidence to bolster their claims, the court applied the Teamsters decision and held that seventeen instances over three years were insufficient to constitute the requisite "pattern or practice" of age discrimination to support the class lawsuit. See id. at 619-27. The case thus reinforces the point that a small number of alleged incidents cannot, by themselves,, satisfy the more rigorous statutory requirement of a "pattern or practice" of unlawful conduct.
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In addition, under this statute it is clear that the Government must show that each incident alleged to form part of the supposed "pattern or practice of conduct" must itself satisfy the statutory requirements for making out a proper claim under 42 U.S.C. § 1983. That is, it does not suffice for the officers merely to have acted "improperly" or "unreasonably" in specific instances. In each case, their conduct must rise to the level of an actual violation of an individual citizen's constitutional rights, and the Government will bear the burden of proof in demonstrating that this did indeed occur. In this regard, at least, this statute is very specific. See 42 U.S.C. § 14141 (referring to "a pattern or practice of conduct by law enforcement officers . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States"). This legal prerequisite further limits the Government's ability to allege and prove a proper case here.
B. This Statute Must Be Construed Strictly to Avoid Constitutional Concerns In addition, the Court must construe 42 U.S.C. § 14141 strictly to avoid the constitutional questions raised and discussed in Section I, supra. It is axiomatic that the federal courts are obliged to give federal statutes a reasonable construction so as to avoid difficult constitutional problems "unless such construction is plainly contrary to the intent of Congress." See, e.g., United States v. Winstar Corp., 518 U.S. 839, 875 (1996) (quoting Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1987)); United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994) (same). If this Court were to construe the statutory "pattern or practice" requirement so that it could be met by a few isolated incidents of improper conduct by individual officers, then this statute would run up against the very constitutional concerns that the Supreme Court discussed in detail in the Rizzo case. See 423 U.S. at 378-80. At a minimum, the Court must construe this language more
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strictly than the Supreme Court construed Title VII's similar "pattern or practice" language in the Teamsters case and than the Seventh Circuit applied it in the King case. In the latter case, in particular, the court's holding (with no pressure from any constitutional backdrop) that seventeen instances of improper conduct over three years was insufficient to constitute a "pattern or practice" of illegal age discrimination provides useful guidance in applying in this case what must be the even more rigorous requirements of 42 U.S.C. § 14141. See King, 960 F.2d at 619-27; see also Rizzo, 423 U.S. at 368, 373-80 (sixteen alleged incidents where officers were presumed to have violated constitutional rights over the course of a year did not suffice to justify a broad preventive injunction reconstituting police policies and procedures). Any lesser threshold of proof would negate any possible view that this legislation's "means-end" fit under section 5 of the Fourteenth Amendment is proportionate and constitutionally permissible under the Supreme Court's recent decisions in City ofBoerne, Florida Prepaid, and Kimel.
C. The Allegations in This Complaint Do Not Meet This Strict Standard By contrast to these strict standards that must be adopted in applying 42 U.S.C. § 14141, the extremely generalized complaint in this case falls far short of making out a proper claim for relief. The Government has alleged no facts to allow the Court to test the sufficiency of its claims as a legal matter, and has not alleged the necessary facts for properly pleading a "pattern or practice" claim. The Supreme Court has rejected a "heightened pleading standard" for cases brought under 42 U.S.C. §1983. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). However, lower courts have held that when a "pattern or practice" of abuse has been alleged under 42 U.S.C. §1983 specific facts supporting the allegation must be plead in order for the complaint to survive a motion to dismiss. See. e.g. Carroll v. Bristol Township, 827
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F. Supp. 332,335 (E.D. Pa. 1993)(granting a motion to dismiss because the plaintiff did not allege specific conduct supporting a broad allegation that the municipality maintained a policy or custom of failing to train its officers); East v. City of Chicago, 719 F. Supp. 683, 692-93 (N.D. I11.1989)(granting a motion to dismiss because plaintiff merely asserted the existence of a policy or custom without alleging specific facts evidencing its existence); Atchinson v. District of Columbia,, 73 F.3d, 422-23 (D.C. Cir. 1996)(holding that a pleading alleging a single specific instance of improper training in the use of force could withstand a motion to dismiss, but only if that instance was so unusually serious as to raise doubts about a municipality's training policies).
In the current case, the complaint merely repeats the conclusory assertion that defendant has engaged in a "pattern or practice of conduct" with no particulars to support this assertion. Additionally, as discussed in the following section, the Government's burden of alleging specific incidents in support of their "pattern or practice" claim is likely governed by a 2-year statute of limitations period. This factor serves to severely limit the scope of alleged violations that the government may examine. No specific incidents of any actual constitutional violations are described in the complaint. The principles of "notice pleading" have been stripped so bare as to be nonexistent in this case, the critical omissions that have resulted simply will not suffice to allow the Government's claim to proceed to trial. See, e.g., Scheid, 859 F.2d at 436 ("more than bare assertions of legal conclusions is ordinarily required to satisfy federal notice pleading requirements").
If the Court is to apply the strict threshold of proof that must be adopted in view of the serious concerns about the constitutionality of 42 U.S.C. § 14141, then it must be applied in a meaningful way and the Government must provide much more than it has done here to state a proper
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claim upon which relief may be granted. See, e.g., Scheid, 859 F.2d at 437 ("when a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist") (quoting O'Brien v. DiGrazia, 544 F.2d 543, 546 n.3 (1st Cir. 1976), cert, denied,431 U.S. 914 (1977)). Even when viewed under the liberal pleading standards of Federal Rule of Civil Procedure 8, the Government's complaint falls short of alleging even the barest of facts necessary to survive a Motion to Dismiss. III. The Allegations in This Complaint Do Not Satisfy the Statute of Limitations
A. These Allegations Must Be Governed by a 2-Year Limitations Period The statute invoked in this case contains no prescribed limitations period for the cause of action that it purports to create. See 42 U.S.C. § 14141. In this posture, the Supreme Court has indicated that the federal courts are to borrow the most appropriate state statute of limitations to govern the federal claim. See Wilson v. Garcia, All U.S. 261, 268-69 (1985). Here, where the federal claim depends upon establishing a "pattern or practice" of conduct, each instance of which must be found independently to violate 42 U.S.C. § 1983, the proper limitations period is the same one that governs federal claims brought under that provision. In Owens v. Okure, 488 U.S. 235 (1989), the Supreme Court held that all section 1983 claims should be governed by the state statute of limitations for personal injury claims. Id. at 240-41. The Sixth Circuit has applied Owens to hold that section 1983 claims arising in Ohio are governed by the 2-year period applicable to state actions for bodily injury. See Browning v. Pendleton, 869 F.2d 989, 990-992 (6th Cir. 1989). The same 2-year limitations period must govern the Government's claim in this case, particularly when this statute is construed in light of the serious underlying concerns about its constitutional validity.
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B. This Complaint Is Too Vague to Survive Application of the 2-Year Period The complaint filed in this case, as noted earlier, contains no facts to support the generalized allegation that defendant, through the Columbus Division of Police, has "engaged in a pattern or practice of subjecting individuals to excessive force, false arrests and charges, and improper searches and seizures." Id. f 1. No names are provided, no dates or locations are alleged, and no description, details, or facts of any specific incidents are presented. Instead, the Government has simply offered conclusory assertions that do not permit either the defendant or this Court to test the legal sufficiency of the Government's claims on the face of the complaint. In particular, with a complaint that provides no specifics of any alleged incidents and no dates when they occurred, it is not possible to determine whether the Government's claim survives application of the proper limitations period. Not only is it unclear from the face of the complaint whether any alleged incidents occurred within the governing 2-year period, but the Government fails to establish that the strict threshold for establishing a "pattern or practice" of improper conduct can be met by occurrences that fall within the 2-year period. These serious pleading deficiencies do not permit the Court to sustain the relief requested or to accept as true any of the necessary legal conclusions or factual inferences that are not supported by the lack of substance provided in this complaint. See, e.g., Scheid, 859 F.2d at 436-37; Lewis, 135 F.3d at 406-07; Morgan, 829 F.2d at 12. On these grounds, therefore, the pervasive omissions in these pleadings warrant dismissal of the Government's complaint.
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CONCLUSION For the foregoing reasons, Defendant respectfully requests that the Court address the critical issues involved in interpreting and applying this new statute to the allegations raised in this case, and upon doing so to grant the defendant's motion to dismiss this complaint.
Respectfully submitted:

Janet E. Jackson itorney
A
Glenn B.kedick Chief Litigator

Dated: February 9, 2000

TimotnV J. Mangan X. Senior Litigation Attorney \ 90 WeWfiroad Street, Roam^00 Columbus, Ohio 43215 \ \ (614)645-7385 Attorneys for Defendant

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CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Defendant City's Motion to Dismiss was sent

by regular U.S. Mail, postage prepaid, to:

Sharon J. Zealey United States Attorney Southern District of Ohio Two Nationwide Plaza 4th Floor 280 North High Street Columbus, Ohio 43215

Steven H. Rosenbaum Chief Special Litigation Section Civil Rights Division U.S. Department of Justice P.O. Box 66400 Washington, D.C. 20035-6400

Mark A. Posner Attorney Special Litigation Section Civil Rights Division U.S. Department of Justice P.O. Box 66400 Washington, D.C 20035-6400

James E. Phillips 52 East Gay Street P. O. Box 1008 Columbus, Ohio 43216-1008

Mark Masling Senior Trial Attorney Special Litigation Section POB 66400 Washington, DC 20035-6400

this

day of February 2000.

Timothy jNMangan Senior Litigation Attorn^';

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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
CITY OF COLUMBUS, OHIO, et al., Defendants.

Civil Case No. C2-99-1097 JUDGE HOLSCHUH MAGISTRATE JUDGE KING

MOTION FOR JUDGMENT ON PLEADINGS BY THE FRATERNAL ORDER OF POLICE. CAPITAL CITY LODGE NO. 9
Defendant Fraternal Order of Police, Capital City Lodge No. 9 ("FOP") hereby moves for a judgment on the pleadings in favor of Defendants pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The FOP's Memorandum of Law in Support of Motion for Judgment on Pleadings is attached to and made a part of this Motion.
Respectfully submitted, VORYS, SATER, SEYMOUR AND PEASELLP

US v. City of Columbus PN-OH-001-008

James E. Phillips (

Trial Attorney

52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 (614)464-5610

Trial Attorney for Defendant Fraternal Order of Police, Capital City Lodge No. 9

MEMORANDUM OF LAW OF FRATERNAL ORDER OF POLICE, CAPITAL CITY LODGE NO. 9, IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS I. Introduction--The Complaint Fails To Allege The Culpability Of Or Causation Bv The Citv Of Columbus The Department of Justice ("DOJ") is suing the City of Columbus (the "City"), not individual police officers. The Complaint alleges that the Citv "tolerated" the alleged misconduct of police officers by "failing to" take certain actions adequately (H9). The Complaint does not allege that the City knew of a pattern or practice of violations of constitutional rights, does not allege that the City participated in a pattern or practice of violations of constitutional rights and does not allege that the City was the moving force in a pattern or practice of violations of constitutional rights. Even if the allegations against the police officers were true—and they are not—the allegations in the Complaint against the City do not state a claim upon which relief can be granted.1 Legislative history and judicial decisions interpreting the related statute, 42 U.S.C. §1983,2 show that two of the necessary elements of a cause of action against a municipality under 42 USC §14141 are: (1) the municipality, not simply some of its employees, must be
deliberately indifferent to the violation of constitutionalrights; and
1 Rather than repeating them here, the Fraternal Order of Police, Capital City Lodge No. 9 (the "FOP") incorporates by reference the arguments of the City in its Motion to Dismiss.

(2) the municipality, not simply some of its employees, must be
the moving force behind the violation of constitutional rights. The Complaint does not allege facts supporting either of these necessary elements of a cause of action.
II. A Complaint Must Allege Facts Supporting Each Material Element Necessary For A Claim For Relief3 The Sixth Circuit has rejected the idea that a complaint only needs to put
the opposing party on notice of the nature of a claim.4 Venev v. Hoaan, 70 F. 3d 917,921 (6th Cir. 1995). In Venev, the Sixth Circuit said "[t]here is an unfortunate tendency in some quarters to overstate the liberality of the reform in pleading practice wrought by the adoption of Federal Rule of Civil Procedure 8." Id. Observing that "[s]ome appear to argue that one need only place the opposing party 'on notice1," the Sixth Circuit concluded that 'In reality the rule envisions a 'statement of circumstances, occurrences, and events in support of the claim presented'..." id. at 921-922 (emphasis added), not simply conclusorv allegations.
A "complaint must contain either direct or inferential allegations with respect to all material elements necessary to sustain a recovery under some
2 The FOP agrees with the City that for purposes of interpreting "pattern or practice" in §14141, cases interpreting the meaning of "pattern or practice" under Title VII are applicable. 3 The defendant FOP is filing this Motion for Judgment on the Pleadings pursuant to Federal Rule 12(c). Since no matters outside the pleadings are raised, this "motion for judgment on the pleadings is treated like a motion to dismiss under Rule 12(b)(6)." Svncsort, Inc. v. Sequential Software, Inc., 50 F.Supp. 2d 318,324 (D.N.J. 1999). The cases cited in this section therefore are cases involving motions to dismiss.

viable legal theory." (emphasis added). See Weiner v. Klais & Co., Inc., 108 F. 3d 86, 88 (6th Cir. 1997); Lewis v. ACB Bus. Servs., 135 F.3d 389, 406 (6th Cir. 1998); and Jackson v. City of Columbus, 194 F.3d 737, 755 (6th Cir. 1999). Vague allegations of "fact" or conclusory legal allegations are not sufficient to survive a motion to dismiss. For instance, in Kesterson v. Moritsuau, 1998 U.S. App. LEXIS 12182, **11-12 (6th Cir. 1998) (Exhibit A), the Sixth Circuit affirmed the district court's dismissal of the complaint, since the complaint made "only vague and conclusory allegations" with regard to defendants. The Sixth Circuit added that plaintiff "must allege that [defendant! took specific actions that constituted deliberate indifference rather than simply failure to treat or negligence. He has not done so." ig\ at *12 (emphasis added). In Lewis v. ACB Bus. Servs.. 135 F.3d at 408, the Sixth Circuit held that the allegation defendant was a "creditor" was a "bare legal conclusion", not a material allegation of fact.
In addition, "unwarranted factual inferences" do not constitute material allegations. McBride v. Village of Michiana, 1994 U.S. App. LEXIS 19679, *8 (6th Cir. 1994) (Exhibit B). For instance, in Jackson v. City of Columbus, 194 F.3d at 757, the Sixth Circuit said "Jackson has only made bare allegations that the publication of the report was motivated in part as a response to his intended speech...." The Sixth Circuit added that the "lapse of time makes it unlikely that the report was published in response to his intended speech "and held that the
4 The FOP agrees with the City that the Complaint in fact does not even put the Defendants on notice of what the claims of the DOJ are.

complaint did not state a cause of action for violation of the First Amendment." ]d. at **45-46.
The next two sections of this Memorandum show that (1) cases interpreting 42 U.S.C. §1983 are the standard for determining the material elements for municipal liability under §14141, and (2) two of the material elements of a cause of action against a municipality under 42 U.S.C. §14141 are culpability of and causation by the municipality, rather than its employees. Section V of this Memorandum then shows that the Complaint does not allege material facts which satisfy either of these two elements, causation or culpability.5
III. Section 1983 Cases Are The Standard For Determining Whether There Has Been A Violation Of Rights Bv The Municipality Within The Meaning Of 42 U.S.C. $14141
Although there is no separate legislative history for the bill that was enacted and codified at 42 U.S.C. §14141 (Exhibit C), or judicial decisions interpreting 42 U.S.C. §14141. the legislative history of the predecessor bill to §14141 is instructive. That predecessor, section 1202(a)(l) of the Omnibus Crime Control Act of 1991.provided "[i]t shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law
5 In its Motion to Dismiss, the City points out that the Complaint fails to allege facts to support two other elements: (1) the existence of a pattern or practice of violation of rights; and (2) the rights violation which form the pattern or practice must be constitutional rights. The FOP agrees with the City that the Complaint does not set forth allegations of fact which satisfy these two elements.

enforcement officers that deprives persons of rights, privileges or immunities, secured or protected by the Constitution or laws of the United States" (Exhibit D).6 In explaining section 1202(a) of the Omnibus Crime Control Act of 1991, House Report 102-242 noted that the DOJ did not then have the right to sue police departments for injunctive relief for violating the constitutional rights of citizens and indicated Congress was simply trying to remedy "a serious and outdated gap in the federal scheme for protecting constitutional rights" (Exhibit Eat 367).
The Omnibus Crime Control Act of 1991 would have given the Department of Justice such authority to sue for injunctive relief, not change the responsibilities of police departments. The House Report said:
The Act does not increase the responsibilities of the police departments or impose any new standards of conduct on police officers. The standards of conduct under the Act are the same as those under the Constitution, presently enforced in damage actions under section 1983. (Exhibit Eat 368) (emphasis added). Given the identity in wording on this point, it is evident that section 1202(a)'s successor, 42 U.S.C. §14141, was not meant to expand the substantive scope of 42 U.S.C. §1983, but was simply meant to give the DOJ authority to sue for injunctive relief. As a result, § 1983 cases are the
6 The only change from § 1202(a) of the Omnibus Crime Control Act of 1991 to 42 USC §14141 was the addition of "or by officials or employees of any governmental agency with the responsibility for the administration of juvenile justice or the incarceration of juveniles" after "law enforcement officers" in §1202(a).

/

standard for determining the elements of municipal liability under 514141 for

violations of constitutional rights by employees of the municipality.

IV. In Order To Be Liable. A Municipality . Not Its Employees, Must Be Deliberately Indifferent To The Rights Of Its Citizens and The Moving Force Behind The Violation of Rights

Before a municipality can be legally responsible for a violation of

constitutional rights by its employees, a municipal policy must have caused the

injury. In Canton v. Harris. 489 U.S. 378 (1989), an individual alleged that during

her arrest the police officers improperly failed to summon necessary medical

assistance. The fact that an employee of the city, a police officer, caused the

injury and that the training program may have been negligently administered,

did not establish municipal liability. The Supreme Court said "[n] either will it

suffice to prove that an injury or accident could have been avoided if an officer

had had better or more training ..." |a\ at 391. The Supreme Court held that "the

inadequacy of police training may serve as a basis for § 1983 liability [of a

municipality] only where the failure to train amounts to deliberate indifference

to the rights of persons with whom police come into contact." |d. at 388

(emphasis added). In addition, the Supreme Court held that "respondent must

still prove that the deficiency in training actually caused the police officer's

indifference to her medical needs." id. at 391 (emphasis added).

In Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992), the Supreme

Court held that it is "necessary to analyze whether execution of a municipal

policy inflicted the injury in these cases because, unlike ordinary tort litigation,

8

the doctrine of respondeat superior was inapplicable." The Supreme Court added that a municipality "is only liable when it can be fairly said that the city itself is the wrongdoer." Id. (emphasis added).
The Supreme Court affirmed the distinction between municipal culpability and employee culpability in Board of Commissioners v. Brown. 520 U.S. 397, 406407 (1997). The Supreme Court said the fact that a plaintiff had "suffered a deprivation of federal rights at the hands of a municipal employee will not alone permit an inference of municipal culpability and causation; the plaintiff will simply have shown that the employee acted culpably" (emphasis added). The Supreme Court held that a municipality could not be found liable "unless deliberate action attributable to the municipality itself is the 'moving force1 behind the plaintiff's deprivation of federal rights." id. at 400 (emphasis added), quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 (1978). The Supreme Court in Brown also said that a plaintiff must demonstrate the municipal action was taken with the deliberate indifference to its consequences. 520 U.S. at 407.
The Sixth Circuit has applied the requirements of culpability and causation for municipal liability. In Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994), cert, denied, 513 U.S. 1111 (1995), a jury had awarded Doris Berry $6,000,000 for the death of her son, who had been shot by a Detroit police officer. The Sixth Circuit reversed, concluding that "in order for plaintiff to prevail, there must be sufficient evidence for the jury to conclude that the city's failure in this regard [failure to

discipline] amounted to deliberate indifference to the rights of its citizens " id. at 1355 (emphasis added). The Sixth Circuit held that plaintiffs evidence had been insufficient to prove deliberate indifference. The Sixth Circuit also stated that "particularly when we deal with sins of omissions, as opposed to sins of commission, we should be certain that causal linkage is present that makes the omission the proximate cause of the wrong". k± at 1348 (emphasis added).
The Fifth Circuit has also agreed that a condition for holding a city liable under §1983 for the actions of its employees is "culpability and causation." Snvder v. Trepaanier. 142 F.3d 791,795 (5th Cir. 1998), cert, granted, 525 U.S. 1098, cert, dismissed, 119 S.Ct. 1493 (1999). In Snvder, the Fifth Circuit summarized: "First, the municipal policy must have been adopted with 'deliberate indifference' to its known or obvious consequences. Second, the municipality must be the 'moving force' behind the constitutional violation." k l (emphasis added). The Fifth Circuit added that in a previous case it had "noted that mere negligence fell short of the 'deliberate indifference' standard and the '[i]n order for municipal liability to attach, plaintiffs must offer evidence of not simply a decision, but a 'decision by the city itself to violate the Constitution.1" Id. at 796 (citations omitted). V. The Complaint Neither Alleges That The City of Columbus Is Deliberately
Indifferent To The Rights of Citizens Nor That The City Is The Moving Force Behind Violations of Rights The Complaint only alleges "facts" about the City of Columbus in the last sentence of paragraph 1 and in paragraph 9, and both parts of the Complaint
10

make the same conclusory allegation. The Complaint does not allege a municipal policy, but only alleges that the City has "tolerated" police misconduct by "failing": "to implement a policy on use of force that appropriately guides"; "to train officers adequately"; "to supervise CDP officers adequately"; "to monitor CDP officers adequately"; "to establish a procedure whereby citizen complaints are adequately investigated"; "to investigate adequately incidents in which a police officer uses lethal or non-lethal force"; "to fairly and adequately adjudicate or review citizen complaints"; and "to discipline adequately CDP officers who engage in misconduct."
Deliberate indifference means a "'deliberate' or 'conscious' choice by a municipality—a 'policy'". See Canton v. Harris, 489 US at 389. There is no allegation in the Complaint that the City was deliberately indifferent to violations by police officers of the rights of citizens.
Paragraph 9 of the Complaint does allege that the police "tolerated" the misconduct. However, toleration does not suggest a deliberate and conscious choice, but a lack of resistance. For instance, in Barcume v. City of Flint, 819 F.Supp 631, 655 (E.D.Mich. 1993), a §1983 action, the District Court concluded the City of Flint could be held liable if it "knew of, tolerated, and participated in the harassment," quoting Bohen v. East Chicago, 799 F2d 1180, 1189 (7th Cir. 1986). Toleration does not suggest knowledge or participation, and cannot be interpreted to mean deliberate indifference as defined in Canton v. Harris, 489 U.S. at 389, a deliberate or conscious choice-a policy- by a municipality.
11

In addition, the allegation in paragraph 9 of the Complaint is that the Citv "tolerated" police misconduct and "failed to" take certain actions adequately. However, an allegation that a municipality could have taken action to avoid an injury is not sufficient for municipal liability: In Canton v. Harris, 489 US at 391, the Supreme Court said "[n]either will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury - causing conduct." As the Sixth Circuit said in Berry v. Citv of Detroit, 25 F.3d at 1348, "when we deal with sins of omission... we should be certain the causal linkage is present that makes the omission the proximate cause of the wrong." (emphasis added)
There is no allegation in the Complaint that the City was the moving force behind the alleged misconduct. Indeed, since the Complaint alleges the City "tolerated" police misconduct by "failing to" take certain actions adequately, the only reasonable conclusion is something else was the moving force. There can be no municipal liability under 42 U.S.C. §14141 based on an allegation of toleration and failure to act. VI. Conclusion
The Complaint does not allege the City is deliberately indifferent to violations of the constitutional rights of citizens. The Complaint also does not allege the City is the moving force behind violations of rights. Since municipal culpability and causation are two material elements of a cause of action against a municipality under 42 USC § 14141, the Complaint fails to allege facts
12

upon which relief could be granted. This Court should therefore dismiss the Complaint.
Respectfully submitted, VORYS, SATER, SEXMOUR AND PEASE LLP

James E. Phillips (0014542)
52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 (614)464-5610
Trial Attorney for Applicant Fraternal Order of Police, Capital City Lodge No. 9
OF COUNSEL:
John J. Kulewicz (0008376) Douglas L. Rogers (0008125) VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 (614)464-6400
Attorneys for Applicant Fraternal Order of Police, Capital City Lodge No. 9

Attorney

13

CERTIFICATE OFSERVICE I served a copy of this Motion for Judgment on Pleadings and Memorandum of Law in Support upon Mark Masling, Steven H. Rosenbaum and Mark A. Posner, Special Litigation Section, Civil Rights Division, United States Department of Justice, P.O. Box 66400, Washington, D.C. 20035-6400; Sharon J. Zealey, United States Attorney, Two Nationwide Plaza, 280 North High Street, Columbus, Ohio 43215; Glenn B. Redick, Chief Litigation Attorney, Timothy J. Mangan, Senior Litigation Attorney, and Andrea Peeples, Assistant City Attorney, Office of the Columbus City Attorney, 90 West Broad Street, Columbus, Ohio 43215; by first-class U.S. mail on February £8^, 2000.
DouglafL. Rogers (0008126)
14
02/18/00-8613107.2

Get a Document - by Citation - 1998 U.S. App. LEXIS 12182

Page 1 of K

Service: LEXSEE® Citation: 1998 USApp LEXIS 12182
1998 U.S. App. LEXIS 12182, * PAUL KESTERSON, Plaintiff-Appellant, v. DR. KENNETH MORITSUGU, et al., Defendants-Appellees.
No. 96-5898
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
1998 U.S. App. LEXIS 12182
June 3, 1998, Filed
NOTICE: [*1] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 24 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
SUBSEQUENT HISTORY: Reported in Table Case Format at: 1998 U.S. App. LEXIS 22729.
PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY. 96-00248. Forester. 6-21-96.
DISPOSITION: AFFIRMED.
CORE TERMS: heightened, notice, motion to dismiss, Federal Rules, pleading requirement, municipalities, specificity, withdraw, deliberate indifference, filing fee, pro se, deliberately, prisoner, medications, lawsuit, Federal Rules Of Civil Procedure, specialist, recommendation, injunctive relief, prescribed, discovery, motion to withdraw, survive, suffice, legislative process, rulemaking, wheelchair, sufficient to satisfy, construed liberally, qualified immunity
COUNSEL: PAUL C. KESTERSON, Plaintiff - Appellant, Pro se, Lexington, KY.
For KENNETH MORTISUGU, Dr., RAMIREZ, Dr., HARRELL, PAYNE, LOWELL DERTINGER, Dr., Defendants Appellees: Joseph L. Famularo, U.S. Attorney, Shelley Darrell Chatfield, Office of the U.S. Attorney, Lexington, KY.
JUDGES: Before: BOGGS, NORRIS, and MOORE, Circuit Judges. KAREN NELSON MOORE, Circuit Judge, Dissenting.
OPINIONBY: BOGGS
OPINION: BOGGS, Circuit Judge. Paul Kesterson appeals the district court's dismissal, without prejudice, of his complaint asserting a claim of medical deliberate indifference under the Eighth Amendment. We affirm, because Kesterson's pleadings are insufficient to state a claim.
I
A
Kesterson claims to suffer from a degenerated spinal column, [*2] ruptured discs, cancerous bone disease, facet disease, arthritis, bursitis, spurs on the spine, impingement, asthma, gout, ulcers, stomach disease, migraines, sinus blockage, and nerve and anxiety disorders. He is currently an inmate at a federal medical center (FMC) in Lexington, Kentucky.

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In May 1996, Kesterson filed a complaint seeking compensatory and punitive damages, and declaratory and injunctive relief. He claimed that FMC was understaffed and alleged that some of the doctors were not properly trained or certified. He said that he had been denied "specialist prescribed treatments" and "continued to be denied adequate medications to prevent pain and suffering," while given "useless and dangerous medications" that caused pain, suffering, and other side effects. He asserted that he had been denied adequate dental treatment, which left him unable to chew. He claimed that the defendants were engaged in a conspiracy to tamper with his medical records and falsify evaluations to "cover-up and manipulate" his treatment. Finally, Kesterson alleged that he was denied access to a wheelchair that he needed.
Kesterson named five defendants in their personal and official capacities, and [*3] added John/Jane Doe defendants to be named after discovery. The first four defendants — Dr. Kenneth Moritsugu n l (Acting Medical Director of the Bureau of Prisons); Associate Warden Harrell (director of FMC); Hospital Administrator Payne (medical administrator of FMC); and Dr. Richard Ramirez (clinical director at FMC) -were named because they allegedly had full knowledge of conditions at FMC but "failed to enforce the appropriate laws, rules regulations, and policies." In addition, Kesterson alleged, Harrell failed to train the staff properly; Payne overrode various treatment orders for Kesterson; and Ramirez restricted Kesterson's treatment. The failures by Ramirez and Payne were allegedly deliberate.
-Footnotes-
n l Although Moritsugu's name is spelled "Mortisugu" throughout the record, that is incorrect. The spelling of Moritsugu's name is corrected in the rest of this opinion, including direct quotations, without note.
-End Footnotes-
The final named defendant, Dr. Lowell Dertinger, was Kesterson's primary-care physician at FMC. [*4] Kesterson alleged that Dertinger was "illegally practicing medicine under restrictions by . . . Ramirez"; that Dertinger failed to treat Kesterson properly; and that Dertinger failed to report the wrongs committed by other defendants (including, presumably, the Does).
Kesterson sued under five theories, two of which are relevant on appeal. In the first, he alleged a violation of his Eighth Amendment rights, by deliberate indifference to his medical condition. Second, Kesterson sought injunctive relief to guarantee proper medical treatment and prevent retaliation. Because the defendants were federal officials, Kesterson's federal constitutional claims were brought pursuant to Bivens v. Six Unknown Federal Narcotics Agents. 403 U.S. 388. 29 L Ed. 2d 619. 91 S. Ct. 1999 C1971).
B
The case was assigned to a magistrate judge for initial consideration, pursuant to 28 U.S.C. 6 636(b). The magistrate judge granted Kesterson's motion for pauper status. Following the procedures of 28 U.S.C. 5 1915(b) (recently amended pursuant to the Prison Litigation Reform Act (PLRA)), the magistrate judge required Kesterson to pay the full filing fee of $ 120, with an initial partial payment of [*5] $ 10.60 (20% of the six-month average of Kesterson's institutional account balance), and the remainder to be paid by taking money from Kesterson's account each time its balance exceeded $ 10.
In June 1996, the magistrate judge recommended dismissal of the case without prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), which requires the court to dismiss a pauper petition when the court determines that it fails to state a claim on which relief can be granted. The reasons for dismissal were two-fold. First, Kesterson did not sufficiently allege personal involvement by the named defendants — instead he offered only "bare and conclusory allegations," "did not allege that the[] defendants' conduct caused him to be deprived of any constitutional right," and did not show that any defendant deliberately chose or affirmatively adopted the allegedly problematic policies, customs, and practices.
Second, the pleadings were insufficiently specific, not providing a factual basis sufficient to apprise the defendants of the nature of the allegations against them. Because these flaws in the pleadings meant that Kesterson had no likelihood of success on the merits, the magistrate judge also [*6] recommended
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dismissing the claim for preliminary injunctive relief.
Kesterson objected to the magistrate judge's report and recommendation. First, he objected to the filing fee determination. Then, with regard to the recommendation of dismissal, Kesterson challenged the magistrate judge's use of 28 U.S.C. § 1915(e)(2), which he said did not exist, apparently because he did not (or could not) consult the relevant pocket part. The rest of Kesterson's objections essentially reargued his complaint, and said that the complaint was adequate to meet the minimal pleading requirements. He also leveled a broad attack on the magistrate judge's treatment of his complaint, given his pro se status.
On June 2 1 , the district court accepted the magistrate judge's recommendation and rejected Kesterson's objections, after a de novo review but without elaboration. Kesterson's case was thus dismissed, without prejudice. Kesterson filed this timely appeal.

In February 1997, Kesterson filed a motion with this court for injunctive relief. We have the power to grant such an injunction, pursuant to 28 U.S.C. § 1651, to prevent irreparable harm to a party during the pendency of an appeal. See Melamed [*7] v. ITT Continental Baking Co., 592 F.2d 290, 296 (6th Cir. 1979); Eastern Greyhound Lines v. Fusco. 310 F.2d 632. 634 (6th Cir. 1962). Kesterson claimed, as he had below, that he was suffering from pain, to which the defendants were deliberately indifferent.
In August, Kesterson sent the clerk of this court a letter that reads as follows (typographical errors corrected):
I would like to withdraw my appeal . . . and have it remanded back to the District Court, due to the decision of the Sixth Circuit, on Hampton vs. Hobbs. 106 F.3d 1281 f6th Cir. 19971. Which prisoner has to pay for filing fee. I would like it to be sent as soon as possible for to be able to get a stay of order, for my health is in jeopardy, of harms way.
Hampton was a decision by this court in February 1997 that upheld the filing fee requirements of the PLRA. As with Kesterson's motion for injunctive relief, we have not acted on this request.
II
On appeal, Kesterson complains that the PLRA makes.it impossible for him to pursue his lawsuit. He also contends that the district court did not review the magistrate judge's recommendation de novo, as evidenced by its refusal to address any [*8] of his complaints. Finally, he argues that his complaint does in fact state a claim under which relief could be granted.

Kesterson's arguments regarding the unfairness of the PLRA ~ which requires him to pay for this litigation — were mooted by Hampton, as Kesterson noted in his August letter. Therefore, Kesterson's claims regarding both his fees and costs cannot prevail, and we affirm the district court's handling of Kesterson's pauper status.
As for the August letter itself, there is no basis for us both to allow Kesterson to withdraw his appeal, and to remand the case back to the district court. His request appears to us to be an attempt to evade his filing fee requirements. Since it is within our discretion to dismiss an appeal, see FED. R. APP. P. 4(b), we will not do so.
If Kesterson had simply asked us to dismiss his appeal, we would no doubt have accommodated him. However, he did not do so, for obvious reasons. A withdrawal of the appeal would mean that the result below stands, and Kesterson's complaint would be dismissed without prejudice. If Kesterson wanted to pursue his
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claims further (and his letter indicates that he does), he would have to pay another [*9] filing fee. By contrast, if we dismiss the appeal and remand the case (an act for which our authority is unclear), Kesterson would have a live case in the district court without having to pay another filing fee. Indeed, Kesterson's letter seems to say as much — that he wants the appeal dismissed because Hampton requires him to pay his fees. n2
-Footnotes-
n2 Furthermore, while Hampton does moot part of his appeal on the merits, it leaves the other part (which we discuss below) intact.
-End Footnotes-
Looking at this another way, if we ignore Kesterson's request for a remand and construe his letter (as the dissent does) as an unambiguous request to dismiss the appeal, he will be in exactly the same position as in his worst-case scenario (i.e., we reach the merits and affirm the district court). The only potential purpose served by a dismissal is to save Kesterson a fee, and the only way this end is achieved is if we perform a remand of uncertain basis.
Therefore, as this is not a proper motion to withdraw an appeal, [*10] we will consider the appeal on its merits.
B
As a preliminary matter, contrary to Kesterson's suggestion on appeal, the district court is not required to address specifically each of the arguments raised by Kesterson in his objections to the magistrate judge's recommendation. It suffices for the district court to note that the review has been de novo. Juggle v. Seabold. 806 F.2d 87, 92-93 (6th Cir. 1986). Furthermore, since our own review is de novo, McGore, 114 F.3d 601f 604r it is unlikely that the failure by the district court to perform a de novo review would constitute harmful error. Therefore, the only issue for this court to address is the sufficiency of Kesterson's complaint.
The district court held that Kesterson did not allege personal involvement by the defendants. That is, he did not allege that particular defendants performed the acts that resulted in a deprivation of Kesterson's constitutional rights. This is a requirement in Bivens actions such as this one. See Rizzo v. Goode. 423 U.S. 362. 375-16, 46 L. Ed. 2d 561. 96 S. Ct. 598 (1976;): Bivens. 403 U.S. at 390 n.2: Williams v. Mehra, 135 F.3d 1105. 1114 (6th Cir. 19981. The court also held that [*11] Kesterson's allegations were not specific enough to constitute a definite constitutional violation.
We affirm on this basis with regard to all of the defendants, though we pause to consider the allegations against Dr. Dertinger in more detail. The complaint makes only vague and conclusory allegations with regard to "defendants," but it does allege specifically that Dertinger is "failing to treat plaintiff according to accepted professional medical judgment."
These allegations still do not suffice. Kesterson's complaint can be taken to allege poor, inadequate, or negligent treatment, but not the intentional lack of treatment necessary to support a deliberate indifference claim. See Estelle. 429 U.S. 97. 106. 50 L Ed. 2d 251r 97 S. Ct. 285 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs."). Therefore, Kesterson cannot prevail simply by alleging that his condition has worsened, that the "defendants" have "acted in deliberate indifference," and that Dertinger has failed to treat him properly. Instead, [*12] he must allege that Dertinger took specific actions that constituted deliberate indifference rather than simply failure to treat or negligence. He has not done so.
The dissent contends that we "apply a heightened pleading standard." Diss. Op. at 1. While we understand the dissent to disagree with the result we reach, the standard we use is not different from the law of this circuit or "heightened" in any way. The rules we have cited above are well-settled, and require that Kesterson allege that a specific defendant performed a specific act that suffices to state a claim. He has not
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done so. The dissent has not cited any authority, binding or otherwise, to indicate that the particular facts of this case require a different result.

Because the district court correctly dismissed Kesterson's complaint without prejudice, leaving him free to seek relief in district court through the allegation of sufficient facts, we dismiss all of Kesterson's outstanding motions to this court as moot.
Ill
Based on the foregoing, we AFFIRM the district court's dismissal without prejudice of Kesterson's claim.
DISSENTBY: KAREN NELSON MOORE
DISSENT: KAREN NELSON MOORE, Circuit Judge, Dissenting. Because [*13] my colleagues in the majority improvidently exercise jurisdiction and improperly apply a heightened pleading standard in this case, I must respectfully dissent.
I. Withdrawal of Kesterson's Appeal
The majority holds that Kesterson's August letter provides "no basis for us both to allow Kesterson to withdraw his appeal, and to remand the case back to the district c o u r t . . . . As this is not a proper motion to withdraw an appeal, we will consider the appeal on the merits." Slip op. at 6 (citation omitted). On the contrary, while Kesterson's August letter lacks the indicia of a lawyer-drafted motion, nevertheless, it is a proper motion for withdrawal. His letter plainly requested this court to allow him to withdraw his appeal. See Letter from Kesterson to Leonard Green, Clerk of Court, of 8/29/97.
Rule 42(b) of the Federal Rules of Appellate Procedure provides: "An appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the court." Rule 42(b) gives us broad discretion to grant an appellant's motion to withdraw, and absent unusual circumstances, we will normally grant the motion. See, e.g., CHARLES [*14] ALAN WRIGHT, ARTHUR R. MILLER, AND EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3988 (2d ed. 1996) ("A motion by the appellant to dismiss under Rule 42(b) is generally granted, but may be denied in the interest of justice or fairness.") (internal quotation omitted). See also Ormsby Motors. Inc. v. General Motors Corp., 32 F.3d 240. 241 (7th Cir. 19941 ("Rule 42(b) authorizes the court of appeals to dismiss an appeal upon the request of the appellant, subject to appropriate conditions fixed by the court."); HCA Health Servs. of Virginia v. Metropolitan Life Ins. Co.. 957 F.2d 120, 123 (4th Cir. 1992) ("An appellant's motion to voluntarily dismiss its own appeal is generally granted, although courts of appeal have the discretionary authority not to dismiss the case in appropriate circumstances.") In re Memorial Hosp. of Iowa County. Inc.. 862 F.2d 1299. 1303 f7th Cir. 1988) ("An appellant may withdraw its appeal at any time.").
As the foregoing case law demonstrates, an appellant's motion to withdraw his appeal is normally granted unless circumstances dictate otherwise, such as when it would be unjust or unfair to do so. Circumstances in which courts have denied an [*15] appellant's motion to withdraw his appeal include the following: Township of Benton v. County of Berrienr 570 F.2d 114. 118-19 (6th Cir. 978) (denying motion to dismiss filed by one of two appellants because dismissal "would be a meaningless gesture," where both appellants pressed same arguments, and both would be affected by decision); Blount v. State Bank & Trust Co., 425 F.2d 266f 266 (4th Cir. 1970) (denying appellant's motion to dismiss, but granting appellee's because appellant violated briefing schedule and caused appellee to incur "trouble and expense" and to file motion to dismiss); Local 53. Int'l Ass'n of Heat and Frost Insulators v. Voaler. 407 F.2d 1047. 1055 (5th Cir. 1969) (denying motion and affirming on the merits because motion to dismiss was based on unsound argument that appeal from injunction was moot since appellant was voluntarily refraining from enjoined conduct).
In the present case, no circumstances present themselves which would compel this court to deny Kesterson's motion to dismiss. Even the majority recognizes that "[a] withdrawal of the appeal would mean that the result below stands, and Kesterson's complaint would be dismissed without [*16] prejudice." Slip op. at 6.
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42 § 14134

STATE AND LOCAL ENFORCEMENT Ch. 136

(5) $1,000,000 for fiscal year 2000. (Pub.L. 103-322. Title XXI, § 210306, Sept. 13, 1994, 108 Stat. 2071.)
HISTORICAL AND STATUTORY NOTES
Revision Notes and Legislative Reports port No. 103-711, see 1994 U.S. Code 1994 Acts. House Report Nos. 103-324 Cong, and Adm. News, p. 1801.
and 103-489, and House Conference Re-
LIBRARY REFERENCES
American Digest System Appropriation of federal funds, see United States <8=>85.
Encyclopedias Appropriation of federal funds, see C.J.S. United States § 123.
WESTLAW ELECTRONIC RESEARCH
United States cases: 393k[add key number]. See, also, WESTLAW guide following the Explanation pages of this volume.

PART B—POLICE PATTERN OR PRACTICE

§ 1 4 1 4 1 . Cause of action

(a) Unlawful conduct

It shall be unlawful for any governmental authority, or any agent

thereof, or any person acting on behalf of a governmental authority,

to engage in a pattern or practice of conduct by law enforcement

officers or by officials or employees of any governmental agency with

|i| i

responsibility for the administration of juvenile justice or the incar-

ceration of juveniles that deprives persons of rights, privileges, or

immunities secured or protected by the Constitution or laws of the

United States.

(b) Civil action by Attorney General
Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
(Pub.L. 103-322, Title XXI, § 210401, Sept. 13, 1994, 108 Stat. 2071.)

HISTORICAL AND STATUTORY NOTES
Revision Notes and Legislative Reports port No. 103-711, see 1994 U.S. Code 1994 Acts. House Report Nos. 103-324 Cong, and Adm. News, p. 1801.
and 103-489, and House Conference Re-
754

Ch. 136 POLIC
American Digest S) Liability of fedt United S Powers and dui Attorney
Encyclopedias Liability of fedt C.J.S. Un Powers and dui C.J.S. Ati
Attorney genen. United States c See, also, WE.'
§ 14142. c
(a) Attorney Ge The Attorney
data about the
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Revision Notes an 1994 Acts. Hous.
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American Digest S Powers and du
Encyclopedias Powers and di
Attorney gener See, also, WE

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Page 6 ot 10

The majority further acknowledges that Kesterson could refile his complaint at any time, even during the pendency of this appeal. Id. Accordingly, to the extent that Kesterson can refile his complaint, because it was dismissed without prejudice, there is no injustice or unfairness to the appellees in allowing Kesterson to withdraw his appeal. In the absence of any injustice or unfairness to the appellees, we should grant his motion to withdraw his appeal.
I I . Merits of Kesterson's Appeal
Even if it were appropriate for us to reach the merits of this appeal, I would hold that Kesterson's complaint survives the defendants' motion to dismiss. We review de novo the district court's granting of a motion to dismiss. Barrett v. Harrington. 130 F.3d 246. 251 (6th Cir. 19971. cert, denied, U.S. . 140 L. Ed. 2d 670, 118 S. Ct. 1517 (1998). The court must construe the complaint in a light most favorable to the plaintiff, accept all the factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. See id. In order [*17] to satisfy this standard, in the Eighth Amendment context involving medical mistreatment, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97. 106. 50 L. Ed. 2d 251. 97 S. Ct. 285 (19761. A prison official is deliberately indifferent when "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan. 511 U.S. 825. 114 S. Ct. 1970. 1979. 128 L. Ed. 2d 811 (19941.
The following paragraphs of Kesterson's complaint meet the preceding requirements:

P 19 alleges that Kesterson "continues to be denied specialist prescribed treatments"; P 25 alleges that "defendants . . . deliberately override evaluating physician prescriptions of treatments and medications and physicians are regularly restricted by the FMC medical administration . . . ."; P 29 alleges that "defendants knowing that plaintiff cannot masicate [sic] food have and continue to deprive plaintiff [*18] of adequate dental treatment, which continues to cause plaintiff pain, suffering and emotional distress"; P 30 alleges that the defendants "have tampered with plaintiffs medical records to cover-up and manipulate specialist prescribed treatments and treatments attempted to be ordered by various FMC physicians"; P 33 charges that "defendants, knowing that plaintiff needs a wheelchair at times, deliberately refuse to provide plaintiff with a wheelchair . . . ."; P 38 charges that "defendant Dertinger has full knowledge that defendants are . . . restricting plaintiffs needed treatments . . . ."; P 40 charges that "contrary to plaintiffs medical history, defendants have and continue to refuse to provide plaintiff with adequate sleep and stress medications . . . ."; P 42 charges that "plaintiff, has and continues to be subject to long delays to adequate medical treatment, specialists to fully treat his condition and medications necessary to prolong life and to prevent pain and suffering . . . ."

3.A. at 11-16 (Compl.).
Although the complaint does not read with the sophistication and nuance that one would expect from an attorney-draftsman, a pro se litigant need not meet that [*19] level of technical proficiency in order to survive a motion to dismiss. It is well settled that courts construe pro se complaints liberally, ensuring that those complaints satisfy the "notice pleading" requirement of Rule 8(a)(2) of the Federal Rules of Civil Procedure, and no more. See, e.g., Haines v. Kerner. 404 U.S. 519f 520. 30 L. Ed. 2d 652. 92 S. Ct. 594 (1972) (holding that pro se complaints are construed liberally); Jourdan v. Jabe, 951 F.2d 108f 110 (6th Cir. 1991) ("Allegations of a complaint drafted by a pro se litigant are held to less stringent standards than formal pleadings drafted by lawyers in the sense that a pro se complaint will be liberally construed in determining whether it fails to state a claim upon which relief could be granted.") (citing Estelle v. Gamble. 429 U.S. 97. 106. 50 L. Ed. 2d 251. 97 S. Ct. 285 (197611: Vector Research. Inc. v. Howard & Howard Attorneys P.C.. 76 F.3d 692. 697 (6th Cir. 19961 ("Under the liberal federal system of notice pleading, all that a plaintiff must do in a complaint is give a defendant fair notice of what the plaintiffs claim is and the

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grounds upon which it rests.1") (quoting Conlev v. Gibson. 355 U.S. f*201 4 1 . 47. 2 L. Ed. 2d 80. 78 5. Ct. 99 (1957)). Based on the foregoing standards, the allegations in Kesterson's complaint, construed liberally, provide the defendants with fair notice of his claims and the grounds upon which they rest sufficient to satisfy the notice pleading requirement.
Granted, with the exception of P 38 specifically naming Dertinger, several of the other paragraphs of Kesterson's complaint reference the "defendants" collectively. However, in PP 6-10, Kesterson describes who each defendant is and why he is suing that defendant. As a result, although he subsequently references the defendants collectively, construing his pro se complaint liberally as the case law requires, reading the substance of each allegation in connection with a reference to PP 6-10 provides each defendant with notice of his alleged wrongdoing sufficient to satisfy Rule 8(a)(2).
For example, P 19 alleges that Kesterson "continues to be denied specialist prescribed treatments . . . ." J.A. at 11-12. Kesterson has sued Defendant-Appellee Dr. Richard Ramirez, Clinical Director at the Lexington Medical Center, "for his reckless and deliberate restrictions upon evaluating physicians and specialists [*21] prescribed treatments." J.A. at 9 (P 9 of Kesterson's Compl.). Similarly, P 25 alleges that "defendants . . . deliberately override evaluating physician prescriptions of treatments and medications and physicians are regularly restricted by the FMC medical administration . . . ." J.A. at 13. Kesterson has sued DefendantAppellee Payne, the Hospital Administrator at the Lexington Medical Center, "for overriding Doctors orders of treatments and medications." J.A. at 8 (P 8 of Kesterson's Compl.). Additionally, in PP 29 and 33, Kesterson alleges that the defendants have knowingly and deliberately withheld dental care and a wheelchair, and he has sued Dr. Ramirez "for his deliberate failure to provide plaintiff medical treatment. . . ." J.A. at 9 (P 9 of Kesterson's Compl.). These examples demonstrate that Kesterson's complaint, read in its entirety, provides each defendant with notice of his wrongdoing sufficient to satisfy the notice pleading requirements of Rule 8

Despite Kesterson's satisfying the notice pleading requirements of Rule 8(a)(2), the majority holds that Kesterson did not plead with adequate specificity in order to survive the defendants' motion to dismiss. Slip [*22] op. at 7. In so doing, the majority effectively applies a heightened pleading requirement to Kesterson's complaint. n3 In Chapman v. City of Detroit, 808 F.2d 459f 465 (6th Cir. 1986), and Nuclear Transp. & Storage. Inc. v. United States. 890 F.2d 1348. 1354-55 (6th Cir. 1989). ce/t. denied, 494 U.S. 1079. 108 L. Ed. 2d 938. 110 S. Ct. 1807 C1990V this court held plaintiffs' complaints to a heightened pleading standard in actions under 42 U.S.C. S 1983 and Bivens. This heightened pleading standard required plaintiffs to plead with "greater specificity" allegations made against governmental officials who are entitled to assert the defense of qualified immunity. Nuclear Transp. & Storage, Inc. at 1355. This court explained the rationale for this requirement as follows:

There is a sound reason for requiring that a civil rights action against a government official or employee state a claim in terms of facts rather than conclusions. When a government employee is sued, if no factual allegations are made, discovery and perhaps even trial may be required to demonstrate that the claim has no merit. Such activities require the government defendant and others such [*23] as government attorneys involved in defense of the claim to divert their attention from their usual activities and to become involved in the litigation to the neglect of their assigned duties.

Id. (quoting Chapman. 808 F.2d at 465).
Footnotes
n3 The majority contends that "the rules [it has] cited above are well-settled, and require that Kesterson allege that a specific defendant performed a specific act that suffices to state a claim." Slip op. at 8. In support of that proposition, the majority cites Rizzo v. Goode. 423 U.S. 362. 375-76. 46 L. Ed. 2d 561. 96 S. Ct. 598 (1976;); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 390 n.2. 29 L Ed. 2d 619. 91 S. Ct. 1999 (1971); and Williams v. Mehra. 135 F.3d 1105. 1114 (6th Cir. 1998^.

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rage » or w

reh'g en bane granted. Slip op. at 7. None of these cases provides any support for the majority's view that to survive a motion to dismiss, a plaintiff must specify which defendants committed which acts. The majority's citations to Rizzo and Bivens appear to address the issue of named versus unnamed defendants in the complaint as opposed to requiring the plaintiff to name the specific acts committed by specific defendants. Williams, a case in which this court recently granted en bane review, addressed whether the particular defendant's conduct manifested deliberate indifference. Thus, these cases fail to support the majority's specificity requirement.

-End Footnotes

[*24]

In Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 122 L Ed. 2d 517, 113 S. Ct. 1160 (1993)f the Supreme Court rejected heightened pleading requirements in lawsuits against municipalities. In so doing the Court explained that "We think it impossible to square the 'heightened pleading standard1. . . with the liberal system of 'notice pleading" set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only 'a short and plain statement of the claim showing that the pleader is entitled to relief.1" Id. at 168 (emphasis added) (citation omitted). Further, to emphasize its point, the Court quoted its opinion in

Conlev v. Gibson. 355 U.S. 4 1 . 2 L. Ed. 2d 80. 78 S. Ct. 99 (19571: The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim1 that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.1

Id. (quoting Conlev. 355 U.S. at 47).
In rejecting the heightened pleading requirement, at least [*25] with respect to actions against municipalities, the Court noted that Rule 9(b) of the Federal Rules of Civil Procedure
does impose a particularity requirement in two specific instances. It provides that 'in ail averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Thus, the Federal Rules do address in Rule 9(b) the question of the need for greater particularity in pleading certain actions, but do not include among the enumerated actions any reference to complaints alleging municipal liability under § 1983. Expressio unius est exclusio alterius.

Leatherman. 507 U.S. at 168.
In noting that Rule 9(b) did not provide for heightened pleading requirements in § 1983 actions against municipalities, the Court rejected the idea of including such a requirement via judicial interpretation rather than through Congressional amendment of the Federal Rules. Specifically the Court reasoned that

perhaps if Rule 8 and 9 were rewritten today, claims against municipalities under § 1983 might be subjected to the added specificity requirement of Rule 9(b). But that is a result which must be obtained by the process [*26] of amending the Federal Rules, and not by judicial interpretation. In the absence of such an amendment, federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later.
Id. at 168-69.
Although the Supreme Court limited its holding in Leatherman to lawsuits against municipalities, its
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reasoning in Leatherman applies with equal force to lawsuits against government officials. n4 As with lawsuits against municipalities, it is equally "impossible" to square a heightened pleading requirement with Rule 8(a)(2)'s notice pleading standard in lawsuits against government officials. Similarly, just as Rule 9(b) does not provide any specificity requirement for actions against municipalities, neither does it provide any such requirement for Bivens actions against federal officials. Finally, to the extent that such a heightened pleading standard is desirable, it should be imposed via Congressional amendment to the Federal Rules rather than through judicial interpretation. n5
-Footnotes-
n4 The Leatherman court reserved the question of "whether our qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials." Leatherman, 507 U.S. at 167, [*27]
n5 In a post-Leatherman case, Vaughn v. United States Small Bus. Admin., 82 F.3d 684, 685 (6th Cir. 1996), this court seemed to leave open the question of whether heightened pleading applies to lawsuits against individual government officials after Leatherman: "We need not here decide whether that standard, condemned in actions against municipalities, applies to suits alleging the personal liability of public employees; this issue was left open in Leatherman."
-End Footnotes-
Building on its holding in Leatherman, in Crawford-El v. Britton. U.S. . 140 L Ed. 2d 759r 1998 WL 213193 (1998), the Supreme Court again signaled its displeasure with lower courts imposing heightened standards upon civil rights plaintiffs. In Crawford-El, a litigious and outspoken prisoner in the District of Columbia correctional system was transferred to several out-of-state prisons to relieve overcrowding. Each move necessitated the transfer of his personal property to his new location. In connection with one such move, the prisoner did not receive his belongings for several months. As a result, the [*28] prisoner sued various District of Columbia correctional officials under 42 U.S.C. § 1983 alleging that they intentionally diverted his property in retaliation for exercising his First Amendment rights. The district court dismissed the complaint. In remanding, the D.C. Circuit, sitting en bane, held that in an unconstitutional-motive case, a plaintiff must establish motive by clear and convincing evidence. The Supreme Court reversed, holding that the court of appeals erred in fashioning a heightened burden of proof for unconstitutional-motive cases against public officials.
In support of its holding, as in Leatherman, the Supreme Court explained that federal courts cannot simply, sua sponte, impose heightened standards on civil rights plaintiffs. If such heightened standards are desirable, those standards must be imposed through the ruiemaking or legislative process.
Without such precedential grounding, for the courts of appeals or this Court to change the burden of proof for an entire category of claims would stray far from the traditional limits on judicial authority.
Neither the text of § 1983 or any other federal statute, nor the Federal Rules of Civil Procedure, [*29] provides any support for imposing the clear and convincing burden of proof on plaintiffs either at the summary judgment stage or in the trial itself.
****
To the extent that the court was concerned with this procedural issue [i.e., the court's desire to reduce discovery in cases involving officials' motives] our cases demonstrate that questions regarding pleading, discovery, and summary judgment are most frequently and most effectively resolved either by the ruiemaking process or the legislative process.

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Id. at *12.
The Court observed that it had rejected previously "invitations to revise established rules that are separate from the qualified immunity defense." Id. Specifically, the Court has "refused to change the Federal Rules governing pleading by requiring the plaintiff to anticipate the immunity defense, or requiring pleadings of heightened specificity in cases alleging municipal liability." Id. (citations omitted). Instead, absent a change instituted by the rulemaking or legislative process, the district court may require specificity in a plaintiffs allegations by ordering the plaintiff to file a reply to the defendant's answer under Rule 7(a) [*30] of the Federal Rules of Civil Procedure, or by granting the defendant's motion for a more definite statement under Rule 12(e) of the Federal Rules. Id. at 14.
As with the reasoning in Leatherman, the reasoning in Crawford-El applies with equal force to the present case. First, neither the Bivens decision or any federal statute, not the Federal Rules of Civil Procedure, provides any support for imposing a heightened pleading requirement. Moreover, if such a requirement is desirable it ought to be implemented through the rulemaking or legislative process rather than through judicial fiat. Finally, in the interim, any need for further specificity can be enforced via Rules 7(a) or 12(e).
Leatherman and Crawford-El signal the Supreme Court's displeasure with lower courts placing heightened burdens on civil rights plaintiffs in the absence of any support in the rules or statutes for so doing. As the Leatherman court reasoned, such a heightened pleading requirement is incompatible with the notice pleading requirement of Rule 8(a)(2). Kesterson's complaint, construed liberally as we must, contains sufficiently specific allegations to satisfy Rule 8(a)(2)'s notice [*31] pleading requirement. Because the majority improperly exercised jurisdiction in order to impose inappropriately a pleading standard higher than the one required by Rule 8(a)(2), I respectfully dissent.

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Page 456
1ST DOCUMENT of Level 1 printed in FULL format. FULL TEXT OF BILLS
102ND CONGRESS; 1ST SESSION IN THE SENATE OF THE UNITED STATES AS PLACED ON THE SENATE CALENDAR
H. R. 3371 1991 H.R. 3371; 102 H.R. 3371 <=1> Retrieve Bill Tracking Report SYNOPSIS: AN ACT To control and prevent crime. DATE OF INTRODUCTION: OCTOBER 31, 1991 DATE OF VERSION: NOVEMBER 20, 1991 -- VERSION: 6 SPONSOR(S): Sponsor not included in this printed version. TEXT:
NOVEMBER 19, 1991 Read the second time and placed on the calendar
Calendar No. 335 102D CONGRESS 1ST SESSION
H. R. 3371
IN THE SENATE OF THE UNITED STATES OCTOBER 31 (legislative day, OCTOBER 29), 1991
Received NOVEMBER 19 (legislative day, NOVEMBER 13), 1991
Read the first time NOVEMBER 19, 1991
Read the second time and placed on the calendar
AN ACT To control and prevent crime. * Be it enacted by the Senate and House of Representatives of the United*
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H. R. 3371 NOVEMBER 20, 1991 --VERSION:6

Page 457

•States of America in Congress assembled,

i

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

(a) SHORT TITLE.-This Act may be cited as the "Omnibus Crime Control

Act of 1991".

(b) TABLE OF CONTENTS.-The following is the table of contents for this

Act:

TITLE I-COMMUNITY POLICING; COP ON THE BEAT

TITLE II-DRUG TREATMENT IN FEDERAL PRISONS

TITLE III-SUBSTANCE ABUSE TREATMENT IN STATE PRISONS

Subtitle A-Grants for Substance Abuse Treatment

Subtitle B-Study on Effectiveness of Residential Treatment and Assessment

of Effect of Alcohol on Crime

TITLE IV-SAFE SCHOOLS

TITLE V-VICTIMS OF CRIME

Subtitle A-Crime Victims Fund

Subtitle B-Restitution

Subtitle C-HIV Testing

TITLE VI-CERTAINTY OF PUNISHMENT FOR YOUNG OFFENDERS

TITLE VII-DRUG TESTING OF ARRESTED INDIVIDUALS

Subtitle A-Grants for Drug Testing

Subtitle B-Drug Testing Requirement

TITLE VIII-DRUG EMERGENCY AREAS ACT OF 1991

TITLE IX-COERCED CONFESSIONS

TITLE X-DNA IDENTIFICATION

TITLE XI-HABEAS CORPUS

TITLE XII-PROVISIONS RELATING TO POLICE OFFICERS

Subtitle A-Police Accountability

Subtitle B-Retired Public Safety Officer Death Benefit

Subtitle C-Study on Police Officers' Rights

Subtitle D-Law Enforcement Scholarships

Subtitle E-Law Enforcement Family Support

Subtitle F-Commission to Support Law Enforcement

Subtitle G-Police Corps and Law Enforcement Training and Education

TITLE XIII-FRAUD

TITLE XIV-PROTECTION OF YOUTH

Subtitle A-Crimes Against Children

Subtitle B-Parental Kidnapping

Subtitle C-Sexual Abuse Amendments

Subtitle D-Reporting of Crimes Against Children

TITLE XV-MISCELLANEOUS DRUG CONTROL

TITLE XVI-EQUAL JUSTICE ACT

TITLE XVII-MISCELLANEOUS CRIME CONTROL

Subtitle A-General

Subtitle B-Motor Vehicle Theft Prevention

Subtitle C-Terrorism: Civil Remedy

Subtitle D-Commission on Crime and Violence

Subtitle E-National Commission to Study the Causes of the Demand for

Drugs in the United States

TITLE XVIII-MISCELLANEOUS FUNDING PROVISIONS

Subtitle A-General

Subtitle B-Midnight Basketball

TITLE XIX-MISCELLANEOUS CRIMINAL PROCEDURE AND CORRECTIONS

Subtitle A-Revocation of Probation and Supervised Release

Subtitle B-List of Veniremen

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H. R. 3371 NOVEMBER 20, 1991- VERSION:6

Page 486

law.". SEC. 1107. CERTIFICATES OF PROBABLE CAUSE.
The third paragraph of section 2253, title 28, United States Code, is amended to read as follows:
"An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause. However, an applicant under sentence of death shall have a right of appeal without a certification of probable cause, except after denial of a second or successive application.". SEC. 110 8. FUNDING FOR DEATH PENALTY PROSECUTIONS.
Part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) is amended by adding at the end the following new section:
"SEC. 515. Notwithstanding any other provision of this subpart, the Director shall provide grants to the States, from the funding allocated pursuant to section 511, for the purpose of supporting litigation pertaining to Federal habeas corpus petitions in capital cases. The total funding available for such grants within any fiscal year shall be equal to the funding provided to capital resource centers, pursuant to Federal appropriation, in the same fiscal year.".
TITLE XII-PROVISIONS RELATING TO POLICE OFFICERS Subtitle A-Police Accountability
SEC. 1201. SHORT TITLE. This subtitle may be cited as the "Police Accountability Act of 1991".
SEC. 1202. PATTERN OR PRACTICE CASES. (a) CAUSE OF ACTION.(1) UNLAWFUL CONDUCT.-It shall be unlawful for any governmental, authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers that deprives persons of rights, privileges, or immunities, secured or protected by the Constitution or laws of the United States.. (2) CIVIL ACTION BY ATTORNEY GENERAL.-Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.. (3) CIVIL ACTION BY INJURED PERSON.-Any person injured by a violation of paragraph (1) m a y in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice. In any civil action under this paragraph, the court may allow the prevailing plaintiff reasonable attorneys' fees and other litigation fees and costs (including expert's fees). A governmental body shall be liable for such fees and costs to the same extent as a private individual.
(b) DEFINITION.-As used in this section, the term "law enforcement officer" means an official empowered by law to conduct investigations of, to make arrests for, or to detain individuals suspected or convicted of, criminal offenses.
SEC. 1203. DATA ON USE OF EXCESSIVE FORCE. (a) ATTORNEY GENERAL TO COLLECT.-The Attorney General shall, through
the victimization surveys conducted by the Bureau of Justice Statistics,
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Page 190

3 0TH REPORT of Level 1 printed in FULL format.
Copyright 1991 LEXIS-NEXIS, a division of Reed Elsevier Inc. All rights reserved
Committee Reports

102nd Congress House Report 102-242 Part 1A
102 H. Rpt. 242; Part 1A

OMNIBUS CRIME CONTROL ACT OF 1991
DATE: October 7, 1991. Ordered to be printed
SPONSOR: Mr. Brooks, from the Committee on the Judiciary, submitted the following

REPORT together with ADDITIONAL, DISSENTING, AND ADDITIONAL DISSENTING VIEWS (To accompany H.R. 3371) (Including cost estimate of the Congressional Budget Office)
TEXT: The Committee on the Judiciary, to whom was referred the bill (H.R. 3371) to
control and prevent crime, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof the following: SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) Short Title. This Act may be cited as the "Omnibus Crime Control Act of 1991".
(b) Table of Contents. The following is the table of contents for this A c t : TITLE I COMMUNITY POLICING; COP ON THE BEAT TITLE II DRUG TREATMENT IN FEDERAL PRISONS TITLE III SUBSTANCE ABUSE TREATMENT IN STATE PRISONS TITLE IV SAFE SCHOOLS TITLE V VICTIMS OF CRIME Subtitle A Crime Victims Fund Subtitle B Restitution Subtitle C HIV Testing TITLE VI CERTAINTY OF PUNISHMENT FOR YOUNG OFFENDERS TITLE VII DRUG TESTING OF ARRESTED INDIVIDUALS TITLE VIII DRUG EMERGENCY AREAS ACT OF 1991 TITLE IX COERCED CONFESSIONS TITLE X DNA IDENTIFICATION TITLE XI HABEAS CORPUS TITLE XII PROVISIONS RELATING TO POLICE OFFICERS Subtitle A Police Accountability Subtitle B Retired Public Safety Officer Death Benefit Subtitle C Study on Police Officers Rights Subtitle D Law Enforcement Scholarships Subtitle E Law Enforcement Family Support TITLE XIII FRAUD TITLE XIV PROTECTION OF YOUTH Subtitle A Crimes Against Children Subtitle

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(c) 1991 Committee Repons, October 7, 1991

Page 365

This section adopts the recommendation of the Powell Committee that prisoners under sentence of death should not be required to obtain a certificate of probable cause in order to appeal from the denial of relief at the district court level, except in successive petition cases. Since certificates are issued routinely in death penalty cases, the certification process now wastes valuable judicial resources.
conclusion
As ABA President John Curtin testified:
A system that would take life must first give justice. The paramount requirement of a civilized system of justice is that a sentence of death not be carried out until it has been subjected to full, fair, and deliberate scrutiny. Unique among all legal decisions, the decision to execute the defendant cannot be corrected after it has been carried out. 8 6363Curtin and Liebman statement at 52, Subcommittee Hearings, July 17, 1991.
In a manner consistent with justice, the Act will expedite death penalty proceedings and ensure that every petitioner will have one, and only one, fair opportunity to present his or her claims to a Federal court. The Act thus return the focus of capital litigation to the States courts, where it belongs. TITLE XII PROVISIONS RELATING TO POLICE OFFICERS
Subtitle A Police Accountability
purpose
Subtitle A is the Police Accountability Act of 1991. It grants standing to the United States Attorney General and, in certain circumstances, to private parties to obtain civil injunctive relief against governmental authorities that engage in patterns or practices of unconstitutional or unlawful conduct by law enforcement officers. It also requires the Attorney General, through the surveys of the Bureau of Justice Statistics, to collect data about the incidence of police use of excessive force.
background
On March 3, 1991 motorist Rodney King was apprehended by members of the Los Angeles Police Department (LAPD) after a high speed chase. While twenty-one other officers stood by, three LAPD officers and a sergeant administered 56 baton blows, six kicks to the head and body, and two shocks from a Taser electric stun gun. The incident was captured on videotape by a citizen. President Bush rightly called the beating "sickening."
Unfortunately, the Rodney King incident is not an aberration. The Independent Commission on the Los Angeles Police Department, created to examine the incident and headed by former Deputy Attorney General and Deputy Secretary of State Warren Christopher, concluded in its July 1991 report that "there is a significant number of officers in the LAPD who repetitively use excessive force against the public." Moreover, as the Commission found, the conduct of these officers was well known to police department management, who condoned the behavior through a pattern of lax supervision and inadequate investigation of

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(c) 1991 Committee Repons, October 7, 1991

Page 366

complaints.
As Professor James Fyfe, a 16-year veteran of the New York City Police Department and one of the nations leading experts on police use of force, testified before the Subcommittee on Civil and Constitutional Rights, the King incident "was no aberration. . - . (T)here exists in LAPD a culture in which officers who choose to be brutal and abusive are left to do so without fear of interference."
It is apparent, moreover, that the problem is not limited to Los Angeles. Police chiefs from 10 major cities convened soon after the King incident and emphasized that "the problem of excessive force in American policing is real." The same point was stressed by Hubert Williams, President of the Police Foundation and former Chief of Police for Newark, New Jersey: "Police use of excessive force is a significant problem in this country, particularly in our inner cities" District of Columbia police officer Ronald Hampton, director of national affairs for the National Black Police Association, testified before the Subcommittee that his organization has complained for years that minority residents "were disrespected, disregarded, (and) physically and verbally abused" by police. The Flint, Michigan ombudsman, who reported that citizen complaints about police conduct to his office were up 10 percent in 1990, after a 25 percent increase in 1989, wrote to the Subcommittee that the experience of his office led him to believe that the Los Angeles beating "was not an isolated incident."
The Subcommittee on Civil and Constitutional Rights held two days of hearings on police brutality after the King incident and received written submissions regarding alleged police misconduct from across the country. Many of the complaints involved individual incidents. Many, however, also presented systemic issues particular policies or practices that were reflected in a pattern of misconduct. Among the matters brought to the Subcommittees attention:
The Civil Rights Division of the Massachusetts Attorney Generals office found that in 1989-90 Boston police officers routinely conducted unconstitutional, harassing stops and searches of minority individuals, including requiring youths to submit to strip searches in public.
In New York City, bystanders who complain about police actions are arrested and "run through the system,• according to affidavits compiled by the New York Civil Liberties Union. The Police Department admitted that a 1977 order prohibiting such arrests was "mistakenly" revoked in 1980.
A lawsuit against the town of Reynoldsburg, Ohio discovered that a special unit within the police department called itself the S.N.A.T. squad, for "Special Nigger Arrest Team."
The Los Angeles Police Department directed officers to use an illegal king-fu device known as the nun-chuk to inflict pain on passive demonstrators in an effort to force them to comply with police orders.
Policing is difficult, dangerous work. Most police officers do not abuse the authority granted them. To the contrary, the majority of police officers in America are dedicated men and women who strive to uphold the ideals of the Constitution. Under growing stresses, they make an enormous contribution to

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(c) 1991 Committee Reports, October 7, 1991

Page 367

public safety and deserve the nations gratitude. Incidents of restraint in the face of provocation certainly outnumber incidents of brutality. Faced, however, with evidence that the problem of excessive force is a serious one, police departments, local authorities and the Federal Government have a responsibility to strengthen their responses.
Current Federal legal authority and Justice Department policy
Police brutality is a violation of the U.S. Constitution, and under sections 241 and 242 of title 18 it is a federal crime. However, the Federal response to police misconduct has been limited. The Assistant Attorney General in charge of the Civil Rights Division testified that the U.S. Justice Department follows a "back-stop" policy, deferring to local authorities. Statistics provided to the Subcommittee on Civil and Constitutional Rights by the Justice Department show that the Justice Department prosecutes on average 50 police officers a year. This represents a fraction of the 3,000 criminal civil rights cases, most of them involving law enforcement officers, that the Justice Department investigates yearly.
Moreover, the cases investigated by the Department represent only a fraction of the allegations of police misconduct reported to local authorities, most of which are never reported to Federal officials. The Justice Department provided to the Subcommittee statistics showing that the FBI had investigated 72 0 criminal civil rights matters in the Central District of California, which encompasses Los Angeles, between 1982 and March 1991. Of those 720 cases investigated in a nine year period, 72 involved the Los Angeles Police Department and 186 involved the Los Angeles County Sheriffs Office. Yet, the Los Angeles Police Misconduct Referral Service received 652 complaints against the LAPD in 1988 alone and 616 in 1990. Of the 720 Federal investigations, only four resulted in indictments against police officers. Yet, during just a 3 year period, 1987-1990, the LA County Sheriffs Office lost or settled 56 civil lawsuits involving the use of excessive force, paying out $8.5 million in damages, and the LAPD paid out $18.8 million in damages for police brutality cases.
Pattern or practice authority
The Justice Department currently lacks the authority to address systemic patterns or practices of police misconduct. The Justice Department can only prosecute individual police officers, whom juries are often reluctant to convict. If an officer was poorly trained, or was acting pursuant to an official policy, it is difficult to obtain a conviction, and Justice has no authority to sue the police department itself to correct the underlying policy.
In 1980, the Third Circuit Court of Appeals held in United States v. City of Philadelphia, 644 F. 2d 187 (3d Cir. 1980), that the United States does not have implied statutory or cnstitutional authority to sue a local government or its officials to enjoin violations of citizens constitutional rights by police officers.
This represents a serious and outdated gap in the federal scheme for protecting constitutional rights. The Attorney General has pattern or practice authority under eight civil rights statutes, including those governing voting, housing, employment, education, public accommodations and access to public facilities. The Justice Department can sue a city or county over its voter

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(c) 1991 Committee Reports, October 7, 1991

Page 368

registration practices or its educational policies. It can sue private and public employers, including police departments, over patterns of employment discrimination. The Justice Department can seek injunctive relief under the Civil Rights of Institutionalized Persons Act against a jail or prison that tolerates guards beating inmates. But it cannot sue to change the policy of a police department that tolerates officers beating citizens on the street.
While a private citizen injured by police misconduct can sue for money damages, he or she cannot sue for injunctive relief, absent a showing of likely future harm, under the Supreme Court decision in Los Angeles v. Lyons, 461 U.S. 95 (1983). The case involved a resident of Los Angeles who had been choked unconscious by a police officer following a routine traffic stop. Unlike other cities, Los Angeles did not limit the use of chokeholds to situations where the officers life was in danger. From 1975 to 1982, 15 people died as a result of LAPD chokeholds. The Supreme Court ruled that the plaintiff had no standing to seek an injunction restricting the use of chokeholds because he could not demonstrate that he himself was likely to be choked again. If choked again, the Court allowed, he could sue for damages again. But neither he nor anyone else could sue to bring the LAPDs policy on use of the chokehold in line with practices accepted in most other cities.
The Police Accountability Act would close this gap in the law, authorizing the Attorney General and private parties to sue for injunctive relief against abusive police practices. The Committee expects that the Department of Justice will be diligent in exercising its new authority. But the Committee believes that private standing is necessary, especially in situations where the Department of Justice does not act. To ensure that the issues being litigated are not hypothetical, and to provide a court with the benefit of a factual context, the Act requires that a private citizen seeking injunctive relief have been injured by the challenged practice.
The Act creates an enforceable right to be free of patterns of police brutality. In adopting the provision granting individuals the standing to sue, Congress is exercising its authority to create legal rights, the invasion of which creates standing even where the plaintiff would not have had standing in the absence of the statute. Warth v. Seldin, 422 U.S. 490 (1975).
The Act does not increase the responsibilities of police departments or impose any new standards of conduct on police officers. The standards of conduct under the Act are the same as those under the Constitution, presently enforced ,in damage actions under section 1983. The Act merely provides another tool for a court to use, after a police department is held responsible for a pattern or practice of misconduct that violates the Constitution or laws of the United States.
Because the Act imposes no new standard of conduct on law enforcement agencies, it should not increase the amount of litigation against police departments. Individuals aggrieved by the use of excessive force already can and do sue under 42 U.S.C. 1983 for monetary damages. With adoption of this section, such persons will be able to seek injunctive relief as well, if their injury is the product of a pattern or practice of misconduct.
This provision may in fact decrease the number of lawsuits against police departments. Currently, changes in a police departments policy are prompted by

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(c) 1991 Committee Reports, October 7, 1991

Page 369

successive criminal cases or damage actions; the cumulative weight of convictions or adverse monetary judgments may lead the police leadership to conclude that change is necessary. This is an inefficient way to enforce the Constitution and is not always effective. Some police departments have shown they are willing to absorb millions of dollars of damage payments per year without changing their policies. If there is a pattern of abuse, this section can bring it to an end with a single legal action.
Pattern or practice authority is needed because the Federal Governments criminal authority to prosecute police brutality is not adequate to address patterns or practices such as the lack of training or the routine use of deadly techniques like chokeholds, or the absence of a monitoring and disciplinary system. Two cases illustrate both the need for this authority and how it will work.
In Mason County, Washington, in the nine month period between June 1985 and March 1986, citizens in four separate incidents were beaten by police officers following traffic stops. A federal jury returned civil verdicts against all of the deputy sheriffs involved in the incidents and against the county, awarding a total of $853,000 in damages and costs. The Ninth Circuit affirmed, tracing the incidents to the lack of training provided by the sheriffs department, which it described as "woefully inadequate, if it can be said to have existed at all." Davis v. Mason County, 927 F.2d 1473, 1482 (9th Cir. 1991). Yet while the lack of training was established and was found to rise to the level of a constitutional violation, the courts were powerless to correct it. In formulating a remedy, the courts would have had to look no further than the Washington State statute on police training standards, which Mason County has ignored.
Another federal case, against the Goldsboro, North Carolina police department, resulted in a $220,000 payment to the father of a young black man who was strangled to death by city police officers. The officers involved in the incident had been involved in several prior incidents involving use of excessive force, yet there had been disciplinary action taken against them. One expert witness, the former chief of police for Boston and St. Louis County, testified that the City of Goldsboro had an "official policy of not investigating incidents (involving deadly force)." Again, the court had no authority to order remedies for the glaring deficiencies the case has highlighted. Swann v. Goldsboro, No. 90-59-CIV-5-D (K.D.N.C.).
The Police Accountability Act as originally introduced and reported out of the Subcommittee on Civil and Constitutional Rights contained a section on criminal liability against police officers. That section was stricken by an amendment during full Committee consideration. Section-by-Section Analysis
Section 1201 is the short title: Police Accountability Act of 1991.
Section 1202 creates a cause of action and standing for pattern or practice cases.
Subsection 1202(a)(1) provides that it shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law

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Get a Document - by Citation - 1994 U.S. App. LEXIS 19679

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Service: LEXSEE® Citation: 1994 US App LEXIS 19679
1994 U.S. App. LEXIS 19679, *; 23 Media L Rep. 1600 NOREEN MCBRIDE, Plaintiff-Appellant v. VILLAGE OF MICHIANA; ELIZABETH O'DONNELL, individually and as
Clerk of the Village of Michiana, former Assistant Clerk of the Village of Michiana, former President of the Village of Michiana, former member of the Village of Michiana and as former President Pro Tern of the Village Council of the Village of Michiana; KATHLEEN ROBERTS, individually and as former President of the Village of
Michiana and as a member and former President Pro-Tern of the Village Council of the Village of Michiana; KENNETH BOOKS, individually and as a Police Officer of the Village of Michiana; MARIANNE GOSSWILLER, individually and as former Chairperson of the Zoning, Planning and Environmental Commission of the Village of Michiana; MARY ANN JOHNSON, individually and as a former member of the Village Council of the Village of Michiana and as a former member of the Zoning, Planning and Environmental Commission of the Village of
Michiana; GERTRUDE PETERSON, individually and as former Clerk of the Village of Michiana; RICHARD GOSSWILLER, individually, and as former President of the Village of Michiana and as a former member of the
Village Council of the Village of Michiana; and HARVEY KEMP, individually and as a former member of the Zoning, Planning and Environmental Commission of the Village of Michiana and as former acting Temporary
Building inspector of the Village of Michiana, Defendants-Appellees.
No. 93-1641
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
1994 U.S. App. LEXIS 19679; 23 Media L. Rep. 1600
July 28, 1994, Filed
NOTICE: [*1] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 24 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
SUBSEQUENT HISTORY: Reported in Table Case Format at: 30 F.3d 133. 1994 U.S. App. LEXIS 27212.
PRIOR HISTORY: ON APPEAL from the United States District Court for the Western District of Michigan. District No. 92-00155. Quist, District Judge.
CORE TERMS: village, retaliation, deprivation, first amendment, color of state law, constitutional rights, actionable, state law, reporter, interview, municipal, constitutionally protected, dispositive, cognizable, newspaper, deprived, retaliatory, complain, Fourteenth Amendment, constitutional violation, motion to dismiss, liberty interest, cause of action, motion to amend, state action, free speech, subjected, favorable, deprive, lawsuit
JUDGES: BEFORE: MILBURN and NELSON, Circuit Judges; and COOK, Chief District Judge. *
* The Honorable Julian Abele Cook, Jr., Chief United States District Judge for the Eastern District of Michigan, sitting by designation.
OPINIONBY: PER CURIAM
OPINION: PER CURIAM. The Plaintiff-Appellant, Noreen McBride, appeals the decision of the district court which dismissed her Complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, we reverse and remand to the district court for further proceedings that are consistent with this opinion.

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Noreen McBride is a reporter for several news reporting agencies, including the New Buffalo Times, the South Bend Tribune, and the radio station WEFM. For a number of years, she reported news events relating [*2] to the Village of Michiana in Berrien County, Michigan. However, some of her articles were perceived by the individual Defendants, all of whom were Michiana officials, to have been extremely inaccurate and politically embarrassing to them, n l It is this perception by the Defendants, and their subsequent actions, that form the basis of the conflict between the parties.
-Footnotes-
n l Examples of McBride's articles, which were found by the Defendants to have been grossly unfair, pertained to (1) a system that ostensibly encourages non-residents to vote in Village elections, (2) claimed violations of the Open Meetings Act by the Village Council and other Village agencies, and (3) alleged improprieties in the handling of public funds.
-End Footnotes-
McBride first asserts that some of the Defendants n2 repeatedly called her employers in an effort to discourage them from using her as a reporter to cover the news activities in Michiana. She contends that on one occasion, Roberts, Johnson, and Gosswiller n3 threatened to boycott the New Buffalo Times [*3] and attack its circulation base. These officials eventually placed an advertisement in the Harbor Country News which encouraged its readers to cancel their subscriptions to the New Buffalo Times.
-Footnotes-
n2 McBride identified these Defendants as Kathleen Roberts, then the President Pro Tern of the Village Council, Marianne Gosswiller and Mary Ann Johnson, former Village officials, and Louis A. Desenberg, the Village Attorney.
n3 All references to Gosswiller are to Marianne Gosswiller unless otherwise indicated.
End Footnotes
On a separate occasion, another Defendant, Kenneth Books, a Michiana police officer, acting as an official representative of the Village, contacted the publisher of the New Buffalo Times in an effort to dissuade him from assigning McBride as a reporter to the meetings of the Village Council because the Police Department could not guarantee her physical safety. The phone call was reportedly made at the behest and in the presence of at least two members of the Village Council or the Village Zoning, Planning [*4] and Environmental Commission.
McBride contends that between 1990 and 1992, Defendants Gosswiller, Elizabeth O'Donnell, an officer of the Village Council, Gertrude Peterson, the Village Clerk, and several other unnamed Michiana employees violated the Freedom of Information Act of Michigan by (1) refusing to make some public documents available to her, (2) assessing inflated costs for the reproduction of public information, (3) charging her with unreasonable prices for the sole purpose of viewing a public document, (4) deliberately delaying the delivery of public documents without just cause, and (5) insisting that she submit a written request prior to viewing or obtaining a municipal document, even though oral requests are sufficient under state law.
In June 1990, Defendant Henry Kemp, the Village Building Inspector and a member of the Zoning, Planing, and Environmental Commission, required all of the members of the press who were present at a meeting of the Village's Zoning, Planning and Environmental Commission, including McBride, to stand and identify themselves. Two months later, he threw a chair toward McBride and other members of the press at a public meeting. Later that year, [*5] O'Donnell (1) instructed a municipal employee not to talk to McBride and (2) encouraged a newly appointed election inspector to terminate an interview with her.
McBride maintains that O'Donnell, Roberts, Gosswiller and Richard Gosswiller, also a Village official, verbally abused her in public and during public meetings. She also alleges that Peterson ordered her to leave the press table during a public meeting of the Michiana Council. In an apparent demonstration of her support for
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the Village Clerk's directive, Carol Nagy, one of the members of the Council, informed the general public that the meeting would not begin until McBride left the premises. As a point of emphasis, Books threatened to arrest or physically remove McBride if she did not leave the meeting room on her own volition. Prior to the next meeting, the press table was removed from the Council meeting room. Finally and in an unrelated matter, she contends that Richard Gosswiller, while serving as the Village President, deliberately destroyed a variety of municipal documents expressly for the purpose of keeping her from obtaining access to them.

Relying upon the First and Fourteenth n4 Amendments and 42 U.S.C. 5 1983, [*6] McBride initiated a lawsuit in which she sought injunctive relief against, and monetary relief from, the Defendants whom she contends had conspired to (1) interfere with her right to free speech, (2) hinder freedom of the press, and (3) retaliate against her for unfavorable reporting of municipal affairs. n5 On April 5, 1993, the district court granted the Defendants' motion to dismiss, finding that McBride had failed to set forth any cognizable claim under the United States Constitution. n6

-Footnotes-
n4 In the Complaint, McBride alleged that her constitutional rights under the Fifth Amendment had been infringed upon by the Defendants. However, in her appeal, she states that her Complaint "sufficiently sets forth claims under the First and Fourteenth Amendments." (See Brief at 3.)

n5 McBride also alleged state claims, over which she requested the court exercise its supplemental jurisdiction.

n6 The district court judge concluded that (1) McBride's allegations of defamation and interference with employment relationships did not support her claim of deprivation of constitutional rights, (2) the denial of the privilege of sitting at a special press table did not constitute a violation of her constitutional rights, (3) there is no constitutional right to conduct an interview with a public employee, and (4) there was no abridgement of her rights under the United States Constitution because the Michigana officials had not denied her access to any of its Village meetings.

-End Footnotes

[*7]

On appeal, McBride argues that the Village officials have undermined the freedom of the press, in that their retaliatory actions against her have threatened the collection, as well as the dissemination, of the public news. She complains, inter alia, that the district court erroneously failed to evaluate the Defendants' activities as a whole, which would clearly demonstrate their collective desire to impede the future exercise of her First Amendment freedoms.

II

The dismissal of an action pursuant to Fed. R. Civ. P. 12(b)(6) is a question of law that is subject to de novo review. G.M. Engineers & Assoc.f Inc. v. West Bloomfield Township, 922 F.2d 328, 330 (6th Cir. 1990) (quoting Dugan v. Brooks, 818 F.2d 513. 516 f6th Cir. 1987)). Moreover, dismissals of complaints in which claims under civil rights statutes have been asserted will be "scrutinized with special care." Brooks v. Seiter, 779 F.2d 1177. 1180 (6th Cir. 1985). It is well settled that in evaluating the merit of a dispositive motion, the trial court must assume all material allegations within the Complaint to be true and examine [*8] its contents in a light that is most favorable to the plaintiff. Ana Leon T. v. Federal Reserve Bank, 823 F.2d 928, 930 (6th Cir.), cert, denied, 484 U.S. 945. 98 L. Ed. 2d 360. 108 S. Ct. 333 (1987). However, neither legal conclusions nor unwarranted factual inferences constitute material allegations, and, hence, we are not . obliged to accept them as true. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Dismissal is proper "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spaldinq, 467 U.S. 69. 73. 81 L. Ed. 2d 59. 104 S. Ct. 2229 (1984): see Conley v. Gibson. 355 U.S. 41. 45-46. 2 L. Ed. 2d 80. 78 S. Ct. 99 (1957). "Although this standard for Rule 12(b)(6) dismissals is quite liberal, more than bare assertions of legal conclusions is ordinarily required." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). [*9] If the plaintiff is to overcome a dispositive motion, the complaint must contain direct or inferential allegations.

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Section 1983 of Title 42 creates a private cause of action under which local governments can be subjected to liability when constitutional deprivations occur. Monell v. Dep't. of Social Servs.. 436 U.S. 658. 690. 56 L. Ed. 2d 611. 98 S. Ct. 2018 (1978). This statute "provides a remedy for deprivations of rights secured by the Constitutions and laws of the United States" when the tortious activity takes place under color of state law. Luaar v. Edmondson Oil Co.. 457 U.S. 922. 924. 73 L. Ed. 2d 482. 102 S. Ct. 2744 (1982). "The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole. 118 L. Ed. 2d 504f
U.S. . 112 S. Ct. 1827. 1830 (1992). In order to state a claim under § 1983, a plaintiff must allege that (1) she was deprived of a [*10] right secured by the Constitution or laws of the United States, and (2) the deprivation was caused by a person who was acting under the color of state law. Parratt v. Taylor. 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled in part on other grounds, Daniels v. Williams. 474 U.S. 327. 330-31. 88 L. Ed. 2d 662. 106 S. Ct. 662 (1986): Flaqg Bros.. Inc. v. Brooks. 436 U.S. 149f 155-56r 56 L. Ed. 2d 185. 98 S. Ct. 1729 ('1978): see also Leatherman v. Tarrant County Narcotics Unit. 122 L Ed. 2d 517. U.S. . 113 S. Ct. 1160. 1163(1993).
In support of her contention that she was deprived of a right under the United States Constitution, McBride relies upon the Fourteenth Amendment, which forbids all state actors from acting to "deprive any person of life, liberty or property without due process of law. . . ." U.S. Const, amend. XIV, § 1. To maintain these due process claims, McBride must assert facts which, if proven, would establish [*11] that the Defendants deprived her of a constitutionally protected property or liberty interest. Board of Regents v. Roth, 408 U.S. 564. 569-71. 33 L. Ed. 2d 548. 92 S. Ct. 2701 (1972).
In this case, McBride maintains that she was subjected to retaliatory measures by the Defendants who sought to prevent her from exercising her First Amendment rights to free speech and the freedom of the press. Hence, we must initially determine if the injury, about which McBride complains, amounts to a constitutional deprivation that is cognizable under § 1983. See generally Martinez v. California. 444 U.S. 277. 62 L. Ed. 2d 481. 100 S. Ct. 553 (1980): Crowder v. Lash. 687 F.2d 996. 1002 (7th Clr. 1982) (damages recoverable under § 1983 if plaintiff establishes defendants' actions were conducted under color of state law, resulted in deprivation of plaintiffs constitutional rights, and proximately caused constitutional violation).

The district court, in finding that McBride's claims of defamation, interference with employment relationships, revocation [*12] of privileges, and interference with interviews were not cognizable as constitutional claims, implies that the deprivation of a property or liberty interest must accompany her injuries. However, the district court does not address the fact that there may be several configurations in a § 1983 claim, such as an injury to a party's reputation that leads to the deprivation of a liberty or property interest. Paul v. Davis. 424 U.S. 693r 47 L. Ed. 2d 405. 96 S. Ct. 1155 (1976). Another example is the retaliatory conduct against a constitutionally protected activity that leads to an injury. See, e.g., Mt. Healthy City School Dist. Bd. of Educ. v. Doyle. 429 U.S. 274. 50 L. Ed. 2d 471f 97 S. Ct. 568 (1977). The injury need not be a constitutional violation. For example, in Rakovich v. Wade, 850 F.2d 1180 (7th Cir. 1988). cert, denied, 488 U.S. 968, 102 L. Ed. 2d 534f 109 S. Ct. 497 (1988). the Seventh Circuit Court of Appeals approved the conclusion of the district court that an [*13] investigation, which had been conducted in retaliation for the publication of protected comments under the First Amendment, could be actionable under § 1983. Id. at 1189.
Where, as here, the motive of the governmental actor is pertinent to the inquiry, the claimant, if engaged in a constitutionally protected activity during the relevant time period, need only show that the act of retaliation consisted of the deprivation of a non-trivial commodity. n7 See e.g., Rutan v. Republican Party, 497 U.S. 62. 72. I l l L Ed. 2d 52r 110 S. Ct. 2729 (1990) ("we find the assertion here that the employee petitioners had no legal entitlement to promotion, transfer, or recall beside the point); North Mississippi Communications Inc. v. Jones. 874 F.2d 1064 (5th Cir. 1989). cert, denied, 121 L Ed. 2d 129. U.S. . 113 S. Ct. 184 (1992) (Mount Healthy applies to claim by newspaper that county board withheld advertising in retaliation for critical editorials and stories); Georgia Ass'n of Educators v. Gwinnett County School Dist.. 856 F.2d 142 ( l l t h Cir. 1988^ [*14] (denial of union dues checkoff privileges in retaliation for First Amendment activity is actionable); Howland v. Kilquist, 833 F.2d 639. 644 (7th Cir. 1987) ("act in retaliation
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for the exercise of a constitutionally protected right is actionable under § 1983 even if the act, when taken for different reasons, would have been proper") (quoting Buise v. Hudkins. 584 F.2d 223. 229 (7th Cir. 19781. cert, denied, 440 U.S. 916, 59 L. Ed. 2d 466. 99 S. Ct. 1234 (1979)): Rakovich. 850 F.2d at 1189 (7th Cir.) ("an investigation conducted in retaliation for comments protected by the first amendment could be actionable under section 1983"); Gibson v. United States. 781 F.2d 1334. 1338 (9th Cir. 19861. cert, denied, 479 U.S. 1054. 93 L Ed. 2d 979. 107 S. Ct. 928 (1987) (proper § 1983 claim stated where plaintiffs alleged "discrete acts of police surveillance and intimidation directed solely at silencing them"). n8
-Footnotes-
n7 This is directly contrary to the Defendants' assertion that "whatever the actions are that they allege were taken in retaliation have to have some independent constitutional significance. . . ." (Joint Appendix at 72.) [•15]
n8 Although these cases involve the deprivation of a property right, they are analogous to claims of retaliation.
-End Footnotes-
Moreover, any governmental action that falls short of direct prohibition but results in a chilling effect upon an individual's right of free speech may violate the First Amendment. Laird v. Tatumr 408 U.S. 1, l l r 33 L Ed. 2d 154. 92 S. Ct. 2318 (1972). reh'g denied, 409 U.S. 901. 34 L. Ed. 2d 165. 93 S. Ct. 94 (1972). Any state action that is designed to chill political expression is at the core of the First Amendment. Pickering v. Board of Education. 391 U.S. 563f 573. 20 L Ed. 2d 811. 88 S. Ct. 1731 (1968). The Seventh Circuit Court of Appeals has determined that the effect of the acting party's conduct upon another individual's freedom of speech need not be great in order to be actionable because there is no justification for harassing people who seek to exercise their fundamental constitutional rights. [*16] Bart v. Telford, 677 F.2d 622. 625 (7th Cir. 1982). Thus, in determining whether the conduct of the Village officials had any adverse effect upon McBride's constitutional rights, the test is whether their challenged activities are likely to chill the exercise of constitutionally protected speech. Laird, 408 U.S. at 13-14.
McBride has charged the Defendants with having made a threat to her safety, harassed her on the street, engaged in a campaign to force her employers to use other reporters, and verbally abused her during town meetings, all in retaliation for her publication of negative articles about them. Furthermore, she contends that future harm will occur as a result of the Defendants' outward hostility toward those persons who seek to assert their guarantees under the First Amendment. Under the above-mentioned standard, the harassment which has been attributed to the Defendants by McBride is sufficient to state a cause of action for retaliation, despite the contrary determination by the district court.
B
We now turn to the question of whether the Defendants were acting under the color [*17] of state law at the time of their alleged acts of misconduct. It has been held by the Supreme Court that the involvement of a state official satisfies the state action element which is essential to a violation claim under the Fourteenth Amendment, whether or not the actions were lawful or officially authorized. Flagg Bros.. 436 U.S. at 157 n.5 (1978) (quoting Adickes v. S.H. Kress & Co.. 398 U.S. 144. 152. 26 L. Ed. 2d 142. 90 S. Ct. 1598 (1970)). Generally, a public employee acts under the color of state law while serving in her official capacity or exercising her responsibilities pursuant to state law. West v. Atkins, 487 U.S. 42, 101 L. Ed. 2d 40f 108 S. Ct. 2250 (1988). The dispositive issue is whether the officials were acting as private individuals or if they were exercising their authority under state or local government. For example, the Supreme Court determined that an official's "misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the [*18] authority of state law, is action taken 'under color of state law." Monroe v. Pape. 365 U.S. 167. 184. 5 L. Ed. 2d 492r 81 S. Ct. 473 (1961)f overruled on other grounds, Monell. 436 U.S. 658. 56 L Ed. 2d 611. 98 S. Ct. 2018 (quoting United States v. Classic. 313 U.S. 299. 326. 85 L. Ed. 1368. 61 S. Ct. 1031 (1941)1. See also West. 487 U.S. at 50 ("it is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given him by the state").
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In the present case, McBride contends that the Defendants were acting under color of state law at all times. She contends that the Village officials acted in their official capacities when they made calls to the newspapers and radio station. On the basis of the record, the parties were clearly functioning in their positions as Village officials during the meetings of the Michiana Council and its other municipal bodies. Even when the official terminated McBride's [*19] interviews of Village employees, this was the instruction from an individual who had acted as a representative of the municipal government. Accordingly, when all of the allegations are viewed in a light that is most favorable to McBride, it is our conclusion that the Defendants were acting in their capacities as Village officials. Given the sympathetic construction that is necessary when evaluating a motion under Fed. R. Civ. P. 12(b)(6), we find that McBride has asserted sufficient allegations to support a viable claim under § 1983.
During the hearing on the Motion to Dismiss before the district court, McBride asked for authority to amend the Complaint in the event that her claim was found to be legally deficient:
If that's a mistake on our part, that we [request to be] given some leave to amend with regard to that; although, we don't think its necessary.
(Joint Appendix 90.) Federal Rule of Civil Procedure 15(a) states that leave to file an amended pleading "shall be freely given when justice so requires." The decision as to when justice requires an amendment is left to the discretion of the trial court judge, and is reviewed under an abuse of discretion standard. Miller v. Metropolitan Life Ins. Co.r 925 F.2d 979. 982 f6th Cir. 1991k [*20] see also Robinson v. Michigan Consolidated Gas Co.f 918 F.2d 579. 591 (6th Cir. 1990) (decision as to whether proposed claim is without merit, thereby making motion to amend futile, is "a decision that the district court alone is in a position to make"). Granting a motion to dismiss while a motion for leave to amend the complaint is pending is an abuse of discretion. See e.g., Thompson v. Superior Fireplace Company, 931 F.2d 372f 374 f6th Cir. 1991). Inasmuch as we have already determined that McBride's lawsuit was improperly dismissed by the district court, those remaining issues which relate to whether (1) her cursory comment relating to a proposed amendment of the Complaint constituted an adequate motion to amend, or (2) the district court should have granted the motion for leave to amend the Complaint prior to dismissing the action, need not be addressed for reasons of mootness.
Ill
For the reasons that have been set forth above, the order of the district court is REVERSED and this action is REMANDED for further proceedings that are consistent with this opinion.
CONCURBY: DAVID A. NELSON
CONCUR: DAVID A. NELSON, Circuit Judge, concurring. [*21] I fully agree that this case — petty though it may seem — ought not to have been dismissed under Rule 12(b)(6), Fed. R. Civ. P. I write separately, however, to note my understanding that many of the shenanigans attributed to the defendants hardly constitute violations of the United States Constitution.
Municipal employees have rights of free speech, for one thing, just as newspaper reporters do. Those rights may not always be exercised wisely, but courts are not arbiters of good taste or sensible politics, and Article III of the Constitution is not a charter for a conciliation service. Public officials are under no constitutional obligation to speak to the press at all, moreover, whether diplomatically or undiplomatically, and I hope that our opinion in this case will not be read as suggesting otherwise.
If Michiana police officers have made veiled threats with regard to the plaintiffs physical safety, on the other hand, and have done so on behalf of the village, or if Michiana has sought to exclude the plaintiff from public
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meetings, the plaintiff clearly has something to complain about. The truth of factual allegations such as these cannot be decided on a demurrer to the complaint, [*22] and I therefore concur in the court's judgment.

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 US v. City of Columbus

• •II • •• •(••II • • I I I • • • • • • • • •
PN-OH-001-009

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OFCftiJOP." 11+ p,i 3:

EASTERN DIVISION

,, ~ „,,„.. „

UNITED STATES OF AMERICA, Plaintiff,
V.
CITY OF COLUMBUS, OHIO, et al., Defendants.

EA^T. Div. CCLL'«;JUS
Civil No. C2-99-1097 Judge Holschuh Magistrate Judge King

REPLY OF THE FRATERNAL ORDER OF POLICE, CAPITAL CITY LODGE NO. 9, TO THE UNITED STATES' MEMORANDUM IN OPPOSITION TO THE CITY OF COLUMBUS' MOTION TO DISMISS AND THE
FRATERNAL ORDER OF POLICE'S MOTION FORJUDGMENT ON THE PLEADINGS

^--^

James E.Phillips (0014542) VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 (614) 464-5610 Trial Attorney for Fraternal Order of Police, Capital City Lodge No. 9

John J. Kulewicz (0008376) Douglas L Rogers (0008125) VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008
(614)464-6400 Of Counsel for Fraternal Order of Police, Capital City Lodge No. 9

COMBINED TABLE OF CONTENTS AND SUMMARY OF ARGUMENTS PAGE

42 U.S.C. §14141 Does Not Impose Vicarious Liability

2

A. The Words Show §14141(a) Prohibits Conduct By A

Municipality And Does Not Impose Vicarious Liability

2

The words of § 14141 (a) prohibit a municipality from engaging in conduct. The use of "engage" shows that municipalities must take part in the conduct in question in order to be subject to liability. Similarly, "pattern or practice" in §1414 means a pattern or practice caused by the defendant.

St. Louis v. Praprotnik, 485 U.S. 112 (1988)

3

Monell v. New York City Dept. of Social Services,

436 U.S. 658 (1978)

3

International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977)

3

Board of Comm'rs of Bryan Ctv. V. Brown, 520 U.S.

397(1997)

3

Canton v. Harris, 489 U.S. 378 (1989)

4

Rizzo^rGoode, 423 U.S. 362 (1976)

4

B. The Legislative History Shows Congress Did Not Intend To

Impose Vicarious Liability

6

House Report 102-242 stated that the Omnibus Crime Control

Act of 1991 "does not increase the responsibilities of police

departments or impose any new standards of conduct on police

officers." The House Report was referring to no new federal

standards: 'The standards of conduct under the Act are the

same as those under the Constitution, presently enforced in

d a m a g e actions under section 1983."

The prevailing standards under § 1983, now and at the time of the passage of § 14141, required a plaintiff to establish that a defendant had caused the police to violate the rights before the defendant could be liable and be subject to either injunctive relief or damages.

Rizzo v. Goode, 423 U.S. 362 (1976)

7

Canton v. Harris, 489 U.S. 378 (1989)

7

Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991)

8

C. The DOJ Admits A Municipality Must Engage In A Pattern

Or Practice Of Conduct

11

Vicarious liability is liability "because of the relationship between the two parties." In other words, no action is required by the supervisory party under vicarious liability. When the DOJ identifies the governmental authority as an actor, it implicitly recognizes vicarious liability is not imposed by §14141 (a).

Well v. Michigan Department of State Police, 491

U.S. 58 (1989)

11

II. If §14141 Were Applied To Impose Vicarious Liability On

Municipalities, It Would Be Unconstitutional As Applied

12

A. Congress Does Not Have The Authority Under Section 5 Of

The Fourteenth Amendment To Impose Vicarious Liability

On, And Authorize Injunctive Relief Against, Municipalities

For The Actions Of Individual Police Officers

12

Legislation enacted pursuant to §5 of the Fourteenth Amendment must be remedial and vicarious liability would authorize relief against municipalities which had not violated the Constitution. The legislation would not be remedial and would be a disproportionate response, by requiring municipalities to take action when those municipalities had not violated the Constitution.

1. The governmental entity/official being sued must be

at fault to be liable

12

Florida Prepaid and Rizzo establish that a local government entity cannot be held liable and enjoined pursuant to legislation passed pursuant to §5 of the Fourteenth Amendment, unless that government entity-in contrast to its employees-has violated the constitutional rights of individuals.

Florida Prepaid Post Secondary Education Expense

Board v. College Savings Bank, 527 U.S. 627, 119 S.

Ct. 2199 (1999)

13

Rizzo v. Goode, 423 U.S. 362 (1976)

13

2. Congress Is Not Authorized To Enact Legislation

Where The Remedy Is Disproportionate To The

Violation

14

The principles announced in Boerne, Kimel and Florida Prepaid show that Congress does not have the authority under §5 of the Fourteenth Amendment to impose vicarious liability on local governments. If the governmental entity is not at fault, any remedy against the governmental entity is disproportionate to the violation, since in fact the municipality has not violated anyone's rights.

City of Boerne v. Flores, 529 U.S. 507 (1997)

14

Kimel v. Florida Board of Regions, U.S.

120

S.O631 (2000)

15

United States v. City of Philadelphia, 644 F.2d 187 (3rd

Cir. 1980)

16

B. The Cases Cited By The DOJ Do Not Support The

Constitutionality Of The Imposition Of Vicarious Liability On

Municipalities

17

1. The DOJ Cites No Cases Granting Injunctive Relief

Against Municipalities Based On Respondent

""Superior

17

The three cases cited by the DOJ as affirming injunctive relief in police cases in fact did not approve injunctive relief against a municipality based on respondeat supreior liability. Moreover, each of the three cases recognized Rizzo v. Goode, as controlling and also recognized that there had to be a causal link between the defendant and the violation of constitutional rights in order for an injunction to issue.

Rizzo v. Goode, 423 U.S. 362 (1976)

18

Thomas v. County of Los Angeles, 978 F.2d 504 (9th

Cir. 1993)

18

Los Anaeles v. Lyons, 461 U.S. 95 (1983)

18

O'Shea v. Littleton, 414 U.S. 488 (1974)

18

2. The Commerce Clause Cases Cited By The DOJ Are

Inapplicable

20

Congress has the authority under the Commerce Clause ot the Constitution to regulate conditions of employment for both public and private employers, but §14141 involves the power of Congress under §5 of the Fourteenth Amendment. In addition, although the Supreme Court in Faraaher referred to vicarious liability, in fact that liability was subject to a condition: discriminatory action of a supervisor, who in the context of hiring and firing decisions could be deemed to be a policymaker. Second, Faraaher did not involve a pattern or practice but a case filed by an individual asking for damages and injunctive relief against municipal actions can raise more federalism concerns than an individual damage action.

Faraaher v. City of Boca Raton, 524 U.S. 775, 118

S.Ct. 2275 (1998)

20

U.S. v. Gregory, 818 F.2d 1114 (4th Cir. 1987)

20

Kentucky v. Graham, 473 U.S. 159 (1985)

20

United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624

(1995)

20

Garcia v. San Antonio Metropolitan Transit Authority,

^469 U.S. 528 (1985)

20

EEOCv. Wyoming, 460 U.S. 226 (1983)

21

Kimel v. Florida Board of Regents U.S. , 120

S.Ct. 631 (2000)

21

Printzv. United States, 521 U.S. 898, 919-920 (1997)

22

New York v. United States, 505 U.S. 144, 156 (1992)

22

Jett v. Dallas Independence School District, 491 U.S.

701 (1989)

23

3. Injunctive Relief Against Municipalities Based On

Vicarious Liability Conflicts With Principles Of

Federalism

23

Congress does not have the authority to single out government entities and impose vicarious liability on them in order for the DOJ to

IV

control the conduct of police officers through some sort of "standards" decided by the DOJ instead of the Constitution. Principles of federalism apply to injunctive relief against municipalities.

Pierson v. Ray, 386 U.S. 547 (1967)

24

Kentucky v. Graham, 473 U.S. 159 (1985)

24

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)

24

Lewis v. Casey, 518 U.S. 322 (1996)

25

Missouri v. Jenkins, 515 U.S. 70 (1995)

25

Milliken v. Bradley, 433 U.S. 267 (1977)

25

III. Conclusion

25

The words in § 14141, legislative history and relevant case law at the time § 14141 was enacted show that Congress did not, and did not intend to, single out municipalities and impose vicarious liability on them. If it had, that would have exceeded Congress1 authority to enact legislation, and §14141 would be unconstitutional as applied. The Complaint must be dismissed.

REPLY MEMORANDUM OF FRATERNAL ORDER OF POLICE, CAPITAL CITY LODGE NO. 9
In its Motion for Judgment on the Pleadings, the Fraternal Order of Police, Capital City Lodge No. 9 (the "FOP") asserted that the Complaint should be dismissed, because the Complaint did not allege facts supporting either of two necessary elements of a cause of action:1
(1) the municipality, not simply some of its employees, must be deliberately indifferent to the violation of constitutional rights; and
(2) the municipality, not simply some of its employees, must be the moving force behind the violation of constitutional rights.
In its Response, the Department of Justice ("DOJ") argues that the City is subject to vicarious liability under §14141 for the acts of its police officers, and that the DOJ does not have to allege either of the above two elements.
This Reply shows that § 14141 does not impose vicarious liability on governmental authorities. This Reply then shows that if § 14141 could be interpreted to impose vicarious liability on the City, §14141 would be in excess of the authority granted to Congress and would be unconstitutional. The FOP therefore asks that this Court grant the FOP's Motion for Judgment on the Pleadings.
1 The FOP also agreed and still agrees with the additional points made in the City's Motion to Dismiss, and incorporated by reference the arguments of the City of Columbus (the "City") in its Motion to Dismiss. The FOP does not restate those arguments here.

I. 42 U.S.C. $14141 Does Not Impose Vicarious Liability.
A. The Words Show 1514141 fa) Prohibits Conduct By A Municipality And Does Not Impose Vicarious Liability
Disregarding "engage," "pattern or practice," legislative history and
existing case law at the time § 14141 was passed, the DOJ argues that §14141
imposes vicarious liability on municipalities throughout this country. The DOJ says
"Section 14141(a) clearly states that a 'governmental authority' can be liable for 'engag[ing] in a pattern of practice of conduct by law enforcement officers1."2
(Emphasis added.) But why did the DOJ add "can be liable for" if § 14141(a)
clearly said what the DOJ is arguing it says? The phrase "can be liable for" might
suggest some sort of vicarious liability, but that phrase is not in § 14141(a).
Instead, the words of §14141 (a) prohibit a municipality trom
engaging in conduct:
It shajl^be unlawful for any governmental authority, or any ageTrHhereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers... that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. (Emphasis added.)3 The DOJ suggests it is significant that the word "cause"4 is
not included in §14141. Yet the DOJ disregards "engage" in §14141, which
2 Page 4 of The United States' Memorandum In Opposition To The City Of Columbus Motion To Dismiss And The Fraternal Order Of Police's Motion for Judgment On The Pleadings (hereafter "DOJ Memorandum"). 3 Exhibit C of the FOP's Motion for Judgment on the Pleadings. 4 "or any word of equal import." Page 35 of DOJ Memorandum.

means "to employ or involve oneself; to take part in; to embark on."5 The use of "engage" shows that municipalities must take part in the conduct in question in order to be subject to liability.
Overlooking contrary Supreme Court decisions, the DOJ also argues that since a government only acts through its agents, Congress must have meant to impose vicarious liability on municipalities.6 However, in St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988),7 the Supreme Court said it was "[a]ware that governmental bodies can act only through natural persons." Nevertheless the Supreme Court added that in Monell it had "concluded that these governments should be held responsible when, and only when, their official policies cause their employees to violate another person's constitutional rights." Id.
In addition to disregarding "engage," the DOJ also disregards the phrase "pattern or practice" and judicial interpretations of that phrase at the time §14141 was passe~d-A In International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), the Supreme Court held "pattern or practice" meant the United States Government "had to establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure - the regular rather than the unusual practice." id. at 336 (emphasis added). In Board of Comm'rs of Bryan Ctv. V. Brown, 520 U.S. 397, 407-408
5 Black's Law Dictionary, Seventh Edition (1991). 4 Page 32 of DOJ Memorandum. 7 Discussing Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978),

(1997), citing Canton v. Harris, 489 U.S. 378, 390-391 (1989), the Supreme Court indicated that a pattern ot police misconduct "may tend.to show that the lack of proper training...is the 'moving force' behind the plaintiff's injury." (Emphasis added.) In Rizzo v. Goode, 423 U.S. 362, 371 (1976), the Supreme Court reversed an injunction against municipal officials resulting from police misconduct, because "there was no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners—express or otherwise—showing their authorization or approval of such misconduct." The Supreme Court contrasted the situation in Rizzo to other cases where there had been a pattern of police violation of rights caused by the defendants. |d. at 375. As in the above cases, "pattern or practice" in §1414 means a pattern or practice caused by the defendant.9
The DOJ argues that if Congress had "intended that the City would not be liable for the~acte-of its officers under §14141, the statute would have omitted the term 'governmental authorities' from the first part of the sentence...."10 Of course, Congress did intend that municipalities would in certain situations be liable for the acts of their officers. However, the fact that a statute prohibits a municipality from engaging in specified conduct does not mean the statute imposes vicarious liability.
8 It is presumed that Congress was aware of the law, including judicial interpretations of statutes, when it passes legislation. See Cannon v. University of Chicago, 441 U.S. 677, 696-698 (1979). 9 This is reinforced by the requirement in § 14141 that the governmental authority "engage" in the pattern or practice. 10 Page 32 of DOJ Memorandum.

In §14141 (a), Congress prohibited "any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority" from engaging in certain activity by its law enforcement officers. If Congress had intended to subject municipalities to vicarious liability, it could have (1) only prohibited governmental authorities from engaging in a pattern or practice of violating the constitutional rights of citizens and (2) included within the definition of governmental authority "police officers."11 Alternatively, Congress could have only prohibited police officers from engaging in a pattern or practice of violating constitutional rights and provided in §14141 (b) that the Attorney General could sue the governmental authority which employed the police officers to obtain injunctive relief when police violated the constitutional rights of citizens. Third, Congress could have said "Municipalities are liable for a pattern or practice of police violations of the constitutional rights of individuals." This is essentially what the"DOJ~.claims the statute says, but § 14141 does not say that.
Congress took none of these alternatives, but separately prohibited governmental authorities, agents and persons acting on behalf of governmental authorities from engaging in conduct. Congress only wanted the persons/entities responsible for the violations of constitutional rights to be enjoined, and not others.
11 This is the method Congress used when it passed Title VII and imposed vicarious liability upon state and local governments in employment discrimination cases. See 42 U.S.C. §2000e(a),(b) and§20002-2(a).

The DOJ refers to statutes authorizing the Attorney General to bring pattern or practice suits,12 but does not mention that these statutes authorize injunctive relief against the person or persons responsible. For instance, 42 U.S.C. §2000a-5(a) provides that when the Attorney General has reasonable cause to believe that the statute is being violated, "the Attorney General may bring a civil action...requesting...preventive relief...against the person or persons responsible for such pattern or practice..." (Emphasis added.) Similarly, 42 U.S.C. §3613(a) authorizes the Attorney General to request preventive relief "against the person or persons responsible for such pattern or practice or denial of rights..." (Emphasis added.) See United States v. City of Parma, Ohio, 661 F.2d 562 (6th cir. 1981), cert, denied, 656 U.S. 1012 (1982); United States v. Bob Lawrence Realty, Inc., 474 F.2d 115 (5th Cir. 1973), cert, denied, 414 U.S. 826 (1973); and United States v. Hunter, 459 F.2d 205 (4th Cir. 1972), cert, denied, 409 U.S. 934(1972)—eactrinvQlving 42 U.S.C. §3613. In other words, these statutes do not impose vicarious liability.
B. The Legislative History Shows Congress Did Not Intend To Impose Vicarious Liability
House Report 102-242 stated that the Omnibus Crime Control Act of 1991 "does not increase the responsibilities of police departments or impose any new standards of conduct on police officers."13 Although the DOJ blithely
12 Page 2 of DOJ Memorandum. 13 Exhibit A of DOJ Memorandum, also atfached to this Reply as Exhibit A. See p. 138 of the House Report. Due to the difficulty in reading the page numbers on the copy of the House Report, counsel has hand printed the page numbers and put them in brackets, on pp. 136-139.

suggests that "all law enforcement agencies previously had the responsibility to eliminate unlawful conduct by their officers,"14 the DOJ cites no authority for that proposition. Moreover, the sentence immediately following the quoted sentence shows the House Report was referring to no new federal standards: 'The standards of conduct under the Act are the same as those under the Constitution, presently enforced in damage actions under section 1983."15
The prevailing standards under §1983, now and at the time of the passage of §14141, required a plaintiff to establish that a defendant had caused the police to violate the rights before the defendant could be liable and be subject to either injunctive relief or damages. For instance, in Rizzo v. Goode, 423 U.S. 362, 376-377 (1976), the Supreme Court rejected the argument of plaintiffs that the mayor and police officials could be enjoined to eliminate future police misconduct, since there had been no showing that they had caused the police misconduct. In Canton v. Harris, 489 U.S. 378 (1989), the Supreme Court held that a municipality could not be held liable under §1983 for violations of rights of citizens by police officers unless (1) the municipality had shown "deliberate indifference to the rights of persons with whom police come into contact," at 388, and (2) the actions by the municipality "actually caused" the police officers to violate the rights of the citizen. Id. at 391. These were the prevailing standards at the time the House Report said the "standards of
14 Page 34 of DOJ Motion 15 Exhibit A, p. 138.

conduct under the Act are the same as under the Constitution, presently enforced in damage actions under section 1983."16
The House Report stated that the Omnibus Crime Control Act of 1991 "provides another tool for a court to use, after a police department is held responsible for a pattern or practice of misconduct that violates the Constitution or laws of the United States."17 (Emphasis added.) The House Report then gave two examples of the need for pattern and practice authority-rejecting through these examples liability based on the principle of respondeat superior. The first example was Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991), in which the Ninth Circuit said "a municipality cannot be held liable on a respondeat superior theory." idLat 1480. Quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989), the Ninth Circuit said in order for a municipality to be liable, "the failure to train must 'reflectfj a 'deliberate' or 'conscious' choice by a municipality—a 'policy.'..."id. The Nlrrfh-Gircuit also said that "the deprivation of plaintiffs' Fourth Amendment rights was a direct consequence of the inadequacy of the training the deputies received." Id. at 1483. The second example given in the House Report was a Goldsboro, North Carolina, incident where the testimony showed there was "an official policy of not investigating incidents (involving deadly
'* Exhibit A, p. 138. 17 Id. The next paragraph in the House Report also says "the Act imposes no new standard of conduct on law enforcement agencies." Jd.
8

force)."18 Both of these examples in the House Report required at least
deliberate indifference and causation, and rejected vicarious liability.
The DOJ even resorts to making up misleading legislative history
when it says the "Committee cited the following two examples of patterns of
police misconduct that it believed required injunctive relief"19 and then
indenting and single spacing six sentences and citing "Report at 139"20 for the
apparent source. The following are the actual quotes of the first three
sentences of the applicable paragraphs from the House Report:
In Mason County, Washington, in the nine month period between June 1985 and March 1986, citizens in four separate incidents were beaten by police officers following traffic stops. A federal jury returned civil verdicts against all of the deputy sheriffs involved in the incidents and against the a county, awarding a total of $853,000 in damages and costs. The Ninth Circuit affirmed, tracing the incidents to the lack of training provided by the sheriffs department, which it described as 'woefully inadequate, if it can be said to have existed
Another federal case, against the Goldsboro, North Carolina police department, resulted in a $220,000 payment to the father of a young black man who was strangled to death by city police officers. The officers involved in the incident had been involved in several prior incidents involving use of excessive force, yet there had been [no?] disciplinary action taken against them. One expert witness, the former chief of police for Boston and St. Louis County, testified that the City of
'8 id. at 139.
19 Page 9 of DOJ Memorandum. 20 Page 10 of DOJ Memorandum.

Goldsboro had an 'official policy of not investigating incidents (involving deadly force).'21 (Emphasis added.) The first two sentences in each of the DOJ indented paragraphs are similar to sentences in the House Report, except for omitting "tracing," which provides an element of causation, and "official," which also places responsibility directly with the police department. These are particularly significant omissions when considered in conjunction with the third sentence in each of the indented paragraphs: Under the Police Accountability Act, the court could have awarded injunctive relief to stop future violations.
Under the Police Accountability Act, the court could have awarded injunctive relief to require investigation of such incidents. There are no such sentences in the House Report. In shortjTieSegislative history of § 14141 is consistent with the words in § 14141. This history shows that § 14141 was simply meant to provide the DOJ with authority to ask for and obtain injunctive relief, not impose vicarious liability. The imposition of vicarious liability would have been a significant increase in the responsibilities of municipalities under federal law. Congress would not have reversed years of Supreme Court decisions on the question of municipal liability without at least an express statement to that effect and, in fact, while giving
21 Exhibit A at pp. 138-139.
10

assurances to the contrary22: "standards of conduct under the Act are the same as...presently enforced in damage actions under section 1983."23
C. The DOJ Admits A Municipality Must Engage In A Pattern Or Practice Of Conduct
Vicarious liability is liability "because of the relationship between the two parties."24 In other words, no action is required by the supervisory party
under vicarious liability.
Yet the DOJ says there are "two separate and distinct actors" under §14141: "a governmental authority (or agent)" and "law enforcement officers."25
When the DOJ identifies the governmental authority as an actor, it implicitly
recognizes vicarious liability is not imposed by §14141(a), and that a
municipality, not simply its employees, must have taken certain actions
(unspecified by the DOJ).
The DOJ walks farther down the path away from vicarious liability
when it refers to "a governmental authority (or agent), which engages in the
pattern or practice," again referring to conduct. The DOJ, however, does not
suggest the pattern or practice in which a municipality must engage. Under the
DOJ's theory of vicarious liability, a municipality could even be found liable if it
22 The Supreme Court has held that 'If Congress intends to alter the 'usual constitutional balance between the States and the Federal Government', it must make its intention to do so "unmistakably clear in the language of the statute."' Well v. Michigan Department of State Police, 491 U.S. 58, 65 (1989), quoting Atascadero State Hospital v. Scanlon. 473 U.S. 234, 242 (1985). The House Report stated Congress did not intend to change the balance. 23 Exhibit A, p. 138. 24 See Black's Law Dictionary. 25 Pages 31-32 of DOJ Memorandum.
11

engages in a pattern or practice of paying its employees on time. This obviously would be an absurd interpretation of §14141(a) - inconsistent with its words and the legislative history. The text of the statute, legislative history and case law at the time of passage of §14141 show that there must be a causal link between the municipality and the police actions.
II. If $14141 Were Applied To Impose Vicarious Liability On Municipalities, It Would Be Unconstitutional As Applied A. Congress Does Not Have The Authority Under Section 5 Of The Fourteenth Amendment To Impose Vicarious Liability On. And Authorize Iniunctive Relief Against, Municipalities For The Actions Of Individual Police Officers If § 14141 could be interpreted to impose vicarious liability on
municipalities for the conduct of municipal employees, the section would exceed the authority of Congress for at least two related reasons. First, legislation enactedpursuant to §5 of the Fourteenth Amendment must be remedial, and vicarious liability would authorize relief against municipalities which had not violated the Constitution. The legislation would not be remedial. Second, the imposition of vicarious liability would be a disproportionate response, by requiring municipalities to take action when those municipalities had not violated the Constitution.
1. The governmental entity/official being sued must be at fault to be liable
The Supreme Court has held that in order "for Congress to invoke §5, it must identify conduct transgressing the Fourteenth Amendment's substantive
12

provisions, and must tailor its legislative scheme to remedying or preventing such conduct." Florida Prepaid Post Secondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 119 S. Ct. 2199, 2209 (1999). In declaring the Patent Remedy Act unconstitutional as in excess of Congress' authority under §5 of the Fourteenth Amendment, the Supreme Court in Florida Prepaid explained "the evidence before Congress suggested that most State infringement was innocent or at worst negligent." kL at 2209. The Court then said that such negligent conduct did not violate the Due Process Clause of the Fourteenth Amendment. The Supreme Court also explained:
Nor did it [Congress] make any attempt to confine the reach of the Act by limiting the remedy to certain types of infringement, such as non-negligent infringement or infringement authorized pursuant to state policy.... \d. at 2210. The Patent Remedy Act did not even impose vicarious liability, but the Supreme Court nonetheless held that the Act was unconstitutional, because it was not tied to the affirmative fault of the government entity. The Supreme Court in Florida Prepaid did not announce a new principle. After all, in Rizzo v. Goode. the Supreme Court said "the District Court found that none of the petitioners had deprived the respondent classes of any rights secured under the Constitution." 423 U.S. at 377(emphasis added). As a result, even though police officers supervised by the defendants had deprived individuals of federal rights, the defendants could not be enjoined: "Under the well-established rule that federal 'judicial powers may be exercised only on the
13

basis of a constitutional violation,'...this case presented no occasion for the District Court to grant equitable relief against petitioners." id. (emphasis added).
Florida Prepaid and Rizzo establish that a local government entity cannot be held liable and enjoined pursuant to legislation passed pursuant to §5 of the Fourteenth Amendment, unless that government entity-in contrast to its employees-has violated the constitutional rights of individuals. Congress does not have the authority under §5 of the Fourteenth Amendment to pass legislation imposing vicarious liability on municipalities.
2. Congress Is Not Authorized To Enact Legislation Where The Remedy Is Disproportionate To The Violation
In City of Boerne v. Flores, 529 U.S. 507 (1997), the Supreme Court concluded that the Religious Freedom Restoration Act of 1993 was unconstitutional. Noting that Congress' power under §5 of the Fourteenth Amendment was^nly remedial, the Supreme Court said "[t]he design of the Amendment and the text at §5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States." i d at 519. The Supreme Court added that there had to be "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." k l at 520. In the present case, if § 14141 imposed vicarious liability on municipalities, Congress would be authorizing the imposition of liability on municipalities which had not violated the Constitution.
14

In Kimel v. Florida Board of Regents, U.S. 120 S.Ct. 621,629 (2000), the Supreme Court invalidated the application of the ADEA to the States, because "Congress never identified any pattern of age discrimination by the States...." Referring to a 1996 California report on age discrimination in California public agencies, the Supreme Court said that '[e]ven if the California report had uncovered a pattern of unconstitutional age discrimination in the State's public agencies at the time, it nevertheless would have been insufficient to support Congress1 1974 extension of the ADEA to every State of the Union." Id. at 649. The Supreme Court also said "isolated sentences clipped from floor debates and legislative reports" were not sufficient.
Similarly, in Florida Prepaid, the Supreme Court said "Congress appears to have enacted this legislation [the Patent Remedy Act] in response to the handful of instances of state patent infringement that do not necessarily violate the ConstitutloffV-l 19 S.Ct. at 2210. The Supreme Court held the Patent Remedy Act was unconstitutional, stating "Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations." ig\at2207.
As in Kimel and Florida Prepaid, the scattered incidents of police officer misconduct referred to in the House Report are not sufficient to impose vicarious liability on municipalities. The House Report, in a section titled "background," refers to the Los Angeles Police Department and says "the conduct of these officers was well known to police department management,

who condoned the behavior through a pattern of lax supervising and inadequate investigation of complaints." The House Report also says the "Los Angeles Police Department directed officers to use an illegal kung-fu device known as the nun-chuk to inflict pain on passive demonstrators in an effort to force them to comply with police orders." In other words, the House Report finds knowledge and causation by the Los Angeles Police Department and does not suggest vicarious liability should be imposed.
The House Report also cites United States v. City of Philadelphia. 644 F.2d 187 (3d Cir. 1980). In Philadelphia, the Third Circuit observed that the "United States alleges that the appellees have deliberately encouraged these illegal practices through the policies and procedures they have established for investigating complaints of illegal police activity." Id. at 190. The Third Circuit also said the United States had alleged "generally that some or all of the appellees have delib~eTa4ely endeavored to encourage police violation of civil rights." Jd. Again, there is no suggestion of vicarious liability.
There are a number of references in the House Report to individual police misconduct. However, those references do not indicate that the police department was deliberately indifferent to the violation of rights or caused the violation of rights.
At most, the House Report identified two anecdotal examples (Los Angeles and Philadelphia) of violation of constitutional rights by police departments. Even assuming the House Report reference to New York had
16

been a finding that the New York Police Department—rather than individual police officers—had been engaged in a pattern or practice of violation of constitutional rights, three examples of unconstitutional conduct by police departments would be insufficient under Kimel and Florida Prepaid , under §5 of the Fourteenth Amendment, to justify imposing vicarious liability on police departments nationwide.
The principles announced in Boerne, Kimel and Florida Prepaid show that Congress does not have the authority under §5 of the Fourteenth Amendment to impose vicarious liability on local governments for the actions of police officers. If the governmental entity is not at fault, any remedy against the governmental entity is disproportionate to the violation, since in fact the municipality has not violated anyone's rights.
B. The Cases Cited By The DOJ Do Not Support The Constitutionality Of The Imposition Of Vicarious Liability On Municipalities 1. The DOJ Cites No Cases Granting Iniunctive Relief Against Municipalities Based On Respondent Superior The DOJ argues that Congress has the authority to impose vicarious
liability on municipalities, but does not cite a single case in which a federal court issued an injunction against a municipality based on responded! superior liability.26 The three cases cited by the DOJ as affirming injunctive relief in police
2* The DOJ cites Gebser v. Laao Vista Indep. Sch. Dist., 524 U.S. 274 (1998), which involved a question of legislative intent, not whether Congress had the constitutional authority to pass the legislation. In Gebser the Supreme Court concluded the statue did not impose vicarious liability, and Gebser gives no support to an argument that the imposition of vicarious liability on municipalities in a different situation would be constitutional
17

cases27 in fact did not approve injunctive relief against a municipality. Moreover, each of the three cases recognized Rizzo v. Goode, 423 U.S. 362 (1976), as controlling and also recognized that there had to be a causal link between the defendant and the violation of constitutional rights in order for an injunction to issue.
In Thomas v. County of Los Angeles, 978 F.2d 504 (9fh Cir. 1993), for instance, the Ninth Circuit reversed the injunction issued by the District Court, because the record did "not yet contain a sufficient basis on which to evaluate the likelihood of the plaintiffs' succeeding on the merits and establishing, not merely misconduct, but a pervasive pattern of misconduct reflecting departmental policy." Jd. at 509 (emphasis added). The Ninth Circuit in Thomas cited and fully supported the Supreme Court's decision in Rizzo, and also noted that the plaintiffs in Thomas had named as defendants 21 individual sheriff's deputies reportedly"responsible for the misconduct, and supervisory personnel. Even in that situation, the Ninth Circuit reversed the order of the District Court granting the injunction.
The DOJ also cites LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985), modified, 796 F2d 309 9th Cir. 1986), but LaDuke did not involve relief against a state or municipal agency. Instead, LaDuke was a suit against the Immigration and Naturalization Service of the United States Government. Distinguishing Los Anaelesv. Lvons. 461 U.S. 95 (1983), Rizzo, and O'Shea v. Littleton, 414 U.S.
27 Page 38 of DOJ Memorandum and n. 22.
18

488 (1974), the Ninth Circuit said Lyons, Rizzo and O'Shea "involved attempts by plaintiffs to entangle federal courts in the operations of state law enforcement and criminal justice institutions." Id. at 1324 (emphasis added). The Ninth Circuit concluded that the "comity considerations which influenced the Supreme Court's decision" in Lyons, Rizzo and O'Shea were inapplicable in LaDuke. id. at 1325. However, the comity considerations absent in LaDuke are present here, since federal legislation is being used to entangle the District Court in local law enforcement.
The issue of federalism also was not present in Commonwealth of Pennsylvania v. Porter, 659 F.2d 306 (3rd Cir. 1981), cert, denied, 458 U.S. 1121 (1982), since the Commonwealth of Pennsylvania, not the federal government, sued various municipal officials.28 Even without the issue of federalism being present, the Third Circuit rejected injunctive relief against the members of the Borough Council. The~m<3jority29 held that Rizzo was controlling and that in order to enjoin "the members of the Borough Council,...[their] misconduct cannot be merely a failure to act. Such officials must have played an affirmative role in the deprivation of the plaintiffs' rights, i.e., there must be a causal link between the actions of the responsible officials named and the challenged misconduct."30
28 the Borough itself was not even a defendant. 29 A majority of five judges (Gibbons, Higginbotham, Sloviter, Seitz and Adams) approved injunctive relief against the mayor and certain police officers on the grounds that these officials had affirmatively approved the violation of constitutional rights,. However, a different majority (Garth, Aldisert, Hunter, Seitz and Adams) rejected injunctive relief against the members of the Borough Council for the reasons discussed above. 3° Id. at 336.
19

(Emphasis added.) Porter supports the position of the FOP that vicarious liability
is impermissible in the present situation.
2. The Commerce Clause Cases Cited By The DOJ Are Inapplicable
Faraaher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998),
at least did involve municipal liability, but also is distinguishable from the present
case, because, among other reasons, it involved Title VII. Congress has the
authority under the Commerce Clause of the Constitution to regulate conditions
of employment for both public and private employers.31 In contrast, the DOJ
argues that § 14141 is within the power of Congress under §5 of the Fourteenth
Amendment, not the Commerce Clause.32
There are differences in the authority granted to Congress by the
different constitutional provisions. For instance, in Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528 (1985), the Supreme Court held that
the application of the federal Fair Labor Standards Act to a local public mass-
3' U.S. v. Gregory, 818 F.2d 1114, 1119 (4»> Cir. 1987), cert, denied. 484 U.S. 847 (1987). There is a separate question of whether the Eleventh Amendment bars actions against a state for employment discrimination. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). However, the Eleventh Amendment does not apply to actions against municipalities. Kentucky v. Graham. 473 U.S. 159, 167 n. 14(1985). 32 Burlington Industries, Inc. v. Ellerth. 524 U.S. 742 (1998), and Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1013-1014 (6th Cir. 1987), cited by the DOJ at pp. 36-37, are also Title VII cases and distinguishable on the some grounds os Fgrrgqher. The DOJ also cites City of Chicago v. Matchmaker Real Estate Center, Inc.. 982 F.2d 1086 (7th Cir. 1992); and Northside Realty Associates, Inc. v. United States. 605 F.2d 1348 (5th Cir. 1979) at p. 36. Yet these two cases involved the fair housing laws, private defendants and the Commerce Clause. The DOJ does not argue that the Commerce Clause gives Congress the authority to pass §14141, and the decision in United States v. Lopez. 514 U.S. 549, 115 S.Ct. 1624 (1995), in which the Supreme Court held interstate commerce was not involved in a federal law regulating guns in school districts, would prevent any argument thgt interstate commerce was involved in this case.
20

transit authority was a valid exercise by Congress of its power under the Commerce Clause. In EEOC v. Wyoming, 460 U.S. 226, 243 (1983), the Supreme Court held that the extension of the Age Discrimination in Employment Act ("ADEA") "to cover state and local governments...was a valid exercise of Congress1 powers under the Commerce Clause." On the other hand, in Kimel v. Florida Board of Regents, U.S. 120S.Ct. 631, 650 (2000), the Supreme Court held that the ADEA was not a valid exercise of §5 of the Fourteenth Amendment, and therefore "ADEA's purported abrogation of the States' sovereign immunity is accordingly invalid."
In addition to the different parts of the Constitution involved, there are other reasons why Faraaher is not applicable to the present case. First, although the Supreme Court in Faragher referred to vicorious liability, in fact that liability was subject to a condition: discriminatory action of a supervisor, who in the context of hiriffg-QAoLfiring decisions could be deemed to be a policymaker. Second, Faragher did not involve a pattern or practice but a case filed by an individual asking for damages and, as the next section of this memorandum points out, injunctive relief against municipal actions can raise more federalism concerns than an individual damage action.
Finally, the anti-discrimination legislation involved in Faraaher applied to both private and public employers and, unlike §14141, did not single out municipalities and control the actions of municipal employees toward private parties. As the following cases show, the Supreme Court has consistently
21

questioned the right of the federal government to single out municipalities and direct how the municipalities could act toward private citizens.

In Printz v. United States, 521 U.S. 898, 919-920 (1997), the Supreme

Court held that the Brady Handgun Violence Prevention Act was

unconstitutional, because it imposed duties on local governments in their

contacts with private citizens. The Supreme Court noted that the Framers of the

Constitution "rejected the concept of a central government that would act

upon and through the States, and instead designed a system in which the State

and federal governments would exercise concurrent authority over the people."

The Supreme Court added that the Tenth Amendment was not "the exclusive

textual source of protection for principles of federalism. Our system of dual

sovereignty is reflected in numerous constitutional provisions... and not only

those, like the Tenth Amendment, that speak to the point explicitly." id. at 923 n.

13.

^--

In New York v. United States, 5Q5 U.S. 144, 156 (1992), the Supreme

Court said that if a power was delegated to Congress by the Constitution, "the

Tenth Amendment expressly disclaims any reservation of that power to the

States; if a power is an attribute of state sovereignty reserved by the Tenth

Amendment, it is necessarily a power the Constitution does not confer on

Congress." The Court then held that if Congress had the authority to regulate

private activity under the Commerce Clause, Congress could "offer States the

choice of regulation that activity according to federal standards or having state

22

law pre-empted by federal regulation." jd. at 167. The Court held that the Low

Level Radioactive Waste Policy Amendments Act of 1985 was inconsistent with

the Tenth Amendment and unconstitutional, because "the Act commandeers

the legislative process of the States by directly compelling them to enact and

enforce a federal regulatory program. ]d. at 176, quoting Hodel v. Virginia

Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981).

In Jett v. Dallas Independent School District, 491 U.S. 701, 728 (1989),

the Supreme Court cited Collector v. Day, 11 Wall. 113 (1871) and Kentucky v.

Denison, 24 How. 66 (1861), and quoted Prigg v. Pennsvlvgnia, 16 Pet. 539, 616

(1842), for the proposition that "Congress could not constitutionally 'insist that the

states are bound to provide means to carry into effect the duties of the national government1". 42 U.S.C. § 14141, as interpreted by the DOJ, would do just that-

impose on local governments the DOJ's interpretation of appropriate police

conduct.

^""---^

3. Iniunctive Relief Against Municipalities Based On Vicarious Liability Conflicts With Principles Of Federalism

The DOJ suggests that "the usual arguments against the imposition of such [vicarious] liability are inapplicable to § 14141 ",33 since injunctive relief

and not damages is involved. The DOJ incorrectly cites Wood v. Strickland, 420

U.S. 308, 315 n. 6 (1975), which did not involve vicarious liability, for the

proposition that "courts have historically drawn distinctions when discussing

33 Page 37 of DOJ Memorandum
23

vicarious liability between actions for damages and actions for equitable relief."34 However, Wood is irrelevant, since it was a case against the members of a local school board,35 not an action against the local government entity,36 and involved the qualified immunity of government officials, not vicarious liability.
The issue is not immunity. After all, "local government units can be sued directly for damages and injunctive or declaratory relief." Kentucky v. Graham, 473 U.S. 159 at 167, n. 14 (1985). The issue is that Congress does not have the authority to single out government entities and impose vicarious liability on them in order for the DOJ to control the conduct of police officers through some sort of "standards" decided by the DOJ instead of the Constitution.
Injunctive relief can in fact be far more intrusive than a damage action, and principleToffederalism apply to injunctive relief against municipalities. As the Supreme Court said in City of Los Angeles v. Lyons. 461 U.S. 95, 112 (1983), "the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the States' criminal laws in the absence of
34 Page 36 of DOJ Memorandum. 35 The Court of Appeals affirmed directed verdicts for the principal and school district, and those rulings were not appealed, {d. at 309 n. 1. 34 The qualified immunity of government officials in damage actions is a common law doctrine which the Supreme Court concluded Congress did not intend to eliminate by the passage of § 1983. Wood, Id. at 314-319. See also Pierson v. Rav, 386 U.S. 547 [19671. That common law
24

irreparable injury which is both grave and immediate." The Supreme Court added that "[i]n exercising their equitable powers federal courts must recognize '[t]he special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law."1 Id. In Lewis v. Casey, 518 U.S. 322, 342 (1996), the Supreme Court concluded that because the constitutional violation in question had "not been shown to be system-wide, and granting a remedy beyond what was necessary to provide relief to Harris and Bartholic was therefore improper." In Missouri v. Jenkins, 515 U.S. 70, 88 (1995), the Supreme Court quoted Milliken v. Bradley, 433 U.S. 267, 281-82 (1977), for the proposition that the "principle that the nature and scope of the remedy are to be determined by the violation means simply that federal-court decrees must directly address and relate to the constitutional violation itself." 515 U.S. at 88.
III. CONCLUSION In United States v. City of Steubenville, C2-97-966 (S.D. Ohio, E.D.),
the DOJ argued that the legislative history of §14141 showed "its very purpose was to address systematically police misconduct resulting from inadequate supervision, training, internal investigations, and other practices." (Emphasis added.) (See attached Exhibit B, which counsel for the FOP has highlighted) Now, however, the DOJ argues §14141 imposes vicarious liability. Apparently the DOJ has concluded the legislative history of §14141 changed between 1997,
immunity has nothing to do with the power of Congress to authorize injunctive relief based on vicarious liability.
25

when the Steubenville case was filed, and the present date. The DOJ was closer to being accurate in the Steubenville case.
The words in § 14141, legislative history and relevant case law at the time §14141 was enacted show that Congress did not single out municipalities and impose vicarious liability on them. If it had, that would have exceeded Congress' authority to enact legislation, and §14141 would be unconstitutional as applied.
The DOJ admits it has not pled two elements: deliberate indifference and causation by Columbus. Since the Complaint does not allege these two elements, and since these two elements are necessary for municipal liability, the Complaint must be dismissed. If, on the other hand, the Court concludes the statute imposes vicarious liability, this Court should declare § 14141 to be unconstitutional as applied by the DOJ. Either way, the FOP
26

respectfully requests that this Court grant the FOP's Motion for Judgment on the Pleadings.
Respectfully submitted, VORYS, SATER, SEYMOUR AND PEASELLP
rial Attorney James E. Phillips (0014542 52 East Gay Street P.O.Box 1008 Columbus, Ohio 43216-1008 (614)464-5610 Trial Attorney for Defendant Fraternal Order of Police, Capital City Lodge No. 9 OF COUNSEL: John J. Kulewicz (0008376) Douglas L. Rogers40008125) VORYS, SATER, SEYMC5OR-AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 (614)464-6400 Attorneys for Defendant Fraternal Order of Police, Capital City Lodge No. 9
27

CERTIFICATE OF SERVICE
I served a copy of this Reply Memorandum upon Mark Masting, Steven H. Rosenbaum and Mark A. Posner, Special Litigation Section, Civil Rights Division, United States Department of Justice, P.O. Box 66400, Washington, D.C. 20035-6400; Sharon J. Zealey, United States Attorney, Two Nationwide Plaza, 280 North High Street, Columbus, Ohio 43215; Glenn B. Redick, Chief Litigation Attorney, Timothy J. Mangan, Senior Litigation Attorney, and Andrea Peeples, Assistant City Attorney, Office of the Columbus City Attorney, 90 West Broad Street, Columbus, Ohio 43215; by first-clasi U.S/mail on^April \H_, 2000.
James E.Phillips (0014542)
28

/

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• O'MNTBUS CRIME/CONTROL-ACT .OF 1991

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EXHIBIT

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102D CONGMSS
1st Session

Hflnsp o p

Part l

OMNIBUS CRIME CONTROL ACT OF 1991
OCTOBER 7. 199V.—Ordered to be printed
Mr. BROOKS, from, the Committee on the Judiciary, submitted the following
REPORT
together with
ADDITIONAL, DISSENTING, AND ADDITIONAL DISSENTS VIEWS
(To accompany H.R. 3371]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the (H.R. 3371) to control and prevent crime, having considered same, report favorably thereon with an amendment and rec mend that the bill as amended do pass.
The amendment is as follows: Strike out all after the enacting clause and insert in lieu the the following:
SECTION L SHORT TITLE AND TABLE OF CONTEXTS.
(a) Saosr TITLE.—This Act may be cited as the "Omnibus Crime Control . 1991".
(b) TABLE OF CONTENTS.—The following is the table of contents for thisAct:
TTTLE I-COMMUNITY POLICING; COP ON THE BEAT TTTLE a—DRUG TREATMENT IN FEDERAL PRISONS TITLE IH-SUBSTANCE ABUSE TREATMENT IN STATE PRISONS
TITLE tV-SAFE SCHOOLS TTTLE V-VtCTIMS OF CRIME Subtitl* A—Crime Victim* Fund
Subtitl* B— Ratitutioa Subtitle C—HIV TwtUic TITLE Vl-CEKTAINTY OF PUNISHMENT FOR tOUNO OFFENDERS

TITLE Vll-DRUG TESTING OF ARRESTED INDIVIDUALS TITLE Vlll-DRUO EMERGENCY AREAS ACT OF IJ9I TTTLE IX-OOERCED CONFESSIONS TITLE X-DNA IDENTIFICATION TITLE XI-HABEAS CORPUS
TITLE Xli-PROVISIONS RELATING TO POLICE OFFICERS Submit A—PoliceAccountability
Submit B—Retired Public Safety Oflktr Death Bemnt 8ubUUt C-Study on Pollc. Officera1 Rlf hta SublHIt D—Law Enforcement Scholarahlpe Submit B—Law Enforcement FamilySupport TITLE XIII-FRAUD TITLE XIV-PROTECTION OF YOUTH SublUlt A—Crimea Afalnat Children Subtltlt B-PatcnUI Kidnapping Subllllt C—Stiutl AbuM Amendment*
Submit D—Rcportlnf of Crlmee A(ainalChildren TITLE XV—MISCELLANEOUS DRUO CONTROL TITLE XVI-FAIRNESS IN DEATH SENTENCING ACT OF 1991 TITLE XVII-MISCELLANEOUS CRIME CONTROL
Submit A-General SubUUt B— Motor Vehicle Theft Prevention
Subtltlt C-Temriem: CWI Rtmtdy
Submit D-Commlaalon on Crime and Violence
TITLE XVIII-MISCELLANEOU8 FUNDING PROVISIONS Submit A-General
SubUUt B-Midnif hi Buktlk.ll TITLE XIX-MISCELLANEOUS CRIMINAL PROCEDURE AND CORRECTIONS
Submit A—RavocaUon of Probation and Suparrlaad Rtleaa* SubUUt B-LUt ofVtnlrtmtn Subtitlt C—Immunity
SubUUt D-Clarification of 18 VS.C. tOJZt Requirement That Any Prior Record or a Juvenile Be Produced Bator* tht CommencementofJunnlle Proceedlnfi Subtitle E-Pttty OOenae.
Subtitle F-Opilonal Vanua for Eaplontft and Related Offaiuea Submit G—Central
TITLE XX-FIREARMS AND RELATED AMENDMENTS SubUUt A-Flrearm. and Related Amendmenta SubUtlt B—Aaaault Weapone
SubUUt C—Urge Capacity AmmuniUon Feeding Devkee TITLE XXI-SPORTS OAMBUNO
TITLE XXH-TECHNICAL CORRECTIONS TITLE XXIII-DEATH PENALTY PROCEDURES
TITLE XXIV-DEATH PENALTY

TITLE I—COMMUNITY POLICING; COF ON THK
SEC. 101. SHORT TITLE.
This title may be cited as 'The Community Policing; Cop on the Bent Act of 1991".
SEC 101.COMMUNITY POLICING; COP ON Til K BEAT.
(a) INGENERAL.—Title I of the Omnibus Crime Control and Safe Street* Act of 1968 (42 U.S.C. 3711et seq.) is amended-
(1) by redesignating part P aa part Q; (2) by redesignating section 1601 as section 1701;and (3) by inserting alter part O the following:
"PART P—COMMUNITY POLICING; COPON THE BKAT GRANTS
"SKC. Istl. CHANT AUTHORIZATION.
"(a) GRANT PROJECTS.—The Director of the Bureau of Justice Assistance mny make grants to units of general local government and to community grou|>« to es-
tablish or expand cooperative efforts between police and a community for tin- pur poses of increasing; police presence in the community, including—
"(1) developing innovative neighborhood-oriented policing programs;
"(2) providing new technologies to reduce the amount of lime officer- »|>end processing cases instead of patroljing the community;
"(3) purchasing equipment to improve communications between offirn» nnrf the community and to improve the collection, analysis, and use of information about crime-related community problems;
"(4) developing policies that reorient police emphasis from reacting to crime to preventing crime;
(5) creating decentralized police substations throughout the community to encourage interaction and cooperation between the public and law enforcement personnel on a local level;
"(6) providing training and problem solving for community crime problem*; "(7) providing training in cultural differences for law enforcement officinls; "(8) developing community-based crime prevention programs, such n.» unfety programs for senior citizens, community anticrime groups, and other anlicrime awareness programs; "(9) developing crime prevention programs in communities which have experienced a recent increase in gang-related violence; and "(10) developing projects following the model under subsection (b). "(b) MODEL PROJECT.—The Director shall develop a written model thnt m forms
community members regarding—
"(1) how to identify. t„heJ<existence of a drug or gang house; "(2) what civil remedies, such as public nuisance violations and civil units in small claims court, are available; and / "(3) what mediation techniques are available between community member* / and individuals who have established a drug or gang house in such community.
"itC. IWl APPLICATION.
/ "(a) IN GENERAL.—(1) To be eligible to receive a grant under this part, n chirf ex ecutive of a unit of local government, a duly authorized representative of n combine /tion of local governments within a geographic region, or a community gToup shall submit an application to the Director in such form and containing such information aa the Director mayreasonably require.
"(2) In such application, one office, or agency (public, private, or nonprofit) nrjall be designated as responsible for the coordination, implementation, administration, accounting, and evaluation of services described in the application,
"(b) GENERAL CONTENTS.—Each application under subsection (a) shall inrlmlr(1) a request for funds available under this part for the purposes described in
section 1601; "(2) a description of the areas and populations to be served by the prnnt. and "(3) assurances that Federal funds received under this part shall be !>°<yf In
supplement, not supplant, non-Federal funds that would otherwise be mnilablc for activities funded under this part. "(c) COMPREHENSIVE PLAN.—Each application shall include a comprehensive plan which contains—

SEC. HOT. CERTIFICATES OF PROBABLE CAUSE.
The third paragraph of section 2253, title 28, United States Code, is amended to

read as follows:

,

"An appeal may not be taken to the court of appeals from the final order in o

habeas corpus proceeding where the detention complained of arises out of process

issued by a State court, unless the justice orjudge who rendered theorder or a cir-

cuit justice or judge issues a certificate or probable cause. However, an applicant

under sentence of death shall have a right of appeal without a certification of proba-

ble cause, except after denial of a second or successive application.".

TITLE XII—PROVISIONS RELATING TO POLICE OFFICERS

Subtitle A—Police Accountability

SF.C. U « l . SHORT TITLE.
This subtitle may be cited as the "Police Accountability Act of 1991".
SRC. HOI. PATTF.KN OR PRACTICE CASES.
(a) CAUSE or ACTION.—
(1) UNLAWFUL CONDUCT.—It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers that deprives persons of rights, privileges, or immunities, secured or protected by the Constitution or laws of the United States.
(2) CIVIL ACTION BY ATTORNEY GENERAL.—Whenever the Attorney General has
reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
(3) CIVIL ACTION BY INJURED PERSON.—Any person injured by a violation of
paragraph (1) may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice. In any civil action under this paragraph, the court may allow the prevailing plaintiff reasonable attorneys fees and other litigation fees and costs (including expert's fees). A governmental body shall be liable for such fees andcosts to thesame extent as a private individual. (b) DEFINITION.—As used in this section, the term "law enforcement officer" • means an official empowered by law to conduct investigations of, to make arrests for, or to detain individuals suspected or convicted of, criminal offenses.
SEC. 1113 DATA ON USE OF EXCESSIVE FORCE.
(s) ATTORNEY GENERAL TO COLLECT.—The Attorney General shall, through the vic-
timization surveys conducted by the Bureau of Justice Statistics, acquire data about the Use of excessive force by law enforcement officers.
(b) LIMITATION ONUSE OF DATA.—Data acquired under this section shall be used only for research or statistical purposes and may not contain any information that may reveal theidentity of the victim orany lawenforcement officer.
(c) ANNUAL SUMMARY.—The Attorney General shall publish an annual summary
of the data acquired under this section.
Subtitle B—Retired Public Safety Officer Death
Benefit
SEC. 1211. RETIRED PUBLIC SAFETY OFFICER DEATH BENEFIT.
(a) PAYMENTS.—Section 1201of title I of the Omnibus Crime Control and Safe
Streets Act of 1968 is amended— (1) in subsection (a) by inserting after "line of duty" the following "or are-
tired public safety officer hasdied aa the direct and proximate result of a personal injury sustained while responding to a fire, rescue, or police emergency";
(2) in subsection (b)by inserting after "line of duty" the following "or aretired public safety officer has become permanently and totally disabled as the

direct result of a catastrophic injury sustained while responding U> n urc. rescue, or police emergency ; and
(8) in subsections (c), (i),and (j)by inserting after "public Rajety officer" ^ery place it occurs the following "or a retired public safety officer". (b) LIMITATIONS.—Section 1202 of title I of the Omnibus Crime Control mid So ft Streets Act of 1968 is amended—
(1) in paragraph (1) by striking "the public safety officer or by such officer's intention" and inserting "the public safety officer or the retired public snfety officer who had the intention";
(2) in paragraph (2) by striking "the public safety officer" and inserting "ihe public safety officer or theretired public safety officer";and
(3) in paragraph (S)by striking the public safety officer" and inserting "(he public safety officer or theretired public safety officer". (c) NATIONAL PROGRAM.—Section 1203 of title I of the Omnibus Crime Controlnnd Safe Streets Act of 1968 is amended by inserting before the period "or retired puMic safety officers whohave died while responding to a fire, rescue, or police emergency"(d) DEFINITIONS.—Section 1204 of the Omnibus Crime Control andSafe Street.-: Act of 1968 is amended—
(1) by striking "and" after paragraph (fi); (2) by inserting "; and" at theend of paragraph (7); and (3) by adding at the end the following: "(8) 'retired public safety officer' means a former public safety officer, as definf-d in paragraph (7), who has served a sufficient period of time in such capneitv to become vested in the retirement system of a public agency with which the officer was employed and who retired from such agency in good standing.". (e) EFFECTIVE DATE.—The amendments made by this section shall apply with respect to death or injuries occurring after the date of the enactment of this Bection.
Subtitle C—Study on Police Officers' Rights
SKC. 1221. STUDY ON POLICE OFFICERS' RIKIITS.
The Attorney General, through the National Institute of Justice, shall conduct n study of the procedures followed in internal, noncriminal investigations of Stnte nnd {local law enforcement officers to determine if such investigations are conducts fairly and effectively. The study shall examine the adequacy of the rights avnilnMe to law enforcement officers and members of the public in cases involving the i^rformance of a law enforcement officer, including—
(1) notice; (2) conduct of questioning; (3) counsel; (4) hearings; (5) appeal; and / (6) sanctions. Not later than one year after thedate of enactment of this Act, the Attorney Cental shall submit to the Congress a report on the results of the study, along with findings'and recommendations on strategies to guarantee fair and effective internal nffain investigations.
Subtitle D—Law Enforcement Scholarships
SECTION t i l l . 8IIORT TITLE.
This subtitle may becited as the"Law Enforcement Scholarship Actof 1991".
S E C IMX. STATEMENT OF PURPOSE.
(a) IN GENERAL.—Title I of the Omnibus Crime Control and Safe Street* Ac of 1968 (42 U.S.C. 3711et seq.), as amended by section 791 of this Act, is amended-
(1) by redesignating part U as part V; (2) by redeslgnating section 2101 as 2201; and (8) by inserting after part T the following:

"(6) Whoever knowingly violates section 922(u) Bhall be Pined under this title or imprisoned not more than 25 years, or both, and if death results from conduct prohibited by that section, shall be punished by death or imprisqnmcnt for life or any term of years.".
S E C »M». INAPPLICABILITY TO UNIFORM CODE OP MILITARY JUSTICE.
The provisions or chapter 228 of title 18, United States Code, an added by this Act,
shall not apply to prosecutions under the Uniform Code of Military Justice (10
U.S.C. 801 et seq.).
EXPLANATION OF AMENDMENT
Inasmuch as H.R. 3371 was ordered reported with a single
amendment in the nature of a substitute, the 'contents of this
report constitute an explanation of that amendment.
SUMMARY AND PURPOSE
H.R. 3371, the "Omnibus Crime Control Act of 1991," is a comprehensive legislative response to the many facets of criminal activity in our society. The Committee has moved forward with this legislative initiative in order to fulfill a responsibility that has its roots in the Preamble to the Constitution and its calf to "establish justice • • • insure domestic tranquility * • • [and] promote the general welfare." No force is more damaging to our Nation's sysstteem of justice, more disruptive of the dommeessttic tranauilitv tthhat the Founders sought, more harmful to the "general welfare' they wished to promote, than acts of criminal violence. People who live in fear of physical harm, of drugs corrupting their neighborhoods and schools, of a criminal justice system that does not operate efficiently and evenhandedly, cannot truly be said to be free.
Crime's corrosive effects are not confined exclusively to the physical violence that places life and limb in jeopardy. Our Nation's entire financial structure is predicted on trust and confidence in the soundness and integrity of the transactions and participants that make up the syBtem. White collar crime erodes those pillars of trust and impedes our Nation's ability to operate efficiently at home and compete vigorously abroad.
In assembling the legislative components of H.R. 3371, the Committee was mindful of its dual responsibility: first, to fulfill its duty at the Federal level to counter criminal activity, and second, to respect and promote the fundamental role of the states and local governments in the functioning of our criminal justice system. In practical terms, it is impossible for the Federal government to assume the law enforcement role in every community across the Nation. Historically, day-to-day responsibility for operation of the Nation's criminal justice system has rested with those units of government that are closest to the people. H.R. 3371 reflects that historical relationship while giving impetus to certain initiatives and policy decisions that must start at the Federal level is the Tight against crime is to be waged efficiently and vigorously.
As ordered reported by the Committee on the Judiciary, H.R. 3371 represents a Federal response to criminal activity in our Nation in the following areas:
Title I—Community Policing; Cop on the Beat Title II—Drug Treatment in Federal Prisons Title III—Substance Abuse Treatment in State Prisons

Title IV—Safe Schools

Title V—Victims of Crime

Subtitle A—Crime Victims Fund

Subtitle B—Restitution

Subtitle C—Hiy Testing

Title VI—Certainty of punishment for Young Offenders

Title VII—Drug Testing of Arrested Individuals

Title VIII—Drug Emergency Areas act of 1991

Title IX—Coerced Confessions

Title X—DNA Identification

Title XI—Habeas Corpus

Title XII—Provisions Relating To Police Officers

Subtitle A—Police Accountability

Subtitle B—Retired Public Safety Officer Death Benefit

Subtitle C—Study on Police Officers' Rights

Subtitle D—Law Enforcement Scholarships

Subtitle E—Law Enforcement Family Support

Title XIII—Fraud

Title XIV—Protection of Youth

Subtitle A—Crimes Against Children

Subtitle B—Parental Kidnapping

Subtitle C—Sexual Abuse Amendments

Subtitle D—Reporting of Crimes Against Children

Title XV—Miscellaneous Drug Control

Title XVI—Fairness in Death Sentencing Act of 1991

Title XVII—Miscellaneous Crime Control

Subtitle A—General

Subtitle B—Motor Vehicle TheR Prevention

Subtitle C—Terrorism: Civil Remedy

Subtitle D—Commission on Crime and Violence

Title XVIII—Miscellaneous Funding Provisions

Subtitle A—General

Subtitle B—Midnight Basketball

Title XIX—Miscellaneous Criminal Procedure and Correction

Subtitle A—Revocation of Probation and Supervised He-

i lease

// Subtitle B—List of Veniremen
Subtitle C—Immunity

Subtitle D—Juvenile Record

/

Subtitle E—Petty Offenses

'

Subtitle F—Optional Venue for Espionage and Related Of-

fenses

Subtitle G—General

Title XX—Firearms and Related Amendments

Subtitle A—Firearms and Related Amendments

Subtitle Br-Assault Weapons

Subtitle C—Large Capacity Ammunition Feeding Devices

Title XXI-Sporta Gambling

Title XXII—Technical Corrections

Title XXIII—Death Penalty Procedures

Title XXIV—Death Penalty

Justice Anthony Kennedy's opinion for the Supreme Court in McCleskey v. Zant •• has already narrowed the law governing successive petitions by incorporating the rules previdusly developed for cases on procedural default in State court. Under McCleskey, a prisoner cannot file a second Federal petition without showing 1) 'cause" for failing to raise his or her claim in a prior application and "prejudice" flowing from the violation that went uncorrected because the claim was not raised the first time, or 2) that a "miscarriage of justice" would result from the Federal court's failure to entertain the claim in a successive petition. According to Justice Kennedy, a miscarriage of justice would occur it the violation "caused the conviction of an innocent person." e t
This section is more stringent than McCleskey. Subparagraph (A) codifies some, but not all, of the ways the Court has held that "cause" can be established. Further, under subsection (B), the prisoner must assert a claim going to guilt or to the validity of his or her death sentence and, in addition, must show what amounts to "cause."
Section 1107 (Certificates of Probable Cause)
This section adopts the recommendation of the Powell Committee that prisoners under sentence of death should not be required to obtain a certificate of probable cause in order to appeal from the denial of relief at the district court level, except in successive petition cases. Since certificates are issued routinely in death penalty cases, the certification process now wastes valuable judicial resources.
CONCLUSION
As ABA President John Curtin testified: A system that would take life must first give justice. The paramount requirement of a civilized system of justice is that a sentence of death not be carried out until it has been subjected to full, fair, and deliberate scrutiny. Unique among all legal decisions, the decision to execute the defendant cannot be corrected after it has been carried out.83
In a manner consistent with justice, the Act will expedite death penalty proceedings and ensure that every petitioner will have one, and only one, fair opportunity to present his or her claims to a Federal court. The Act thus return the focus of capital litigation to the States courts, where it belongs.
•• 111 S.Ct 1454(1991). •' Id at 1475. *• Curtin and Uebman lUUmant at 62, Subeammilttt Utaringt, July 17, 1991.

Idi)
TITLE XII—PROVISIONS RELATING TO POLICE OFFICKKS
SUBTITLE A—POLICE ACCOUNTABILITY
PURPOSE
Subtitle A is the Police Accountability Act of 1991. It crnnt. standing to the United States Attorney General and, in certnm cit cumstances, to private parties to obtain civil injunctive relic against governmental authorities that engage in patterns or prnc tices of unconstitutional or unlawful conduct by law enforcemen officers. It also requires the Attorney General, through the purvey; of the Bureau of Justice Statistics, to collect data about the inci dence of police use of excessive force.
BACKGROUND
On March 3, 1991 motorist Rodney King was apprehended b\ members of the Los Angeles Police Department (LAPD) after r high speed chase. While twenty-one other officers stood by. I href LAPD officers and a sergeant administered 56 baton blows. si> kicks to the head and body, and two shocks from a Taser electric stun gun. The incident was captured on videotape by a citizen President Bush rightly called the beating "sickening."
Unfortunately, the Rodney King incident is not an abermtion The Independent Commission on the Los Angeles Police Depart ment, created to examine the incident and headed by formet Deputy Attorney General and Deputy Secretary of State Wnrret Christopher, concluded in its July 1991 report that "there is n sig nificant number of officers in the LAPD who repetitively use exces sive force against the public." Moreover, as the Commission found the conduct of these officers was well known to police departmenl management, who condoned the behavior through a pattern of la> supervision and inadequate investigation of complaints.
As Professor James Fvfe, a 16-year veteran of the New York Cit\ Police Department and one of the nation's leading expert." or
jlice use of force, testified before the Subcommittee on Civil anc institutional Rights, the King incident "was no aberration . rjhere exists in LAPD a culture in which officers who choose to be brutal and abusive are left to do so without fear of interference." It is apparent, moreover, that the problem is not limited to Lo? /Angeles. Police chiefs from 10 major cities convened soon after the King incident and emphasized that "the problem of excessive force in American policing is real." The same point was stressed by Hubert Williams, President of the Police Foundation and former Chief of Police for Newark, New Jersey: "Police use of excessive force is a significant problem in this country, particularly in our inner cities District of Columbia police officer Ronald Hampton. director of national affairs for the National Black Police Ansocin tion, testified before the Subcommittee that his organization hap complained for years that minority residents "were disrespected, disregarded, [and] physically and verbally abused" by police The Flint, Michigan ombudsman, who reported that citizen complaints about police conduct to his office were up 10 percent in 1990, nfter

a 25 percent increase in 1989, wrote to the Subcommittee that the experience of his office led him to believe that the Los Angeles beating "was not an isolated incident."
The Subcommittee on Civil and Constitutional Rights held two fay* tA hearing* on police brutality after the King incident and received written submissions regarding alleged police misconduct from across the country. Many of the complaints involved individual incidents. Many, however, also presented systemic issues—particular policies or practices that were reflected in a pattern of misconduct. Among the matters brought to the Subcommittee's attention:
The Civil Rights Division of the Massachusetts Attorney General's office found that in 1989-90 Boston police officers routinely conducted unconstitutional, harassing stops and searches of minority individuals, including requiring youths to submit to strip searches in public.
In New York City, bystanders who complain about police actions are arrested and "run through the system," according to affidavits compiled by the New York Civil Liberties Union. The Police Department admitted that a 1977 order prohibiting such arrests was "mistakenly" revoked in 1980.
A lawsuit against the town of Reynoldsburg, Ohio discovered that a special unit within the police department called itself the S.N.A.T. squad, for "Special Nigger Arrest Team."
The Los Angeles Police Department directed officers to use an illegal king-fu device known as the nun-chuk to inflict pain on passive demonstrators in an effort to force them to comply with police orders. Policing is difficult, dangerous work. Most police officers do not abuse the authority granted them. To the contrary, the majority of police officers in America are dedicated men and women who strive to uphold the ideals of the Constitution. Under growing stresses, they make an enormous contribution to public safety and deserve the nation's gratitude. Incidents of restraint in the face of provocation certainly outnumber incidents of brutality. Faced, however, with evidence that the problem of excessive force is a serious one, police departments, local authorities and the Federal Government have a responsibility to strengthen their responses. Current Federal legal authority and Justice Department policy Police brutality is a violation of the U.S. Constitution, and under sections 241 and 242 of title 18 it is a federal crime. However, the Federal response to police misconduct has been limited. The Assistant Attorney General in charge of the Civil Rights Division testified that the U.S. Justice Department follows a back-stop" policy, deferring to local authorities. Statistics provided to the Subcommittee on Civil and Constitutional Rights by the Justice Department show that the Justice Department prosecutes on average 50 police officers a year. This represents a fraction of the 3,000 criminal civil rights cases, most of them involving law enforcement officers, that the Justice Department investigates yearly.
Moreover, the cases investigated by the Department represent only a fraction of the allegations of police misconduct reported to local authorities, most of which are never reported to Federal officials. The Justice Department provided to the Subcommittee statis-

tics showing that the FBI had investigated 720 criminal civil n>;hts matters in the Central District of California, which encompnsses Los Angeles, between 1982 and March 1991. Of those 720 case? in vestigated in a nine year period. 72 involved the Uv Anp?ie>- FVIieo Department and 1 So involved che Los Angeles? County Sheriffs Office. Yet, the Los Angeles Police Misconduct Referral Service received 652 complaints against the LAPD in 1988 alone and GU- in 1990. Of the 720 Federal investigations, only four resulted in iiulictments against police officers. Yet, during just a 3 year pi-Mod, 1987-1990, the LA County Sheriffs Office lost or settled f>(>' civil lawsuits involving the use of excessive force, paying out $8.r< mil lion in damages, and the LAPD paid out $18.8 million in damages for police brutality cases.
Pattern or practice authority The Justice Department currently lacks the authority to address systemic patterns or practices of police misconduct. The Justice Department can only prosecute individual police officers, whom juries are often reluctant to convict. If an officer was poorly trained, or was acting pursuant to an official policy, it is difficult to obtain a conviction, and Justice has no authority to sue the police department itself to correct the underlying policy. In 1980, the Third Circuit Court of Appeals held in United Stoles v. City of Philadelphia, 644 F. 2d 187 (3d Cir. 1980), that the United States does not have implied statutory or cnstitutional authority to sue a local government or its officials to enjoin violations of citizens' constitutional rights by police officers. This represents a serious and outdated gap in the Federal scheme for protecting constitutional rights. The Attorney General has pattern or practice authority under eight civil rights statutes, including those governing voting, housing, employment, education, public accommodations and access to public facilities. The Justice Department can sue a city or county over its voter registration prnctices or its educational policies. It can sue private and public employers. including police departments, over patterns of employment discrimination. The Justice Department can seek injunctive relief under the Civil Rights of Institutionalized Persons Act against n jail or prison that tolerates guards beating inmates. But it cannot sue to change the policy of a police department that tolerates officers beating citizens on the street. /While a private citizen injured by police misconduct can sue for jnoney damages, he or she cannot sue for injunctive relief, abpmt n Showing of likely future harm, under the Supreme Court decision 'in Los Angeles v. Lyons, 461 U.S. 95 (1983). The case involved n resident of Los Angeles who had been choked unconscious by a police officer following a routine traffic stop. Unlike other cities, Los Angeles did not limit the use of chokehoids to situations where the officer's life was in danger. From 1975 to 1982, 15 people died as a result of LAPD chokehoids. The Supreme Court ruled that the plaintiff had no standing to seek an injunction restricting the use of chokehoids because he could not demonstrate that he himself was likely to be choked again. If choked again, the Court allowed, he could sue for damages again. But neither he nor anvnne else could sue to bring the LAPD's policy on use of the chokehold in line with practices accepted in most other cities.
L

The Police Accountability Act would close this gap in the law, authorizing the Attorney General and private parties to sue for injunctive relief against abusive police practices. The Committee expects that the Department of Justice will be diligent in exercising its new authority. But the Committee believes that private standing is necessary, especially in situations where the Department of Justice does not act. To ensure that the issues being litigated are not hypothetical, and to provide a court with the benefit of a factual context, the Act requires that a private citizen seeking injunctive relief have been injured by the challenged practice.
The Act creates an enforceable right to be free of patterns of police brutality. In adopting the provision granting individuals the standing to sue, Congress is exercising its authority to create legal rights, the invasion of which creates standing even where the plaintiff would not have had standing in the absence of the statute. Worth v. Seldin, 422 U.S. 490 (1975).
The Act does not increase the responsibilities of police departments or impose any new standards of conduct on police officers. The standards of conduct under the Act are the same as those under the Constitution, presently enforced in damage actions under section 1983. The Act merely provides another tool for a court to use, after a police department is held responsible for a pattern or practice of misconduct that violates the Constitution or laws of the United States.
Because the Act imposes no new standard of conduct on law enforcement agencies, it should not increase the amount of litigation against police departments. Individuals aggrieved by the use of excessive force already can and do sue under 42 U.S.C. 1983 for monetary damages. With adoption of this section, such persons will be able to seek injunctive relief as well, if their injury is the product of a pattern or practice of misconduct.
This provision may in fact decrease the number of lawsuits against police departments. Currently, changes in a police department's policy are prompted by successive criminal cases or damage actions; the cumulative weight of convictions or adverse monetary judgments may lead the police leadership to conclude that change is necessary. This is an inefficient way to enforce the Constitution and is not always effective. Some police departments have shown they are willing to absorb millions of dollars of damage payments per year without changing their policies. If there is a pattern of abuse, this section can bring it to an end with a single legal action.
Pattern or practice authority is needed because the Federal Government's criminal authority to prosecute police brutality is not adequate to address patterns or practices such as the lack of training or the routine use of deadly techniques like chokeholds, or the absence of a monitoring and disciplinary system. Two cases illustrate both the need for this authority ana how it will work.
In Mason County, Washington, in the nine month period between June 1985 and March 1986, citizens in four separate incidents were beaten by police officers following traffic stops. A federal jury returned civil verdicts against all of the deputy sheriffs involved in the incidents and against the county, awarding a total of $853,000 in damages and costs. The Ninth Circuit affirmed, tracing the incidents to the lack of training provided by the sheriffs de-

partment, which it described as "woefully inadequate, if it can h said to have existed at all." Davis v. Mason County, 927 F.2d 147." 1482 (9th Cir. 1991). Yet while the lack of training was estnblishr and was found to rise to the level of a constitutional violation, th courts were powerless to correct it. In formulating a remedy, th courts would have had to look no further than the Washi'ngto: State statute on police training standards, which Mason Count has ignored.
Another federal case, against the Goldsboro, North Cnmlin police department, resulted in a $220,000 payment to the father c a young black man who was strangled to death by city police offi cers. The officers involved in the incident had been involved in se\ eral prior incidents involving use of excessive force, yet there hn< been disciplinary action taken against them. One expert wiines? the former chief of police for Boston and St. Louis County, tosl iflet that the City of Goldsboro had an "official policy of not invesdgnt ing incidents [involving deadly force]." Again, the court had no nu thority to order remedies for the glaring deficiencies the case ho. highlighted. Swann v. Goldsboro, No. 90-59-CIV-5-D (E.D.N.C
The Police Accountability Act as originally introduced nml re ported out of the Subcommittee on Civil and Constitutional Right.contained a section on criminal liability against police officers That section was stricken by an amendment during full Committee consideration.
SECTION-BY-SECTION ANALYSIS
Section 1201 is the short title: Police Accountability Act of I!'!)I Section 1202 creates a cause of action and standing for pattern or practice cases. Subsection 1202(aXl) provides that it shall be unlawful for any governmental authority, or any agent thereof, or any person net inn on behalf of a governmental authority, to engage in a pattern oi practice of conduct by law enforcement officers that deprives per sons of rights, privileges or immunities secured or protected In the Constitution or laws of the United States. /Subsection 1202(aX2) provides that the Attorney General m;iv in \civil action obtain appropriate equitable and declaratory relief to liminate a pattern or practice that violates subsection 1202(aXD Subsection 1202(aX3) provides that a person injured by a pattern or practice that violates subseciton 1202(aXl) may in a civil mtion obtain appropriate equitable and declaratory relief to eliminate the pattern or practice. Section 1202(b) defines law enforcement officers. The term in eludes state, local and Federal officials. Section 1203 requires the Attorney General to collect dntn nl-out the use of excessive force by law enforcement officers. The chtti will not identify individuals. It will be published annually in stntis tical form.
f

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

UNITED STATES OP AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

CITY OF STEUBENVILLE,

)

STEUBENVILLE POLICE DEPARTMENT, )

STEUBENVILLE CITY MANAGER, in )

his capacity as Director of

)

Public Safety, and STEUBENVILLE )

CIVIL SERVICE COMMISSION,

)

)

Defendants -

)

CIVIL NO. _

MEMORANDUM OF LAW IN SUPPORT OF JOTNT MOTION FOR ENTRY OF CONSENT DECREE
SUMMARY The parries have moved jointly for this Court to enter the proposed Consent Decree. Entry is appropriate under the law, and accordingly should be granted. A declaration in support of entry is attached £o--fchjt^ Motion.
ARGUMENT A consent decrees has "attributes of both a contract and of a judicial act." Williams v. Vnkovirh. 720 F.2d 909, 919 (6th Cir. 1983). "[0]nce approved, the prospective provisions of the consent decree operate as an injunction." Id. at 920. Because of the consent decree's status as a judicial order, the district court should review the decree's provisions prior to entry. That
review, however, is deferential in circumstances such as these,
where the plaintiff is the United States government, and where voluntary agreement serves the interests of the statute underlying the cause of action.

©006
Under applicable precedent, the review should simply ensure
that the consent decree:
spring [s] from and serve [s] to resolve a dispute within the court's subject-matter jurisdiction. Furthermore, consistent with this requirement, the consent decree must 'com[e] within tne general scope of the case made by the pleadings, • Pa-gifir R. Co. v. Kefcc;huTn.r 101 U.S. 289, 297 '(1880), and must further the objectives of the law upon which the complaint was based. . . . However, in addition to the law which forms the basis of the claim, the parties' consent animates the legal force of a consent decree. . . . Therefore, a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial.
Loral 93, Tnt'1 frss'n of Firefighters v. City nf Cl^vsland.
478 U.S. SOI (198S) . " [T] he trial court need only determine that
the proposed settlement is not unconstitutional, unlawful, . . .
or unreasonable before approval is granted. Moreover, . . . the
decree proposed in these circumstances is entitled to a
presumption of validity." United States v. City of Miami. S14 F.2d 1322, 1333(5th Cir. 1980) .y
This decx$e_.meets these requirements because it fairly,
adequately, and reasonably resolves the allegations in the
Complaint,- it furthers the purposes of Section 210401 of the
Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C.
§ 14141; its terms do not violate the law; and it serves the
public interest.
The proposed Consent Decree was carefully drafted to help
the Steubenville Police Department satisfy constitutional
1 Rule 23, Fed. R. Civ. P., does not apply to this "action . . . brought by a Government agency to enforce the federal law with whose enforcement the agency is charged." Genera] TF»1 ftphone Co. nffchftWnrfhwSRt, Tnr v EEQ£, 446 U.S. 318, 323 n.5 (1980).
- 2-

requirements by implementing a comprehensive system that enhances
accountability and supervision of officers and managers of the
Steubenville Police Department, and. meecs current standards in
the law enforcement profession. By agreeing to the terms of this
Consent Decree, the United States and the defendants avoid
expensive, protracted litigation, and accelerate reforms in the
Steubenville Police Department:.
The provisions of the decree are entirely within the scope
of the statute underlying the Complaint, 42 U.S.C. § 14141. That
statute imposes municipal liability for patterns or practices of
illegal or unconstitutional conduct by law enforcement officers.
As the relevant House Committee Report explains, its very purpose
was to address systemically police misconduct resulting from
inadequate supervision, training, internal investigations, and
other practices: "Pattern or practice authority is needed . . .
to address patterns or practices such as the lack of training
. . . or the absence of a monitoring and disciplinary system."
H.R. Rep. No. ^10^242, at 138 (1991) (Omnibus Crime Control Act of 1991, Title XII, Police Accountability Act).v
The proposed Consent Decree requires systemic reforms to the
Steubenville Police Department of precisely the type Congress
2 This committee report accompanied the enacted statute's predecessor bill. There" is no separate legislative history for the bill that was enacted and codified at 42 U.S.C. § 14141, but the legislative history of the predecessor bill is relevant because the language of that bill was identical, in pertinent part, to that of Section 14141. Compare idJ at 24 ("It shall be unlawful for any governmental authority . . . to engage in a pattern or practice of conduct by law enforcement officers that deprives persons of rights, privileges, or immunities, secured or protected by the Constitution or laws of the United States.")
42 U.S.C. § 14141 (same language).
- 3-

 
 CIVIL DIVISION 30 W. Broad Street Columbus, Ohio 43215-9013 614/645-7385 FAX 614/645-6949
CLAIMS OIVtSION 90 W. Broad Street Columbus, Ohio 43215-9013 614/645-7717 FAX 614/645-6949

„**•*
JANET E. JACKSON
CITY ATTORNEY COLUMBUS, OHIO
April 17, 2000

PROSECUTOR DIVISION 375 S. High Street Columbus, Ohio 43215-4530 614/645-7483 FAX 614/645-8902
REAL ESTATE DIVISION 109 N. Front Street Columbus, Ohio 43215-9021 614/645-7712 FAX 614/645-3913

Mark Masling Senior Trial Attorney Special Litigation Section P.O. Box 66400 Washington, D.C 20035-6400

US v. City of Columbus PN-OH-001-010

James E. Phillips 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008

RE: United States of America v. City of Columbus, Ohio, Case No. C2-99-1097

Dear Counsel:

Enclosed please find the Defendant City's Reply Memorandum in Support of The Motion to Dismiss in the above case.

Sincerely,

JTC:sw Enclosure

Joshua T. Cox Assistant City Attorney

 
 05/23/2000 03:23:38 PM Pacre

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF COLUMBUS, OHIO, e t al.,
Defendants.

Civil No. C2-99-1097 Judge Holschuh Magistrate Judge King

REPLY M E M O R A N D U M OF THE FRATERNAL ORDER OF POLICE, CAPITAL CITY LODGE NO. 9 ("FOP") TO THE
UNITED STATES' SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO FOP'S MOTION
FOR JUDGMENT O NTHE PLEADINGS
The Department of Justice (the "DOJ") is simply making things up as
it goes along, without regard foraccuracy. DOJ cites three cases, three articles
and a book for the proposition that pervasive evidence of police misconduct was "available at the time of § 14141's enactment,"1 but each of those
"authorities" was actually issued or published more than a year after the passage of §14141. DOJrefers to a Supreme Court decision,2 when in reality
DOJ is referring to part of an opinion by Justice Kennedy with which onlyone
other Justice agreed. DOJ also claims for the first time that the Complaint
"refers to actions or inactions by Columbus that played a part in and
1 P. 16 of Supplemental Memorandum (emphasis added). 2 P.9 of Supplemental Memorandum, citing Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S.261, 279 (1997). The cited part of Justice Kennedy's opinion was in part IID of hisopinion, in which only Chief Justice Rehnquist concurred.
US v. City of Columbus

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contributed to the constitutional deprivations suffered by citizens."3 However, there is no allegation in the Complaint that actions or inactions by Columbus "played a part in" or "contributed to" constitutional deprivations. The remainder of DOJ's argument has no more merit. A. The Use of the Disjunctive "Or" In Section 1414Vs Prohibition Against "Any
Governmental Authority. Or Anv Agent" Engaging In Certain Conduct Shows That SI 4141 Does Not Impose Vicarious liability
DOJ also attempts to re-write the statute upon which it relies by eliminating the word "or." Yet, the use in §14141 of the disjunctive "or," which DOJ disregards, is significant. In Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979), the Supreme Court said, "[c]anons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise; here it does not." See also Brown v. Budget Rent-A-Car Systems, Inc.. 119 F.3d 922, 924 (11th Cir. 1997) ("as 'a general rule, the use of a disjunctive in a statute indicates alternatives and requires that those alternatives be treated separately. Hence, language in a clause following a disjunctive is considered inapplicable to the subject matter of the preceding clause1."); and In re Espy. 80 F.3d 501, 505 (D.C. Cir. 1996) ("a statute written in the disjunctive is generally construed as 'setting out separate and distinct alternatives'"). In other words, §14141(a) makes it illegal for

3 P. 8 of Supplemental Memorandum.

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governmental authorities or agents to engage in specified activities; and it does not impose the sins of one on the other.
In Title VII, by contrast, Congress used the word "agent" not in the disjunctive, but instead included it within the definition of employer. Gebser v. Laao Vista Independent School District. 524 U.S. 274 (1998], cited by DOJ, recognized the significance of including "agent" within the definition of employer. The Supreme Court observed that ''Mentor's* rationale for concluding that agency principles guide the liability inquiry under Title VII rests on an aspect of that statute not found in Title IX." Jd. at 283. The Court then said that difference was "Title VII ...explicitly defines 'employer' to include 'any agent1." Id. Title IX did not define educational institution to include its agents,5 and the Supreme Court concluded there was no vicarious liability.
In short, under Title VII there is vicarious liability because the statute defines "employer" to include agents. In contrast, the use of "or" in §14141 shows §14141 treats an agent separately from the governmental authority and does not impose vicarious liability.

4 Meritor Savings Bank v. Vinson. 477 U.S. 57 (1986) 5 20 U.S.C. §1681[c) defines educational institution as "any public or private preschool, elementary, or secondary school, or any institution of vocational, professional, or higher education, except that in the case of an educational institution composed of more than one school, college, or department which are administratively separate units, such term means each such school, college, or department."

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<"2000 0 3 : 2 8 : 3 8 EM Paae 5
B. Congress Used Language In House Report 102-242 Similar To Supreme Court Decisions. Showing That A local Government Must Be Found Responsible For The Constitutional Violations Before There Could Be Municipal Liability House Report 102-242 explained that the "Act merely
provides another tool for a court to use, after a police department Is held responsible for a pattern of practice of misconduct that violates the Constitution orlaws of the United States."6 This language isvery similarto the language of the Supreme Court interpreting § 1983, "that these governments should beheld responsible when, and only when..." St. Louis v. Praprotnik 485 U.S. 112, 122 (1988) (emphasis added), discussing Monell v. New York Citv Dept. of Social Services. 436 U.S. 658, 694 (1978) ["it is when execution of a government's policy or custom...may fairly be said to represent official policy...that the government as an entity is responsible under §1983" (emphasis added)]. In other words, Congress intended § 14141 to require a finding that the municipality was in fact responsible for the violations of constitutional rights, before the municipality could legally be found tobe liable. C. Conclusory Allegations Are Insufficient To Salvage A Cause Of
Action. Contrary toits new claim inthe Supplemental Memorandum,7
DOJ makes no allegation initsComplaint that Columbus played a part in
6 P.138 of House Report 102-24Z Exhibit Aof Reply Memorandum of FOP to Memorandum of DOJ inOpposition to Motion for Judgment on Pleadings. 7 P. 8ofSupplemental Memorandum.

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05/23/2000 03r28:39 FM Pace
or contributed to constitutional violations. However, even if the Complaint had used the few words that DOJ inserts into its Supplemental Memorandum-and claimed that Columbus had "played a part in" or "contributed to" constitutional violations-the Complaint still would be legally insufficient.
Although the Sixth Circuit observed, "some appear to argue that one need only to place the opposing party on notice," the Sixth Circuit also held that "in reality the rule envisions 'a statement of circumstance, occurrences and events in support of the claim presented1." Venev v. Hoaan 70 Fed. 3d 917, 921 [6th Circuit 1995). The Sixth Circuit has also held that a "complaint must contain either direct or inferential allegations with respect to all material elements necessary to sustain a recovery under some viable legal theory." Weinerv. Klais & Co., Inc.. 108 F. 3d 86, 88 (6th Cir. 1997) (Emphasis added). In Kesterson v. Moritsuau, 1998 U.S. App. LEXIS 12182 [&* Cir. 1998) (attached as Exhibit A to FOP Motion For Judgment On Pleadings), the Sixth Circuit said that plaintiff "must allege that [defendant] took specific actions that constituted deliberate indifference rather than simply failure to treat or negligence. He has not done so." Jd at *12 (emphasis added). The Sixth Circuit affirmed the District Court dismissal of the complaint, since the complaint made "only vague and conclusory allegations" with regard to

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defendants. ]d. at ** 11-12. DOJ has simply disregarded Sixth Circuit pleading requirements. D. The Imposition of Vicarious Liability bv Section 14141 Would be
Unconstitutional 1. Supreme Court Silence On An Issue Is Not Precedent A Supreme Court decision that is silent on a particular
constitutional issue is not dispositive of or even a precedent on that issue. For instance, in Illinois Elections Board v. Socialist Workers Party. 440 U.S. 173, 183 (1979), the Court said "the issue was by no means adequately presented to and necessarily decided by this Court. Jackson therefore has no effect on the constitutional claim advanced by appellees." (Emphasis added.) See also Brecht v. Abrahamson. 507 U.S. 619, 631 (1993) ("since we have never squarely addressed the issue..., we are free to address the issue on the merits"); Webster v. Fall. 266 U.S. 507, 511 (1925)("[questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents"); and United States v. Russo. 708 F. 2d 209, 225 (6th Cir. 1983), (Holschuh, 1 , concurring) ("questions neither brought to the attention of the court nor ruled upon are not to be considered as having been so decided as to constitute precedents").
DOJ appears to place significance on the fact that in Faraqher. the Supreme Court imposed vicarious liability under Title VII

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At 05/23/2000 03:28:39 PM Paoe

"without even considering whether such liability raised a constitutional concern."8 However, as the above cases show, the Supreme Court's silence in Faraqher has no bearing on the constitutionality of a statute imposing vicarious liability onlocal governments under a different statute enacted pursuant to a different provision of the Constitution.
2. TheAuthority Granted To Congress BvThe Commerce Clause Is Not The Same As The Authority Granted To Congress Bv S5 OfThe Fourteenth Amendment Contrary to the DOJ suggestion, a statute maypass muster under the Commerce Clause yet be beyond theauthority that Section 5 of the Fourteenth Amendment confers upon Congress. For instance, in EEOC v. Wyoming. 460 U.S. 226, 243 (1983) the Supreme Court expressly held the extension of the Age Discrimination InEmployment Act (ADEA) to cover state and local governments was a valid exercise of the Commerce Clause. However, in Kimel v. Florida Board of Regents, U.S. , 120 S.Ct. 631, 650 (2000), the Supreme Court held that the ADEA was not a valid exercise ofSection 5 of the 14th Amendment, and that the "purported abrogation of the States' sovereign immunity is accordingly invalid." The Commerce Clause and Section 5 of the Fourteenth Amendment have different purposes and scopes. The Commerce Clause of Article I of the United States Constitution provides broad authorization to Congress to regulate articles
8 P. 10 of Supplemental Memorandum. 7

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100 0 3 : 2 8 : 3 9 PM Pacre S

of interstate commerce, instrumentalities of interstate commerce and those activities that have a substantial relation to interstate commerce. United States v. Lopez. 514 U.S. 549 (1995) (invalidating the Gun-Free School Zones Act under the Commerce Clause). Under the Commerce Clause, "Congress has undoubted power to redefine the distribution of power over interstate commerce." Southern Pacific Co. v. Arizona. 325 U.S. 761, 769 (1945). See also Moumina v. Family Publications Service. Inc.. 411 U.S.356, 377 (1973) ("That the approach taken pn the Truth In Lending Act] may reflect what respondent views as an undue paternalistic concern for the consumer is beside the point. The statutory scheme is within the power granted to Congress under the Commerce Clause."). The Commerce Clause power includes the authority to regulate the activities of state and local governments in interstate commerce. Reno v. Condon. U.S. , 120 S.Ct. 666 (2000) (upholding constitutionality of Driver's Privacy Protection Act of 1994, since drivers' information was sold in interstate commerce); and Garcia v. San Antonio Metropolitan Transit Authority. 469 US528 (1985) (upholding constitutionality of application of Fair Labor Standards Act overtime provisions to public mass-transit authorities).
Section 5 of the Fourteenth Amendment, by contrast, gives Congress the "power to enforce, by appropriate legislation, the provisions of this article." Section 5 is not plenary, but remedial in nature, and there

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has to "be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Citv of Boeme v. Flores. 521 U.S. 507,520, 522 (1997). InCollege Savings Bank v. Florida Prepaid Postsecondarv Education Expense Board. U.S. , 119 S.Ct. 2219, 2224 (1999), the Supreme Court emphasized that "the object of valid §5 legislation must be the carefully delimited remediation or prevention of constitutional violations." College Savings and Boeme make clear that considerations of federalism arenot eliminated when legislation is enacted pursuant to§5 ofthe Fourteenth Amendment.9
Indeed, just this week, onMay 15, 2000, the Supreme Court said the limitations imposed onthe power granted to Congress by the Fourteenth Amendment "are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government." United States v. Morrison U.S. , 2000 U.S. LEXIS 3422, *38 (2000). The Court also said "the principle that 'the Constitution created a Federal Government of limited powers,' while reserving a generalized police power to the States is deeplyingrained in our constitutional history." |d_. at*33 n.8.10
»In Printz v. United States. 521 U.S. 898. 923 n. 13 (1997), the Court referred to an argument that "falsely presumes that the Tenth Amendment is the exclusive textual source of protection for principles of federalism. Our system of dual sovereignty is reflected in numerous constitutional provisions...and not only those, like the Tenth Amendment, that speak to the point explicitly." 10 DOJ cites Fitzpatrick v. Bitzer. 427 U.S. 445 (1976) forthe proposition that the application of Title VII to government entities is based on Congress' power under Section 5. However, Bitzer only held that Section 5of the Fourteenth Amendment abrogated theEleventh Amendment's prohibitions on suits against states, not allprinciples of federalism. Infact, the Supreme Court

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3. Under the DOJ Interpretation. SI 4141 Would Be Unconstitutional. Since It Could Impose Liability On Municipalities Even Though The Municipality Had Acted Constitutionally DOJ indicates that Section 14141 must be constitutional, because it does not provide "a remedy against purely constitutional conduct."11 In fact, that is exactly what §14141 would do as interpreted by DOJ: DOJ Is claiming that the City ofColumbus can be held liable even though the City of Columbus has acted constitutionally. A local governmental entity cannot be held liableand enjoined asa result of legislation passed pursuant to Section 5 of the Fourteenth Amendment unless that governmental entity, in contrast to its employees, has violated the constitutional rights ofindividuals. In Rizzo v. Goode, 423 U.S. 362 (1976), for instance, the Supreme Court said that "the responsible authorities had played noaffirmative part in depriving any members of the two respondent classes ofany constitutional rights,", even though individual police officers had. violated the constitutional rights of citizens, id. at377. The Court held that "[u]nder the well-established rule

noted the state officials had.not contended the substantive provisions of Title VII exceeded the authority of Congress under §5 of the Fourteenth Amendment, id., at 456 n. 11. In other words, in Bitzer the Court simply did not consider whether Section 5 gave Congress the authority to impose through Title VII vicarious liability on state and local governments. That failure to consider the issue is of no precedential value. See §D1 of this Reply Memorandum 11 P. 12of Supplemental Memorandum. Of course, a statute which was enacted pursuant to Section 5 of the Fourteenth Amendment and provided a remedy against unconstitutional conduct would not necessarily be constitutional. The statute would have to be a "congruent and proportional" remedy. However, DOJ appears to admit that a statute which was enacted pursuant to Section 5 and provided a "remedy" against constitutional conduct would exceed the authority of Congress.
10

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that federal 'judicial powers may be exercised only on the basis of a constitutional violation,'...this case presented no occasion for the District Court to grant equitable relief against petitioners."12 In Florida Prepaid Post Secondary Education Expense Board v. College Savings Bank. U.S.
, 119 S.Ct. 2199, 2207 (1999), the Court declared the Patent Remedy Act unconstitutional and said that "[i]t is...conduct...patent infringement by the States—that must give rise to the Fourteenth Amendment violation that Congress sought to redress in the Patent Remedy Act." (Emphasis added.) Imposing vicarious liability on Columbus in the present case would violate the principle announced in Rizzo and Florida Prepaid— Section 5 of the Fourteenth Amendment cannot be used to regulate government entities that have not violated the Constitution.
CONCLUSION When there are serious issues about the constitutionality of a statute, that statute should be interpreted to avoid the constitutional issue. For instance, in Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 841(1986) the Supreme Court concluded that the DC Circuit "was correct in its understanding that [f]ederal statutes are to be so construed as to avoid serious doubt of their constitutionality1," quoting Machinists v. Street, 367 U.S. 740, 749 (1961)(emphasis added). Similarly, in Morrison v. Olson. 487 U.S. 654, 682 (1988], the Court said

12 Id. quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971).

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that "p]t is the duty of federal courts to construe a statute in order to save it from constitutional infirmities."
The Supreme Court has recognized that the imposition of vicarious liability on municipalities would create serious constitutional issues. In Monell v. New York Citv Dept. of Social Services. 436 U.S. 658, 693 (1978), the Supreme Court said "creation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional."
Consistent with the wording of §14141, applicable legislative history and Supreme Court precedent on liability of municipalities in cases alleging police misconduct, this Court should interpret §14141 to avoid the necessity of deciding this serious constitutional issue. This Court should conclude that §14141 requires (a) that there be at least deliberate indifference on the part of the municipality, and (b) that such deliberate indifference be the moving force behind a pattern or practice of violations of constitutional rights, before a municipality can be held liable. Since the Complaint does notallege eitherof these two elements, this Court should grant theFOP Motion For Judgment On The Pleadings.

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Respectfully submitted.
James E. Phillips, Trial Attorney (0014542)
VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 (614) 464-5610
Trial Attorney for Defendant Fraternal Order of Police. Captal City Lodge No. 9
OF COUNSEL:
John J. Kulewicz (0008376) Douglas!. Rogers (0008125) VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 (614) 464-6400
Attorneys for Defendant Fraternal Order of Police, Captal City Lodge No. 9

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CERTIFICATE OF SERVICE
I served a copy of this Memorandum upon Mark Masling, Steven H. Rosenbaum and Mark A. Posner, Special Litigation Section, Civil Rights Division, United States Department of Justice, P.O. Box 66400, Washington, D.C. 200356400; Sharon J. Zealey, United States Attorney, Two Nationwide Plaza, 280 North High Street, Columbus, Ohio 43215; Timothy J. Mangan, Senior Litigation Attorney, and Andrea Peeples, Assistant City Attorney, Office of the Columbus City Attorney, 50 West Broad Street, Suite 1425, Columbus, Ohio 43215; by firstclass U.S. mail on May ,2000.
James E. Phillips (0014542)

05/23/00-8479*48.3
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Vorys, Sater, Seymour and PeaseLLP
52 Bast Gay Street • Post Office Box 1008 • Cdumbus, Ohio 43216-1008 • Telephone (614) 464-6400 • FacsjmJc (614) 464-6350 • Cable VCWSATSR

Date: Tuesday, May 23, 2000

TO: James Eichner of:

Facsimile No. 202-514-0212 Telephone No. 202-514-9811

FROM: Phillips, James E.

Direct Dial No. 614-464-5610 Direct Fax No. 614-719-5000

Number of pages (including this sheet): 15
FOP Reply Memorandum
Jim: This is an unsigned, non-time-stamped version of the otherwise compelling reply memorandum

PRIVATE AND CONFIDENTIAL The sender intends to communicate the contents of this transmissicn only to the person to whom it is addressed. This transmissicn may contain information that is privileged, confidential or otherwise exempt from disclosure under applicable law. If the recipient of this transmissicn is not the designated recipient or the employee or agent responsible for delivering this transmissicn to the designated recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received (his transmission in error, please notify us immediately by telephone [(614) 464-8346 collect], and promptly return the original transmission to us at the above address by mail. We will reimburse you for any costs you may incur.

User ID

Client

Matter

JEPhillips-05618-00008

If you have any problems with transmission, please call (614) 464-8346

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P. 01

 
 JANET E. JACKSON
CITY ATTORNEY 50 WEST BROAD STREET, SUITE 1425
COLUMBUS, OHIO 43215
August 14,2000

US v. City of Columbus

Senior Trial Attorney Special Litigation Section P.O. Box 66400 Washington, D.C 20035-6400

PN-OH-001 -015

James E. Phillips 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008

RE: United States of America v. City of Columbus, Ohio Case No. C2-99-1097

Dear Counsel:

Enclosed please find a copy of the Defendant City's Objections to the Report and Recommendation of the Magistrate Judge to be filed in the above captioned matter.

Sincerely,

JTC:sw Enclosure

Joshua T. Cox Assistant City Attorney

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Civil Case No. C2-99-1097

v. CITY OF COLUMBUS, OHIO, et al.,

JUDGE HOLSCHUH MAGISTRATE JUDGE KING

Defendants.

DEFENDANT CITY'S OBJECTIONS TO THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Pending before the Court is the Magistrate Judge's Report and Recommendation (doc.

57), in which it is recommended that defendant City of Columbus' [hereinafter "City"] motion to

dismiss be denied. For the following reasons, defendant City objects to the Report and

Recommendation insofar as it recommends denial of the motion to dismiss. Specifically,

defendant City objects to that portion of Section IV. of the Report and Recommendation in which

it is determined that 42 U.S.C. §14141 reflects a valid exercise of congressional power under §5 of the Fourteenth Amendment,1 and to Section VI. of the Report and Recommendation, in which

the Magistrate Judge concludes that the plaintiff is not bound by any statute of limitations in this

action.

I. UNCONSTITUTIONALLY OF THE STATUTE

This lawsuit is based on 42 U.S.C. § 14141, a statute that the parties agree has never been

upheld, construed, or applied by any court. After discussing the recent jurisprudence from the

Supreme Court on the proper analysis for determining the constitutionality of legislation under

§5 of the Fourteenth Amendment, Report and Recommendation at 9-11, the Court summarily

Primarily discussed in subsection B of Section IV, Report and Recommendation at 11-12.

dispenses with the City's arguments concerning the breadth of the remedies authorized under §14141 in relation to the congruence and proportionality test. Report and Recommendation at 11-12. The considerable intrusion of the federal government into the operation of local police departments authorized under this statute goes to the heart of the issue of federalism, warranting a higher degree of judicial scrutiny than that reflected in the Report and Recommendation. The City's arguments concerning the breadth of the remedies authorized under §14141 in relation to the congruence and proportionality test, as set forth in detail in its memoranda submitted in support of the motion to dismiss,2 can be summarized as follows.
Under City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court set out a new constitutional test for when Congress may legitimately exercise its §5 power to enact legislation that imposes restrictions upon state and local governments. Under the first part of the two-part test, Congress may not "define its own powers by altering the Fourteenth Amendment's meaning" under the guise of enforcing the Constitution. Id. at 529. There is no dispute on this part of the test as applied to §14141. Under the second part, "[w]hile preventive measures are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved." Id. at 530. "Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one." Id. Of particular concern are statutes whose "[sjweeping coverage ensures [their] intrusion" upon state and local governments, "pervasively prohibiting] constitutional state action in an effort to remedy or to prevent unconstitutional state action." Id. at 532-33. Such enactments are not valid under §5 because they reflect "a lack of proportionality or congruence between the means adopted and the legitimate end to be

2

See Def. City's Memo, in Support of the Motion to Dismiss (doc. 23), at 8-13; Def.

City's Reply Memo, in Support of the Motion to Dismiss (doc. 35), at 2-8; Def. City's Reply

Memo, to Plaintiffs Supp. Memo. (doc. 45), at 1-4.

achieved." Id. at 533. It is this second part of the test, in which the breadth of the remedies must be examined, where §14141 fails.
The Report and Recommendation relies too heavily on the "much deference" to which Congress is entitled in fashioning remedies under §5 of the Fourteenth Amendment, id. at 536, without giving due regard for the Court's admonition that "[t]he appropriateness of remedial measures must be considered in light of the evil presented. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one." Id. at 530; see also Kimel v. Florida Bd. of Regents, 120 S. Ct. 631, 649-50 (2000) (same). Without consideration of the latter concern, Congress would be free to enact any category of broad remedies whatsoever "in an effort to remedy or to prevent unconstitutional state action," City of Boerne, 521 U.S. at 533, which would tend to destroy "vital principles necessary to maintain separation of powers and the federal balance," id. at 536.
Focusing therefore on the second prong of the test for judging the validity of legislation enacted under §5, the issue is whether the remedies authorized under the statute and sought in this case are "proportional" and "congruent" to the alleged harms that have spawned this lawsuit. The Supreme Court has identified two avenues of inquiry in making this constitutional determination. First, the courts should "examin[e] the legislative record containing the reasons for Congress1 action." Kimel, 120 S. Ct. at 648. As applied to §14141, the sparse, indirect history from a prior session of Congress addressing a prior version of the statute simply does not support the breadth of the remedy authorized under that statute, plaintiffs post-enactment efforts to supplement that history notwithstanding. The House Committee's unsupported and conclusory descriptions of a "serious" and "real" problem, as noted in the Report and Recommendation at 11, are based, at best, on evidence of isolated incidents, not on evidence of a

nationwide problem of a pattern or practice of police misconduct. Such evidence "falls well short of the mark," relying largely on undocumented allegations and failing "to identify a widespread pattern" of unconstitutional conduct that had gone unredressed. Kimel, 120 S. Ct. at 649-50. Indeed, the court cases referred to in the committee report had already resulted in large damage awards. Therefore, as in Kimel, a full review of this statute's legislative history "confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field." Id. at 650; see also Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 119 S. Ct. 2199, 2210 (1999) ("The legislative history thus suggests that the Patent Remedy Act does not respond to a history of 'widespread and persisting deprivation of constitutional rights' of the sort Congress has faced in enacting proper prophylactic legislation.") (quoting City ofBoerne, 521 U.S. at 526).
Under the second avenue of inquiry, the courts should consider the breadth of the remedies authorized by the statute and its proposed application in the circumstances presented. Here, as the plaintiff concedes, it does not seek simply a negative injunction that would bar the City, through the Columbus Division of Police, from violating constitutional rights in the manner identified. Instead, it seeks, inter alia, an "order requiring the City to adopt and implement policies, practices, and procedures to remedy the pattern or practice...." Complaint at Tf 11. This is, in fact, the basis for broad structural relief that would allow federal officials to assert pervasive control over the Columbus Division of Police. That control would extend to all aspects of training officers, supervising their performance, monitoring their daily responsibilities, investigating complaints, and assuming control of their discipline. Such structural relief would have the effect of displacing the operation of city charter provisions, municipal ordinances, department policies, and existing labor agreements. The clear effect of the relief sought by the

plaintiff in this case would be precisely what the Supreme Court has directly condemned as unacceptably disproportionate: to "pervasively prohibit[] constitutional state action in an effort to remedy or to prevent unconstitutional state action." City ofBoerne, 521 U.S. at 532-33; see also Florida Prepaid, 119 S. Ct. at 2210; Kimel, 120 S. Ct. at 649-50. The City's operation of its police department is a constitutional state action. The displacement of numerous core parts of that function authorized by §14141 is, for all intents and purposes, a "pervasive prohibition]" of that constitutional action.
In its over-reliance on the factor of deferring to Congress, the Report and Recommendation fails to adequately take into account that in the Supreme Court's recent decisions reconsidering congressional authority to legislate broadly under §5, the central concern is to "maintain . . . the federal balance." City ofBoerne, 521 U.S. at 536. The statute at issue here implicates this concern because rather than calibrating the remedy narrowly to the evil presented, such as prosecuting those officers who violate the law, see 18 U.S.C. §§ 241, 242, it would allow the federal government, in effect, to obtain a broad structural injunction that assumes federal control over the daily activities, policies, and decisions of an entity which embodies perhaps the most important and time-honored function of local governance—law enforcement. Such sweeping relief is disproportionate to any alleged wrong identified, particularly when redress for the alleged wrongs is already available. Whenever an officer engages in conduct that violates an individual's constitutional rights, the aggrieved party already can sue under 42 U.S.C. § 1983 for compensatory damages, appropriate injunctive relief, and full payment of attorney's fees.
In this context, the Supreme Court's decision in Rizzo v. Goode, 423 U.S. 362 (1976), becomes directly relevant to the constitutional inquiry here. In Rizzo, the Court made essentially

the same determination of whether a broad preventive injunction could be imposed upon the Philadelphia Police Department in a case alleging a pattern of unconstitutional police misconduct. The Supreme Court assumed that plaintiff had established sixteen incidents, over the course of a year, of police officers violating constitutional rights. Id. at 367-68. The Court overturned, as disproportionate, a lower court injunction mandating a "comprehensive program for dealing adequately with civilian complaints," which included revisions to the existing police manuals and procedures and revisions to the procedures for processing, investigating, and adjudicating complaints against officers. Id. at 378. The Court also noted that "important considerations of federalism are additional factors weighing against" the imposition of such relief, for "a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this Court has recognized." Id. at 379-80 (quotation omitted).
In light of the fact that the Court in Rizzo overturned a broad, structural injunction because it sharply limited "the [police] department's latitude in the dispatch of its own internal affairs," 423 U.S. at 379 (quotation omitted), it is difficult to see why the same kind of judicial relief authorized under this statute, and explicitly requested in the Complaint, would be any more permissible here. See also City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983) ("principles of equity, comity, and federalism . . . should inform the judgment of federal courts when asked to oversee state law enforcement authorities"). In this case, just as in Rizzo, court-imposed restrictions would govern the training, supervision, and monitoring of officers' daily activities, the investigation and adjudication of all complaints, and the processes used to discipline officers — intrusive judicial relief that would contravene "important considerations of federalism." Rizzo, 423 U.S. at 378-80.

In sum, the Report and Recommendation fails to acknowledge the serious federalism implications of §14141 and lacks the level of analysis that the recent Supreme Court cases in this area require. Such analysis shows that Congress has again overreached and allowed excessive federal intrusion into local governance. 42 U.S.C. §14141 is an extension of federal power that disturbs the balance of power established under the United States Constitution. II. APPLICABILITY OF A TWO-YEAR STATUTE OF LIMITATIONS
In addressing the issue of what level of proof is required under §14141, the Magistrate Judge concludes that it is "the same level of proof as is required against municipalities and local governments in actions under §1983." Report and Recommendation at 17. This conclusion is based in part on the Court's determination that "such legislative history as exists manifests a congressional intent to conform its substantive provisions to the standards of §1983." Id. at 16. That same history also reflects that the stated purpose of the statute was to address the perceived gap in the availability of future injunctive relief in police misconduct cases under §1983 law. H.R. Rep. No. 102-242, 102nd Cong., 1st Sess., at 402, 1991 WL 206794 *406. Despite the fact that §14141 apparently was intended only as a gap-filling extension of §1983 law, and the fact that it was clearly established as a matter of federal law when §14141 was enacted that actions under §1983 are subject to the most appropriate state statutes of limitation, the Report and Recommendation nevertheless summarily concludes that this action is subject to no statute of limitations. Report and Recommendation at 20.
The position taken in the Report and Recommendation that there is no statute of limitations applicable to actions under §14141 disregards the substantive law of §1983, which earlier in the Report and Recommendation the Court had concluded applies to actions under §14141. At the time §14141 was enacted, it was clearly established as part of the substantive

law applicable to §1983 actions that claims of constitutional violations in Ohio were not cognizable more than two years after the conduct at issue.3 The abandonment of this established statute of limitations in favor of no temporal restriction whatsoever would be inconsistent not only with the established substantive law under §1983, but also with the intent of Congress, as construed by the Court, relative to the purportedly limited scope of §14141. Local governments, including the City, would be subject to suit by the federal government in federal court for conduct that would otherwise no longer be actionable, regardless of how long ago the constitutional violation allegedly occurred. Rather than the mere filling of a perceived gap in §1983 law, this would dramatically expand the scope of local government liability in federal court when no intent to do so was expressed or implied by Congress. Such a departure from established law warrants more than the mechanical application of an anachronistic rule, particularly given the federalism implications here that are not normally involved in application of that rule.
As in the Report and Recommendation, the rule that the federal government, when bringing actions in its sovereign capacity, is not bound by any statute of limitations is typically applied without critical analysis as to its continued viability or legitimacy. That this "vestigal survival of the prerogative of the Crown," Guaranty Trust v. U.S., 304 U.S. 126, 132 (1938), should be relied upon to directly and adversely impact the balance of power protected by the United States Constitution is ironic, to say the least. However, even assuming arguendo the general validity of the rule, a less doctrinaire application of it under a contemporary public policy analysis compels the conclusion that it simply does not apply here.

3

See Owens v. Okure, 488 U.S. 235 (1989); Wilson v. Garcia, 471 U.S. 261, 268-

69 (1985); Browning v. Pendleton, 869 F.2d 989, 990-992 (6th Cir. 1989).

In the main case relied upon by the plaintiff, and cited in the Report and Recommendation, Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 355 (1977), the Supreme Court did not apply the sovereignty-based rule perfunctorily, but first considered the legislative history and administrative enforcement structure of Title VII before concluding that the EEOC was not bound by a statute of limitations. In the instant case, as discussed supra, the indirect legislative history on §14141 reflects no intent by Congress to depart from the existing substantive law of §1983, which law includes statutes of limitation.
In addition to consideration of the legislative history, the Court in Occidental Life also based its decision on the conclusion that reference to state statutes of limitation would be inconsistent with the administrative structure created by Congress as to claims handled by the EEOC. Id., 432 U.S. at 367. No such inconsistency exists in the case of §14141, however, since there is no administrative enforcement mechanism or other structure that could conceivably be adversely impacted by application of the established two-year statute of limitations. Nor would the application of the established two-year statute of limitations "frustrate or interfere with the implementation of national policies." Id. The propriety of borrowing state statutes of limitations and applying them, as a matter of federal law, to federal claims of constitutional violations was clearly established when §14141 was enacted. See Owens v. Okure, supra; Wilson v. Garcia, supra. It cannot now be reasonably argued that such statutes suddenly become abhorrent to national policy simply because the federal government, rather than a private litigant, is the plaintiff.
Moreover, such an anomaly would be contrary to the equitable rule that "equity will withhold its relief in such a case where the applicable statute of limitations would bar the concurrent legal remedy." Cope v. Anderson, 331 U.S. 461, 464 (1947). Both before and after

the enactment of §14141, the only legal remedy available for alleged constitutional violations has belonged to the private litigant, whose claims are time-barred after two years. Since the legal remedy of any private litigant would be barred if he brought his case more than two years after the alleged violation, equitable relief should not be available for the same conduct simply because Congress has now decided to confer standing to seek such relief on the Attorney General. Particularly given the limited purpose of §14141 intended by Congress, as noted in the Report and Recommendation at 7, application of the expansive, sovereignty-based rule exempting the federal government from any statute of limitations would not only be inconsistent with that intended purpose, but contrary to the concurrent remedy rule and the equitable principles upon which it is based.
Finally, this Court has recognized that the principles of prejudice and fundamental fairness still allow a court to exercise its discretionary power to achieve a just result even when the sovereignty-based exemption rule does otherwise apply. See EEOC v. AT&T, 36 F.Supp. 2d 994, 997 (S.D. Ohio 1998) (Sargus, J.). The Report and Recommendation, at 20, acknowledges this case and the possibility that equitable principles may be available to the defendants, but concludes that the motions to dismiss and for judgment on the pleadings "do not provide the proper vehicle for invoking such principles." It is at the inception of this case, however, where such principles must be applied. Section 14141 authorizes the federal government to bring its vast resources to bear against local governments. If a local government decides to oppose the suit, it must expend significant amounts of its comparatively limited resources, regardless of how far back the federal government chooses to go in alleging a pattern or practice. Allowing such suits to be prosecuted without any temporal restriction which limits their scope and the concurrent costs of defending them would further tilt the playing field in favor of the federal
10

government while imposing an unreasonable burden on the resources of local governments. Adherence to a two-year statute of limitations imposes no hardship whatsoever on the federal government while at least limiting the burden imposed on local governments. Conversely, exemption of the federal government from any statute of limitations would severely prejudice the City's ability to defend itself. As noted by the Supreme Court in Wilson v. Garcia, 471 U.S. at 271, "[j]ust determinations of fact cannot be made when, because of the passage of time, the memories of witnesses have faded or evidence is lost." Whereas "[a] federal cause of action 'brought at any distance of time' would be 'utterly repugnant to the genius of our laws,'" id., quoting Adams v. Woods, 2 Cranch 336, 342 (1805), application of the two-year statute of limitations serves the policies of repose while still permitting timely-brought claims to be justly adjudicated. If the plaintiff in this case is unable to prove that a pattern and practice of constitutional violations existed within the last two years and continues to exist, then obviously there can be no ongoing pattern and practice of constitutional violations for which prospective injunctive relief is necessary. Equity requires that the issue of the how far back the City must go in defending itself be addressed now, before the resources are needlessly spent.
In sum, whether as a matter of law or equity, the federal government should not be permitted to prosecute this action without any temporal restrictions whatsoever. III. CONCLUSION
For the foregoing reasons, the City requests that the Report and Recommendation not be adopted insofar as it concludes that §14141 is a valid exercise of congressional power under §5 of the Fourteenth Amendment, and that the plaintiff is not bound by any statute of limitations in this action. Wherefore, the City respectfully requests that its motion to dismiss be granted for the foregoing reasons and those set forth in the memoranda in support of that motion.
11

Respectfully submitted, CITY OF COLUMBUS, DEPARTMENT OF LAW JANET E. JACKSON, CITY ATTORNEY
Timothy jTMangan (0025430) ' Senior Litigation Attorney Trial Attorney for Defendant City of Columbus
Joshua T. Cox (0029860) Andrea C. Peeples (0063226) Assistant City Attorneys Co-Counsel for Defendant City of Columbus
50 West Broad Street, Suite 1425 Columbus, Ohio 43215 (614)645-0804
CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was sent by facsimile and regular U.S. Mail, postage prepaid, to: Mark Masling Senior Trial Attorney Special Litigation Section POB 66400 Washington, DC 20035-6400
James E. Phillips 52 East Gay Street P. O. Box 1008 Columbus, Ohio 43216-1008
this / 7 ' day of August, 2000.
Joshua T. Cox Assistant City Attorney
12

 
 U.S. Department of Justice Civil Rights Division

SHR:DM:MM:MP:CT:SF 207-58-2

Special Litigation Section P.O. Box 66400 Washington,DC 20035-6400
August 25, 2000

via overnight mail
Clerk of Courts United States District Court 85 Marconi Blvd., Second Floor Columbus, Ohio 43215

US v. City of Columbus PN-OH-001-016

Re: United States v. City of Columbus CA No. C2-99-1097

Dear Clerk:

I enclose for filing the original and a copy of the United States' Response to the City of Columbus' Objections to the Report and Recommendation of the Magistrate Judge. Please deliver the courtesy copy to Judge Holschuh.

Thank you for your cooperation.

Sincerely,

James Eichner Trial Attorney Special Litigation Section (202) 514-9811
.Enclosures
cc: James Phillips (fax and regular mail) Timothy Mangan (fax and regular mail) •Deborah F. Sanders (regular mail)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

) CITY OF COLUMBUS, OHIO, et. al.,)

)

Defendants.

)

Civil No. C2-99-1097 Judge Holschuh Magistrate Judge King

THE UNITED STATES' RESPONSE TO THE CITY OF COLUMBUS' OBJECTIONS TO THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
On August 3, 2000, Magistrate Judge King issued a Report and Recommendation (Report) in which she recommended, inter alia,
that this Court find that 42 U.S.C. § 14141 (§ 14141) is a valid exercise of Congressional authority under § 5 of the Fourteenth Amendment (§ 5 ) , and that Ohio statutes of limitation do not apply to suits brought by the United States under § 14141. Defendant City of Columbus (City) objects to both of these recommendations.l
As demonstrated in the United States' memoranda filed before Magistrate Judge King, and as further demonstrated below, this Court should accept the Report's recommendation on both of these issues. Section 14141 is a valid exercise of Congress' § 5 power to provide a judicial remedy for a violation of the Fourteenth

1 The Report addressed defendants' dispositive motions directed at the United States' original Complaint. Pending before the Magistrate Judge is the United States' motion to file an amended complaint.

Amendment.2 Moreover, because the United States brings actions under § 14141 in its sovereign capacity on behalf of the public interest, and because § 14141 does not explicitly impose a temporal limitation, statutes of limitation do not apply to § 14141.
I. SECTION 14141 IS A PROPER EXERCISE OF § 5 POWER
Tn Kimel v. Florida Board of Regents. 120 S.Ct. 631 (2000), the Supreme Court set forth the test for determining whether a statute is a proper exercise of § 5 power. Congress has the power to enact legislation that it deems necessary "to secure the guarantees of the Fourteenth Amendment and its conclusions are entitled to much deference." .Id,, at 644 (internal quotations and citations omitted). In addition, "Congress1 power to enforce the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." id., (internal quotations omitted). To determine whether such a prohibition on
2 The United States' original Complaint seeks only to remedy a pattern or practice of constitutional violations. Section 14141 also allows suit to be brought for a pattern or practice of federal statutory violations, and the United States' proposed amended complaint is premised on both statutory and constitutional violations. While § 14141 is constitutional as applied to either constitutional or statutory violations, the constitutionality of § 14141 as applied to suits redressing statutory violations is not before the Court at this time. Therefore, in this memorandum, the United States will address the constitutionality of § 14141 only in the context of seeking to remedy solely constitutional violations.
- 2-

a "broader swath of conduct" is a proper exercise of § 5 power, there must be a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id."
Because § 14141 does not alter the Fourteenth Amendment's • meaning it is a valid exercise of § 5 power. Moreover, § 14141
provides a proportional and congruent remedy to the identified constitutional harm.
A. Section 14141 Is a Proper Exercise of S 5 Power Because it Does Not Alter the Fourteenth Amendment
In objecting to the Report's conclusion that § 14141 is a proper exercise of Congress' § 5 power, the City candidly admits that § 14141 does not alter the Fourteenth Amendment's meaning. City's Objections at 2 (stating "Under the first part of the twopart test, Congress may not define its own powers by altering the Fourteenth Amendment's meaning under the guise of enforcing the Constitution. There is no dispute on this part of the test as applied to §14141.")(internal citations and quotations omitted). However, the City fails to acknowledge that this admission refutes its argument that § 14141 is unconstitutional.
No court has struck down a statute under § 5 that -- like § 14141 -- neither redefines a constitutional right nor provides a prophylactic remedy by prohibiting conduct that does not itself violate the Constitution. In all the cases cited by the City in which the Supreme Court invalidated a statute as an improper exercise of § 5 power, the statute at issue either redefined a
- 3-

constitutional right or provided a remedy in instances in which no constitutional violation occurred. gee Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank. 527 U.S. 627 (1999) (striking down the Patent and Plant Variety Protection Remedy Clarification Act as unconstitutional because patent infringement itself is not unconstitutional); Kimel. 120 S. Ct. 631 (2000) (striking down the Age Discrimination in Employment Act as unconstitutional, as applied to the States, because discrimination based on age is constitutional in many instances); City of Boerne v. Flores. 521 U.S. 507 (1997) (striking down the Religious Freedom Restoration Act because it sought to redefine the "Free Exercise" clause of the First Amendment).
The City urges this Court to consider whether the remedial scheme of § 14141 is proportionate and congruent even> while admitting that the statute does not alter the scope of the Fourteenth Amendment. The Supreme Court has only applied the proportionate and congruent test, however, in cases in which it found that the statute prohibited a "broader swath of conduct" than prohibited by the Constitution. Therefore, the City's admission is itself sufficient to uphold the Report's conclusion that § 14141 is a proper exercise of Congress' § 5 power.
B. Section 14141 Is Proportional and Congruent Even if this Court concludes that it must conduct further analysis regarding the statute's constitutionality, the Report
- 4 -

correctly concluded that § 14141 is proportional and congruent. In contesting this conclusion, the City reiterates the same arguments that were rejected by the Report: 1) that Congress failed to sufficiently demonstrate the need to enact § 14141; and 2) that the. remedy provided for by § 14141 is not sufficiently tailored. These arguments are without merit.
1. Congress properly enacted § 14141 to address the pervasive problem of police misconduct
The City argues that § 14141 is not proportional and congruent because Congress did not sufficiently identify constitutional deprivations that would be remedied by the statute. This argument fails because it understates the Congressional findings contained in the legislative history, overstates the importance of these Congressional findings, and ignores the overwhelming evidence regarding police misconduct.
The House Report on the proposed Omnibus Crime Control Act of 1991, which both parties agree is the primary source of legislative history of § 14141, described or referenced numerous, egregious instances of recent patterns or practices of unconstitutional police misconduct. The Report summarized the findings of the Committee's Sub-Committee on Civil and Constitutional Rights, which had held hearings on police misconduct, and received evidence of systemic misconduct in law enforcement agencies, including:
* Testimony from various experts in policing concerning widespread police misconduct in American cities.
- 5-

* Evidence that Boston police routinely conducted harassing stops and searches of minority individuals.
* Evidence that New York City police harassed witnesses to police misconduct.
* Evidence that a special unit in the Reynoldsburg, Ohio police department called itself the SNAT team, for "Special Nigger Arrest Team."
* Evidence that the Los Angeles police department had a policy of using "nun-chuks" on passive demonstrators.
H. Rep. No. 102-242, 102nd Cong., 1st Sess. 136 (1991). This substantial record convinced Congress to act. For this
Court to require more would violate the well-established principle that "Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency does to accommodate judicial review." See Turner Broadcasting Sys.. Inc. v. Federal Communication Commission. 520 U.S. 180, 213 (1997) (internal citations and quotations omitted).
Even if the legislative history is insufficient -- which it is not -- this Court is free to look beyond the legislative record and assess the evidence regarding whether Congress could have reasonably believed that § 14141 was necessary to remedy serious constitutional problems. See Kilcullen v. New York State Dep't of Labor. 205 F.3d 77, 80 (2d Cir. 2000); Amatel v. Reno. 156 F.3d 192, 200 n.6 (D.C. Cir. 1998), cert, denied, 119 S.Ct.
2392 (1999); Pease v. University of Cincinnati Medical Center. 6 F. Supp.2d 706, 712 (S.D. Ohio 1998), aff'd., 187 F.3d 637 (6th
Cir. 1999). The record available at the time of § 14141's enactment provided ample support for Congress to have concluded
- 6-

that police misconduct was a pervasive and serious problem in
this country.
In 1992, ten urban police chiefs issued a joint public
assessment that "the problem of excessive force in American
policing is-, real." Marshall Miller, Note, Police Brutality. 17
Yale L. & Pol'y Rev. 149, 151-52 (1998)). This conclusion is
supported by the fact that from 1986 to 1990 the City of Los
Angeles paid damages totaling $20 million in excessive force
cases alone. Miller, at 156-57 (citing Paul Chevigny, Edge of
the Knife: Police Violence in the Americas 52-53 (1995)).3
New York City paid over $50 million dollars in damages in
cases of "police misconduct" from 1987 to 1992. id.. "Yet, in
each city, the police department made no institutional or policy
changes to respond to these suits . . . [and] despite the
substantial sums of money involved, neither city bothered to
monitor civil suits." Id."
3 See also Paul Hoffman, The Feds, Lies and Videotape: The Need for an Effective Federal Role in Controlling Police Abuse in Urban America. 66 S. Cal. L. Rev. 1453 (1993).
4 In the Reply Memorandum of Fraternal Order of Police, Capital City Lodge No. 9 ("FOP"), filed May 19, 2000, before the Magistrate Judge, the FOP challenges the relevancy of some of the evidence cited by the United States as supporting the enactment of § 14141, to the extent that this evidence was published after the statute ' s enactment. Iri Florida Prepaid Postsecondary Education Expense Board, however, the Supreme Court, in evaluating whether there was sufficient justification for the Patent Remedy Act, considered the statistics compiled by the Federal Circuit reporting the number of patent infringement suits that had been brought against states between 1880 and 1990, even though there is no indication that these statistics were either actually published, or considered by Congress, prior to the Act's enactment. Florida Prepaid Postsecondary Education Expense
I, 527 U.S. at 2207. Therefore, all evidence upon which
- 7-

The assessment of these police chiefs is further supported by a 1993 Study quantifying police misconduct cases brought

between 1978 and 1990. That study found 575 federal court

decisions, nationwide, in cases for false arrest brought under

1,

42 U.S.C. §. 1983 (§ 1983) . It reported that plaintiffs prevailed

in 44% of the decisions issued, and received an average jury award of $91,631. Christopher A. Love, The Myth of MessageSending: The Continuing Search for a True Deterrent to Police

Misconduct. 12.J. Suffolk Acad. L. 45, 53 (1998) (citing Victor

E. Kappeler, et al. A Content Analysis of Police Liability Cases: Decisions in the Federal District Courts. 1978-1990, 21 J. Crim. Just". 325, 335 (1993) ) . 5 The same study reported 369 federal

district court decisions in cases alleging excessive force. Plaintiffs prevailed in 60% of the decisions issued and received

an average jury award of $187,503. Id,, at 54.

This evidence, documenting the problem of police misconduct that existed at the time of § 14141's enactment, demonstrates

that constitutional violations by police officers plagued a wide

range of municipalities. Given this evidence, § 14141 is a proper attempt to address a clear record of constitutional

Congress could have based its decision to enact § 14141, such as the number of police misconduct cases in the years before § 14141's enactment, regardless of whether such evidence was either published before the statute's enactment or actually considered by Congress, supports § 14141's enactment.
5 The success rates published in this study reflect "decisional success;" i.e., a favorable ruling on a plaintiff's motion, or an unfavorable ruling on a defendant's motion.
- 8-

violations that had yet to be remedied.
2. Section 14141 provides a tailored remedy
The City's argument that the relief provided by § 14141 is
overbroad is similarly without merit. The text of § 14141 limits
" the remedy to "appropriate equitable and declaratory relief to eliminate the pattern or practice." See 42 U.S.C. §14141(b).6
Thus, the relief available under § 14141 is confined to equitable
and declaratory relief that eliminates the pattern or practice
that "deprives persons of rights, privileges, or immunities
secured or protected by the Constitution. . . ." 42 U.S.C. § 14141(a).7 The scope of the § 14141 remedy is thereby limited
to the scope of the violation -- the standard generally employed
for remedies for constitutional violations in other substantive
areas. See Milliken v. Bradley. 433 U.S. 267, 280 (1977)
("Equitable remedies . . . [are] to be determined by the nature and scope of the constitutional violations") .8
6 To the extent that the City's argument is premised on the concern that this Court may craft a remedy that is not sufficiently tailored, its argument is premature. Until the Court imposes a remedy in this case, there is no basis for the City to be concerned that the Court will not correctly interpret § 14141(b). At such a time, the City would have the opportunity to make an appropriate motion or appeal.
7 In keeping with the text of § 14141(b), the United States seeks "an order requiring the City to adopt and implement policies, practices and procedures to remedy the pattern or practice." Complaint % 11.
3 As discussed in more detail at page 9 of the United States' Supplemental Memorandum in Opposition to the Fraternal Order of Police's Motion for Judgment on the Pleadings, filed before the Magistrate Judge on May 11, § 14141 is proportional
- 9-

The City cites Rizzo v. Goode. 423 U.S. 362 (1976), to argue

that the kind of injunctive relief provided for by § 14141 raises

serious federalism concerns. In Rizzo. however, the Court merely

found that the district court had erred in imposing a broad

injunction on the municipality, because that remedy was neither

]

'• explicitly provided for by Congress, nor justified by the

constitutional violations proved by the plaintiffs. Rizzo. 423

U.S. at 378. Rizzo does not address the issue of whether

Congress, rather than a Court, can, as it did in enacting §

14141, provide a tailored remedy against governmental agencies

who have been proven to engage in a pattern or practice of

unconstitutional conduct. As discussed above, that issue is

governed by the standards applicable to an exercise of

Congressional power under § 5.

Under this test, § 14141 is a valid exercise of,§ 5 power.

Congress identified the widespread problem of police misconduct,

and enacted a tailored remedy that is both proportional and

congruent. Therefore, § 14141 is constitutional.

II. NO STATUTES OF LIMITATION APPLY TO SUITS BROUGHT BY THE UNITED STATES UNDER §14141 The City also objects to the Report's refusal to apply to
§ 14141 Ohio's two-year statute of limitations for personal injury claims. In addition to repeating the arguments rejected by the Magistrate Judge, the City argues that the Report's
and congruent under any liability standard. - 10 -

decision to apply the § 1983 municipal liability standard to § 14141 also dictates applying the statute of limitations found in § 1983.
This argument for dismissal must fail. The Supreme Court and lower federal courts have held repeatedly that when, as here, the United States sues in its sovereign capacity, it is not subject to state statutes of limitation unless a federal statute contains or references such a statute. See Occidental Life Insurance Co. v. EEOC. 432 U.S. 355 (1977); United States v. John Hancock Mutual Life Ins. Co.. 364 U.S. 301, 306 (1960); Board of County Commissioners v. United States. 308 U.S. 343, 351 (1939); E.I. Dupont De Nemours & Co. v. Davis. 264 U.S. 456, 462 (1924). Section 14141 contains no statute of limitations.
Contrary to the City's argument, this rule is not limited to cases involving administrative claims originating before the Equal Employment Opportunity Commission. It has been applied to "pattern or practice" suits, brought by the Attorney General on behalf of the United States, alleging housing or employment civil rights violations. See United States v. City of Parma. 494 F. Supp. 1049, 1094, n.63 (N.D. Ohio), aff'd 661 F.2d 562, 573 (6th Cir. 1981); United States v. Marsten Apartments. Inc. 175 F.R.D. 257, 262 (E.D. Mich. 1997) ; United States v. City of Yonkers. 592 F. Supp. 570, 586-89 (S.D.N.Y. 1984); United States v. McHenry County. 1994 WL 447419 (N.D. 111. 1994).
That the Report applied § 1983's liability standard to
- 11 -

§ 14141 does not effect this analysis.9 Section 1983 suits are brought by private entities, not the United States in its sovereign capacity. The Report rejected the imposition of a statute of limitations on suits brought under § 14141 by the United States because of significant sovereignty implications. " Such sovereignty implications are absent when a court imposes a statute of limitations on a private party bringing suit under § 1983. Thus, the Report correctly concluded that no statute of limitations applies to suits brought under § 14141.
9 The United States disagrees with the Report's finding as to the applicable liability standard under § 14141, and has filed Objections to that conclusion.
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CONCLUSION For the foregoing reasons, the City's objections to the Report should be rejected in their entirety.
Respectfully submitted,

SHARON J. ZEALEY United States Attorney Southern District of Ohio

BILL LANN LEE Assistant Attorney General Civil Rights Division U.S. Department of Justice

DEBORAH F. SANDERS Assistant United States
Attorney Southern District of Ohio Two Nationwide Plaza 280 North High Street Fourth Floor Columbus, Ohio 43215 (614) 469-5715

STEVEN H. ROSENBAUM Chief DONNA M. MURPHY Special Counsel MARK MASLING MARK A. POSNER JAMES EICHNER CATHLEEN TRAINOR Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice P.O. Box 66400 Washington, D.C. 20035-6400 (202) 514-9811

CERTIFICATE OF SERVICE
I certify that a copy of the United States' Response to the City of Columbus' Objections to the Report and Recommendation of the Magistrate Judge was served by overnight mail on August 25th, 2000, on the following:
Timothy J. Mangan Senior Litigation Attorney Columbus City Attorney's Office 90 West Broad Street Columbus, Ohio 43215
James Phillips John J. Kulewicz ..Douglas L. Rogers Vorys, Sater, Seymour and Pease 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008
Barnes Eichner

 
 • • • I I I ' USv. City of Columbus

PN-OH-001-019 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
, EASTERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

Civil No. C2-99-1097

v.

)

Judge Holschuh

CITY OF COLUMBUS, OHIO, et al..

)

Magistrate Judge King

Defendants.

)

MOTION FOR LEAVE TO PARTICIPATE AS AMICI CURIAE United States Representatives John Conyers, Jr., Howard L. Berman, Danny K. Davis, William D. Delahunt, Harold E. Ford, Jr., Sheila Jackson-Lee, Carolyn Cheeks Kilpatrick, Zoe Lofgren, Gregory W. Meeks, Juanita Millender-McDonald, Donald M. Payne, Edolphus Towns, Maxine Waters, and Melvin L. Watt respectfully seek leave to participate in the above captioned case as amici curiae, by filing the attached brief in support of the United States's objections to the Report and Recommendations of the Magistrate Judge. The Magistrate Judge's Report in this case is the first judicial pronouncement interpreting the appropriate scope of liability under 42 U.S.C. § 14141, an important civil rights statute intended by Congress to fill several gaps in the application of federal civil rights laws to unconstitutional misconduct by local police. The Magistrate Judge's reading of the statute thwarts this purpose by unduly restricting the scope of municipal liability under the statute. Representative John Conyers, Jr. is the ranking minority member of the House Judiciary Committee. He was an original cosponsor of the Police Accountability Act of 1991, H.R. 2972, 102d Cong., 1st Sess. - proposed legislation that included the language ultimately enacted in

42 U.S.C. § 14141, the statute at issue in this case. (As discussed in the brief we file concurrently with this motion, the legislative history to the Police Accountability Act, as incorporated in the 1991 Crime Bill, represents the most pertinent background to the provision that became Section 14141.) Representatives Howard Berman and Maxine Waters also serve on the House Judiciary Committee and were original cosponsors of the Police Accountability Act of 1991. Representatives William D. Delahunt, Sheila Jackson-Lee, Zoe Lofgren, and Melvin L. Watt are current members of the House Judiciary Committee, and Representatives Danny K. Davis, Harold E. Ford, Jr., Carolyn Cheeks Kilpatrick, Gregory W. Meeks, Juanita MillenderMcDonald, Donald M. Payne, and Edolphus Towns are current members of Congress; all share a particular interest in police accountability.
The Members of Congress who are seeking to participate are concerned that the Report's erroneous restriction of the intended scope of liability of the statute should not become accepted law. The amici leave the facts to the parties, and take no position on other issues raised in this case; their interest lies entirely in correcting the Magistrate Judge's importing into Section 14141 of a "policy or custom" limit, which they believe to be a misapplication of this important statute.
For the foregoing reasons, we respectfully move the Court to grant Representatives Conyers, Berman, Davis, Delahunt, Ford, Jackson-Lee, Kilpatrick, Lofgren, Meeks, MillenderMcDonald, Payne, Towns, Waters, and Watt leave to file the attached brief as amici curiae. It being the close of the period of time for the parties' response to objections to the Magistrate's report, the parties should be granted a reasonable period in which to respond to this filing. We have sought the consent of the parties to this litigation for our participation. Consent of the United States was granted; counsel for the defendant-intervenor Fraternal Order of Police ("FOP") informs us that the FOP has no objection provided there is an opportunity for response
-2-

by the parties; we left a message with counsel for the defendant City of Columbus but were unable to reach any live person and received no response.
Respectfully submitted,

Samuel R. Bagenstos, Trial Attorney

Margo Schlan^er 7

^

1545 Massachusetts Avenue Cambridge, MA 02138 (617)495-9299

Counsel for U.S. Representative John Conyers, Jr. and thirteen other Members of Congress

On consideration of the foregoing Motion for Leave to Participate as Amici Curiae , the motion is:

GRANTED/DENIED, this

day of September, 2000.

UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
This is to certify that on this fifth day of September, a copy of the foregoing Motion for Leave to Participate as Amici Curiae was sent by Federal Express, next day delivery, to:
Mark Masling Special Litigation Section Civil Rights Division U.S. Department of Justice 601 D Street, N.W. Washington, DC 20004 Counsel for the Plaintiff, United States
Timothy J. Mangan Office of the Columbus City Attorney 90 West Broad Street Columbus, OH 43215 Counsel for the Defendant, City of Columbus
James E. Phillips Vorys, Sater, Seymour and Pease 52 East Gay Street Columbus, OH 43216-1008 Counsel for the Defendant-Intervenor, Fraternal Order of Police, Capital City Lodge No. 9
Margo Schlangerl \

 
 US v. City of Columbus

....

PN-OH-001-021

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF COLUMBUS, OHIO, et al.
Defendants.

Civil No. C2-99-1097 Judge Holschuh Magistrate Judge King

BRIEF OF AMICI CURIAE IN SUPPORT OF UNITED STATES'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT

Samuel R. Bagenstos, Trial Attorney 1545 Massachusetts Avenue, A127 Cambridge, MA 02138 (617)495-9299
Margo Schlanger 1525 Massachusetts Avenue, G301 Cambridge, MA 02138
Counsel for Amici Curiae

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

Civil No. C2-99-1097

)

v.

)

Judge Holschuh

)

CITY OF COLUMBUS, OHIO, et al..

)

Magistrate Judge King

)

Defendants.

)

BRIEF OF AMICI CURIAE IN SUPPORT OF UNITED STATES'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT
STATEMENT OF INTEREST Amicus Curiae John Conyers, Jr. is the ranking minority member of the House Judiciary Committee. He was an original cosponsor of the Police Accountability Act of 1991, H.R. 2972, 102d Cong., 1st Sess. - proposed legislation that included the language ultimately enacted in 42 U.S.C. § 14141, the statute at issue in this case. (As discussed below, the legislative history to the Police Accountability Act, as incorporated in the 1991 Crime Bill, represents the most pertinent background to the provision that became Section 14141.) Representatives Howard Berman and Maxine Waters also serve on the House Judiciary Committee and were original cosponsors of the Police Accountability Act of 1991. Representatives William D. Delahunt, Sheila Jackson-Lee, Zoe Lofgren, and Melvin L. Watt are current members of the House Judiciary Committee, and Representatives Danny K. Davis, Harold E. Ford, Jr., Carolyn Cheeks Kilpatrick, Gregory W. Meeks, Juanita Millender-McDonald, Donald M. Payne, and Edolphus Towns are current members of Congress; all share a particular interest in police
-1-

accountability. Especially since the Magistrate Judge's Report in this case is the first judicial pronouncement interpreting Section 14141, Amici are concerned that the Report's erroneous restriction of the intended scope of liability of the statute should not become accepted law. Amici leave the facts to the parties and take no position on other issues raised in this case; their interest lies entirely in correcting the Magistrate Judge's determination that Section 14141 incorporates a "policy or custom" limitation on municipal liability, which Amici believe to be a misreading of this important statute.
SUMMARY OF ARGUMENT Defendants argue, and the Magistrate Judge agreed, that Section 14141 must be construed to incorporate Section 1983's "policy or custom" test for determining municipal liability. Accordingly, defendants contend, an injunction may not issue against a municipality under Section 14141 simply because subordinate employees have engaged in conduct that deprives people of their constitutional rights, even when such misconduct is sufficiently pervasive or systematic to amount to a pattern or practice. Not only must a pattern or practice of misconduct exist within the police department, defendants contend, but the pattern or practice must also be caused by a culpable act, or omission that rises to the level of deliberate indifference, on the part of high-level municipal decisionmakers. This argument is fundamentally misconceived. The "policy or custom" and "pattern or practice" tests represent alternative approaches to the question whether a government entity may be held responsible for the actions of its subordinate employees. The judicially inferred "policy or custom" test, which applies to litigation brought by private parties under Section 1983, is a fault-based regime. It requires the plaintiff to identify some act or omission, attributable to high-level municipal policymakers, that
-2-

caused the constitutional violation. The "pattern or practice" test, which Congress has directed to be applied under a number of modem civil rights laws that authorize lawsuits by the federal government, does not rest institutional liability on proven fault by highlevel officials; it rests such liability on proof of aggregations of incidents of misconduct by a defendant municipality's agents. The plain language of Section 14141—which authorizes lawsuits by the federal government but not by private parties—reflects Congress's decisive choice for the more modern "pattern or practice" approach.
The Magistrate Judge failed to give effect to this choice for two reasons. First, she apparently did not appreciate the strong pedigree of the "pattern or practice" approach in modem civil rights laws enforced by the federal government or the degree to which the legislative history confirms Congress's decision in Section 14141 to follow that approach rather than the "policy or custom" approach. Second, the Magistrate Judge erroneously believed that reading the statute according to its plain text would raise serious constitutional questions. But a plain-language reading of the statute's "pattern or practice" provision raises no constitutional concern at all, much less a serious one. Regardless of the standard of institutional responsibility, the United States cannot prevail in a Section 14141 case unless it proves multiple acts of unconstitutional conduct taken by state actors who abuse power granted by the municipality. The statute is therefore a quintessential remedy for unconstitutional conduct and comes within even the narrowest conception of Congress's power to enforce the Fourteenth Amendment.
ARGUMENT A. The Plain Text of Section 14141 Forecloses Application of a
"Policy or Custom" Test Although the Magistrate Judge construed Section 14141 as limiting municipal
-3-

responsibility to cases that satisfied the "policy or custom" requirement, she made no attempt to explain how such a requirement could be divined from the text of the statute. Instead, she believed that a restrictive "policy or custom" interpretation was dictated by the legislative history and the canon of avoiding constitutional doubt. Had the Magistrate Judge focused on Section 14141's plain text, however, she could not have reached the conclusion she did. That text, especially when considered "in the light of text of surrounding statutes," Vermont Agency of Natural Resources v. United States ex rel. Stevens, 120 S. Ct. 1858, 1870 n.17 (2000) (quoted in Report at 14), makes clear that Congress did not incorporate the "policy or custom" test in Section 14141. Rather, Congress expressly adopted the "pattern or practice" approach of modern civil rights laws that authorize suits by the federal government.
In the corpus of federal civil rights law, the "policy or custom" and "pattern or practice" requirements generally represent alternative mechanisms for holding a government entity liable for the acts of its subordinate agents. The judicially inferred "policy or custom" standard generally applies only to lawsuits brought by private parties under Section 1983. That standard imposes a requirement of municipal fault. As the doctrine has been elaborated by the Supreme Court, a municipality cannot be held liable under Section 1983 unless the plaintiff can show that the municipality was "itself at fault. City of Canton v. Harris, 489 U.S. 378, 385 (1989). To establish such municipal fault, a plaintiff generally must prove the existence of a culpable act or "deliberately indifferent" omission, taken by a municipal policymaker, that either (a) itself violated the Constitution or (b) proximately caused the plaintiffs constitutional injury. See Board of County Comm 'rs v. Brown, 520 U.S. 397, 403-408 (1997).
In a line of cases prefigured by Rizzo v. Goode, 423 U.S. 362 (1976), and
-4-

formally commencing with Monell v. New York City Dep V of Social Servs., 436 U.S. 658
(1978), the Supreme Court has found two reasons for concluding that Section 1983
incorporates a "policy or custom" requirement for establishing municipal liability. First,
the text of the statute limits liability to a "person" who "subjects, or causes to be
subjected," any person to the deprivation of constitutional or federal statutory rights.
42 U.S.C. § 1983.' When the defendant is a city, the Court has read this language as
imposing liability only where some high-level official "whose acts may fairly be said to be those of the municipality"2 actually violates the Constitution ("subjects" the plaintiff to a constitutional deprivation) or at least is the "moving force"3 behind the violation
("causes [the plaintiff] to be subjected" to such a deprivation). See Board of Comm 'rs,
520 U.S. at 403 (noting that the "policy or custom" requirement "rested partly on the
language of § 1983 itself). Second, the Court has concluded that the Forty-Second
Congress, which enacted the statute that became Section 1983, believed that any broader
rule of municipal liability would violate rules of state immunity articulated in mid-
Nineteenth Century cases like Collector v. Day, 11 Wall. 113 (1871), and Kentucky v.
Dennison, 24 How. 66 (1861). See Monell, 436 U.S. at 669-679. Contrary to the
suggestion in the Magistrate Judge's report (Report at 15-16), however, it is clear that the
principles of state immunity to which the Forty-Second Congress appealed are no longer
good law. See Monell, 436 U.S. at 676 (observing that the state immunity principles
1 The statute reads, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress * * *. 2 Board of Comm 'rs, 520 U.S. at 403. 3 Monell, 436 U.S. at 694.
-5-

relied on by the Forty-Second Congress were "clearly supported by precedent—albeit precedent that has not survived"); see also Puerto Rico v. Branstad, 483 U.S. 219,230 (1987) ^Kentucky v. Dennison is the product of another time. The conception of the relation between the States and the Federal Government there announced is fundamentally incompatible with more than a century of constitutional development.").
The "policy or custom" doctrine has required courts adjudicating suits under Section 1983 to undertake a series of elaborate inquiries to determine which municipal officials may be considered "policymakers," see, e.g., McMillian v. Monroe County, 520 U.S. 781 (1997); City of St. Louis v. Praprotnik, 485 U.S. 112 (1988); which actions taken by those officials actually constitute municipal "policy," compare Pembaur v. City of Cincinnati, 475 U.S. 469, 484-485 (1986) (county prosecutor's legal instructions to deputy sheriffs serving a writ constituted county "policy"), with id. at 492, 497 (Powell, J., dissenting) ("The action said to have created policy here was nothing more than a brief response to a single question over the telephone."); and under what circumstances an omission can count as "policy," see City of Canton, 489 U.S. at 389-390 (requiring a showing of "deliberate indifference"). See generally Board ofComm 'rs, 520 U.S. at 430, 433 (Breyer, J., dissenting) ("MonelFs basic effort to distinguish between vicarious liability and liability derived from 'policy or custom' has produced a body of law that is neither readily understandable nor easy to apply."); City of Canton, 489 U.S. at 385-386 ("The inquiry is a difficult one; one that has left this Court deeply divided in a series of cases that have followed Monell * **.").
This complicated case law is limited to Section 1983 lawsuits, however. Although the Magistrate Judge did not acknowledge the point, modern civil rights statutes have incorporated neither Section 1983's "subjects or causes to be subjected"

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i

language nor its judicially inferred "policy or custom" requirement. Instead, particularly
(though not exclusively) when authorizing the Attorney General to bring lawsuits under
these statutes, Congress has frequently employed a different method for determining
when an entity may be held responsible for civil rights violations undertaken by its
agents. Beginning with the Civil Rights Act of 1960, and continuing through the major
subsequent civil rights statutes, Congress has authorized the federal government to sue
covered entities where their operations exhibit a "pattern or practice" of violations by
subordinate officials.4 Although the existence of a "policy or custom" sufficient for
municipal liability under Section 1983, will always suffice for liability under the "pattern
or practice" test, see United States v. Gregory, 871 F.2d 1239,. 1243 (4th Cir. 1989), it is
not a necessary prerequisite. Instead, the terms "pattern" and "practice" evince a primary
concern with the defendant entity's actual operations rather than its official policies.
Taking those terms according to their plain import, an accumulation of violations by
municipal employees must also suffice to satisfy the "pattern or practice" test - even if
the Attorney General has not proven a link between those violations and any specific act
or culpable omission by municipal officials who may be designated "policymakers."5
4 See, e.g., Civil Rights Act of 1960,42 U.S.C. § 1971 (voting rights); Civil Rights of Institutionalized Persons Act, 42 U.S.C. §1997a; Civil Rights Act of 1964, Title II (public accommodations), 42 U.S.C. § 2000a; Civil Rights Act of 1964, Title VII (employment), 42 U.S.C. § 2000e; Fair Housing Act of 1968, 42 U.S.C. § 3614; Americans with Disabilities Act, Title III (public accommodations), 42 U.S.C. § 12188.
5 This point also follows directly from the cases finding private institutional defendants liable for patterns of violations by their agents under the Fair Housing Act. See, e.g., United States v. Balistrieri, 981 F.2d 916, 929-930 (7th Cir. 1992) (apartment building owner liable for pattern or practice where his rental agent appeared to discriminate between black and white testers on five occasions, notwithstanding the lack of any specific evidence to tie the owner to the agent's discriminatory acts). As the Sixth Circuit has made clear, the Fair Housing Act's "pattern or practice" provision applies equally to cities and private defendants. See United States v. City of Parma, 661 F.2d 562, 571-572 (6th Cir. 1981). The "custom" aspect of MonelVs "policy or custom" requirement may also permit a determination of municipal liability in the absence of a
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The "pattern or practice" standard reflects several commonsense notions: that an
entity can almost invariably do something to stop a pattern of lawlessness among its
subordinates; that it is proper to hold an entity responsible for eliminating such a pattern
even when the entity's policymakers have not been "deliberately indifferent" in allowing
the pattern to continue, cf. Board ofComm 'rs, 520 U.S. at 407, 410 (stating that Canton's
"deliberate indifference" standard "is a stringent standard of fault" and that a "showing of
simple or even heightened negligence will not suffice"); and that it is wasteful to search
for a "policymaker" who made a "policy" decision where such a pattern exists. When it
vests "pattern or practice" authority in the federal government, moreover, Congress
assures that the broad sweep of the remedy will not be invoked indiscriminately or for
merely private interests. It will be invoked only in those cases that satisfy the
Department of Justice's rigorous standards for approving pattern or practice lawsuits.
When Congress gave the Attorney General authority to bring civil lawsuits
targeting constitutional violations by law enforcement officers in Section 14141, it
followed the "pattern or practice" model of modern civil rights litigation; it did not
incorporate the "policy or custom" requirement that applies to private lawsuits under
Section 1983. Section 14141's text makes this point clear. The statute reads, in full:
(a) Unlawful conduct It shall be unlawful for any governmental authority, or any agent thereof,
direct link with the actions of high-level municipal officials, but Congress could reasonably have concluded that such a determination would be made only in very narrow circumstances. See Board ofComm 'rs, 520 U.S. at 404 ("[A]n act performed pursuant to a 'custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law."); Monell, 436 U.S. at 691 ("Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law.") (internal quotation marks omitted; quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)).
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or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
(b) Civil actions by Attorney General Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (a) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
Unlike Section 1983, whose "person who . . . subjects, or causes to be subjected"
language requires a search for some culpable act or omission by the municipality "itself,"
Section 14141 provides a remedy for "conduct by [subordinate] law enforcement
officers." 42 U.S.C. § 14141. Where those violations, considered together, rise to the
level of a "pattern or practice," the federal government may sue for relief against the
municipality and any officer involved. See 42 U.S.C. § 14141(a) (violation extends to
"any governmental authority, or any agent thereof, or any person acting on behalf of a
governmental authority, * * * engage[d] in [the] pattern or practice"). Moreover, by
defining the class of covered entities to include both governmental authorities and their
agents and those acting on their behalf, Congress evinced an intent to hold governmental
authorities responsible for the acts of their agents—though only when those acts
aggregate to the level of a "pattern or practice." Cf. Meritor Savings Bank F.S.B. v.
Vinson, All U.S. 57, 70-72 (by defining "employer" in Title VII to include "any agent"
of an employer, Congress evinced an intent to hold employers responsible for the acts of
their agents in accordance with agency principles). By its plain text, Section 14141 does
not require the Attorney General to make the showing that would be required of a private
plaintiff in a 1983 action—that some municipal "policy or custom" was the "moving
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force" behind the constitutional violation. Rather, the Attorney General need make only the showing she must make under a wide range of other modern civil rights statutes—that the defendant entity's operations are marked by a "pattern or practice" of violations by subordinate officials whose authority comes from the defendant.
In sum, the Magistrate Judge failed to appreciate that the "pattern or practice" approach of modern, publicly enforced civil rights statutes represents an established alternative to the restrictive "policy or custom" test applied in private litigation under Section 1983. The Magistrate Judge also failed to appreciate the extent to which Section 14141's text adopts that approach. Once these errors are corrected, the Magistrate Judge's interpretation of the statute cannot stand.
B. The Legislative History Confirms That Congress Expressly Rejected the "Policy or Custom" Standard When It Enacted Section 14141
Although the Magistrate Judge made no attempt to explain how a "policy or custom" requirement could be divined from the text of Section 14141, she placed substantial reliance on the statute's legislative history. The legislative history does not support her interpretation of the statute. Examination of the legislative history confirms what the statutory text makes clear: Congress sought to give the Attorney General the broad "pattern or practice" authority she enjoys under other modern civil rights statutes; it did not limit her to bringing cases that would satisfy the "policy or custom" test applied to private suits under Section 1983.
Section 14141 was adopted as part of Title XXI-D of the Violent Crime Control and Law Enforcement Act of .1994, Pub. L. No. 103-322, 108 Stat. 1796 (the "1994 Crime Bill"). The provision appeared in the version of the 1994 Crime Bill that passed the Senate but not in the version that passed the House. At conference, however, the
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House agreed to include the provision that would become Section 14141, and that
provision appeared in the law as enacted. See H. Conf. Rep. No. 324, 103d Cong., 2d
Sess. 397 (1994). Because no Senate committee prepared a report to accompany the
1994 Crime Bill, the Magistrate Judge was essentially correct that Section 14141 "has no
direct legislative history." Report at 5 (emphasis added). But cf. 139 Cong. Rec. SI5042
(statement of Sen. Moseley-Braun) (noting that the Senate bill "addresses the nationwide
problems of police brutality and misconduct and racial bias in the criminal justice
system by giving the Attorney General the power to intervene where a police department
has shown a pattern or practice of brutality") (full statement attached as Exhibit A).
But the legislative record nonetheless contains significant documentation
regarding the provision that became Section 14141. That provision originated as part of
a stand-alone bill, the Police Accountability Act of 1991, introduced in the House of
Representatives by Representatives Edwards, Berman, Conyers, Dixon, Dymally,
Kopetski, Levine, Washington, and Waters. See H.R. 2972, 102d Cong., 1st Sess. The
Police Accountability Act, Sections 2(a)(l) and 2(a)(2) of which were virtually identical to Section 14141 as enacted,6 was incorporated in the version of the Omnibus Crime
Control Act of 1991 (the 1991 Crime Bill) that passed the House and in the version that emerged from conference.7 The legislative history to the Police Accountability Act, as
6 The original Police Accountability Act differed in two major respects from the version ultimately enacted. First, the "unlawful conduct" provision in the original bill did not include the phrase "or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles." Compare 42 U.S.C. § 14141(a) with H.R. 2972, 102d Cong., 1st. Sess. § 2(a)(l). Second, the original bill included a separate private right of action provision. See H.R. 2972, 102d Cong., 1st Sess. § 2(a)(3).
7 The private right of action provision was dropped in conference, see H. Conf. Rep. No, 405, 102d Cong., 1st Sess. 204 (1991), and that provision never reappeared in the subsequent versions of the bill. Nonetheless, the statements in the legislative history regarding the lack of effective enforcement under Section 1983 remain highly relevant.
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incorporated in the 1991 Crime Bill, represents the most pertinent background to the provision that became Section 14141.
Examination of the Police Accountability Act's legislative history confirms that Congress intended what it said-that the statute would incorporate the pattern or practice approach that characterizes public enforcement of many modern civil rights statutes. The House Report to the 1991 Crime Bill could not be clearer on this point: Noting the Attorney General's "pattern or practice authority under eight civil rights statutes, including those governing voting, housing, employment, education, public accommodations and access to public facilities," the Judiciary Committee argued that the "lack[] [of] authority to address systemic patterns or practices of police misconduct" represented "a serious and outdated gap in the federal scheme for protecting constitutional rights." H.R. Rep. No. 242, 102d Cong., 1st Sess. 137 (1991). As should be evident from this passage, Congress considered lawsuits brought by the Attorney General under modern civil rights statutes—and not actions brought by private individuals under Section 1983—to be the relevant model for the litigating authority that Section 14141 would grant.
Indeed, a statute that merely allowed the federal government to sue under Section 1983's standards could not achieve Section 14141's manifest purpose—to "close th[e] gap in the law" that prevented effective enforcement of the constitutional rights of people who come into contact with the police. See id. at 138. During two days of hearings that
The Police Accountability Act was proposed, and Section 14141 was enacted, because Congress believed the existing regime of private lawsuits under Section 1983 to be inadequate. Although Congress ultimately chose to make no change in the remedies available to private parties, its decision to grant new and broad litigating authority to the Attorney General represents a direct response to the inadequacy of those private remedies to achieve full enforcement of constitutional rights in the police context.
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formed the legislative record for the Police Accountability Act, see id. at 136, witnesses argued that Congress must abrogate the holding in United States v. City of Philadelphia, 644 F.2d 187 (3d Cir. 1980) (absent express statutory authority, federal government may not bring lawsuit against a municipality alleging a pattern or practice of police misconduct), in order to address two basic limitations on private enforcement. First, they observed that the justiciability doctrine of Los Angeles v. Lyons, 461 U.S. 95 (1983), made it extremely difficult for individual victims of police misconduct to sue for injunctive relief. See Police Brutality: Hearings Before the Subcomm. on Civil and Const. Rights of the House Comm. on the Judiciary (1991) ["Police Brutality Hearings'": Excerpts attached as Exhibit B] at 60 (statement of Paul Hoffman, Esq.) (stating that Lyons "makes it almost impossible for private civil rights lawyers to bring pattern-andpractice cases. As was the case in Lyons, a person who is choked or beaten or mauled by a police dog, will not be able to show that it's likely to happen again. And so they will not have standing under the Lyons case to bring a 1983 action to get protective relief."); id. at 174 (statement of Prof. Drew Days) ("Now, one of the things that also creates a need it seems to me for a civil response from the Justice Department is that the Supreme Court has limited very seriously the extent to which private parties can get equitable relief, even where they have been the victims of brutality themselves. A case in point is the City of Los Angeles v. Lyons * * *."). A statute that gave the Attorney General authority to seek injunctions against police misconduct might address this limitation of existing law even if the statute limited the Attorney General with a "policy or custom" rule; the standing rules of Lyons have no application to lawsuits by the federal government to enforce the laws.
But a statute that restricted the federal government to bringing suits under the
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Monell doctrine could not possibly address the second then-existing limitation identified by the witnesses: MoneWs restrictive "policy or custom" test itself. Representative Washington—one of the original cosponsors of the Police Accountability Act—focused directly on the inadequacy of the "policy or custom" doctrine applied under Section 1983: "The problem down in my area is that there is such a niggardly interpretation of Monell and the difficulty in getting the city and the police department held liable." Police Brutality Hearings at 125; see also id. at 211 (statement of Rep. Washington) ("I think the problem you may have is Monroe v. Pape and Monell leave a lot of room for determining what is the standard that is to be expected."). Civil rights lawyer Paul Hoffman echoed Representative Washington's analysis: "Clearly, the way that Monell has been interpreted, particularly recently, makes it difficult for civil rights lawyers to get liability against the city. I think the concern is that it's going to be increasingly restrictively interpreted." Id. at 126. And Professor Drew Days, a former Assistant Attorney General for Civil Rights and future Solicitor General of the United States, called the Committee's attention to the "devastating impact that Rizzo v. Goode" had on private plaintiffs by requiring them to prove a nexus between their injuries and "the types of directives that people at the top gave to line officers." Id. at 171. (As the Magistrate Judge appeared to recognize (Report at 14, 16), the official-nexus aspect of Rizzo prefigured the Court's adoption of the "policy or custom" test two years later in Monell.)
By disregarding the statutory text and reading Section 14141 to incorporate MoneWs "policy or custom" test, then, the Magistrate Judge thwarted the purposes apparent from by the statute's legislative history. Those who sought to give the federal government power to obtain injunctive relief against police misconduct saw MoneWs "policy or custom" standard as a significant part of the problem they intended to address.
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It would therefore be surprising if they had drafted a statute that incorporated that same restrictive standard. The legislative history as well as the plain text of Section 14141 makes clear that they did not do so.
In concluding that "such legislative history as exists manifests a congressional intent to conform [Section 14141 's] substantive provisions to the standards of Section 1983," Report at 16, the Magistrate Judge relied on two half-sentence snippets culled from the committee report to the 1991 Crime Bill. Neither of these sentence fragments can bear the weight the Magistrate Judge placed on them. First, the Magistrate Judge noted that "the House Committee report contemplates civil actions by the Justice Department 'to change the policy of a police department that tolerates officers beating citizens on the street.'" Report at 16 (quoting H.R. Rep. No. 242, supra, at 137 (emphasis in Magistrate's Report)). But the quoted passage does not purport to define the extent of liability under Section 14141 at all. Rather, it simply bemoans one of the anomalies of pre-14141 law—that modern legislation gave the Attorney General power to seek changes of municipal policies in many other areas affecting civil rights, but that she had no such authority in the police misconduct area. The full text of the passage makes clear that Congress contemplated that "pattern or practice" authority would extend beyond unlawful "policies" to encompass more informal "practices" and "patterns," including the mere "tolerat[ion]" of low-level lawlessness. H.R. Rep. No. 242, supra, at 137.8 The passage in no way suggests that Congress intended to withhold from the
8 The passage quoted by the Magistrate Judge reads: "The Justice Department can sue a city or county over its voter registration practices or its educational policies. It can sue private and public employers, including police departments, over patterns of employment discrimination. The Justice Department can seek injunctive relief under the Civil Rights of Institutionalized Persons Act against a jail or prison that tolerates guards beating inmates. But it cannot sue to
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Attorney General the power to attack patterns or practices that are not reflected in official
Second, the Magistrate Judge pointed to a portion of the report that "commented that the standards of conduct under the act 'are the same as those under the constitution, presently enforced in damage actions under Section 1983.'" Report at 16 (quoting H.R. Rep. No. 242, supra, at 138). But as the Magistrate Judge's own report makes clear, that passage plainly refers to the standards of conduct applied under the statute, not the rules governing institutional responsibility for conduct that violates those standards. The statute uses the word "conduct" only in reference to the activities of law enforcement officers, see 42 U.S.C. § 14141(a). And regardless of whether, a "pattern or practice" or "policy or custom" rule applies, it is apparent that Section 14141 of its own accord imposes no standards of conduct on such officers. Those standards are supplied entirely by "the Constitution or laws of the United States," id.—sources of authority that bound police officers and municipalities long before Congress enacted Section 14141. The statute merely creates a new remedy for "conduct by law enforcement officers" that has been proven to violate those standards. Id. That remedy, as the text makes clear, is one that permits the Attorney General to bring a lawsuit against a municipality whenever the "pattern or practice" test of modern civil rights law is satisfied.
C. Reading Section 14141 in Accordance With its Plain Terms Raises No Constitutional Question, Much Less a Serious Constitutional Question
The Magistrate Judge's report appears to be driven by the concern that a "pattern or practice" reading of Section 14141 would raise serious constitutional questions. See
change the policy of a police department that tolerates officers beating citizens on the street." H.R. Rep. No. 242, supra, at 137.
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Report at 8-18 (devoting ten pages of a twenty-one-page report to the topic of
"Congressional Authority to Promulgate § 14141," and considering the proper
interpretation of the statute only in light of the perceived constitutional constraints). The
Magistrate Judge's reliance on the canon that statutes should be construed to avoid
constitutional doubt was misplaced.
The Supreme Court has recently made clear that the constitutional-doubt canon
may not be lightly invoked to alter Congress's handiwork:
The doctrine seeks in part to minimize disagreement between the Branches by preserving congressional enactments that might otherwise founder on constitutional objections. It is not designed to aggravate that friction by creating (through the power of precedent) statutes foreign to those Congress intended, simply through fear of a constitutional difficulty that, upon analysis, will evaporate. Thus, those who invoke the doctrine must believe that the alternative is a serious likelihood that the statute will be held unconstitutional. Only then will the doctrine serve its basic democratic function of maintaining a set of statutes that reflect, rather than distort, the policy choices that elected representatives have made. For similar reasons, the statute must be genuinely susceptible to two constructions after, and not before, its complexities are unraveled. Only then is the statutory construction that avoids the constitutional question a "fair" one.
Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998). These principles make
clear that a court may not, in the name of constitutional doubt, read a "policy or custom"
requirement into Section 14141.
First, the statute is not "genuinely susceptible to two constructions." Id. As we
have argued above, Section 14141's text forecloses a construction that would import
•Section 1983's "policy or custom" requirement. The Magistrate Judge apparently felt
free to invoke the constitutional-doubt canon because "the awkwardness of the language
and grammatical structure of [Section 14141] renders it difficult to construe and
interpret." Report at 13. But that ignores the Supreme Court's admonition that a finding
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of ambiguity can be made only "after, and not before, [the statute's] complexities are
unraveled." Almendarez-Torres, 523 U.S. at 238. When Section 14141's text is
considered in the light of the body of modern civil rights law that vests "pattern or
practice" authority in the Attorney General, and when its language is contrasted with that
of Section 1983, the incongruity of reading the statute to incorporate a "policy or
custom" limitation is apparent. Accordingly, this Court is bound to follow Congress's
manifest intent to pursue the "pattern or practice" approach, which requires municipal
liability for aggregated incidents of misconduct without further showing of high-level
culpability. Cf. id. (rejecting application of constitutional-doubt canon: "The statutory
language is somewhat complex. But after considering the matter in context, we believe the interpretative circumstances point significantly in one direction.").9
Moreover, Congress's decision to forego the "policy or custom" standard raises
no constitutional question whatsoever, much less the kind of "grave[] doubt" that is
necessary to invoke the constitutional doubt canon. Cf. Almendarez-Torres, 523 U.S. at
238-239 ("The fact that we, unlike the dissent, do not gravely doubt the statute's
constitutionality in this respect is a crucial point. That is because the 'constitutional
doubt' doctrine does not apply mechanically whenever there arises a significant
constitutional question the answer to which is not obvious. And precedent makes clear
9 For similar reasons, a "policy or custom" requirement may not be imported into Section 14141 by application of the principle that "if Congress intends to alter the usual constitutional balance between States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute." VermontAgency of Natural Resources, 120 S. Ct. at 1870 (quoted in Report at 14). By authorizing the federal government to sue states and municipalities for patterns or practices of police misconduct, Section 14141 plainly effects a change in the federal-state balance. But that change is apparent on the face of the statute—indeed, it is the entire purpose of the statute. The decision to apply an ordinary "pattern or practice" standard such as commonly applies to civil rights lawsuits brought by the Attorney General clearly appears in the text of the statute as well.
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that the Court need not apply (for it has not always applied) the doctrine in circumstances similar to those here—where a constitutional question, while lacking an obvious answer, does not lead a majority gravely to doubt that the statute is constitutional."). True, the Supreme Court has recently cautioned that Congress's authority under Section Five of the Fourteenth Amendment, though broad, is not limitless. The Court has explained that the Amendment's Enforcement Clause must be used for just that - enforcement. See City of Boerne v. Flores, 521 U.S. 507, 519 (1996) ("Congress' power under § 5, however, extends only to 'enforcing]' the provisions of the Fourteenth Amendment."). The danger of congressional overreaching the Court identified in City ofBoerne and again in Kimel v. Board of Regents, 120 S. Ct. 631, 644 (2000), occurs when a congressional enactment does more than "remedy or prevent unconstitutional actions" and instead "make[s] a substantive change in the governing law." City ofBoerne, 521 U.S. at 519.
But Section 14141, construed according to its plain terms, is a quintessentially remedial statute. A municipality may be liable under that statute only if the Attorney General can prove, to a court's satisfaction, that law enforcement officers clothed with power by the municipality have committed a violation of the Constitution.10 If those officers have committed such constitutional violations, and //"violations in a given municipality are sufficiently pervasive or systematic to constitute a "pattern or practice," then the federal government may obtain an injunction against the municipality "to eliminate the pattern or practice." 42 U.S.C. § 14141(b). In determining the scope of the
10 Section 14141 also provides a remedy for violations of federal statutes, see 42 U.S.C. § 14141(a) (creating cause of action where the pattern or practice "deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States") (emphasis added), but that aspect of the law raises no constitutional questions. So long as the underlying statutes are constitutional as applied to state and local governments, it cannot be unconstitutional to authorize the Attorney General to ask a court to enjoin their violation.
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injunction, a district court must heed the statutory mandate that the order constitute "appropriate equitable and declaratory relief." Id. In other words, the order may do no more than eliminate the effects of past violations and prevent similar violations in the future. See United States v. Virginia, 518 U.S. 515, 547 (1996) (setting forth standards for appropriate relief in constitutional cases).
Section 14141 does not purport to alter the substance of constitutional rights. It simply creates a remedy that is directly targeted at fully proven constitutional violations. The statute thus plainly satisfies the standards for the exercise of Congress' Section Five authority articulated in City ofBoerne.
Any constitutional challenge to a plain-text reading of Section 14141 must rest on the premise that Congress may not, under Section Five, impose municipal liability that goes beyond MoneWs "policy or custom" requirement. But that premise would confuse the Forty-Second Congress's long-rejected interpretation of the Constitution with the requirements of the Constitution itself. City ofBoerne makes clear that Section Five gives Congress broad authority to prevent or remedy violations of the Constitution. See Boerne, 521 U.S. at 536 ("It is for Congress in the first instance to 'determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference.") (quoting Katzenbach v. Morgan, 384 U.S. 641,651(1966)). Where a municipality's employees abuse the official power granted to them and violate the Constitution, the decision to hold the municipality responsible for that conduct plainly serves to remedy the violation and prevent future violations. Indeed, the prevalence of the respondeat superior regime throughout private law reflects a widespread judgment that vicarious liability offers a uniquely effective mechanism for deterring lawlessness by subordinate employees and assuring that injured
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parties receive compensation. Congress is surely entitled to reach the same judgment and conclude that vicarious liability best prevents and remedies constitutional violations. A fortiori, it is entitled to conclude that municipal liability serves such a remedial and preventative function in the narrower context where the municipality's employees have engaged in a "pattern or practice" of violations.
The Magistrate Judge may have believed that Rizzo v. Goode imposes a constitutional requirement that municipal liability be limited to instances where the plaintiff challenges an act of official policy. But the relevant holding of Rizzo plainly rests on the text of the statute rather than any overriding constitutional requirement. In particular, when the Rizzo Court held that the district court could not issue an injunction where "the responsible [policymaking] authorities had played no affirmative part in depriving any members of the two respondent classes of any constitutional rights," Rizzo, 423 U.S. at 377, the Court explicitly rested its conclusion on the language of Section 1983. See id. at 376 ("[Plaintiffs'] reasoning, however, blurs accepted usages and meanings in the English language in a way which would be quite inconsistent with the words Congress chose in § 1983."); see also id. at 370-371 ("The plain words of the statute impose liability whether in the form of payment of redressive damages or being placed under an injunction only for conduct which 'subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and laws."). The Court did not say that Congress could not impose liability for a pattern or practice in the absence of official policymaker involvement. It said only that Congress had not done so in Section 1983. Congress plainly has imposed such liability under Section 14141, however, and this Court must give effect to that legislative decision.
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CONCLUSION For the reasons stated, this Court should reject the Report and Recommendation of the Magistrate Judge to the extent that it restricts the scope of municipal liability under 42 U.S.C.§ 14141 to cases that satisfy a "policy or custom" test.
Respectfully submitted, Samuel R. Bagenstos /MaTgoSchiang 1545 Massachusetts Avenue Cambridge, MA 02138 (617)495-9299 Counsel for Amici Curiae
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Exhibit A

Vol. 139

WASHINGTON, THURSDAY, NOVEMBER 4, 1993

No. 153

Congressional TUcord

United States of America •

PROCEEDINGS AND DEBATES OF THE 103d CONGRESS, FIRST SESSION

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SUPERINTENDENT OF DOCUMENTS Washington, DC 20402
OFFICIAL BUSINESS Penally for private use, $300

SECOND CLASS NEWSPAPER
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S16040

CONGRESSIONAL RECORD—SENATE

November 4, 1993

that is when powers conscious of them- that tear u» apart. If we do our Job, we mathematlclanav the- be*t l a whatever

selves are denied their chance."

can make It easier for them to succeed classes they take,Try t» be the best.

That also la the fundamental problem and to triumph. ,

I try to encourage them along' those

we- face- today where people, who- are I believe that will determine the crit- lines' because-1" can remember that, in

conscious of their God-given, innate- ical difference between whether or not my own meager beginnings my foster-

born powers, are denied their chance our society will go Into a spiral of de- father did not buy for me a can buster

because of their sex. because of their . cline or whether we will be able to take or a cowboy suit. He d2d not have much,

race*, because of their religion. That forward from our generation: to the to buy with. He w*s> a coal miner. He

has to stop-

next what the dream of this country Is bought a- set of water colors, or be

So a* we are building a. more moral all about.

brought me a drawing? book, or « book

society, going back to* those- virtue* Mr. BYHD. Madam President, will to read. He encouraged-, me to.- try to

that-made us the envy of the world, we the distinguished Senator from Illinois excel. And so did my teacher.

have to rededlcate ourselves also to. yieldT

But I do not hold myself up.a* a> para-

start Judging people upon the merits, Ms. MO3ELEY-BRAUN. Absolutely. gon of virtue or anything like that.

upon who they are as individuals, and Mr, BYRD. She made reference to lis- But people do try to emulate others,

not upon any stigma that we attach to tening- to my speeches en Roman his- and I try to encourage young people to

them due to bias and preludTce.

tory. I want to take this opportunity strive foe the.best. And 1 t«U them

Mr. President, I yield the floor.

to- congratulate her on the excellent when they come t o visit my office', do

Mir. MOSELEY-BRAUN addressed the work she doear aa a presider over this not ever let anyone try to persuade you.

Chair. "

body. She takes her turn at presiding, that there Is. not a, God: who. created

The PRESIDING- OFFICER. The- Sen- and she is one of the best presiding offi- man in his own.Image, and had.the des-

ator from Illinois-. \

cers we have.. 1 have •aid this very tiny of men and nations a t heart. And

Mer. MOSELEY-BRAUN. I thank the same thing to my wife and to member* wien I use the word "men," I speak ge-

Cfeah* very much-.

of my staff. When the Senator from Il- nerlcally, and of course I Inftlwfa my

Madam Freefdent, T would like to linois alts at- that desk to- preside, she wife and granddaughtaca and the, la-

make my statement In support of the- la not reading a. newspaper. She Is not dles.

crime bill.

signing malL She is very alert,, paying This la one individual who still be-

Before I do, I really would like to-en- attention to the Senate. She haa not lieves that, men should look up to.

gage for a moment in. a conversation or forgotten, the few suggestions that I women, and I still feel that sometimes

colloquy with: the- Senator from Maine made when she first came here In my I am becoming a. little oat of,place be-

and the President pro tempore, and to efforts to give to the new Members, a cause I was taught to say, "Tea,

say to the President pro tempore' 1hadL few rudimentary principles by Which ma'am," "No ma.'anV "Sir,"

occasion, as did the other Members of. they might be guided in presiding- She And I do not Intend,to ever surrender

the- Senate; to listen to' bis eloquent obviously listened and has not forgot- these old virtues, that I waa taught. I

lessons on the decline and fall of the ten them.

have missed by far living up to them as

Roman Empire,, when he talked about With respect to what we do< here, I I should. We all stray, from the straight

it In connection: with- the line-item, agree with,the Senator. As a father and path. But ft we are taught the right

veto.

_

grandfather, I wish. I could say I had things that our mothers—and 1 Tost my

1 followed that convocation. I fol- some great grandchildren but my mother before I was a year old: But I

lowed the Senator's lesson plan, as grandchildren are fully grown. One la had a dear aunt who raised? me. What

close I think as anyone. In. listening to in his fourth, year, studying for his doc- we were taught then, ITwe are taught

the Senator's comment in response to torate In physics at the University or right, we may stray, but we will come

the Senator from Maine, if there Is one Virginia; his younger brother is In his back.

thing I would like to add this evening. first year working on his doctorate in I thank the lady from Illinois. I am

It Is a voice of optimism, a voice of op- physics at the University of Virginia; speaking as I would In the House of

timism about the decline in our values one graduated from Princeton about Representatives now, the gentle lady.

and about the direction of,,the road Wi years ago; and one granddaughter But I thank the distinguished.Senator.

which we are following. , "^

graduated from Roanoke College some She Is correct.

Every generation of Americans years ago.

We want to do everything we can

reinvents Itself. It Is the quintessential I have tried to Instill In my grand- here. It la our duty, But we have to do

American experience that we reinvent children the same thing I have tried to more than that. We have to try to pro-

how to deal with the problems of our instill Into the young people of West vide encouragement to our young peo-

time. It seems to me that there are a Virginia, that you can go as far and as ple and remember that most of our

lot of young people, there are a lot of high as you want to in this country If young people are wholesome young

people who have nojt been around for you have the ambition and the drive, people. We do not hear so much about

the old days and do not really have any the willingness to work and use the op- those who are In the libraries, or In the

cofinectlon to them but who are portunities that are yours. I have tried laboratories, or who are working at

searching, who are trying to find the to inspire young people—I do not mean their studies. We only hear of a few

moral path, who are trying to find the to intrude on the Senator's time, but I who do something else, and they serve

right way, and who want to build and have tried to Inspire cot only the to give a black eye to the majority of

to continue a society that Is strong, young people but people like myself our young people.

that Is supportive, that allows for the opportunity the Senator from Maine talks about, who want to fulfill that dream.

who are getting along In years with the idea that learning is a continual thing.
We ought never stop learning. Solon, one of the seven wise men of Greece,

I believe we have some fine young people In thle country. We ought to do ourselves everything we can to encourage them to grow, to excel, to strive to

I say that to the Senator from West Virginia as a note of optimism. I think our role Is to give those young people a chance, to give those young people the foundation or the tools with which to work aa they build their new society, as they build what our America will

said, "I grow old in the pursuit of learning." And I try to encourage our young people to read something that is wholesome, to read great pieces of literature; do not fool with the pieces you pick up at the airport in those stands. I never fool with those.

do what is right and to continue to learn every day of their lives.
I thank the Senator. I want to thank her again for being a good Presiding Officer.
Ms. MOSELEY-BRAUN. Thank you very much. That is a very high com-

look like In the 21st century. If we I try to carry with me something by pliment coming from the Senator from

have done our Job in Government, to provide them with the tools they need in* order that those positive values will emerge and beat back the naked values, the declining values, the values

Emerson, his essay. Melton's "Paradise Lost," Dante's "Inferno," "The Divine Comedy," or history. And I try to encourage them to excel In their studies and become the best spellers, the best

West Virginia. I am greatly honored by bis comments.
Today in Chicago, Madam President, mothers at the Cabrinl Green Housing Project will anxiously watch their cMl-

November 4, 1993

CONGRESSIONAL RECORD—-SENATE

S15041

dren leave for school, praying- that mentary School, who recently told her "never argue with a criminal—Just give

they do not meet the same fate as 7- family that if she should be shot before him your money."

year-old Dantrell Davis, who was her sixth-grade prom, she wants to be "Remember to use a little street wis-

gunned down In a gang: crossfire one burled In her prom dress.

dom and have a wonderful visit to the

day last fall as he made his way to "I think my prom dress Is going to be United States." concluded the video's

class.

the prettiest dress of all," little Jessica helpful narrator. Who was the video's

Meanwhile, for senior citizens all said. "When I die, I want to be dressy producer? Who wanted to take every

across the city, the passage of daylight for my family."

step possible to prevent foreign tour-

savings time will be more than Just a reminder that winter Is coming: It will be a signal to them to hurry and finish their shopping an hour earlier so they can be home safely before dark.
Later this afternoon, In cities across the country, parents will keep their children Inside after school, afraid to let them play anymore In parks that have been' taken over by gangs and drug dealers.
Tonight, Madam President, In a scene which will be repeated at colleges and universities from coast to coast, a female student will leave the Loyola or Stanford or University of Illinois or Grumbling Library before she finishes her studies, simply In order to walk back to her dorm room with an escort and be able to move about her environment free of the fear of rape or sexual assault.
And somewhere tonight. In an Innercity neighborhood starved for Jobs and economic development, a small businessman will close his doors for the last time, tired of working behind steel bars and bullet-proof plastic and placing his family and future at risk every time he opens for business.
And by the end of the day, thousands of other Americans have acquired a handgun or assault weapon to protect themselves, or for the alternative.
All across this great country, crime

Madam President, when I was 11 yean old, my only hope wao that one day I would be Invited to a prom—not whether my drees would be pretty enough to wear to my funeral!
But then, when I was growing, up, Mr. President., * "club" was something you Joined, like the French club or the chess club, not something that millions of Americans attached to their steering wheels to try and make sure their car would still be there In the morning.
What is happening to our children, Mr. President? What Is happening to oar society? And how long are we going to allow It to continue?
Every day In America, crime brings tragedy to the lives of those like Jessica Bradford, who I hope gets the chance not only to attend her sixthgrade prom, but also to buy a brandnew and even prettier dress for her senior prom 6 years from now.
Perhaps the biggest tragedy of all. however. Is that, worn down by the dally barrage of bad news and grim statistics, the latest line of shootings, etabblngs, rapes and assaults, we are slowly becoming Inured to the slaughter; we are becoming silent accomplices In the slow disintegration of orderly society; we are surrendering our lives to the threat of violence and to the rule of force.

ists from becoming victims on our Btreete7
The answer, Mr. President, is the U.S. Government. "
Allow me to repeat that. As if it does not have enough to do, the United States Government -Is now producing videos to ensure that the Japanese public Is safe on our streets.
But what about the American public, Mr. President?
What about the 23,000 Americans who were victims of homicides last year?
What about the 109,000 American women who were.raped and the countless thousands more who were victims of domestic violence?
What about the 1,600,000 Americans who were victims of robberies or aggravated assaults?
I am no xenophobe, Madam President. I do not mind that our Government Is taking aggressive steps to protect Japanese tourists In New York and Los Angeles, or German and British tourists in Florida.
But I think the American people have every right to ask what are we— the elected branch of the U.S. Government—going to do to keep them safe on our streets In .pur own cities and towns?
What we cannot afford to do Is to trot out the failed approaches—whether they be liberal or conservative—of

Is causing Americans to change the Senator MOYNIHAN was exactly right. the past. In fact, ever since crime and

ways we live our lives. Crime Is de- We are becoming Inured, becoming en- the cry of "law and order" were ex-

stroying the dreams of our young, it is amored, we are becoming almost blind ploited for political purposes in the

stripping the dignity of our old. and and oblivious to the presence of crime 1968 elections, what both parties have

when It strikes fully one, outro'f every around us.

billed as tlie answers to the crime prob-

four American households/ as It did Our victimization is no longer a per- lem have often been more slogans than

last year, it is threatening to turn the sonal concern, it is a public tragedy, solutions.

rest of us into a Nation of victims. and the very character of our free soci- "We have to look at the root causes

Afraid to go to the park or the corner ety Is Jeopardized by the madness.

of crime," said the liberals, calling for

grocery store. Eyeing our fellow citi- More than 50 children under the age Increased spending on social programs

zens with fear. Avoiding entire cities or of 15 have been killed in the Chicago and an emphasis on rehabilitation as

neighborhoods because of what we fear area this year. That means that more the best way to attack crime. After 30

might happen there.

children have been shot in Chicago so years of looking, Mr. President, the

I have been In public life for 19 years, far than all people of all ages in Eng- root causes are still there and crime is

4 years as an assistant U.S. attorney land for the entire year of 1991.

worse than ever.

and IS years as a State and local elect- We cannot pretend this is only a In fact, not only are the root causes

ed official. And for all of those years, problem In our inner cities, because still there, they have gotten worse. In

crime has been an issue of great public violent crime is also spreading across many lnner-clty neighborhoods in this

concern. For all of those years, the rural Illinois. This epidemic, like all country, unemployment among young

level of crime In our society has been epidemics, Is spreading without fear or males Is at levels of 50 percent—and

unacceptably high. But now, there is favor.

higher. What do people think is going

consensus that crime in this country is How can this be? Where Is our out- to happen when half of the young men

out of control.

rage?

in a community are totally excluded

but we can no longer Ignore the Perhaps we need to see ourselves as from the system?

truth. We live In a country where 7- others see us. Like many of my col- Make no mistake, Madam Presi-

year-olds are gunned down on their leagues and millions of other Ameri- dent—all of us know that poverty, un-

way to school; where 9-year-olds bring cans, I saw a "60 Minutes" broadcast employment, inadequate housing and

guns to sch'ool and when asked why last week on the preparations taken by education and racial discrimination

reply, "for protection"; and where—as Japanese tourists for a trip to the contribute to crime, and I, for one, al-

the Washington Post reported mon—11- United States. One group of visitors ways have and always will support an

and 12-year-olds in some crime plagued watched an Instructional video entitled active governmental role in combating

neighborhoods are already planning "A Little Street Wisdom." Among the these social Ills.

their own funerals.

tips these tourists picked up were: I daresay that no one looks forward

Eleven-year-olds such as Jessica Bradford, a sixth-grader at Payne Ele-

"Don't let strangers Into your room"; "don't walk alone at night"; and

with more anticipation to the day when we make a serious attack on the

S16042

CONGRESSIONAL RECORD—SENATE

Novembar4, 1993

root cause* of «nm» than this Senator lution we have 1* to warehouse poor they make- sense. I believe- the* people

and the constituents I represent.

people.

thbxk they make sensevl say very ttt-

And It tar precisely the constituents I would much rather prevent crime tle that w« have tried/ «o tar has

whom I represent, who are saying; than spend taxpayer dollars—to the worked, r say we are In » crisis—«t

"we're tired of beta? held hostage to crime. We're tired of being1 terrorised

tone of 376,000 per cell per year—punishing1 criminals. Yet we spend hours tn

least we ought to gfve ft a-try. , It provides grants for schools to fund

every day of oar lives.M

this Chamber debating 47 new death sntlcrime and safety measure*—imag-

Even to the poorest communities In penalties or $47 million foe a new social ine; Madam President, safe schools—

this country, people are saying- being: program as If either were the panacea and imposes1 tougft new penalties1 on

criminal 1B worse than being poor. Poor to the crime problem.

the gangs- who* terrorise: sdolts- and hire

people—honest people—are the least Ask. the people on the street or the youngsters tear life of crime.

sympathetic to the vamptree who- sack the little they hare and make them hostages' to those who would sacrifice their dignity. It fa time that we io Government took action to reinforce that message.
I refer to a conversation, earlier. It la the people living. In these ^ynm^nr^tft^w. the citizens, who do not have the ohauffeuT-drtven. limousines,, and who cannot afford to live in. high rises, those In the streets* In. the communities, that are victimized the most* and they are the. one* who are calling for us to take action.
But in the meantime, while sociologist* and psychologists debate the underlying causes, an epidemic of crime Is destroying the American, people's, lives and livelihoods-right now.
Liberals were not the only ones with! slogans about crime. Fbr conservative^ "lock them ap," was the cry of

police- officers and sheriff* deputies on the front line* if they want *J new death penaltlee or 47 new social programs. They will tell you, "neither."
They want 47 new cops walking their streetsy or 47 new metal detector* at their children's schools, or. 47 new Jobs. When, we talk about crime, and how to reduce the level of fear that the American people are. living with every, day, we need to stop talking about Head Start on. Che one hand and habeas, corpus on the other. Tn^^a/i, we need to start talking about what will make people safer In their homes. In their Jobs, In their schools, and on the streets of their cities and town*.
Bight now. Today. We can no longer afford false dichotomies and phony choices. Restoration of our domestic tranquility has got to be our priority. We cannot speak of preserving, a system of quality education when children, cannot go to

It addresses' the natbmwldv problems of police brutality and1 misconduct and racial bias to the criminal justice system by giving the Attorney General the power to Intervene where a police department has ahown. a. pattern, or practice of brutality, and by making funds available to the State* to. conduct studies on.the effect of. raca on.the administration of criminal justice..
That is no- small aooompUshment, Madam President.
Because the AfricanrAmerican community In this- country want* to be participants lnr rather than the object of the crime debate. No community is more devastated, by every aspect of crime than the African-American; community. If the thousand* of. black Americans who write' me and approach me had one message tor this body regarding: crime Madam President, I believe' It would be this: Provide oar com-

the day, and during the 1980's we built school. We cannot speak of the eco- munity with the economic opportunity

more prtaons, Imposed more mandatory nomic revttaHzatlon of our great urban, we need to allow all Americans to

mfafnTOm sentences, and carried out more death penalties than ever before.

centers when people are afraid to go to work there.

share In this country's promise. Give our neighborhoods1 a fair share* of the

And lock them up we did, to the point I have always believed that a succese-

where on a per-capita basis we now In- . ful antlcrlme strategy must be

carcerate a greater proportion of our proactive, rather than reactive. We

population than any other nation In have to be smart, not Just tough. That

the world, Including South Africa and Is why I support this crime bill.

the former Soviet Union.

First and foremost, this bill will de-

During the 1980's, Madam President, ploy up to 100,000 police officers on the

law enforcement presence that will stop crime before it happens: But for those who win not respect themselves or their community, who would destroy life rather than uphold It, make the punishment, swift, sure, and certain.

our rate of incarceration^iatfreased by streets of our cities and towns, exactly Crime is tearing apart the very fabric

almost 200 percent, and/ we spent four where they are needed the moet.

of our eociety. We cannot sit Idly by

times as much on the criminal Justice However, this bill will not just send while our constituents and our commu-

system as we did on education. Yet out a few more police officers. It also nities are crying out for help.

does one single American really feel authorizes $1.8 billion in aid to State I support the crime bill, even though

safer? I think not.

and local law enforcement to give I, for one, oppose the death penalty. I

It is time for a new approach. The these agencies the tools they need to am going to support the bill In any

Ideological debates of the past were aggressively go after crime wherever It event, and I urge all of my colleagues,

nothing more than a false dichotomy occurs. It will help buy DNA la£» and from both sides of the alale, to support

that divided and distracted the Amer- squad cars and bullet-proof vests. It it as well.

ican people—and those of us who rep- will support urban and rural I also would like to pay special trib-

resent them—while all around crime skyrocketed out of control.

us,

crimeflghting initiatives, and provide for new drug treatment and correc-

ute at this time to the Senator from Delaware, Senator BIDEN—he Is not

It is not either/or. And it does not tional facilities.

here right now—the chairman of the

Just come down to a choice between S. 1607. the Biden crime bill, builds Judiciary Committee on which the Pre-

funding a social program and funding a upon successful local experiments by siding Officer and I serve. For more

prison cell. The truth of the matter Is, supporting military style boot campe than a decade now, Senator BIDEN has

there Is no liberal solution to crime. for nonviolent offenders, and regional been on a mission—a mission to get the

And* there Is no conservative solution drug treatment prisons for violent drug Federal Government to take a leader-

to crime. There is only a commonsense criminals. It authorizes funding for the ship role In the fight against crime. He

solution. Common sense tells us that drug courts that Janet Reno employed has battied to find Federal funding for

we cannot just focus on alleviating the so successfully as a prosecutor In State and local law enforcement agen-

root causes of crime because even If Miami courts that require drug testing, cies. He has been willing to coura-

successful, these measures might not drug treatment and alternative punish- geously challenge drug wars fought

show any effects until 10 or 15 years down the road. We cannot Just talk

ments for nonviolent young drug offenders.

with empty rhetoric instead of real resources and tried to push, this nation

about locking people up, because once you need to lock someone up, you have already failed at what should be the central task of the criminal Justice system: preventing crime in the first place. We cannot say that the only so-

Let me say that there is no better example of the new thinking embodied in this bill than boot camps and drug courts. Some people say we do not have enough empirical evidence as to whether these ideas will work. But I think

towards a realistic, comprehensive anti-drug strategy. He has never ignored the toughest issues—such as habeas corpus—and has spent countless hours trying to craft compromises on these issues so that we would not be

November 4, 1993

CONGRESSIONAL RECORD—SENATE

S15043

blocked from making progress on all of want to provide the education and My third amendment would direct

the others.

training to enable them to avoid * life U.8. attorneys to try juveniles 13 years

It Is largely du« to the efforts and of crime. But to any Juvenile who and above who murder or use a firearm

perseverance of the Senator from Dela- would- take up a gun to terrorize soci- In the commission of a violent crime as

ware In the face of repeated attempts ety—and to any adult who would pro- adults, while providing safeguards so

to derail this bill and continue to use vide such a weapon—I want to send & that young offenders who truly reha-

the crime Issue as a political football very clear message: You are old enough bilitate themselves will not be con-

that we have a crime bill at alL And I to know right from wrong and If you demned to a life of Incarceration. This

thank him today for his steadfastness use a weapon to commit a crime we amendment I will discuss further In the

and his dedication.

will lock you up for a very long time. context of the MIL

I also would like to take this oppor- 'In other words, If you are old enough Madam President, It is also Impor-

tunity to announce that I will be offer- to do the crime—you will most as- tant that we not spare the adults who

Ing a series of amendments to deal suredly do the time.

are arming our children, cynically

with the most disturbing new trend In First, because we must always ac- using them as mules and lookouts to

today's criminal justice system: The knowledge that It Is better to prevent earn their Ill-gotten drug money and

rise of violent juvenile crime. Every a crime than to punish a criminal. I am push their poison tnto our children's

year, as our streets and dtles become offering an amendment which specifies bodies. A companion measure which .1

more and more dangerous, we find that that at least SOpercent of the Juvenile am Introducing will make it a new Fed-

It is younger and younger criminals drug trafficking and gang prevention eral crime to provide a firearm to a ju-

who are spreading the fear and the vio- grants must be used to provide venile which the provider knows or has

lence.

parenting classes to high risk families reason to -believe will be used in a

Once every few generations, we reex- - and nonviolent dispute resolution crime or In furtherance of a criminal

amlne our treatment of juveniles In the classes to junior high school and high conspiracy.

justice system. At the turn of the cen- school students In areas of high vio- Finally, because of the strong evi-

tury, my State of Illinois became the lence.

dence that minority youth receive dis-

first to create a separate court for Juveniles, as recognition spread that It was not appropriate to treat most juveniles In the same way we treat adults. Twenty years ago, as the problem of what we used to call juvenile delinquency Intensified. Congress passed the landmark Juvenile Jostloe Act of 1974, which focused on nonlnstitutional solutions and on separating status offenders from those convicted of violent offenses. Finally, In the decade which just passed, we witnessed a move to try some of the more violent juvenile offenders as adults.
I submit to my colleagues that once again the time has come for an examination of how we deal with juvenile offenders.
Between 1987 and 1991, the number of Juveniles arrested for murderjtocreased by 85 percent. That compaires with an increase of only 21 percent for those over the age of 18. Daring the same period, the number of Juveniles convicted of all violent crimes increased by 50

We must teach our children that every dispute need not be settled with a gun.
My second amendment expresses the sense of Congress that all Incarcerated Juveniles receive education at least equivalent to the standards of the local school district. While I realize that, over the past 2 decades, some have said that we should not waste time or money trying to rehabilitate adult offenders, we cannot give up on our youth. According to the Department of justice, less than half of the 67.000 youth Incarcerated every day In public facilities are receiving a satisfactory education. We cannot afford to give up on any Juvenile merely because he or she has had a brush with the law. Education probably is, as we all know, the best tool to avoid recidivism. My amendment hopefully will authorize the funding for States to receive grants to ensure that every incarcerated Juvenile receives a basic education.

parate treatment In many Juvenile Justice Systems across the country, I will Introduce a measure to allow the Attorney General to Intervene where a pattern and practice of such conduct can be demonstrated.
These and other measures offered by many of my colleagues I hope will become additions to perhaps the most Important bill we will pass In this session. Then, Mnrtfl.Tr> President, I hope we can turn to the business of enacting some serious gun control measures In this country.
I referred earlier to the epidemic of crime In America. Some people creation that characterization. Some feel that it is an exaggeration.
But I use the term epidemic deliberately. When the number of deaths caused by violence, which kills more than 50,000 Americans each year, la greater than £he number caused by AIDS—which klllB 30.000 or drunk driving, which kills 18,000 crime is an epidemic.

percent, twice the increase for persons My next two amendments deal with When gunshot wounds are the leading

over 18.

the most dangerous mixture in america cause of death for both black and white

In 1990, fully one-third of all murders today: Kids and guns. I know In the teenage males, crime is an epidemic.

were committed by individuals under coming months both sides will express In 1991. for the first time In our Na-

21 (years of age, and in 1991, 122,000 Juve- themselves passionately on gun control tion's history, the number of homicides

niles were arrested for committing a issues—but one thing on which the alone exceeded 25,000.

violent crime—murder, forcible rape, American people and the Members of So I do not think I exaggerate when

armed robbery, aggravated assault— this body are In unanimous agreement we call it an epidemic.

the highest number in history.

is that guns do not belong in the hands As Dr. David Satcher, the new head

In fact, in light of who Is committing of children.

of the Centers for Disease Control and

the crimes In our society and the cal- As the statistics I cited earlier today Prevention, said, "if violence is net &

lousness with which the youngest of- indicate, and as the chilling descrip- public health problem, why are all cf

fenders are carrying out their mayhem, tions of Borne of the killings committed those people dying from it?"

it may no longer make sense for us to by Juveniles signal. Juvenile crime is Violence is perhaps the No. 1 public

talk about the Juvenile Justice system rampant. There are some who think health problem in this country. And

as if It were separate from the criminal that 13 year olds are not truly capable guns are the primary instrumentality

Justice system. To a very real and a of distinguishing right from wrong, of that violence. That is why I support

very frightening extent, criminal Jus- that a seventh grader does not realize the Brady bill. That is why I support

tice In this country is becoming Juve- that a gun is not a toy and that he the assault weapons ban. And that ia

nile justice.

should not bring it to school or carry it why I will be introducing- a measure

That Is why I am proposing a com- on the street. prehensive package of initiatives to I am not one of those people.

along with others to require all owners of handguns and assault weapons to

deal with the Issue of Juvenile crime in our society. To those youngsters and

We as a society cannot torn our streets over to criminals who happen

purchase liability insurance, Just like the owners of a car.

their families who need help, I want to to be children. They must be made to In conclusion, Senator BTDKN IS to be

extend a helping hand. To those young- account for their actions when they commended for taking the leadership

sters who have a brush with the law, I terrorize the rest of society.

in this area, for the vision to recognize

S15044

CONGRESSIONAL RECORD—SENATE

Novembers, 1993

that the something we have to do U think almost everybody admits that we but I think tola will go a long way to-

not just hearts and flowers or lock 'em ought to move toward boot camps, es- ward getting us a bill that both aides

up and throw away the key. It la a bit pecially with young offenders. It may can agree to, that both sides will be

of both. This Is crime fighting- with have some rehabilitation effect. We proud of, that really we can all be

- common sense. Its Is proactive as well hope It will. But, most importantly. It proud of, the whole Congress, and that

as reactive. It Is liberal and conserv- will cost about &quarter as much as if the President will support and literally

ative.

we house them in regular prisons at will help bring down -an awful lot of

It takes parts of many approaches $30,000 to $35,000 a year apiece. It will criminal activity in our society that is

and crafts a program that can work. be a lot less than that If we run the going on today.

We are all In the same boat now even If boot camps. But I think It is time to So this is very, very Important stuff.

we came to this point In different ships let them -know that this Is a tough I Just want to compliment all con-

and by different roads. Crime fighting world., that if they are going to act like cerned, especially Senator BIDEN, Sen-

represents the consensus our Nation this, they are going to have to pay the ator BYRD, Senator DOLE, Senator

has reached. We are balling out the price. So this a good step.

MITCHELL, and others who have worked-

water In the boat, reclaiming our I think both sides can agree that this so hard on this particular amendment.

streets, on our way to rediscovering is a very bipartisan, interesting, and In' particular, Senator MACK has

our domestic tranqulllty.

good approach.

worked very hard wlttf me on this re-

We must make sure. Madam Presi- We have $500 million in here for hard gional prisons concept and also the

dent, that the word goes out and that core juvenile offenders that really boot campe and the other operations

people out In the communities hear us ought to be in jail, but we do not have grants. That is $6 billion of this bill. He

loud and clear. For the criminals who places to put- them. These are juvenile deserves some credit, as well. I just

do not watch C-SPAN and are not detention facilities. It Is a step In. the want to make sure he receives that rec-

watching this debate and are not pay- right direction. It probably is not ognition.

Ing much attention, we want to make enough money right now, but it cer- I do not want to take any more time

certain that the word goes out that we tainly is a step in the right direction. because there are others who would

are united as a people In this war on It is something we have not done be- like to speak. But, Madam-President, I

' crime; that we Intend to take our coun- fore.

hope we can put this together tonight,

try back; and that violence will no And we have the violence against then we can put some other core fea-

longer be tolerated.

women bill for $1.8 billion. It Is about tures In that I think almost everybody

This crime bill, I believe, gives us a time that we passed that legislation. A will agree to and hopefully get rid of as

first step, gives us a tool to effectively great number of Senators have worked many amendments as we can and have

approach this war on crime In a way on it, particularly Senator BIDEN, Sen- a bill that will be, for the first time In

that makes sense and can work.

ator DOLE, and myself. There are oth- 8 years, a bill that everyone in this

I wish to congratulate the ranking ers that deserve to be mentioned, but body can be proud of.

minority member, who Is on the floor, let me just mention those three for Mr. BYRD. Will the Senator yield?

for all of his work on this bill and Sen- now, because we feel very deeply about Mr. HATCH. I am happy to yield to.

ator BIDEN for all of his work on this this particular bill. We think it is writ- the distinguished Senator.

bill. I look very much forward to being ten well. We believe it will help to Mr. BYRD. Madam President, I will

a part of this continuing debate.

solve a lot of problems. We believe that only take 1 minute to thank the Sen-

Thank you.

it recognizes the power and the obliga- ator for his very kind remarks. I thank

Mr. HATCH addressed the Chair.

tion and the duties of the States, and him also for the excellent work that he

The PRESIDING OFFICER. The Sen- the rights of the States, as well.

has done in the committee on this bill,

ator from Utah.

One other aspect of this bill that is as well as on the floor.

Mr. HATCH. Madam President, I will very, very important is the sentencing Mr. HATCH. I thank my colleague.

not take long. I know there are others aspect. We are adopting truth in sen- We all respect him.

who want to speak.

tencing. We are encouraging States to Several Senators addressed the

Madam President, I really believe adopt truth in sentencing. That means, Chair.

that we are quite close to havlng^thls if these hard core, violent criminals are The PRESIDING OFFICER. The Sen-

basic part of the core package' done. I put away, they serve at least 85 percent ator from Minnesota.

am hopeful that we can before we leave of their sentence. We think it is about Mr. WELLSTONE. Madam President.

this evening, which would mean we time that that take place. And that is I am not going to be long.

would vote on this, plus Senator DOLE a major, major, pivotal part of this.

I wonder whether I could put a couple

has another amendment, an arson • Now, I want to compliment all who of questions to the President pro tem-

amendment, that we would vote on.

participated In this. In particular. I pore on this amendment.

But this particular major amend- want to pay tribute to my friend who I am trying to understand the budget

ment, which has been put together by a has spent so many long hours in here, part. I ask the Senator from West Vir-

wide variety of people on the floor—but and has since I have been here in the ginia: Altogether, we are going to be

in particular Senator BYRD—helping us Senate and long before I came, the dis- talking about spending how much

to get this done has $8.9 billion for tinguished Senator from West Virginia, money Into this fund?

100,000 policemen on the beat. I think the distinguished chairman of the Ap- Mr. BYRD. J22 billion.

all of us agree that would be a very propriations Committee. Because, Mr. WELLSTONE. This will be $22

good idea. It is a bipartisan issue. Both without him and without the funding billion over the next 5 years?

Republicans and Democrats support it. It is something that is long overdue. If we are going to end criminal activity in this ctfuntry, or at least diminish it greatly, we need these policemen on the beat.
Second, there will be $3 billion for re-

that hla amendment has provided, none of this really would mean a thing. We could go through and authorize it until Kingdom come, but without that funding, the effort and the ability to be able to really bring down crime in this country would never occur.

Mr. BYRD. In the aggregate, over the next 5 years.
Mr. WELLSTONE. I had a conversation with Senator LEVIN from Michigan earlier, and I am trying to understand the way this would work.
As we spend roughly $4.5 billion, or

gional prisons, something we have He was the one who came up with the whatever, a year, something like that,

fought for for years that really Is long funding mechanism. I Just want to per- do we then reduce the cap by that

overdue, that will help to house these sonally compliment him for it, plus the amount each year?

prisoners In ways that they need to be ability to put this together the way we Mr. BYRD. We do reduce the cap by

housed and will help to take them off are putting It together. It is something the amounts specified In the amend-

the streets so that we end an awful lot Senator BIDEN and I have been trying ment.

of violent crime.

to do for a long time. We know that we Mr. WELLSTONE. I ask the Senator

There is $3 billion for boot camps and have opposition on both sides of the whether or not I would be on the mark other State grants, operation grants. I aisle to getting a central core package, oroff the mark with my concern that

\m\
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Congressional Information Service, Inc.
4520 East-West Highway Belhesda. Maryland 20814

Exhibit B
POLICE BRUTALITY
HEARINGS I
BEFORE THE
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
OF THE
COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES
ONE HUNDRED SECOND CONCRESS
FISST SESSION MARCH 20 AND APRIL IT. VS.il
Serial No. 28
Printt*d Tor the UM» nf the Committee on the Judicia
O.S. GOVCnNMES'T PRINTING WASHINGTON : W*2
r sj!f W itw VS. (JirtiTimtcfli I'iin
ISBN 0-16-0374*0-2

ally happens is no one is charged. Out or that 25,000, about 1,300 i

were charged. So. people are run through the system for the pur-jj

pose of harassment, but essentially for the police to show that theyi:

control the turf. It's hardly surprising that, with that kind of pro-^

gram which has been endorsed by the leadership of the Los Ange->*

les Policc^Department, and, in fact, trumpeted as good, aggressive^

police work, that an incident like the Rodney King incident could]*

happen.

.

•

4'

Operation Hammer is not the only Los Angeles Police Departs

merit program that is based on pretext rather than principle. I n -

I.os Angeles, pretext has become principle. Recently Hall of Famer'i

Joe Morgan won a jury award of S'vlO.OOO because he was picked',

up and beaten because he matched the so-called drug courier pro-S

file at Los Angeles Airport. Former Los Angeles "Laker star Gi-;"

melle Wilkes was stopped because he was a black driving a late-

• model car in the wrong part of Los Angeles and, according to the.;',

police initially, he had registration tags that were about to expire.;;.

Mr. CONYERS [presiding]. Mr. Hoffman, forgive my interruption,-, but we do have a recorded vote pending on the floor. So what we:.

propose to do is take a very brief break until Chairman Edwards'?

return and then we'll resume your testimony.

..-•;. t

• Mr. HOFFMAN. Thank you.

Mr. CONYERS. All right.

[Recess.]

Mr. EDWARDS [presiding]. Mr. Hoffman, we apologize for t h e :

delay. You may proceed.

.

\,

Mr. HOFFMAN. Thank you, Mr. Chairman.

. . ' /;

Let me, before moving on to the question of the Federal role in.-j

dealing with the patterns of abuse that have been described today, .

mention one other form of abuse which has recently gotten a great ' I

v^^_deal of attention in Los Angeles, but which has not received;"]

enough attention over the last few years, and it's an area where 1/

i

think the Justice Department would need to take a look. That is

abuses by police canine units in Los Angeles.

•'•'••.-:•

Local civil rights attorneys involved in this, issue have document-1,.;

ed numerous cases of severe, sometimes grotesque, injuries caused.;

by Los Angeles Police Department police dogs in situations where?

police dogs ought not to have been used and where they have been '..i.

. used in areas that have caused incredible injuries by people-who.;

have been bitten and mauled by the dogs. In fact, some of the phys- '

.ical evidence of the injuries that people have sustained are really .•-'.

-

so gruesome that it's hard to really look at the pictures of people -j

who have suffered these kinds of abuses. At least one person has

nearly been killed by a Los Angeles Police Department dog and .

many have been hospitalized for severe injuries after this has hap- .;

' pened.

.

1 think that these—one of the things that's a very serious con- •',

cern in this issue is the evidence of a racially discriminatory use of..'-;

the dogs. It's very difficult to document the way that this breaks

down, but all the evidence and research that has come to light in >

the last several years shows that overwhelmingly—in fact, almost •

all of the cases that we have been able to document in the commu-

nity have involved African-American and Latino people who have

V

suffered these dog bite injuries. You don't find many Caucasians ?"

suffering dog bite injuries in this context.

'

. -.';*••(;

The Los Angeles Police Department statistics that we have been • •'•' able to compile show that in connection with arrests over •">" pe-r- ':')

cent of people arrested by canine units are bitten in Los .\nuelt\-'.:, '!*

. over .50 percent of the cases where arrests ore* undertaken. So.;'; j

you're talking about "a very severe abuse and also a • situation',!;-?

where, like many of the other areas that have heen described. ••

there's no adequate training as far as anyone can toil. In tact, i;!'; appears that the training and supervision encourages biting rather ;:, ;

•V^

t h a n restraining it. This is another major area. I think, that ntfd> ;•;•

to be looked at like the other ones that have been mentioned. -. ."

One of the things 1 would want to comment about in terms of ihe-'.'

': issue of race, in terms of police abuse, it's clear 1 think from.every-.V\

' thing that's been said and from the reality of police abuse"in ou*% community, that t h e African-American and Latino (.•••mrr.u'iiisii*--1.1.;

-.-. bear the brunt of police abuse in Los Angi'le*-*. 1 mean there's ju-i'?;

• no question about that when one looks at the cases.

• -. :•„, ,.;••

:„••-. On the other band, 1 think that it is a problem that .does' i*(v4

:*, beyond race in terms of the instances of abuse. For example,.the/-

Vigil case that I described of the man be::un to death, he waif.!

white and it's clear that there arc whiles who sulfe-r police abuse'

at the hands of the Los Angeles Police Department.

V :: ^

The other example of the pain compliance holds in the.0;<er»'.i*:: •'

Rescue situation, which is another example where, like Professor'

Fyfe, our organization has liad major difference:- with Operation*

Rescue protesters. In fact, we were suing tliem at the time t'nav:

they were engaged in these protests. Or. tho other hand, we have, . a l s o filed the brief on their hehall' challenjzin-: the pain ci'tr.p'.uiruv

4

hhttpmmcchhooooaiieelllnnmnddinnc-kkssttmAe llmtiituweethhtn''nnesaaosiirudtttrijjyk'sscuu,wasstiinttaaonue~nnraaeddb.aL'nn.veno-ooctt^-dus-hhttoshheemeAAeLedrren>-bba..g«teaaehia.rexxtt.noyttllaaollemneemmsat,.ihcppl//i.owwceliltmeemnahhreLpeemyooorrffhheeus'oaaoneecttppcAisshchtcppssuineueeeeeepgpnnsnnyLeLyttssiliii(onteaan«hsgttsl<slg:ol;l>»yAyA:Pli.ttvnovaaot'iu.iillelilI;cllvvie<lvocsl..'.mmeeemmsw.aoo.iti.DlrrhlPieeiwetent.rlp.unaaiiennai.rnr.*zr.atwtwwmhUDiiehe<tetuhhinmc,>Atht.tifh-hVr;ritI(ti>"t-; iT why there is a racial component to the pahttern olfwabhu^i e* in the LOs*

Angeles community'.

• ' : ':Vi"'.'-i

Let me turn, since I know the time is. iinvled. to the -question ol>

what the Federal role should be. Much has lxen made oflhe quei-^';&$&£&$

tion of sections 241 and 242. 1 thin.!: that there are Kome.preible'ny;

with 241 and 242 that might re-quire legiflative reform,'.'but',.Vj_,

seems to us that that should not mean that t'..-* JuMice Departniei-.:••";

should foil to bring more cases. If the Justice Department oarV'.y.

find cases of police abuse to prosecute in Los Angeles County."

there's a big problem. No matter how tho^e laws are interpreted,

there are many cases that warrant criminal prosecution of officers,

not only of th"e Los Angeles Police Department, but of other law

. enforcement agencies. Mr. CONYERS. Excuse me, Mr. Hoffman. Wouldn't the kindot,

• qualitative investigation systemically that wo are now embarking;

•; on bring forward those cases?

'

'/

; v Mr. HoFr.MAN. I would hope so.

.

•::•;.•''-.'

;• Mr. CONYERS. Yes, and especially with other organizations who" • ;are now tracking cases—a totally alerted citizenry who are now

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Mr. EDWARDS. We now recognize Mr. Conyers.
Mr. CONYERS. Thank you. Mr. Fyfe, Attorney Hoffman, please know that you have our deepest gratitude for not just your testimony here today, but the work youhave done across the years. I know ACLU in LosAngeles has been on the case for a long time, and Jirr. Fyfe hasbeen in and out of our subcommittees and activities on criminal justice and police abuse across the years, and we are very grateful for your
presence here today. And I want to emphasis how important I think your recommen-
dations and comments are about this very difficult role we have in front of us.I think that it is important for us to recognize that we have made some breakthroughs. Without the Rodney King case, 1 couldn't have taken an ordinary abuse case, a police abuse case, over there and say we want to study thousands of cases for every : case filed for the 0-year limitation period. This case so traumatized the Nation, and as a matter of fact is an international issue now, | that there wasa necessity for us to get at least the limited cooperation that wehave now. So I think weshould put that on the record, that were it not for that circumstance, it would be just another case where he was drunk, he was resisting arrest, and we'd say,
"Who knows?" Doyou not. agree with me that we do have an opening here, a window of opportunity that did not exist?
Mr. FYFE. If I may address that—police organizations. 1 know_.. from firsthand experience, are very conservative and are not prone to change unless they are influenced from the outside. When 1Icok at my own police agency in NewYork City, it waschanged bythe revelations of the Knapp Commission, by the pressure of the NewYork Times and the powerful institutions in New York City. 1 think about the Metro Dade Police Department; it waschanged by pressures from outside. 1 think about how the FBI was chanced. It was changed from pressures from this House by and large, and1 think that this is an opportunity for change in LosAngeles as well. It would be a shame to lose it.
Mr. HOFFMAN. 1 think it is not only Los Amteles. 1 think it is a
glimmer of hope for Ix>s Angeles now that we have this attention.
but I think it really is important to focus on the role of the Justice
Department and other reforms to be able to deal with this prob-
lems on a national basis. Mr. CONYERS. AS citizens and leaders, wouldn't it seem important
to you that President Bush take this opportunity to speak for the first time on this very important subject? We could really get the tone set. After ail, the Attorney General has made a limited press release. The Director of the FBI made a two-sentence statement after he met with us last week. But,this seems to be an opportunity. Can we fr&me that so that Governor Sununu and Counsel Boyden Grey over there can say, "We are rev iewing the Edwards subcommittee and we think this is a good idea. Chief.'"
Mr. HOFFMAN. I think that is absolutely essential, and 1 think one of the other things that is true of the Los Angeles situation is that much of what hashappened, the sort of military approach and some of this Operation Hammer that I described, has been framed in terms of the war on crime and the war on drugs. 1mean that is

120
the rhetoric that comes out. This is necessary, something that must
be done. We have to engage in these operations. I think that the rhetoric has come from the administration over
the years and others, and so when the war on crime is mentioned, it's almost as though we can dispense with constitutional rights. It encourages dispensing with constitutional rights, and 1 think that the logical consequence of taking that attitude and not being careful to cherish constitutional rights when one is dealing with real problems of crime, the logical consequence of that is the video tape that people saw, in my view.
Mr. FYFE. Mr. Conyers, on that subject, I think the whole notion of police as soldiers in a war is something that has to be changed. What we have asked the police to do is very simplistic and unrealistic. We've asked the police to deal with social conditions that are beyond their control. There is no way, no matter how aggressive the Los Angeles police are, or police in any other place, that they can deal with the social conditions that cause the crime and violence that have nothing to do with the police in Los Angeles.
But, what you are doing, in essence, is asking young men and . women to go into police agencies and asking them to fight a war that they can't win, and for the best intended people, that's a very frustrating experience. As we learned when we ask soldiers to fight wars they can't win, occasionally you have atrocities, and that's what I think has happened here.
Mr. CONYERS. Why is the Department of Justice so reluctant, so timid, so hesitant? This is a great opportunity. We have just come back from Operation Desert Storm. We've done this great military feat. Here is a great chance for an administration to really come out here and move this country forward. What we feel is that we are pulling them instead of them seizing the moment to be meeting with people like yourselves and the organizations that we know
work in this field. Mr. FVFE. I can try to answer that. As Mr. Hoffman knows, and
as Mr. Washington I'm sure knows, most of the people who are on the wrong end of this "kind of force have done something to prosoke the police. As Mr. Hoffman knows, it is very difficult to win a suit against the police because, unlike a medical malpractice cas2, you are not representing someone who is totally innocent. You are representing someone who has somehow provoked the police, who are a very sympathetic group, who can come into court and testify that they passed character examinations and that they put their lives on the line for their community, and they have not profited in any way by their actions here. So 1 think that if you elevate that to the macro level, you find the same kind of phenomenon. Most of the
people who are aggrieved by the police have done something to offend the police, have done something that most voters can't identify with, who are among the disenfranchised. It's not a very popular cause.
Mr. EDWARDS. HOW are we going to win that war, Mr. Hoffman? Mr. FYFE. I think on the level of myself, I'd make myself available to testify against police in cases that I think are egregious and hit them between the eyes with large verdicts and get police to change.

—-.

. 121

I think on the level of the Federal Government, folks like yourself have to continue to apply pressure until that view changes. 1 daresay that if you went in to a jury or asked the public what they thought about people who had committed offenses suing the police, the knee-jerk response is a very negative one. What nerve that person has to sue the police. Chief Gates knows that. When he says Mr. King has a criminal record, that's a very appealing statement.
Mr. CONYERS. The courts' conservatism in civil rights matters, which we are trying to reverse with the Civil Rights Act of 1000 and now 1991, since the President's effective veto of the former, when we look in the area of these kinds of cases, the courts themselves have been very conservative and have read and interpreted these statutes, it seems to me, as narrowly as possible to further make this a difficult terrain. Not only were the statutes inadequate, but it seems that their interpretation didn't help out any,

either. Mr. HOFFMAN. That has been increasingly true. Certainly in the
last decade the Supreme Court decisions have, in a general way at least, restricted the ability of victims of police abuse to recover and have restricted the circumstances in which you can recover. That adds to the natural difficulties of bringing these cases.
I think that actually underscores how bad the problem is because people still win. When you take into account how bad the caseload is and the natural difficulties of proving the case, having $10 rrriV*---. lion worth of judgments against the city of Los Ani'des in police cases in 1090 underscores how unbelievably bad the problem is. because we have won that many.
Mr. EDWARDS. HOW do they get these judgments if there's no pat-
tern-and-practice provision? Mr. HOFFMAN. What I referred to.before was pattern-and-prae-
tice cases where you wore trying to get prospective relief, to try to eliminate the practices in the future.
Mr. EDWARDS. Oh, I see.
Mr. HOFFMAN. The judgments come in the context of individual
damage actions. Mr. EDWARDS. But, well, these big judgments, we'll say SI or >-
million, that's against the police department or against an individual.officer?
Mr. HOFFMAN. It can be against both. One el the problems in the area, unfortunately, is that city winds up paying for it regardless. The officer never pays even if the judgment is against the officer. So the actual effectiveness of the award to deter individual officers is mitigated by the fact that the city picks up the bill anyway.
In fact, in one of the cases that Professor Fyfe mentioned, the Lares v. Gales case, where Chief Gates was hit with a very large punitive damage award himself, within days I think the city council said that it was going to pay the award. At that point, what's the point of having a punitive damage award to deter Chief Gates when the city administration turns around the next day and soys, "Well, we'll pick up the tab"—regardless of how outrageous your statements were or what your conduct was.
Mr. FYFE. On that point, Mr. Chairman—and I'm not an attorney, but in my experience in these cases 1 have usually been advised by attorneys not to make any mention of who is HUely to pay

122
the damage. What typically happens is that juries sit on those cases assuming that the verdict will be judgments against the individual police officer and those will knock him out of his home and hearth, when, in fact, they're not.
I testified in a case where a judge wrote that the officers in this case unconstitutionally dragged this man from his house, beat him, and shot him to death—and apparently shot him to death in violation of the State criminal statute on homicides. She awarded $1,000 punitive damage against each of the officers. In all the cases I've testified or consulted in—and there are well over 100—that's the only or.e where a police officer has ever had to lay out anything out of his own pocket.
Mr. CONYERS. TO what extent does the State prosecution of these cases allow the Federals to suggest that they operate as backup?
Mr. FYFE. We were discussing that in your absence. It's very, very difficult for a local prosecutor to bring a case. As you recall, Mr. Conyers, the Eleanor Bumpers case—you and I can probably disagree on that one. I don't think that the officer should haye'^ been indicted. The fact is that Mr. Merola who was then thedistrict attorney in the Bronx, did indict him. Regardless of the merits of the case, Mr. Merola found himself with 8,000 police officers demonstrating outside his office the next day. So it's a very, very tough thing for a local prosecutor to bring these kinds of actions as well.
In Los Angeles, I was surprised when I went out there to seethe relationship between the district attorney, a person who is now gone, and the police. In my experience in the East, the district attorney was the lead law enforcement officials. When he showed up at a crime scene, he was the boss and the police were subservient to him. That was not the case in Los Angeles, however. TheLos Angeles officer involved, the shooting team, would keep the district attorney's people at arms' length and would let witnesses go out the back door of police stations while the district attorney's people sat in the front office.
The Rollout Program in Los Angeles was initiated to begin with because the police department wassimply not notifying the district attorney that its officers had shot and killed people. He was finding out about these on the radio on his way to work. By the time he found out about them, all the leads in the cases were cold.
Mr. HOFFMAN. The district attorney's office in Los Angeles sends out memoranda about officer-involved shootings. We get them on a regular basis. Many other civil rights groups get them, too. Of course, they're all roughly the same. It's like they were spit outof the same computer; only the names have been changed. It almost always comes out this was a justified shooting. The terms arepredictable. It's not viewed as a serious—that whole apparatus is not viewed as a rarious attempt to look into those cases.
My understanding, through civil rights lawyers that have really looked into this even more closely than I, is that police commission guidelines that really require the police to cooperate with thedistrict attorney are actually ignored, and that there are informal directives to the police officers that essentially supersede policecommission guidelines where Los Angeles Police Department officers are instructed not to talk to the district attorney, so that they can

be coached by the Los Angeles Police Department officer-involved shooting team and not actually give their testimony until it's all

figured out what it should be.

That's certainly what the allegations have been among the civil

rights community, and no one looks to that.system to bring up jus-

tified results.

Mr. CONYERS. Finally, what is your conception of the pattern-

and-practice authority and how it would operate in this instance,

in these police brutality cases? Mr. HOFFMAN. I think that the city of Philadelphia case is prob-
ably a good example of where it should have been applied. I think in the city of Philadelphia case you had a situation where the Justice Department conducted an 8-month investigation of all the complaints in Philadelphia and they identified a whole series of patterns of abuse. They sought to bring an action where there could be equitable relief to deal with those abuses, to remedy them in some effective way.The courts found that the Justice Department didn't have that authority because Congress hadn't given it to them.
I think that if Congress gave the Justice Department the authority to bring those suits and to actually achieve remedies through the courts that would deal with whatever the patterns were that were found, that is what is needed.
Mr. EDWARDS. We could write a bill, which I think would come.to this committee as long as it is connected with civil rights, that •-_ would be along the lines of the civil rights for institutionalized persons. Mr. Kastenmeier was the author of that.
Mr. CONYERS. Exactly.
Mr. EDWARDS. And we could. Mr. CONYERS. A great idea. Thank you so much.

Mr. EDWARDS. Mr. Washington.

Mr. WASHINGTON. I have a two-part unanimous content request.

if I may address it to the Chair first.

i The first is that the Chair be empowered to instruct the staff to

[ obtain a copy of the vidrjo tape from the Rodney King incident.

Mr. EDWARDS. The Chair will be instructed to ask the staff todo

that.

Is there another tape, do you think? Is there in the laws of the city of Los Angeles a law requiring, when an .irrtst is mr.de. that there is a sound recording made? Is that correct?

Mr. FYFE. ASa matter of practice, police department radio trans-

missions and computer transmissions are recorded on a tape that is

reused every 90 days or so. So all the radio transmissions und all

the computer transmissions related to this should be readily avail-

able.

Mr. EDWARDS. I'm not referring to that. I'm referring to a prac-

tice in some police departments where somebody is picked up im-

mediately, the button is pushed, and a recording is made of the

event. Does that go on in Los Angeles?

Mr. FYFE. Not as far as I know, sir. Mr. EDWARDS. It's a good idea, don't you think0

ideMMa.rr..

HOFFMAN. Not as far as I know, either. EDWARDS. Sorry, Mr. Washington.

It

would

bo a

i:ood

12-1
Mr. WASHINGTON. Thai's OK. The chairman was referring to an incident in Brownsville, again in Texas, where the police officers were captured on their surveillance equipment beating a guy in the police station, which resulted in a prosecution. It seems the only time the Justice Department feels constrained to prosecute is when we have a video tape. I understand there are some problems.
The other unanimous consent request, the other part of it, is, Would the Chair be amenable to at least considering broadening the request? The Chair will remember the original request of additional information, 1 believe put by Chairman Conycrs, on additional data over the G-year period was broadened to encompass, as I understand, for them to take a look at l'JSli claims that may have been brought by private litigants.
It occurred to me during the course of that discussion and discussions that followed, Mr. Chairman—I don't know what results we would yield, but at least in my experience a significant portion of the cases that fall below the line, so to speak, in terms of thosethat end up getting prosecuted as a civil action, and the even smaller number that end up prosecuted as a criminal action, fall within the ambit of a general view of those, and the root basis, I would say, for 95 percent of them would be cases in which there's a charge of assault on the police officer. Would you agree with that?
Mr. HOFFMAN. I think a large number of them involve that
charge. Mr. WASHINGTON. For this reason, Mr. Chairman. 1 bring a guy
in and you're the desk sergeant, and he's battered and bruised. He's going to start complaining. I'm going to have a defense available: I used such force as was necessary to resist him. Ergo, you end up filing a charge against a person to prove the fact that you didn't actually beat him up; you were defending yourself against his unlawful assault.
My question is—and the information is already available in NCIC in some respects—if we could broaden the inquiry, with the permission of the chairman, so that the information we receive back from the FBI will also include at '.east—not the specifics on each case, but the general category
I think what you will find, when you look at that, is you will be able to draw a chart with the largest body being cases in which—I mean, I'm not suggesting that all charges of aggravated assault of assault on a police officer are illegitimate, but I'm suggesting that you will find the base there, and most often you will find that the charges that result in either civil charge or criminal charge against the police officer being one in which the original charge was assault, an allegation of assault by the citizen on that very same police officer.
You'll also find, Mr. Chairman, the pattern if the officer has been involved in misconduct in the past, he or she will have cases in which they have prosecuted cases of assault on individuals, which demonstrates, I think, in some respects a propensity toward violence when a face-to-face confrontation results. That is the reason for my request, to just have them bring over the NCIC information. Once you see it, I think you're going to be satisfied that further inquiry may be justified—the same G-year period of the cases in which—and they already have that as one of the statistical

categories with the NCIC—where a charge of assault on police officers or other strains of that would be filed under various State lawMs.r. EDWARDS. With Mr. Conyers' consent, we will do that.
Mr. CONYERS. I think it's a good idea. Mr. WASHINGTON. Thank you, Mr. Chairman. Just one brief question on the huge verdicts: I don't know what it's like, but I remember when Monroe v. Pape was the law before Monell v. New York came along, there was a problem with getting what everyone considers—if a truckdrivcr runs over me out here crossing the street, Acme Corp. for whom that person is working, in the course and scope of employment, under theory of "let the master answer," or rcspondcalsuperior, is the means by which you get from the employee to the employer. It seems like you ought to have better experience in California in the cases in which Professor Fyfe has been involved, and Mr. Hoffman has mentioned tome. where the city actually responds.
The problem down in my area is that there is such a niggardly interpretation of Monell and the difficulty in getting the city and the police department held liable. The jury goes back and they come back with SI million verdict because they feel, based upon the egregious facts that they have heard, that that is what isjustu.. fied. Nobody ever pays a dime of it. Nobody ever pays a dime of it.
My point was earlier, would you think about perhaps overcoming the problems? You remember in Mniiruc v. Pupv the Supreme Court decided that, under lllSil, the Congress would not include a city within the definition of a person. I believe there were sonic ways in which they kind of went mound that in Mimell. But. with the current trend of the Court, we could be back i<j a situation where only the police officer is liable. No mailer what si.'.c of verdict is returned, you end up suing the city: you tue the police officer; you sue the police chief; you sue the [H'MII who actually perpetrated the egregious conduct. You end up with a judgment.-usually a summary judgment for the city and the other officials. unless you can show a cause or connectio.n between them. You end
up with a judgment that means absolutely nothing. Then you don't have a deterrent either on the individual officer or on those in higher authority that we all agree are the people who really ought to be sending the message down to those etuier;. Do you think there is something we could do in that regard?
Mr. FYFE. I would say so. Again, I'm not an attorney. My observation of the interpretations of the liability of employers by judges has sometimes been weird. 1 remember testifying in a case where a judge bifurcated the case. He, in essence, held one procecdins: to determine whether the police officer had violated the individual's civil i h t nd if o whether the violation was a result of the
50-872 - 92 -

12G
Mr. HOFFMAN. Clearly, the way that Moncll has been interpreted, particularly recently, makes it difficult for civil rights lawyers to get liability against the city. I think the concern is that it's going to be increasingly rcstrictively interpreted. Unless you really have an egregious set of facts, it's going to be hard to get municipal liability, and the problems that you have described are real.
May 1 make another suggestion or recommendation that just occurred to me out of the previous discussion? It's not quite related to this, but it relates to the 3.00-1 other cases. One of the things that struck me in Mr. Dunne's testimony about the backstop role of the Justice Department is that it seems to me that if you are the backstop, one of the things that you're going to have to look at pretty carefully is whether there is an adequate discipline system, whether there is adequate action by local prosecutors, so that you know that things are working out all right.
I think it would be interesting to know what the Justice Department found in those 3,004 cases and in the similar cases in this .
period about the adequacy Mr. EDWARDS. 1 think we definitely have to ask them that. We
can't accept that as an answer unless we find out what percentage of those cases were dropped by the Justice Department because they were adequately taken care of by. local authorities.
Mr. HOFFMAN. And it would be interesting to know what efforts they make to determine whether there is adequate discipline. For example, it would be very interesting and important, I think, for the Federal Government, for the Justice Department to keep statistics about the discipline of police officers on an overall basis to see whether there are patterns there, because there are patterns there. The patterns are that police officers don't get serious discipline for these kinds of situations.
If you look at that on a national basis, regional basis, that will assist the Justice Department in knowing when its backstop role is the most needed, when discipline is not meted out. Since the Justice Department keeps statistics about crime and all kinds of other things, this is a perfect thing for the Federal Government and the Justice Department to do to make sure we know whether the local systems need to be backed up by the Federal Government, as I think they'll find they will need to be backed up.
Mr. WASHINGTON. I don't know if we will be able to derive all this information from the information that the chairman has ordeied be made available, but at least in Houston, the pattern went from—it basically is pervasive and it deals with any group that may find themselves in disfavor with the police. It starts out with blacks and it goes to Hispanics. In the sixties it went to young whites with long hair, so-called hippies. Finally, it got to women, and that's where it is now. There are a lot of women who are afraid to ride around in cars. One woman was chased 30 miles across Houston, ended up getting shot and killed, because she thought she was running from perpetrators. These were off-duty police officers who had gotten drunk, been out all night at a drink-
ing spree. I know hard cases make bad law. They ended up, because the of-
ficers didn't like something about maybe some gestures or something like this—she didn't know the guys were police officers. They

127

chased her across town, run her across the f r e e l y , and killed her

with a gun, off-duty ~-i:— -'

really un-

duct. If it happens to person out of \ht;'rl

f ^

. y , n d U doesn't make any

- \ C t socioeconon-.ic group you come

^

across to all U ,

torney Hoffman s

^X

W h At

.

. by later information that reveaieu in.u. .n^i

there had been cars passing nearby cm the highway that '.'•ere slowing down to witness this. They would actually Mop and look at it.

and it didn't interfere with the police misconduct at all. In addition, there were people some several hundred yards away who were

yelling, "Don't kill him." who realized that those wore policemen administering this life-threatening beating. The whole notion ul'

premeditation or this being some rogue cop incident gels totally refuted because there were plenty of witnesses. < w n without the

video tape, many of whom would h a w pn>lv.hly never thought about coming forward. That, of course, speaks :o the arrogance1 and

viciousness and systemic misconduct thru that act represented.

Mr. FVFE. 1 think on that point. Mr. Conyors. I'm not aware thai

anyone other than the person WHO took this video tape has come

forward.
Mr. CONVERS. Nor am I.
Mr. FYKE. I think that may give some indication ;•.? to the real depth of this problem, because it takes an enormous amour.t of guts to go into a police station and report thai you've ju.-t teen an officer beating someone up.
Mr. EDWARDS. Mr. Kopetski. Mr. KOPETSKI. Thank you, Mr. Chairman. I represent a police training facility for the State of Oregon, ar.d it is one that is used for the State, mainly local police officer? as well as correction facility personnel. It's a very fine institution. What happened in Los Angeles was not learned or taught in any police training facility.

^ • w m ••;*:!^-V:jii-'*sJi%^.;' V T i ' ; ' ? ' ; * - ^ * ' - ^ ' . ; •-=;.•••;,

no

| P Mr.'EDWARDS. We will withhold questions while we hear from ,.

t|;t;hieOunrexstectwonodwwitintensessess.isSoD,riefwthDe atyhsr,eeprooffeysosuorwoilfl

serve as a panel. law at Yale Law

'•>' ,

IISS"School,'and ^former Assistant Attorney General in charge of the ..'"S8ilCivilf Rights Division. Both Mr. Hyde and I had the pleasure of ^,

^^working with Mr. Days when he was the Assistant Attorney Gener-;^;

fe^'.al in charge of civil rights, and we are very pleased to have him ..

KV<j here again.

3^^'V f And then the third member who will testify before the questions

$$'&' begin is David L. Llewellyn. Mr. Llewellyn is president of the West-

^Sg^Sern Center for Law and Religious Freedom of Sacramento, CA.

' 'fSS^^SWill the two next witnesses please raise your right hand.

ygKsi [Witnesses sworn.]

.

•

Sjsfcji-?Mr. EDWARDS. Thank you. Professor Days, you may procepd. And,

gS'^without objection, all of the statements, the full statement.- .vill be

^ f e made a part of the record.

||?,"jf STATEMENT OF DREW S. DAYS Ul. PROFESSOR OF LAW, YALE

*w£f':0&ii''-:. ":,:': '

LAW SCHOOL '

• • • ;"

'.'vMr. DAYS. Thank you, Mr. Chairman. It is a pleasure to be back

.before this subcommittee where 1 spent a great deal of time when I

1;was in the Justice Department. 1 am also happy to see the new ad-

ditionson the subcommittee.

'

• V I want to thank you, Mr. Chairman, and the members, for invit-

ing me to testify before you today in connection with your hearings ;,on police brutality in America. I am certain that all of us recognize

'f'the important role that law enforcement agencies play in keeping

•j'Our streets safe and our homes and businesses secure. However, the

i,»-'video-taped beating, on March 3, 1991, of Mr. Rodney King by offi-

^g^JIcers of the Los Angeles Police Department provided undeniable evi-

«*|,S$;|'B dence that in some jurisdictions persons who are sworn to uphold 11*'/J» the law are among its major violators.

IIP^S"' Of course, 1 experienced, along with millions of others, including S^|President.Bush, revulsion upon viewing the video tape, but I must i|jjir;.admit to the subcommittee that I was frankly not surprised that a g.;^:gross violation like the one captured on that vid,eo tape could occur '?':f in the United States in 1991, for my professional experiences both fe;in private practice as well as my time in the Justice Department
»>;;}>;have led me to believe that police brutality, although it is not ?*'"j'standard practice in the United States, occurs all too frequently in
£'; many communities in this country. £s/V,\Vhat_I want to do is talk about two experiences that have fe),brought me to that conclusion. The first was when 1 was on the.
§'.staff of the NAACP Legal Defense Fund in New York. In that capacity 1 brought a number of actions against police departments

^ s e e k i n g both equitable and monetary relief for police misconduct. ^ j W h a t I found was that even though we brought successful damage «?**« actions against police departments for police brutality, although we •^weren't very successful in that respect, there appeared to be no i%:M change in the environment, no change in the context within which ^ p o l i c e officers worked. There seemed to be no discipline from the ;1;';. top. There seemed to be no criticism by police or city officials of '.'£ .officers who were found to have engaged in police misconduct.

A s I flunk you. Mr held here 1 ^ ^ ° "

m -

at the

^

^

tb> those on the top to offiand abuse wou.d not be to,-.

the operation of tween incidenU

police of.l» '

de
«

Pa ^

£m J

*1

£

f' ^

t

in

departments and their.failreceiving, invesiigalinp. and

ure to have any v i a b l e p « r t » r«»

misconduct. So we .dent,-

af.lcicyneotTdimt^nahtgpm'helraauaipthpnraloaUopsn^c,peaeycdnaisutltitroozhebaeossjnneaudtcyghct,.hiaa°tvh™tesahettPtehtht'aevata'rs.e"etielnmww*gS«Pe_ee°.orMwewu0.r«rPoae^uuul'do-n; sve^e-d„kc^T„S„io^n^nt-hsoJaQuntrulth^rtleecaevswtiuissmeudoiotrnsd,yshrodaacnsadtib,co,auls-t

Prince Georges County. I am nonceruu

i m p r o v e d Hut 1 do

since that agreement that ftmfcSM think that in some of-lh* °™?r,w w e r e

. ^ ( w a s k-adership put in place actually did

at the top and the P ^ f f ^ ' d invite the subcommittee to look

make a difference. But 1 wouw ' ilt,pression is accurate.

dofucdtiraencdtivtehse tohpaet rapteioopnle at tju-ptop

,( . a

^i,.

criminal enforcement program
under sections 241 and 242 ol ll>
tori thinking that if the. P ™ ^
SS3

I had comc

t0|

a c l i o n s werent a signili-

ems perhaps the crinuna

SbEiv*--^

174

'^••^

l The. think,

video but it

tape of certainly

Mr KKiinngg is not the

ossnhhlooycckkveeiddd'e-o-tthh•ta-ee.p.«eAAitmmhhanectrtnicTIuauhhnaavvypee*e*sso,ee,p—eelnne,,

ooI.ff',..j!j.„i'j.

£iK2&£,ip.*-4wS\<v2,(t*J'ic'aacPaahssppeieoolalliwiwdcc•eeeeel<phhbbhieeaa-ia:aadd_ttiiaannsougg.vvbv,iiwvddImeeanaoovyf.att«ssaact«tpptaa,,eett.iiio.ooon.nnff..o.aa.TuTbbhrhlleeiaanrrccevekkeasammtrrigaaeeannftfiii•bboxx•eenee•ii—ddnnoggttfee_llbo:tee„heevv!aa,iei„stsiee,iiP!oonuhnnllituunlmamypndooi.ebnnn.l.liipatt— toohchrrkisesa:'•}'.'-;

$%'$*• within the subway station and those monitors picked up a black : " * " ' ' ' man being quite seriously roughed up by police officers.
One of the allegations of the complaint was that that video tape

had been brought to theattention of the commissioner of police in :

Philadelphia shortly after it happened and it produced absolutely

no reaction. The officers were never disciplined. No action was

• taken against them.

}Z. We also alleged in the complaint that there were acts ofdiscrimi-

vnation. That there were certain practices that had a discriminatory.:. '*

impact, in effect, upon the black and Hispanic communities in'

^Philadelphia. Suffice it to saythat with respect to that part of the.

'•"complaint the judge held that our complaint was not specific '

enough; and even though this ruling by the judge came after we "•

; had answered interrogatories from thecity and provided 800 pages

r of details with respect to time, place, identification of officer, and.

: nature ofthe incident, the judge threw out our lawsuit.

••

*•;. , ' That decision was upheld on appeal anda consideration en bane

• by thethird circuit was denied. Whether wewould have been sue; cessful in proving ourcase will never be known, but this was a sit-

••.. uation where we think that we were not engaged in idle specula-

"•.-. tion. We had very strong evidence that there were problems in

•JPhiladelphia that deserved a response.

i" •;•''; Now, one of the things that also creates a need it seems to me for

'; ''a civil response from the Justice Department is that the Supreme

:.','>'Court has limited very seriously the extent towhich private parties

f . canget equitable relief, even where they have been the victimsof

;: '[brutality themselves. A case in point is the City of IMS Angelesv.

'.' •;Lyons, where a man established to a court's satisfaction that he

••,: hadbeen the victim of a chokehold without anyjustification and

\'-, hadbeen injured at the hands of Los Angeles police officers. He

vo.; sought notonly damages, he sought an injunction against thecity

* -;Vof Los Angeles s using chokeholds under circumstances such as the

>:. * one he was involved in.The Supreme Court's conclusion was that

,.;*' Mr. Lyons did not have standing—he did not have the capacity or ';*v: the necessary palpable injury to seek that type of remedy.

<";_-•.• So I think we face in the United States a situation where we

I: " r e a l l y can't look to private parties to deal with patterns or prac-

Kft:.'tices of police misconduct effectively because the procedural bar-

i£?*j' riers have been placed in the way of that by the Supreme Court.

jv'V-j-;..,<• Now, I have taken time this morning to talk about thePhiladel-

^ ;£;.phia litigation and I actually mentioned Philadelphia more times

!/;T;S>-than, perhaps, 1intended. Not because I have any desire tohold up jKVs*gj the City of Brotherly Love for any special criticism. It may wellbe

?U^v that successor administrations in Philadelphia, and there have

;*!'&; been several, both in themayor's office and thepolice department,

^jt'i^have dealt with some of these problems. But I do so rather because

i ' S j ' l really believe, given these various experiences that I have had,

;•:,•>,' that the best hope for dealing with thestructural and institutional :'•,!(& I"!1' problems that I have described is nottheindividual damage action,

' it is notthe individual criminal prosecution, it is thecivil pattern '*"* s or practice lawsuit such as theone we attempted to bring against
•";' the city of Philadelphia. What I think is necessary isFederal legislation that would estab-
lish as a matter of Federal law that the Attorney General has ex: plicit authority tobring suit where he or she has reasonable cause
to believe that State or local officials are depriving, pursuant toa 1 pattern of police misconduct, persons in their jurisdictions of rights
secured or protected by the Constitution or laws of the United
States. ••' Now, as the members of this subcommittee know full well, Con' gress has seen fit on a number of occasions in the past to give the '.;'.' Attorney General pattern or practice authority where it appeared i; that that authority was necessary to ensure that individual rights /-•were vindicated. It is certai.'.1.;' the caste in title VI of the Civil :i • Rights Act of 1960, having to do with voting and several other i'/ titles. But most notable is theCivil Rights of Institutionalized PerK sons Act of 1980, CRIPA—legislation that I am proud to sayI was •;,' actively engaged in urging upon the Congress when 1 wasin the
Justice Department. It was a very much needed piece of legislation given the problems that wewere having dealing with horrendous conditions in institutions where the mentally ill and mentally retarded were confined, aswell asbrutal and unacceptable treatment^ of prisoners. That law gives theAttorney General authority tosue""" on behalf of people in these institutions, and I think that the approach Congress adopted with respect to CRIPA could also be used to very good effect to provide pattern or practice authority to the Attorney General in police misconduct cases.
Now, let me make clear that, although I have devoted much of my testimony to how pattern and practice authority would grant :, the Attorney General a meaningful tool to deal with the type of •-.'.' problem that wewere addressing in Philadelphia, it would alsobe extremely useful in situations like Lyons where, as I just indicated, private parties do not have standing to bring such litigation. G,-FFg_-.eere,I_eddn•.a,teeehtrrraiaasnlliltkecici—pttrrtiihwwf:mmo-aoo,rti;iwuunnnll,iaaadd,fillr,,dthiipn|nnniirrsnoouccssanooCee»emmccowuuunbbttgiiiiannooruaaenntttsssiihsoo'o'nnfferoofiftrrwwyoiipprtttoowhhslliieccpprreeerraiivvcgmmaahrttiiaeessnnccgtooddennaadbmmddauuctaacckoggtt,,eetthorr.a.eee^ctpp>htAirr,oeeut.nsst.R_oeesernnancttnoendyaagreat s•tep-forwa"rd in Cong«rve.s'ist''cefivfoilritasnsreaarcch'-i:gn_ig.v.euDn-U"CeiKf-fe*Ucr>>titvimhe.e-FRieednceorn-a-l
struction period to ensure that civilians aregiven effective Federal protection against official lawlessness like that to which Mr. Rodney King was subjected last month in Los Angeles. I hope very much that Congress will act promptly to provide theAttorney Gen-
i . eral with that authority.
; That concludes my testimony. Mr. Chairman, and 1 would t e ' happy to respond to any questions that the subcommittee members might have.
Mr. EDWARDS. Well, Thank you very much. Mr. Day?, for really
very helpful testimony.
[The prepared statement of Mr. Days follows.]

CERTIFICATE OF SERVICE
This is to certify that on this fifth day of September, a copy of the foregoing Brief of Amici Curiae in Support of United States's Objections to the Magistrate Judge's Report was sent by Federal Express, next day delivery, to:
Mark Masling Special Litigation Section Civil Rights Division U.S. Department of Justice 601 D Street, N.W. Washington, DC 20004 Counsel for the Plaintiff, United States
Timothy J. Mangan Office of the Columbus City Attorney 90 West Broad Street Columbus, OH 43215 Counsel for the Defendant, City of Columbus
James E. Phillips Vorys, Sater, Seymour and Pease 52 East Gay Street Columbus, OH 43216-1008 Counsel for the Defendant-Intervenor, Fraternal Order of Police, Capital City Lodge No. 9
_^ Margo Schlanger \ j

 
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JANET E. JACKSON
CITV ATTORNEY SO WEST BROAD STREET, SUITS 1425
COLUMBUS, OHIO *381S
September 15,2000
VIA FACSIMILE AND US- MAIL

Marie Masling Senior Trial Attorney Special Litigation Section FOB 66400 Washington. DC 20Q3S-G400

Samuel Bagentos Margo Schlanger 1545 Massachusetts Avenue Cambridge, Massachusetts 0213$

Tames E. Phillips 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1005

RE: United States of America v. City of Columbus, Ohio CaseNo.C2-99-1097

Dear Counsel:

Enclosed please find a time-stamped copy of the Defendant City's Memorandum Contra to the Motion for Leave to Participate as Amici Curiae in the above captioned matter.

Sincerely,

TJM;sw Enclosure

Timothy JtMangan Assistent City Attorney

US v. City of Columbus PN-OH-001-024

SeP-15-2080 15=33

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OF

.. OF COLUMBUS, OHIO,

. MAGISTRATE JUDGE KING

M v m f . fi»d!>«> as to.rn.rf ta « » Report and Rc«m»ctAiioA (doc. 57). For the reasons Ht fort, below, dsfeniaot City of C o t o b a s [hminaSo- " G t j n objects to «tt mclusion of the amict curiae. I. INTRODUCTION
"The acceptance of amicus briefs is within the sound discretion of the Court," Donovan v. Gillmor, 535 F. Supp. 154, 159 (N.D. Ohio 1982) (citations omitted). However, "absent joint consent of the parties, acceptance of an intervenes as amjcus curiae should be allowed only sparingly, unless the amicus has a special interest, or unless the Court feels existing counsel need assistance." Id. Additionally, admission of an amicus is "depend[ent] upon a finding that the proffered information of amicus is timely, useful, or otherwise necessary to the administration of justice." United States v. Michigan, 940 F.2d 143,165 (6th Cir.1991). In the pending matter the
1

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City would ask the Court 10 consider the following Factors when deciding the Motion For Leave To Participate As Amid Curiae. II. TIMEJ-INESS
Amici euriae are seeking leave to be admitted for the sole purpose of putting forth an argument dealing with the appropriate scope of liability under 42 U.S.C §14141. The original Motion To Dismiss and Motion for Judgment On The Pleadings have been pending before this Court since February of 2000- The City, Fraternal Oder of Police, Capital City Lodge No. 9 [hereinafter "FOP"], and the United States have all had an opportunity to fully brief this issue. On August 3, 2000 the Magistrate Judge issued a Report and Recommendation, objections to which have also been fully briefed by all parties to the case- Only now, seven months after the issue was first presented and after all briefing has been completed, do members of Congress come forward as amici curiae. If the Court were to grant their motion it would spark another round of briefing which would farther delay the progression of this case and thereby be prejudicial to the City. i n . INTERESTED PARTIES
"Historical^ 'amicus curiae' was defined as one who interposes in ajudicial proceeding to assist the court by giving information . . . Its purpose was to provide impartial information on matters of law about which there was doubt. The orthodox view of amicus curiae was, aadis, that of an impartial friend of the court—nor an adversaryparty in interest in the litigation." United States v. Michigan, 940 F,2d 143, 164,165 (6th Cir. 1991) (internal quotations and citations omitted) (emphasis in original).

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m the current matter, the members of Congress and their attorneys are not acting as true amici, but rather as interested parties seeking a limited right of intervention. Congress has an available means for addressing concerns over thejudiciary's interpretation of their statutes, namely the legislative history. Since 42 U.S.C. §14141 has no direct legislative history, the statutory construction problem falls within the realm of the judiciary. The particular view of fourteen members of the Howe of Representatives, many of whom where not even members of the House when this BUI was passed, has no place in this determination. The legislative branch of government has a strict and time-tested method for enacting laws and expressing legislative intent regarding those laws. Once the law is passed, however, it is the job of thejudiciary to determine the precise legal meaning of the statute. To allow one small segment of the legislature to engage in post-enactment debate when the matter is under consideration by the courts is to disregard the fundamental eoneept of separation of powers. Moreover, fourteen members of the House cannot speak for the entire legislative branch. Just as these members have their view of how 42 U.S.C. §14141 should be interpreted, other members of the House of Representatives or Senate would presumably hold their own, differing views. Were the Court to grant leave to allow these fourteen members of theHouse to act as amici curiae, it would cry out for additional input from other members of Congress thereby creating a mini floor debate wi&Ln,this lawsuit This would have a profound effect on delaying the litigation while adding little to the question of law at hand.
Additionally, it appears that the atnici's brief, offered in support of the position previously taken by the Justice Department, may be just another opportunity to restate the Department of Justice's position. It is auihored by a former trial attorney for the Justice Department's Civil Rights

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Division and herhusband. In fact, counsel for theamici was trial attorney for theDepartment of Justice in a similar case brought against thepolice department of the City of Steubenville, Ohio. Throughout the course ofthis litigation, the Department ofJustice has presented its position on the issue ofvicarious liability; amici should not be given anopportunity to echo those arguments. IV. ADEQUATE REPRESENTATION
The Federal Government's position has been adequately represented bythe United States Department of Justice. 42 U.S.C. §14141, as passed by Congress in 1994, grants power to the Attorney General to seek rojunctive relief fora pattern or practice ofunconstitutional misconduct. During the course ofthis litigation, dieDepartment ofJustice has fully and adequately represented the position that section 14141imposes vicarious liability against a municipality. As the court said in Donovan v. Gillmor, supra at 159, "the Court is of the opinion that counsel for both parties are more than adequately Tcprcsecting the interest of their clients and that counsel do not need supplementing assistance."
In the present litigation, the brief submitted by the atnici along with their Motion For Leave does notpresent anynew or novel approach to how section 14141should beinterpreted. Rather, it merely rehashes arguments, albeit with a slightly different spin, already pending before this Court. This isnot a brief ofan outside group seeking todefend an interest that haspreviously gone without representation; rather itis anattempt by an interested party to restate aposition that has already been fully briefed bythe parties to this litigation.

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Since the interest that Congress purports to represent in the Motion For Leave has already been fully represented by the Department of Justice, this Court should deny the motion of amici cutiae. V. CONCLUSION
For the foregoing reasons, the City requests that the Motion For Leave To Participate As Amici Curiae, submitted td this Court by fourteen members of Congress and their counsel, be denied.
Respectfully submitted, CITY OF COLUMBUS, DEPARTMENT OF LAW JANET E. JACKSON, CITY ATTORNEY

Timothy J. Mangan (0025430) Senior Litigation Attorney \ Trial Attorney fo^D.efendant City of Columbus
Joshua T. Cox (0029860) Andrea C. Peeplea (0063226) Assistant City Attorneys Co-Counsel for Defendant City of Columbus 50 West Broad Street, Suite 1425 Columbus, Ohio 43215 (614)645-0804

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CERTIFICATE OF SERVICE

This is to certify thai a copy of the foregoing was seat by regular U.S.Mail, postage prepaid,to:

Mark Maslkig Senior Trial Attorney Special Urigati&n. Section POB 66400 Washington, DC 20035-6400

Samuel Bagentos Margo Schlangcr 1545 Massachusetts Avenue Cambridge, Massachusetts 02138

James Phillips 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008

this '

.day of September, 2000. ..„-

Timothy J. Mangan Senior Litigation Attorney-' \

0B03

P.08 TOTAL P.08

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Civil Rights Division

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Special litigation Section P.O. Box 66400 Washington. DC 2003S-6400

FAX TRANSMITTAL SHEET

Tot

Name:

FAX No:

Date:
QTZ t-^T

From:

Name:
Organization: U.S. Department of Justice Civil Rights Division Special Litigation Section
FAX No: (202) 514-0212
Off. Phone;

Subject:

Number of pages transmitted (including this sheet): (30 Pages maximum)

 
 n
//•i'.Aj
i ' |! 70 .0])
(r"

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

FILED
KFHMrTH J MURPHY
- 7-; •"' " " ""'"
00NOV20 PI 3*07 U.S. D i s r r iCT COURT S O U T H E R ! . _DiS, T. OUIH1IIOU EAST. D:y. COLUMBUS

vs.

Civil Action 2:99-CV-1097

Judge Holschuh

Magistrate Judge King

CITY OF COLUMBUS, OHIO,

US v. City of Columbus

Defendants.

|| || 11 ||| | | || || | | | || || |||| | ||
PN-OH-001-028

OPINION AND ORDER

This is an action for injunctive and declaratory relief,

instituted under the provisions of 42 U.S.C. §14141, in which the United

States alleges that officers of the Columbus Division of Police have

engaged in a pattern or practice of conduct violative of federal law, and

that the defendant city has tolerated the alleged misconduct by failing

to implement adequate policies, training, supervision, monitoring and

incident investigation procedures. On August 3, 2000, the United States

Magistrate Judge issued a .Report and Recommendation recommending that the

defendants' motions to dismiss and for judgment on the pleadings be

denied on the condition that the United States amend the complaint.

.Report and Recommendation (August 3, 2000) . The defendant city

thereafter filed objections to the Report and Recommendation, as did the

plaintiff United States. This matter is now before the Court on the

motions for leave to participate as amici curiae filed on behalf of

fourteen (14) United States Representatives and by the Grand Lodge of the

Fraternal Order of Police. Neither the plaintiff nor the defendant FOP

to

objects to either motion, so long as they are granted an opportunity to respond to any amici memoranda; the defendant city objects to the motions.
The United States Court of Appeals for the Sixth Circuit has characterized leave to appear as amici in a case as a matter of privilege committed to "the sound discretion of the court. ..." United States v. State of Michigan, 940 F.2d 143, 165 (6th Cir. 1991) . Grant of leave to appear as amici is appropriate where such parties have "an important interest and a valuable perspective on the issues presented. ..." Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997); United States v. State of Michigan, 940 F.2d at 146. Traditionally, amicus status has been appropriately accorded to a movant who is manifestly able "to assist the court by giving information, or otherwise, or who conduct [s] an investigation or other proceeding on request or appointment therefor by the court." United States v. State of Michigan, 940 F.2d at 164. The purpose of amicus status is to "provide impartial information on matters of law about which there [is] doubt, especially in matters where there is public interest." Id., citing Miller-Wohl Co. v. Comm'r of Labor & Indus., State of Montana, 694 F.2d 203, 204 (6th Cir. 1982). At the same time, case law has also recognized amicus status as a means of providing "a very limited adversary support of given issues through brief and/or oral argument." Id., at 165. Factors relevant to the determination of amicus status include whether or not the proffered information "is timely, useful, or otherwise necessary to the administration of justice." Id.
As is manifest from the record, this case requires, for the

first time, an authoritative judicial interpretation of 42 U.S.C. §14141. The issues presented by this action are matters of great public interest and concern, both to the parties, to the proposed amici, and to the public at large. Although not all the movant members of Congress occupied such positions at the time the statute was promulgated, these proposed amici identify themselves as sharing "a particular interest in police accountability." Motion for Leave to Participate as Amici Curiae, at 2. It is their position that the .Report and Recommendation incorrectly imports into the statute a "policy or custom" limitation. Id. The Grand Lodge of the Fraternal Order of Police, which purports to speak for its national membership and not just for those members represented by the defendant union, seeks to submit an amicus brief "in support of the positions of FOP and the City." Motion of Grand Lodge of the Fraternal Order of Police to Participate as Amicus Curiae, at 3. Both of the movants have tendered, in conjunction with their motions, their proposed amici briefs.
The Court concludes that the proposed amici, while supportive of the respective positions of the adversaries already parties to the litigation, are nevertheless in a position to provide to the Court information or a perspective that can assist the Court in addressing the important issues presently before it in this case. Moreover, the amici have submitted their tendered briefs for consideration by the Court in conjunction with the parties' objections to the Report and Recommendation. Although the parties have been granted an opportunity to respond to any amici memoranda, Order (September 29, 2000), grant of leave to participate as amici will not materially delay the resolution

of the parties' objections to the Report and Reconmendation. Under these circumstances, then, the Court concludes that the
motions for leave to participate as amici curiae are meritorious and they are therefore GRANTED.
The Clerk shall file the tendered amici memoranda. Consistent with the Magistrate Judge's Order of September 29, 2000, each party may have ten (10) days, including intervening weekends and holidays, to respond to the memoranda of the amici. The parties may have seven (7) days thereafter to reply. If the parties need more time to respond, they may file a motion for an extension of these deadlines.
IT IS SO ORDERED.
John D. Holschuh, Judge uHited States District Court

IN THE UNITED STATES DISTRICTCOURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA
Plaintiff, vs.
CITY OF COLUMBUS OHIO,
et al., Defendants.

- ^ 7 f i J HURPHY
N0V20

Civil No. C2-99-1097
BRIEF OF AMICUS CURIAE GRAND LODGE OF THE FRATERNAL ORDER OF POLICE
IN SUPPORT OF THE MAGISTRATE JUDGE' S REPORT AND RECOMMENDATIONS
Before the Honorable District Judge Holshuh and the Honorable Magistrate Judge King

C. David Henderson 2074 Galisteo, Suite B-5 Post Office Box 4111 Santa Fe, New Mexico 87502 (505) 988-1848 Telephone
(505) 820-1433 Facsimile
Attorney for Amicus Curiae Grand Lodge of the Fraternal Order of Police
Tom Rutherford, General Counsel

F/LED t\LHRU.-\i JVMURPHY

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

00 WOV20 PM o. • f

'

' «> JU

cn?i-DiS:! R i c r COURT

| ^ 5 y ' ^ . P ^ L OHIO

UNITED STATES OF AMERICA,

)

Plaintiff,

)

Civil No. C2-99-1097

v.

)

Judge Holschuh

CITY OF COLUMBUS, OHIO, et al..

)

Magistrate Judge King

Defendants.

)

BRIEF OF AMICI CURIAE IN SUPPORT OF UNITED STATES'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT

Samuel R. Bagenstos, Trial Attorney 1545 Massachusetts Avenue, A127 Cambridge, MA 02138 (617)495-9299
Margo Schlanger 1525 Massachusetts Avenue, G301 Cambridge, MA 02138
Counsel for Amici Curiae

 
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JANET E. JACKSON
CITY ATTORNEY 50 WEST BROAD STREET, SUITE 1425
COLUMBUS, OHIO 43215
December 5, 2000

James Eichner U.S. Department of Justice Special Litigation Section POB 66400 Washington, DC 20035-6400
RE: United States of America v. City of Columbus, Ohio CaseNo.C2-99-1097
Dear Mr. Eichner.
Enclosed please find a copy of the Defendant City's Response to the Brief Of Amici Curiae Members of Congress to be filed in the above captioned matter.
Sincerely,

TJM:sw Enclosure
c: James Phillips C David Henderson Samuel Bagenstos

Timothy J. Maiigan Assistant City Attorney

12/05/2008 17:13

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,

:

Plaintiff,

:

Civil Case No. C2-99-1097

v.

:

JUDGE HOLSCHUH

CITY OF COLUMBUS, OHIO, et al.,

:

MAGISTRATE JUDGE KING

Defendants.

:

DEFENDANT CITY'S RESPONSE TO THE BRIEF OF AMICI CURIAE MEMBERS OF CONGRESS

A brief in support of the United States' objections to the Magistrate Judge's Report and

Recommendation has been filed on behalf of fourteen current members of the United States

House of Representatives as ainici curiae (hereinafter "amici"). Defendant City now responds in

opposition to that brief.

I- SUMMARY OF ARGUMENT

Amici's argument rests on the fallacious proposition that "pattern or practice" is an

alternative standard of liability that Congress consciously chose over a "policy or custom"

standard with the intention of imposing vicarious liability on municipalities. That proposition is

not supported by the language of the statute itself, by the legislative history, or by the established

law relating to the most closely related statutes; rather, it is ultimately nothing more than an ipse

dixit argument. Their analysis suffers from the same fundamental defect as the plaintiffs in that

both reflect a statutory interpretation biased against anything they perceive as an obstacle to the

imposition of systemic remedies. Under such an ends-justifies-means analysis, fundamental

concepts such as jurisdiction, standing, federalism, proof and causation are ignored or trivialized.

But an objective analysis of § 14141, such as exhibited in the Magistrate Judge's Report and

Recommendation, shows that it was enacted for the purpose of conferring limited standing on the

LITISATI0N
Attorney General rather than as a statute intended to effect a dramatic expansion of municipal liability. II. "PATTERN OR PRACTICE" ANI> "POLICY OR CUSTOM" ARE NOT
ALTERNATIVE STANDARDS OF LIABILITY Amici's argument that "pattern or practice" is an alternative to "policy or custom" presupposes that the terms are separate and distinct and that they are always used in the same statutory contexts. Both presuppositions being invalid, however, their argument is fatally flawed and the terms are simply not comparable as alternative liability standards. First of all, rather than being used to describe a liability standard separate and distinct from the "policy or custom" test, "pattern" and "practice" are part and parcel of the "custom" component of that test. In fact, the terms "pattern" and "practice" are used repeatedly in describing what is necessary to show a "custom or usage" under Monell v. New York City Dep 't of Social Services, 436 U.S. 658 (1978). Monell itself provides for the imposition of government liability not only when the challenged conduct executes or implements a formally adopted policy, but also when that conduct reflects "practices of state officials so permanent and well settled as to constitute a 'custom or usage' with the force of law." Id. at 691 (emphasis added). And in the case law developing when these "practices" rise to the level of a "custom or usage" attributable to the governmental body, MonelVs, progeny describe practices which reflect a pattern of conduct. See, e.g., Alton v. Texas A&M Univ., 168 F.3d 196, 201 (5th Or. 1999) (no liability under Monell since plaintiff failed to prove that "school officials learned of facts or a pattern of misbehavior that would lead a reasonable official to believe that plaintiffs constitutional rights were being violated"); Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (in order to show municipal liability based on 'custom,' plaintiff must show the "existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees"); Ware v. Jackson County, 150 F.3d 873, 886 (8th Cir. 1998) (evidence of employee's sexual misconduct was permissible

L1TI3ATI0N
basis for jury to infer that a "pattern of unconstitutional conduct existed" in determining 'custom or usage' question); Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996) (police chiefs knowledge of officer's two prior instances of misconduct did not indicate a "'persistent and widespread' pattern of misconduct that amounts to a city custom or policy of overlooking police misconduct"); Cornfield v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993) (municipal liability for a failure to train may be established by policymakers' acquiescence in a "pattern or frequency of constitutional violations"); Walker v. New York, 974 F.2d 293, 300 (2d Cir. 1992) (allowing discovery "in order to determine whether there was a practice of condoning perjury...or a pattern of police misconduct sufficient to require the police department to train and supervise police officers to assure they tell the truth"); Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989) (evidence of municipal custom where police department had a "longstanding, wide-spread, and facially unconstitutional practice of breaking down doors without a warrant when arresting a felon"); Watson v. Kansas City, 857 F.2d 690, 696 (10* Cir. 1988) ("pattern of deliberate indifference" on the part of the police department constitutes some evidence of a custom or policy); Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987) ('custom or usage' can be found when the "duration and frequency of the practices warrants a finding of either actual or constructive knowledge by the...governing body that the practices have become customary among its employees"); Weaver v. Tipion County, 41 F. Supp.2d 779, 789 (W.D. Tenn. 1999) ("In general, to state a municipal liability claim under an 'inaction' theory, [plaintiff] must establish the existence of a clear and persistent pattern of unconstitutional conduct by municipal employees and notice or constructive notice of that pattern on the part of the municipality..."); Thomas v. District of Columbia, 8S7 F. Supp. 1, 5 (D.D.C. 1995) ("While the regulations [prohibiting intimate relations between prison inmates and guards] may exist, violations of them, or a pattern of such violations, may themselves be a

practice or custom."); Cower v. Metro Dade County, 801 F. Supp. 674, 679 (S.D. Fla. 1992) ("In order to impose liability under a 'custom or usage' theory of municipal liability, [plaintiff] must prove a longstanding and widespread practice that is deemed authorized by policymaking officials...").
If "pattern or practice" and "policy or custom" were both standards of municipal liability, the case law illustrated above would indicate that "pattern or practice" is only a more specific way of describing the "custom" component of the "policy or custom" standard. That would result in a standard of liability under § 14141 that is even narrower than "policy or custom"—a position that no party has argued. The only sensible explanation for the inclusion of "pattern or practice" in § 14141 is that it was not for the purpose of setting a new standard of liability, but rather to limit the authority of the Attorney General to bring a civil action under that statute to those instances in which there is systemic misconduct. In other words, while Congress intended to vest the Attorney General with standing to sue local governments, it limited that standing to situations in which the frequency and duration of the misconduct evidences a "pattern ox practice" of unconstitutional conduct. It is only in the context of a limitation on the Attorney General's standing that the "pattern or practice" language fits. And a statute enacted for this purpose need not—and did not—change the established law setting forth how to determine whether a local government has engaged in unconstitutional conduct. III. THE TEXT OF § 14141 DOES NOT REFLECT AN INTENT TO IMPOSE
VICARIOUS LIABILITY Amici's argument is not supported by reading the text of § 14141 "in the light of text of surrounding statutes," Vermont Agency of Natural Resources v. United States, 120 S.Ct. 1858, 1870 n.17, since § 14141 is devoid of explicit language evincing an intent to impose vicarious liability. Only when Congress has included such clear language, as in the ADA, ADEA and Title VII, has the imposition of vicarious liability been permitted. See, e.g., Meritor Savings
4

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Bank v. Vinson, 477 U.S. 57, 72 (1986) (finding vicarious liability applicable under Title VII based on its expansive statutory definition of "employer"). These statutes show that at the time § 14141 was enacted in 1994, Congress had an established mechanism for evincing its intent to impose vicarious liability via an explicit statutory definition. The fact that Congress did not utilize that established statutory mechanism in enacting § 14141 shows that it had no such intent. See Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 283 (1998) (finding no vicarious liability under Title IX which, in contrast to Title VH, contained no definitional aspect); cf. Touche Ross & Co. v. Redington, 442 U.S. 560, 572 (1979) (finding no implied private cause of action for damages for misstatements in financial reports because "when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly") (citations omitted).
The additional factor present in the instant case that compels this conclusion a fortiori is the alteration of the federal-state balance of power resulting from the enactment of § 14141. As noted in the Report and Recommendation, at 14, it is an established rule of statutory construction that "if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute." Vermont Agency of Natural Resources v. United States, 120 S-Ct at 1870. Section 14141 unquestionably involves a significant extension of federal power into a traditionally local function, regardless of what standard of liability is applicable. However, use of a vicarious liability standard would even more significantly alter this balance by authorizing the federal courts to hold a local government liable and impose remedies even when the local government has not caused the constitutional violations sought to he remedied. If Congress intended such a dramatic alteration of the balance between federal and state governments, surely the "unmistakably clear language" requirement would be applicable. But the awkward and vague

12/85/288817:13

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language of § 14141 is unmistakably unclear and thus cannot be read to effect the far-reaching alteration of the federal-state balance sought byamici.
If not for theutter lack of clarity inthe language of the statute, amici would nothave had to concoct their "alternative mechanism" theory. But even assuming arguendo that "pattern or practice" is an alternative to "policy or custom," that alone would not answer the question of whether liability under a "pattern or practice" standard was intended to be imposed vicariously. The statute must be stretched even further to complete its conversion from a statute imposing liability under established municipal liability standards into one imposing vicarious liability. In addition to the alternative of an interpretation under which an "intermediate" liability standard is imposed, plaintiff has advanced several different interpretations of the statute to achieve this conversion. Amici now argue yet another alternative interpretation. The fact that there are multiple interpretations coming from those seeking the same outcome best makes the point that there is no "unmistakably clear language" in § 14141that establishes a vicarious liability standard. And no matter which one ofplaintiff and amici's multiple interpretations is employed, the absence of the requisite clarity is fatal to their attempt to rewrite thestatute to impose such a standard.
Amici contend that theMagistrate Judge improperly imported § 19S3 law with respect to the proper liability standard for actions under § 14141. Yet, like the plaintiff, they mischaracterize her determination as a deviation from established law when in fact it is their position that would require a radical departure from established law. The parameters of a municipality's liability for the constitutional violations committed by its agents aretheresult of over twenty years of case law following the Supreme Court's decision in Monell. This is not some obscure or arcane area of law of which Congress can be said tobe unaware; rather, the law developed under Monell is well known and has generated significant debate. Moreover, the
6

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courts "assume that Congress is aware of existing law when it passes legislation." South Dakota v. Yankion Sioux Tribe, 522 U.S. 329, 351 (1998). Any departure from this established law would be highly controversial, but especially if taken to the extreme of imposing a Vicarious liability standard on local governments and the possibility of federal oversight of a traditionally local function based on that standard. Under these circumstances, if Congress intended such a departure surely it would not rely on implication or negative inference, but on a direct, express rejection of existing law. See Jones v. United States, 526 U.S. 227, 234 (2000) ("Congress is unlikely to intend any radical departures from past practice without making a point of saying so."). There being no such rejection of established law, the Report and Recommendation properly recognizes that adherence to that law is required here. IV. THERE IS NO LEGISLATIVE HISTORY REFLECTING AN INTENT TO
IMPOSE VICARIOUS LIABILITY Amici acknowledge the fact that there is no direct legislative history relating to § 14141, as noted in the Report and Recommendation at 5. And as defendant City discussed in replying to plaintiffs objections to the Report and Recommendation, even the scant indirect history that is available supports a construction of the statute as one addressing the narrow issue of standing rather than as a far-reaching expansion of municipal liability. Finding no support for their expansive interpretation in this indirect history, amici reach back even further to selected testimonial excerpts from a 1991 House subcommittee report on the issue, generally, of police brutality. However, this testimony upon which they rely is not proper for consideration by this Court in its determination of the legislative intent behind § 14141. First, this subcommittee was not considering any proposed legislation, and thus, even if some legislative intent could be gleaned from its report, there is no legislation to which it could be ascribed. At least the indirect history that the parties have previously discussed dealt with proposed legislation that was substantially similar to that which was enacted. But even if amici's subcommittee had been
7

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considering proposed legislation, any such legislation would be at least twice removed from the legislation that was ultimately enacted as § 14141. The generic connection between a 1991 subcommittee report that preceded any proposed legislation and legislation that was enacted in 1994 is so attenuated as to render that report irrelevant to any determination of the intent behind the 1994 legislation. "In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature's intent lies in the Committee Reports on the bill, which '[represent] the considered and collective understanding of the Congressmen involved in drafting and studying the proposed legislation.'" Garcia v. United States, 469 U.S. 70, 76 (1984) (quoting Zyber v. Allen, 396 U.S. 168, 186 (1969)). Accordingly, amici's subcommittee report is not a proper source for this Court to consider in determining the intent behind § 14141.
Nevertheless, even the selected testimony upon which amici rely does not reflect any intent to abrogate the holding of Monell and impose liability on municipalities vicariously. In fact, the testimony merely expressed concern that Monell was going to be increasingly restrictively interpreted by the courts, making it difficult for plaintiffs to establish municipal liability. Police Brutality: Hearings Before the Subcomm. on Civil and Const. Rights of the House Comm. on the Judiciary (1991) ["Police Brutality Hearings"], Amici's Exhibit B, at 126. Yet even the hand-wringing by the plaintiffs' bar and sympathetic members of the subcommittee did not go beyond an expression of this concern, or at most, an expression of disagreement with a restrictive interpretation of Monell. Their statements do not go so far as to suggest or advocate legislative nullification of Monell or legislative imposition of any new standard of municipal liability. More importantly, there is no report from this subcommittee adopting such a radical position. Rather, the statements of both witnesses and subcommittee members reflect advocacy of the same limited goal as found in the subsequent Committee Report dealing with the Police Accountability Act of 1991 - That is, they reflect an intent to address the Attorney General's lack
8

LITI«T.m
of authority to file civil actions and seek prospective equitable relief in cases of systemic police misconduct.
Notably, the suggested legislative remedy for this perceived statutory deficiency was to draft legislation modeled after the Civil Rights of Institutionalized Persons Act of 1980 ("CRIPA"), 42 U.S.C § 1997 et seq. Police Brutality Hearings at 123, 175. As previously noted, CRIPA is nothing more than a standing statute. See United States v. Tennessee, 798 F.Supp. 483, 488 (W.D. Term. 1992) ("As agreed by all parties, CRIPA does not establish substantive rights, but only gives the Attorney General standing to file suit to enforce constitutional or statutory violations."). And as a standing statute, § 14141, like CRIPA, was enacted for the limited purpose of providing standing for the Attorney General—not to alter the contours of governmental liability for constitutional violations. Cf. United States v. Pennsylvania, 902 F.Supp. 565, 579 (W.D. Pa. 1995) (In CRIPA actions, the United States is required to prove the same essential elements of a constitutional violation as any individual civil rights plaintiff). V. THE POLICY OBJECTIVES NOW ADVANCED BY THESE AMICI DO NOT
REFLECT THE INTENT OF CONGRESS NOR DICTATE THE PROPER INTERPRETATION OF THE STATUTE Amici's reference to what they characterize as "commonsense notions" in support of their interpretation of § 14141 reflects the ends-justifies-means bias that permeates their entire argument. They contend that local government entities can "almost invariably do something to stop" a pattern of constitutional violations even though the entity did not cause, or was not deliberately indifferent to, that pattern. Brief of Amici at p. 8. Besides, they argue, it is a waste of time to search for the policymaker responsible for a policy where a pattern exists. Id. With these "notions" as the principles guiding interpretation of § 14141, it is undoubtedly much easier to transform it into a vicarious liability statute. "But no legislation pursues its purposes at all

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costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice—and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be law." Rodriguez v. United States, 480 U.S. 522, 526 (1987) (emphasis in original). Thebalancing of these competing values takes on added significance when, as inthe instant case, the legislation will significantly impact the federal-state balance of power. And while the values nowadvocated by amici may well have been factors in that balancing (although that is not reflected in anyrelevant legislative history), those values would have been only a part of the equation. Amici's analysis, however, erroneously presumes that the opinions regarding the proper liability standard now expressed by one small faction of current House members are representative of the intent of the entire Congress when § 14141 was enacted in 1994. These post-enactment opinions are not probative of the legislative intent behind § 14141, but rather merely reflect what these current members believe the standard should be. Hadthe majority of the Congress agreed that vicarious liability was theproper standard, not only would that intent be clearly reflected in the legislative history, but more importantly, the statute could have been written to impose that standard unequivocally. But neither the indirect legislative history nor the statute reflects any intent to change the established law regarding when a municipality may be held liable for the constitutional violations of its agents. VI. CONCLUSION
Congress did not expressly reject the "custom or policy" standard, either in the language of § 14141 or in theindirect legislative history. It is only under amici's "alternative mechanism" theory that Congress' choice to use"pattern or practice" in the statute also amounts to an implicit rejection of the "custom or policy" standard. However, their theory is fatally flawed because these terms are not comparable alternatives, much less mutually exclusive. Even accepting
10

12/_05/2000 17-13 0803

SPECIAL LITIGATION

PAGE 13/14

amici's theory for the sake of argument, the use of "pattern or practice" in a statute still does not, in and of itself, answer the question of whether Congress intended to impose liability for that "pattern or practice" vicariously. With the only legislative history indicating that § 14141 was only intended to fill a perceived gap in § 1983 law with respect to prospective injunctive relief, there is no basis to conclude that Congress intended to drastically expand the contours of municipal liability by imposing a vicarious liability standard to actions under § 14141.
Wherefore, for the foregoing reasons and those previously set forth, defendant City respectfully requests that the United States' objections to the Report and Recommendation be overruled.
Respectfully submitted, CITY OF COLUMBUS, DEPARTMENT OF LAW JANET E. JACKSON, CITY ATTORNEY

\ -

A •-

Timothy J. Marigan (0025430) / \

Senior Litigation Attorney

V \

Trial Attorney for Defendant City of CbiUmbus

Andrea C. Peeples (0063226)

Joshua T. Cox (0029860) Jeffrey R. Bennington (0072425) Assistant City Attorneys Co-Counsel for Defendant City of Columbus

50 West Broad Street, Suite 1425 Columbus, Ohio 43215 (614)645-0804

11

17=,3 ea.3

SPECIaL LITIGflTJ0N

CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing was sent by facsimile and regular U.S. Mail,
postage prepaid, to:
James Eichner Special Litigation Section Civil Rights Division U.S.Dept of Justice P.O. Box 66400 Washington, DC 20035-6400
James Phillips Vorys, Sater, Seymour & Pease 52 East Gay Street P.O. Box 1008 Columbus, OH 43216-1008
Samuel Bagenstos 1545 Massachusetts Avenue, A127 Cambridge, MA 02138
C. David Henderson 2074 Galisteo, Suite B-5 P.O. Box 4111 Sante Fe, New Mexico 87502
d a v of December, 2000.
Timothy J. Mangan Senior Litigation Attorney C

12

 
 Vorys, Sater, Seymour and Pease LLP
52 East Gay Street • Post Office Box 1008 • Columbus, Ohio 43216-1008 • Telephone (614) 464-64OO • Facsimile (614) 464-635O • Cable VOHYSATER

Douglas L. Itogcrs Direct Dial (614) 464-5407 Facsimile (614)710-4928 I£-Mail • (Jlrogcrsfc.vssp.com

December 11,2000

VIA FACSIMILE AND REGULAR U.S. MAIL

Mark Masling Steven H. Rosenbaum Mark A. Posner James Eichner Special Litigation Section Civil Rights Division United States Department of Justice P.O. Box 66400 Washington, DC 20035-6400
Sharon J. Zealey United States Attorney Two Nationwide Plaza 280 North High Street Columbus, Ohio 43215

Timothy J. Mangan Andrea Peeples Joshua T. Cox Office of the City of Columbus 50 West Broad Street Suite 1425 Columbus, Ohio 43215
Samuel R. Bagenstos 1545 Massachusetts Avenue, A 127 Cambridge, Massachusetts 02138
Margo Schlanger 1525 Massachusetts Avenue, G301 Cambridge, Massachusetts 0213 8

Re: Dear Counsel:

United States of America v. City of Columbus, Ohio, et al. Civil No. C2-99-1097

Enclosed please find a copy of the Reply of Defendant Fraternal Order of Police, Capital City Lodge No. 9, to United States' Response to theMemorandum of Amicus Curiae Grand Lodge of the Fraternal Order of Police which was filed today in the above court.

Sincerely,

DLR/dmg Enclosure
12/11/00-8777811

Douglas L. Rogers
US v. City of Columbus

• • • Ml

HH

BH

HH H

m

PN-OH-001-030

FILED

IN THE UNITED STATES DISTRICT COURT CLtvVsx

FOR THE SOUTHERN DISTRICT OF OHIO

,.

EASTERN DIVISION

00 DEC W ™ M>

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

CITY OF COLUMBUS, OHIO, et gj.,

)

)

Defendants.

)

cpiJT^Ri; I;ioT.
^^/.^u
Civil No. C2-99-1097
Judge Holschuh
Magistrate Judge King

REPLY OF DEFENDANT FRATERNAL ORDER OF POLICE. CAPITAL CITY LODGE NO. 9. TO UNITED STATES' RESPONSE TO THE MEMORANDUM
OF AMICUS CURIAE GRAND LODGE OF THE FRATERNAL ORDER OF POLICE
James E.Phillips (0014542) VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 (614)464-5610 Trial Attorney for Defendant Fraternal Order of Police, Capital City Lodge No. 9
John J. Kulewicz (0008376) Douglas L. Rogers (0008125) VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 (614) 464-6400 Of Counsel for Defendant Fraternal Order of Police, Capital City Lodge No. 9

I. INTRODUCTION The Department of Justice ("DOJ") confuses (1) the power of Congress to
give the DOJ standing when there is a case or controversy between a citizen and a defendant1 with (2) the absence of power in Congress to declare a case or controversy under Article III and let the DOJ pick a fight against a municipality which has not violated, and is not violating, federal law.2 Of course, in the present case, Congress did even not attempt to create vicarious liability under §14141.
Apparently recognizing that the text and legislative history do not support the DOJ's vicarious liability interpretation of §14141, the DOJ mistakenly travels for support back to England in the century the United States revolted against England.3 That travel would be appropriate when considering a suit similar to suits which existed in England at the time of adoption'of Article III of the Constitution. However, the practice in England at that time has no bearing on whether the Federal government can regulate the conduct of state and local governments based on vicarious liability. Achieving the appropriate balance between the central power and the states is the crux of federalism, a reason the colonies revolted, and not even an issue in England at the time.
1 See cases cited by DOJ at pp 4-5 of United States' Response to the Memorandum of Amicus Curiae Grand Lodge of the Fraternal Order of Police (the "DOJ Response") on giving the United States "standing to bring suit to remedy injuries suffered by its citizens." 2 Bennett v. Spears, 520 U.S. 154, 162 (1997). 3 See p. 13 of DOJ Response.
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Title VII cases, moreover, do not support the DOJ's argument. They in fact show that even when Congress has defined "employer" to include "agents" of the employer, as it has under Title VII, the plaintiff must still allege a nexus between the employer and employee beyond simply the employer/employee relationship.
II. THE GRAND LODGE OF THE FRATERNAL ORDER OF POLICE (THE "GRAND LODGE") CORRECTLY ARGUES THAT THERE IS NO CASE OR CONTROVERSY AGAINST A MUNICIPALITY BASED ON ALLEGED MISCONDUCT BY INDIVIDUAL OFFICERS
The DOJ acknowledges that standing for purposes of Article III of the constitution has three elements: (1) injury in fact, that is, "harm that is both concrete and actual or imminent, not conjectural or hypothetical;" (2) "causation-a fairly ... trace [able] connection between the alleged injury in fact and the alleged conduct of the defendant;" and (3) "redressability-a substantial likelihood that the requested relief will remedy the alleged injury in fact." Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 120S.Ct. 1858, 1862 (2000) (emphasis added; citations and internal quotation marks omitted). The DOJ, however, misapplies these requirements to the case at hand.4
In suggesting it is the "ultimate parens patriae," the DOJ appears to argue that its interests as a sovereign gives it standing even if a class of individuals
4 The Fraternal Order of Police, Capital City Lodge No., 9 (the "FOP") did not raise the case or controversy argument in its Briefs, since §14141 does not impose vicarious liability. However, the FOP agrees with the argument of the Grand Lodge that if § 14141 were interpreted to impose vicarious liability, § 14141 could not create a case or controversy against the City of Columbus,
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would not have standing.5 The question remains unanswered -standing against whom? Accepting for the sake of argument that the United States, as sovereign, is injured when the rights of a citizen are violated, nonetheless, a "pattern or practice" of misconduct does not commit itself. The DOJ's preferred social policies on "what steps might... have the potential for prevention of future police misconduct,'" does not create a case or controversy within the meaning of Article III. Rizzo v. Goode, 423 U.S. 362, 371 (1976).
A. Causation Under Article III Requires A Sufficient Link To A Policy Or Practice Of The City, And This Link Is Not Provided By The Doctrine Of Re$pondeat Superior
The DOJ acknowledges6 it is required to allege that any injury to its interests is "fairly traceable" to some specific act by the City, rather than "the result of the independent action of some third party not before the court." Bennett v. Spear, 520 U.S. 154, 167 (1997). The DOJ must allege more than a mere "failure to act in the face of a statistical pattern." Rizzo, 423 U.S. at 377. Instead, it must allege affirmative conduct by the governmental unit, such as injury produced by the "determinative or coercive effect" of government action "upon the action" of its employees. Bennett, 520 U.S. at 169.
and the United States would not have standing within the meaning of Article III of the Constitution. This Reply only looks at some of the ways the DOJ misapplies the three elements. 5 Pages 4-5 of DOJ Response. In Pennsylvania v. Porter, 659 F2d 306, 316-17 (3rd Cir. 1981), cert denied, 458 US 1121 (1982), the Third Circuit approved of a parens patriae suit by the Commonwealth, but warned that such suits may not be "resorted to as devices for the vindication of private rights that would not otherwise be within federal subject matter jurisdiction." 6 Page 6 of DOJ Response.
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The DOJ argues incorrectly that Rizzo had nothing to do with the issue of causation, only the existence of injury in fact, and merely found past injury insufficient to support standing when unaccompanied by allegations of ongoing harm.7 In fact, in Rizzo, the Court held standing was lacking both because of the lack of allegations of ongoing harm to the class representatives and because the "claim to 'real and immediate' injury rest[ed] not upon what the named petitioners might do to them in the future ... but upon what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman's perception of departmental disciplinary procedures." 423 U.S. at 372.
Similarly, the DOJ's gloss on City of Los Angeles v. Lyons, 461 U.S. 95 (1980),8 overlooks the Court's statement indicating that standing would require allegations of official approval of illegal conduct. 461 U.S. at 110. ("Nothing in that policy, contained in a Police Department Manual, suggests that chokeholds... are authorized absent some resistance or other provocation by the arrestee or other suspect"). Also, in Thomas, et al. v. County of Los Angeles, 978 F.2d 504, 507 (9th Cir. 1991), the Ninth Circuit held standing was present under Article III to sue local government, and not simply the individual officers when both (a) the members of the plaintiff class were suffering continued violations; and (b) the complaint alleged "a direct link between the department policy makers and the injuries suffered by the plaintiffs."
7 DOJ Response at p. 11.
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In Pennsylvania v. Porter, 659 F.2d 306, 321 (3d Cir.1981), cert, denied, 458 U.S. 112] (1982), the Third Circuit recognized that "as a statement of the appropriate scope of federal equitable relief," Rizzo required it to "focus on the degree to which" city officials and the council "participated in [the officer's] pattern of violation[s] by virtue of knowledge, acquiescence, support and encouragement." (citing Allee v. Medrano, 416 U.S. 802, 812 (1974)}. The Porter court went on to state "the officials' misconduct cannot be merely a failure to act. Such officials must have played an affirmative role in the deprivation of the plaintiffs' rights, le., there must be a causal link between the actions of the responsible officials named and the challenged misconduct." k l at 336.
Instead of allegations of such an "affirmative role," the DOJ relies on vicarious liability.9 None of the cases cited by the DOJ, however, support the use of vicarious liability in the case of an injunction against a state or local government for a pattern or practice of violation of federal laws solely through the actions of some of its employees. The vast majority of the cases cited address the award of monetary damages and do not even address the issue of standing. City of Chicago v. Matchmaker Real Estate Center, Inc., 982 F.2d 1086 (7th Cir. 1993) does address standing, but standing against a private party, not standing to obtain an injunction for a pattern and practice of illegal conduct. The Seventh Circuit addressed the issue of whether the plaintiffs had been
8 DOJ Response at p. 5. 9 See, e.g., p. 3, n.4 of DOJ Response.
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injured in the past sufficient to warrant the award of compensatory damages against a private party. No issue of federalism was present.
It is telling that the DOJ holds out United States v. Parma, 661 F.2d 562 (6th Cir. 1981), as a model of what is required under Sixth Circuit law to sustain an injunction against a municipality.10 Contrary to the DOJ's suggestion, however, the City of Parma was not subjected to a federal injunction based on "vicarious liability" for the "acts of its employees." Rather, the Sixth Circuit upheld an injunction entered against the City based on express findings that the City itself had engaged in a pattern and practice of discrimination against African Americans that was motivated by racial animus. The District Court there had found "Parma engaged in a pattern and practice of resistance to the full enjoyment of the rights granted by Sections 804(a) and 817 of the Fair Housing Act by following a consistent policy of making housing unavailable to black persons." Id. at 568. The District Court specifically found that a series of actions by the City government itself "individually and collectively, were motivated by a racially discriminatory and exclusionary intent." Id.11
There are no allegations made by the DOJ in this case that come close to this standard. The DOJ has not alleged that the City of Columbus has a policy or practice causing its police officers to violate the constitutional rights of its citizens. The DOJ has not alleged a series of decisions on the part of the City
10 Page 3, n.4 of DOJ Response. 11 The Sixth Circuit affirmed the findings of the District Court, reversing only the District Court's appointment of a special master. Id. at 576 and 578.
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government motivated by an improper intent. The DOJ instead pins its hopes on vicarious liability. § 14141 does not authorize vicarious liability.
B. The Injury Alleged By the DOJ Is Not Redressable By This Court Within The Meaning Of Article III
In Rizzo, the Court stated that "[g]oing beyond considerations concerning the existence of a live controversy and threshold statutory liability," it also had to address "the additional and novel claim" that a right to equitable relief existed "when those in supervisory positions do not institute steps to reduce the incidence of unconstitutional police misconduct." 423 U.S. at 377-78. The Supreme Court rejected this claim as being "quite at odds with the settled rule that in federal equity cases 'the nature of the violation determines the scope of the remedy,'" and noted that, "important considerations of federalism are additional factors weighing against it." ]g\. The Supreme Court held that "[w]hen [the District Court] injected itself by injunctive decree into the internal disciplinary affairs of this state agency, the District Court departed from [controlling legal] precepts," such as "principles of federalism." k± at 380.
Several conclusions arise from these passages in Rizzo. First, the DOJ is wrong when it asserts that the Supreme Court viewed its holdings on these issues as simply a question of "statutory liability,"12 since the Supreme Court said it had to go beyond the issue of statutory liability. Second, the DOJ's argument that issues of federalism have nothing to do with the determination of whether it has
12 Page 12 of DOJ Response.
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standing to seek an injunction against an instrumentality of state government13 is contrary to Rizzo. Third, as set forth below in more detail, Rizzo's discussion of the limits on a federal court's equitable power shows the DOJ's "redressabilty" argument is invalid.
The DOJ argues that because a structural injunction might have a salutary effect, ipso facto this Court has the jurisdiction to issue it.14 Rizzo holds, however, that absent allegations the defendant had played an affirmative role in causing police misconduct, it is not within the scope of federal equitable power to enjoin that official in an attempt to "minimize" such misconduct in the future. In other words, that claim is not "redressable" by a federal court.
In arguing to the contrary, the DOJ engages in circular reasoning. DOJ attempts to negate the redressability requirement first by arguing that the causation and redressability requirements are essentially the same.15 DOJ then argues that because injunctive relief (regardless of whether the court has the authority to grant such relief) against a city might lessen police misconduct, the causation requirement is also met, effectively eliminating the causation requirement.16
The fact that a "conceivable" remedy might exist if the limits on a court's authority were different does not negate those limits. Rizzo shows that one limit on federal judicial power in cases involving state and local government officials
'3 Page 9, n6 of DOJ Response. 14 Pages 8-9 of DOJ Response. 15 Page 7 of DOJ Response.
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is the requirement of something more than a mere failure to act when faced with misconduct by another party (or non-party). This limit is not based on an empirical assessment of the possible effects of a remedial order, but on a legal assessment of the "proper - and properly limited - role" of a federal court when asked to inject itself into the internal affairs of a state agency. Bennett, 520 U.S. at 162.

II.

TITLE VII CASES DO NOT PROVIDE SUPPORT FOR THE FEDERAL GOVERNMENT

TO IMPOSE VICARIOUS LIABILITY O N MUNICIPAL GOVERNMENTS UNDER

§14141

Title VII expressly defines "employer" to include the employer's "agents,"17

including employees, so of course courts treats employers and employees as the same under some Title VII cases. In contrast, in §14141,18 Congress specifically

separated the prohibition against actions of employees from the actions of local

governmental units. However, under Title VII, even in an action by a private

party against a private employer and the inclusion of "agent" within the

definition of "employer," liability is not strict vicarious liability, liability imposed "because of the relationship between the two parties."19 Instead, the courh have established tests short of strict vicarious liability.20

16 Page 9 of DOJ Response. 17 42 USC §2000e, a t t a c h e d as Exhibit A. ™ 42 U.S.C. §14141, a t t a c h e d as Exhibit B. 19 Cite Blacks' Law Dictionary. 20 Meritor Savings Bank v. Vinson, 477 US 57, 72 (1986) ("we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors"); and EEOC v. Dinuba Medical Clinic. 222 F.3d 580, 586-7 (9th cir. 2000) ("if the harassment is actionable and the harasser has supervisory authority over the victim, we presume that the employer is vicariously liable for the harassment.... The presumption of vicarious liability 'may be overcome...").
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Moreover, when the Attorney General files a suit under Title VII, she must have a reasonable cause to believe there is a pattern or practice of violations.21
Even though Title VII defines "employer" to include agents of the employer,
simply alleging that agents of the employer engaged in a pattern and practice
of illegal conduct is not sufficient. In order to prove an illegal pattern and
practice under Title VII, the DOJ may not rely on an attenuated form of vicarious
liability, but must show that the pattern and practice of violation of rights is the
"standard operating procedure" of the defendant, not just repeated acts of the employees.22
The DOJrecites a truism and again puts the cart before the horse, saying
"[w]hen an employer has engaged in a pattern and practice and practice of
discrimination, courts have not only the power, but the duty, to enjoin discriminatory behavior."23 The question is not the remedy, but what allegations
must be made to allow the case to continue.
The DOJcites two Title VII cases and claims that "courts have routinely
held...public entities vicariously liable for the actions of their employees," citing
21 42 USC§2000e-6, a t t a c h e d as Exhibit C. 22 International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977). 42 U.S.C. §2000e-6 uses the term "engage," but since employer is defined to include agents of the employer, arguably acts of the agents would be deemed to be acts of the employer. The Supreme Court has rejected this argument in International Brotherhood of Teamsters. In §14141, local government units are treated separately from agents, and the reference to "engage" in § 14141 must refer to acts constituting official policies or practices of the local government. » Page 14 of DOJ Response. DOJ cites U.S. v. City of Chicago, 411 F.Supp. 218, 242 (N.D.III. 1976), which involved official policies and practices of the City of Chicago which discriminated on the basis of sex and race, such as the administration of tests to prospective employees, and formal height and weight requirements. It did not involve vicarious liability, nor did U.S. v. Roadway; Express, Inc., 457 F2d 854, 866 (6'* Cir. 1972), also cited by the DOJ at p. 15 of the DOJ Response.
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Farragher v. City of Boca Raton, 524 U.S. 742, 755-56 (1998), and Allen v. Michigan Department of Corrections, 165 F.3d 405, 411 (6th Cir. 1999). Faraqher and Allen are not applicable to the present case. First, Title VII defines "employer" to include agents of the employer. Second, although the Supreme Court in Faraqher referred to vicarious liability, in fact that liability was subject to a condition: discriminatory action of a supervisor, who in the context of hiring and firing decisions would be deemed to be the policymaker. Third, Faraqher did not involve a pattern or practice but a case filed by an individual asking for damages.24 Finally, Title VII applies to both private and public employers and, unlike §14141, does not single out municipalities and control the actions of municipal employees toward private parties.
In Printz v. United States, 521 U.S. 898, 919-920 (1997), the Supreme Court held that the Brady Handgun Violence Prevention Act was unconstitutional, because it imposed duties on local governments in their contacts with private citizens. The Supreme Court noted that the Framers of the Constitution "rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and federal governments would exercise concurrent authority over the people." The Supreme Court added that the Tenth Amendment was not "the exclusive textual
24 Allen was also not a pattern or practice case. In Allen there is no suggestion of vicarious liability with respect to the racial discrimination claim. With respect to the racial harassment claim, the Sixth Circuit said "MDOC may be subject to vicarious liability for Allen's claims regarding the actions of its supervisory employees, subject to its ability to raise the abovementioned affirmative defenses." Id. at 412.
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source of protection for principles of federalism. Our system of dual sovereignty is reflected in numerous constitutional provisions... and not only those, like the Tenth Amendment, that speak to the point explicitly." ]d. at 923 n. 13.
In New York v. United States, 505 U.S. 144, 156 (1992), the Supreme Court said that if Congress had the authority to regulate private activity under the Commerce Clause, Congress could "offer States the choice of regulation that activity according to federal standards or having state law pre-empted by federal regulation." ld_.at 167. The Court held that the Low Level Radioactive Waste Policy Amendments Act of 1985 was inconsistent with the Tenth Amendment and unconstitutional, because "the Act commandeers the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program, id. at 176, quoting Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981). See also Jett v. Dallas Independent School District, 491 U.S. 701, 728 (1989) ("Congress could not constitutionally 'insist that the states are bound to provide means to carry into effect the duties of the national government'").
The DOJ cites no Title VII case in which a court approved proceeding on a theory of vicarious liability against a municipality for a pattern and practice of violations of federal law by its employees. Indeed, it even misstates the holding of a Supreme Court case:
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Allegation bv DOJ

What the Court Said

Hazelwood School District v. United States, 433 U.S. 299 (1977): "(upholding order to cease racial discrimination, promulgate new hiring and recruitment procedure, and submit periodic progress reports to Government in pattern and practice case)" (p. 15 of DOJ Response)

"The District Court ruled that the Government had failed to establish a pattern or practice of discrimination....The Court of Appeals... reversed....the Court of Appeals erred in substituting its judgment for that of the District Court and holding that the Government had conclusively proved its 'pattern or practice lawsuit'....the Court of Appeals....should have remanded the case to the District Court for further findings as to the relevant labor market area and for an ultimate determination of whether Hazelwood engaged in a pattern or practice of employment discrimination after March 24, 1972. Accordingly, the judgment is vacated...." |g\ at 304, 309 & 313 (emphasis added).

EEOC v. Wilson Metal Casket Company, 24 F3d 836 (6th Cir. 1994): "The broad equity power even extends to enjoining conduct that would otherwise be lawful," and also "(ordering supervisor to curtail conduct with female workers outside of office)." (Page 15 of DOJ Response.)

There is no suggestion that relief can be ordered against a defendant when that defendant has not violated the law: '"In fashioning relief against a party who has transgressed the governing legal standard, a court of equity is free to proscribe activities that standing along, would have been unassailable.'" ]d_.at p. 842. (emphasis added). In addition, the individual enjoined was not simply a supervisor, but the owner and operator of the corporation, who had personally and repeatedly harassed various female employees. Id. at 838 and 842.

EEOC v. Dinuba Medical Clinic. 222 F3d Suit was against a private company,

580 (9th Cir. 2000): "The fact that an

and only referred to a presumption of

employer is vicariously rather than

vicarious liability, and then only if a

directly liable for the effects of

supervisor was involved: "Under the

discrimination does not prevent courts Faragher rule, 'if the harassment is

from imposing broad injunctive relief." actionable and the harasser has

(Page 15 of DOJ Response.)

supervisory authority over the victim,

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Knox v. State of Indiana, 93 F3d 1327 (7th Cir. 1996): "(permanent injunction barring state from engaging in retaliatory conduct toward plaintiff and ordering state to post antiretaliation policy)." (Page 15 of DOJ Response.)
Stafford v. State. 835 F.SUDD. 1136 (W.D.Mo. 1993): "(state ordered to post antidiscrimination policy in vicarious liability sex harassment case)"(p. 15 of DOJ Response)

we presume that the employer is vicariously liability for the harassment....The Faragher affirmative defense requires proof of two elements by a preponderance of the evidence: '(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.'" id. at 586. (emphasis added)
""an employer can be held liable under Title VII for sexual harassment by an employee's co-workers if the employer had actual or constructive knowledge of the harassment and failed to address the problem adequately....there is nothing to indicate that the principle of employer responsibility does not extend equally to other Title VII claims, such as a claim of unlawful retaliation. In brief, there are two questions: (l)is the right link established between the employer and the co-workers, so that the employer can be held responsible for their actions, and (2) does the conduct complained of constitute something actionable under the statute...."id. at 1334. (emphasis added)
"To prevail on a hostile environment sexual harassment claim, plaintiff must establish that: 1) she belongs to protected group, 2) she was subject to unwelcome sexual harassment, 3) the harassment was based on sex, 4) the harassment affected a 'term, condition, or privilege of employment, and 5) the employer knew or should

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have known of the harassment in question and failed to take proper remedial action....To prevail on any disparate treatment Title VII claim, plaintiff must establish that the defendant intentionally discriminated aaainst her. St. Marv's Honor Center v. Hicks, U.S. , , 113 S.Ct. 2742. 2745...(1993).)." Id, at 1149-50 (emphasis added)
Title VII cases, in short, do not suggest that Congress imposed vicarious liability in §14141. Even if Congress had attempted to impose vicarious liability in §14141, moreover, it would have exceeded its authority under section 5 of the Fourteenth Amendment. See Section D of the Response of the Fraternal Order of Police, Capital City Lodge No. 9, to DOJ Objections to Report and Recommendations of Magistrate Judge King.
IV. CONCLUSION
Section 14141 does not expand the standing of the DOJ to obtain an injunction against a municipality under Article III based on vicarious liability. DOJ's vicarious liability argument would allow it to inject itself into the internal policies of a state or municipal government whenever it disagreed with the manner in which such agencies conducted their business. These policy preferences cannot take the place of the case or controversy requirement of Article III.
The DOJ wants to impose vicarious liability on the City of Columbus, but § 14141 does not authorize the imposition of vicarious liability. § 14141 instead
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distinguishes local governments from their employees , in contrast to Title VII, and prohibits actions by local government and separately prohibits actions by their agents. Title VII is inapplicable. For the reasons set forth in this Reply and the other briefs it has filed in this matter, the FOP respectfully requests that this Court approve the Report and Recommendation of Magistrate Judge King.
Respectfully submitted,
es E. Phillips, Trial Attorney (001454*2) 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 (614)464-5610 Trial Attorney for Defendant Fraternal Order of Police, Capital City Lodge No. 9 OF COUNSEL: John J. Kulewicz (0008376) Douglas L. Rogers (0008125) VORYS, SATER, SEYMOUR AND PEASE LLP 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 (614)464-6400 Attorneys for Defendant Fraternal Order of Police, Capital City Lodge No. 9
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CERTIFICATE OF SERVICE
I served a copy of this Response of Defendant Fraternal Order of Police, Capital City Lodge No. 9, to Brief of Amicus Curiae in Support of the United States' Objections to Magistrate Judge's Report upon Mark Masling, Steven H. Rosenbaum, Mark A. Posner and James Eichner, Special Litigation Section, Civil Rights Division, United States Department of Justice, P.O. Box 66400, Washington, D.C. 20035-6400; Sharon J. Zealey, United States Attorney, Two Nationwide Plaza, 280 North High Street, Columbus, Ohio 43215; Timothy J. Mangan, Senior Litigation Attorney, Andrea Peeples and Joshua T. Cox, Assistant City Attorneys, Office of the Columbus City Attorney, 50 West Broad Street, Suite 1425, Columbus, Ohio 43215; Samuel R. Bagenstos, 1545 Massachusetts Avenue, A 127, Cambridge, Massachusetts 02138, and Margo Schlanger, 1525 Massachusetts Avenue, G301,Cambridge, Massachusetts, 02138 by facsimile and first-class U.S. mail on December {]__, 2000.
Douglaja. Rogers (00081

12/11/00 -8780040 2

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WAIS Document Retrieval

From the U.S. Code Online via GPO Access [wais.access.gpo.gov] [Laws in effect as of January 2 7 , 1998] [Document not affected by Public Laws enacted between
January 27, 1998 and April 7, 2000] [CITE: 42USC2000e]

TITLE 42 — T H E PUBLIC HEALTH AND WELFARE

CHAPTER 21—CIVIL RIGHTS

SUBCHAPTER VI—EQUAL EMPLOYMENT OPPORTUNITIES

Sec. 2000e. Definitions

For the purposes of this subchapter-(a) The term "'person11 includes one or more individuals,
governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under title 11, or receivers. ,
(b) The term '"employer'' means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of title 5 ) , or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.
(c) The term '"employment agency1' means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.
(d) The term '"labor organization1' means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.
(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is (A) twenty-five or more during the first year after March 24, 1972, or (B) fifteen or more thereafter, and such labor organization--
(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended [29 U.S.C. 151 et s e q . ] , or the Railway Labor Act, as amended [ 4 ^
ll

EXHIBIT

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U.S.C. 151 et s e q . ] ; (2) although not certified, is a national or international
labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or
(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2); or
(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or
(5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection.
(f) The term "employee*' means an individual employed by an employer, except that the term *'employee'' shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.
(g) The term commerce'' means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.
(h) The term '"industry affecting commerce'1 means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry ''affecting commerce1' within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C. 401 et s e q . ] , and further includes any governmental industry, business, or activity.
(i) The term ''State'1 includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.].
(j) The term ''religion1' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.
(k) The terms ''because of s e x 1 ' or ''on the basis of s e x 1 ' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or
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inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.
(1) The term complaining party1' means the Commission, the Attorney General, or a person who may bring an action or proceeding under this subchapter.
(m) The term "demonstrates" means meets the burdens of production and persuasion.
(n) The term "respondent11 means an employer, employment agency, labor organization, joint labor-management committee controlling apprenticeship or other training or retraining program, including an on-the-job training program, or Federal entity subject to section 2000e-16 of this title.
(Pub. L. 88-352, title VII, Sec. 701, July 2, 1964, 78 Stat. 253; Pub. L. 89-554, Sec. 8 (a), Sept. 6, 1966, 80 Stat. 662; Pub. L. 92-261, Sec. 2, Mar. 24, 1972, 86 Stat. 103; Pub. L. 95-555, Sec. 1, Oct. 31, 1978, 92 Stat. 2076; Pub. L. 95-598, title III, Sec. 330, Nov. 6, 1978, 92 Stat. 2679; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 102-166, title I, Sees. 104, 109(a), Nov. 21, 1991, 105 Stat. 1074, 1077.)
References in Text
The National Labor Relations Act, as amended, referred to in subsec. (e)(l), is act July 5, 1935, ch. 372, 49 Stat. 449, as amended, which is classified generally to subchapter II (Sec. 151 et seq.) of chapter 7 of Title 29, Labor. For complete classification of this Act to the Code, see section 167 of Title 29 and Tables.
The Railway Labor Act, referred to in subsec. (e)(1), is act May 20, 1926, ch. 347, 44 Stat. 577, as amended, which is classified principally to chapter 8 (Sec. 151 et seq.) of Title 45, Railroads. For complete classification of this Act to the Code, see section 151 of Title 45 and Tables.
The Labor-Management Reporting and Disclosure Act of 1959, referred to in subsec. (h), is Pub. L. 86-257, Sept. 14, 1959, 73 Stat. 519, as amended, which is classified principally to chapter 11 (Sec. 401 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 401 of Title 29 and Tables.
For definition of Canal Zone, referred to in subsec. (i), see section 3602(b) of Title 22, Foreign Relations and Intercourse.
The Outer Continental Shelf Lands Act, referred to in subsec. (i), is act Aug. 7, 1953, ch. 345, 67 Stat. 462, as amended, which is classified generally to subchapter III (Sec. 1331 et seq.) of chapter 29 of Title 43, Public Lands. For complete classification of this Act to the Code, see Short Title note set out under section 1331 of Title 43 and Tables.
Amendments
1991--Subsec. (f). Pub. L. 102-166, Sec. 109(a), inserted at end "'With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.'1
Subsecs. (1) to (n). Pub. L. 102-166, Sec. 104, added subsecs. (1) to (n).
1986--Subsec. (b). Pub. L. 99-514 substituted "Internal Revenue Code of 1986'' for "Internal Revenue Code of 1954'', which for purposes
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42 USCA S 14141 42 U.S.C.A. § 14141 <KeyCite Yellow Flag>

Page 1

UNITED STATES CODE ANNOTATED TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 136--VIOLENT CRIME CONTROL AND LAW ENFORCEMENT SUBCHAPTER IX-STATE AND LOCAL LAW ENFORCEMENT
PART B-POLICE PATTERN OR PRACTICE

Copr. ® West Group 2000. No claim to orig. U.S. Govt. Works

Current through P.L. 106-274, approved 9-22-2000

§ 14141. Cause of action

(a) Unlawful conduct
It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.

(b) Civil action by Attorney General

Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.

CREDIT(S)

1995 Main Volume

(Pub.L. 103-322, Title XXI, § 210401, Sept. 13, 1994, 108 Stat. 2071.)

HISTORICAL AND STATUTORY NOTES

Revision Notes and Legislative Reports

1994 Acts. House Report Nos. 103-324 and 103-489, and House Conference Report No. 103-711, see 1994 U.S. Code Cong, and Adm. News, p. 1801.

LIBRARY REFERENCES

American Digest System

Liability of federal officers or agents for official acts; criminal responsibility, see United States <S=» 46 et seq., 50 et seq., 52.

Powers and duties of attorney general; power to bring action on proceeding, see Attorney General 5 et seq., 9.

Encyclopedias

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•

EXHIBIT

42 USCA S 2000e-6 42 U.S.C.A. § 2000e-6 <KeyCite Yellow Flag>

Page 1

UNITED STATES CODE ANNOTATED TITLE 42. THE PUBLIC HEALTH AND WELFARE
CHAPTER 21-CIVIL RIGHTS SUBCHAPTER VI-EQUAL EMPLOYMENT OPPORTUNITIES

Copr. © West Group 2000. No claim to orig. U.S. Govt. Works

Current through P.L. 106-274, approved 9-22-2000

§ 2000e-6. Civil actions by the Attorney General

(a) Complaint

Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.

(b) Jurisdiction; three-judge district court for cases of general public importance: hearing, determination, expedition of action, review by Supreme Court; single judge district court: hearing, determination, expedition of action

The district courts of the United States shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section, and in any such proceeding the Attorney General may file with the clerk of such court a request that a court of three judges be convened to hear and determine the case. Such request by the Attorney General shall be accompanied by a certificate that, in his opinion, the case is of general public importance. A copy of the certificate and request for a threejudge court shall be immediately furnished by such clerk to the chief judge of the circuit (or in his absence, the presiding circuit judge of the circuit) in which the case is pending. Upon receipt of such request it shall be the duty of the chief judge of the circuit or the presiding circuit judge, as the case may be, to designate immediately three judges in such circuit, of whom at least one shall be a circuit judge and another of whom shall be a district judge of the court in which the proceeding was instituted, to hear and determine such case, and it shall be the duty of the judges so designated to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited. An appeal from the final judgment of such court will lie to the Supreme Court.

In the event the Attorney General fails to file such a request in any such proceeding, it shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case.

It shall be the duty of the judge designated pursuant to this section to assign the case for hearing at

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42 USCA S 2000e-6

Page 2

the earliest practicable date and to cause the case to be in every way expedited.

(c) Transfer of functions, etc., to Commission; effective date; prerequisite to transfer; execution of functions by Commission

Effective two years after March 24, 1972, the functions of the Attorney General under this section shall be transferred to the Commission, together with such personnel, property, records, and unexpended balances of appropriations, allocations, and other funds employed, used, held, available, or to be made available in connection with such functions unless the President submits, and neither House of Congress vetoes, a reorganization plan pursuant to chapter 9 of Title 5, inconsistent with the provisions of this subsection. The Commission shall carry out such functions in accordance with subsections (d) and (e) of this section.

(d) Transfer of functions, etc., not to affect suits commenced pursuant to this section prior to date of transfer

Upon the transfer of functions provided for in subsection (c) of this section, in all suits commenced pursuant to this section prior to the date of such transfer, proceedings shall continue without abatement, all court orders and decrees shall remain in effect, and the Commission shall be substituted as a party for the United States of America, the Attorney General, or the Acting Attorney General, as appropriate.

(e) Investigation and action by Commission pursuant to filing of charge of discrimination; procedure

Subsequent to March 24, 1972, the Commission shall have authority to investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by a member of the Commission. All such actions shall be conducted in accordance with the procedures set forth in section 2000e-5 of this title.

CREDIT(S)

1994 Main Volume

(Pub.L. 88-352, Title VII, § 707, July 2, 1964, 78 Stat. 261; Pub.L. 92-261, § 5, Mar. 24, 1972, 86 Stat. 107.)

< General Materials (GM) - References, Annotations, or Tables >

HISTORICAL AND STATUTORY NOTES

Revision Notes and Legislative Reports

1964 Acts. Senate Report No. 872 and House Report No. 914, see 1964 U.S. Code Cong, and Adm. News, p. 2355.

1972 Acts. House Report No. 92-238 and Conference Report No. 92-899, see 1972 U.S. Code Cong, and Adm. News, p. 2137.

Amendments

1972 Amendments. Subsecs. (c) to (e). Pub.L. 92-261 added subsecs. (c) to (e).

Effective and Applicability Provisions

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LW.

 
 US v. City of Columbus
iiJRIlI
December 11,2000
BY FEDERAL EXPRESS Kenneth J. Murphy Clerk of Court United States District Court Southern District of Ohio 85 Marconi Blvd., Second Floor Columbus, OH 43215
Re: United States v. City of Columbus, CA No. C2-99-1097 (Judge Holschuh; Magistrate Judge King)
Dear Mr. Murphy,
Enclosed for filing in the above-captioned case are the original and a copy of the Reply brief of Amicus Curiae Members of Congress in the above captioned case. Please give Judge Holschuh the enclosed courtesy copies. Thank you for your assistance,
Samuel R. Bagenstos
cc: BY FAX AND REGULAR MAIL James Eichner, Robert Moossy Counsel for the Plaintiff, United States
Timothy J. Mangan Counsel for the Defendant, City of Columbus
James E. Phillips Counsel for Defendant-Intervenor, Fraternal Order of Police, Capital City Lodge No. 9
C. David Henderson Counsel for Amicus Curiae Grand Lodge of the Fraternal Order of Police

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

Civil No. C2-99-1097

)

v.

)

Judge Holschuh

)

CITY OF COLUMBUS, OHIO, et al.

)

Magistrate Judge King

)

Defendants.

)

REPLY BRIEF OF AMICI CURIAE MEMBERS OF CONGRESS IN SUPPORT OF UNITED STATES'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT

Samuel R. Bagenstos, Trial Attorney 1545 Massachusetts Avenue, A127 Cambridge, MA 02138 (617)495-9299
Margo Schlanger 1525 Massachusetts Avenue, G301 Cambridge, MA 02138
Counsel for Amici Curiae

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

Civil No. C2-99-1097

)

v.

)

Judge Holschuh

)

CITY OF COLUMBUS, OHIO, et al.

)

Magistrate Judge King

)

Defendants.

)

REPLY BRIEF OF AMICI CURIAE MEMBERS OF CONGRESS IN SUPPORT OF UNITED STATES'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT
INTRODUCTION Pursuant to this Court's order of November 20, and the Magistrate Judge's orders of September 29 and November 30, amici curiae Members of Congress hereby file this reply to the responses filed by the City of Columbus (the Defendant) and the Fraternal Order of Police, Capital City Lodge No. 9 (the Defendant-Intervenor) to our brief as amici curiae. In their responses to our opening submission, the Defendant and the DefendantIntervenor make several core arguments: that the "policy or custom" rule represents the default standard for imposing injunctive liability on a local government entity; that Congress must accordingly expressly disavow that rule if it intends for injunctions to be issued against municipalities on a more lenient standard; and that, indeed, any attempt to make a municipality liable for the actions of its agents, as opposed to for its "own" actions, would be unconstitutional. Each of these arguments is fundamentally flawed.
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Although many federal statutes regulate local government entities, the Supreme Court has held that the "policy or custom" rule governs actions for injunctive relief under only one of these statutes, 42 U.S.C. § 1983. See Monell v. Dep 't of Social Servs., 436 U.S. 658 (1978). When it held that the "policy or custom" rule applied in Monell, the Court did not rely on any immutable or even presumptive principles governing the liability of municipal corporations in general. Rather, the Court relied entirely on two considerations that relate exclusively to Section 1983: the statute's language limiting liability to a "person who . . . subjects, or causes to be subjected" any citizen to a deprivation of federal rights; and the statute's legislative history, which indicates that the Forty-Second Congress believed (in 1871) that the imposition of any affirmative duty on a municipal corporation—even the duty to answer for the constitutional violations of its agents—exceeded Congress's power under the Constitution. These two considerations led the Court to hold that a municipality could be liable under Section 1983 only for acts that amount to municipal "policy" or for "customs" so widespread as effectively to have the force of law.
But neither of the two reasons the Court gave for imposing a "policy or custom" rule in Section 1983 suits applies to the statute at issue in this case, 42 U.S.C. § 14141. First, Section 14141 does not include the "subjects or causes to be subjected" language that is the textual basis for Section 1983's "policy or custom" requirement. Rather, the newer statute uses the familiar phrase "pattern or practice." Under a variety of modern civil rights statutes, courts have read those words to embrace more than unlawful policies, or unlawful customs "so permanent and well settled" as to have "the force of law." Cf. Monell, 436 U.S. at 691. Rather, those words extend to misconduct by linelevel employees clothed with authority by their employer, so long as that misconduct is
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more than "isolated, peculiar, or accidental." United States v. Ironworkers Local 86,443 F.2d 544, 552 (9th Cir.), cert, denied, 404 U.S. 984 (1971). Two other features of the statutory text confirm this vicarious liability standard: the language of agency that has elsewhere led the Supreme Court to impose vicarious liability, and the reference to liability against municipalities for "conduct by law enforcement officers." 42 U.S.C. § 14141(a) (emphasis added). Congress's decision to omit the limiting language of Section 1983, and instead to use expansive language drawn from other federal statutes, must be given effect in interpreting Section 14141.
The other rationale for the Section 1983 "policy or custom" standard is similarly inapplicable with respect to Section 14141. Unlike the Reconstruction Congress that enacted Section 1983, the Congress that enacted Section 14141 could not plausibly have believed—and showed no sign of believing—that the Constitution limited congressional authority to hold municipalities answerable for the unconstitutional conduct of their agents. The Supreme Court made clear in Monell itself that its precedents had long rejected the Forty-Second Congress's belief that congressional power was so limited.
Amazingly, the Defendant-Intervenor seeks to revive the Forty-Second Congress's defunct understanding of the scope of congressional power. Under the Defendant-Intervenor's position, Congress would be constitutionally barred from applying to municipalities the same vicarious liability standards that unquestionably apply to private entities "in virtually all areas of the law." Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 434 (1984). There is absolutely no legal basis for such a radical position, which would require the overruling of a two-year-old Supreme Court precedent (Faragher v. City of Boca Raton, 524 U.S. 775 (1998)).
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ARGUMENT A. The Text of Section 14141 Makes Clear that Congress Did Not Incorporate
the "Policy or Custom" Limitation on Municipal Liability Under Section 1983 1. The Defendant and the Defendant-Intervenor contend, and the Magistrate Judge agreed, that the United States cannot obtain injunctive relief against a municipality under 42 U.S.C. § 14141 unless it satisfies the "policy or custom" test that limits municipal liability under 42 U.S.C. § 1983. As we explained in our principal brief (pp. 3-10), that contention ignores crucial differences in the language of the two statutes. The "policy or custom" rule is not, as the Defendant and the Defendant-Intevenor would have it, a general background limitation on municipal liability. It is a standard that the Supreme Court adopted to give meaning to the text of—and effectuate the original intent behind—Section 1983. SeeMonell, 438 U.S. at 691 ("[T]he language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort."). When it adopted the "policy or custom" test in Monell, the Court gave two reasons for doing so. First, the Court looked to the text of Section 1983, which imposes liability on a "person" (including a municipality, see Monell, 436 U.S. at 664-690) who "subjects [a citizen], or causes [that citizen] to be subjected," to the deprivation of a federal right. See 42 U.S.C. § 1983. That language, said the Court, "plainly imposes liability on a government that, under color of some official policy, 'causes' an employee to violate another's constitutional rights." Monell, 436 U.S. at 692. But, the Court concluded, it "cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a
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tortfeasor." Id. Second, the Court looked to the intent of the Forty-Second Congress, which in
1871 enacted the statute ultimately codified as Section 1983. The Court concluded that the Forty-Second Congress, in rejecting a proposal known as the "Sherman Amendment," made clear its view—reasonable under Nineteenth Century cases like Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861)—that Congress could not constitutionally impose on states an obligation to keep the peace. See Monell, 436 U.S. at 669-683. Given the Forty-Second Congress's understanding of its own constitutional power as so constrained, the Court found it implausible that the same Congress would have sought to impose respondeat superior liability on municipalities under the statute that became Section 1983. The key sentence in Monell is: "[Cjreation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional." Id. at 693. But the Monell Court itself observed that the Forty-Second Congress's limited view of its constitutional power "has not survived." Id. at 676. Thus, the constitutional analysis in the Monell opinion was entirely directed at understanding the Forty-Second Congress's view of the Constitution in order to effectuate that earlier Congress's intent.
When it adopted Section 14141 as part of the 1994 Crime Bill, Congress acted over one hundred years after the demise of the unduly narrow understandings of congressional power that prevailed in 1871. See Puerto Rico v. Branstad, 483 U.S. 219, 230 (1987) {"Kentucky v. Dennison is the product of another time. The conception of the relation between the States and the Federal Government there announced is fundamentally incompatible with more than a century of constitutional development.");
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Monell, 436 U.S. at 676 (citing Exparte Virginia, 100 U.S. 339 (1880), as rejecting the
Forty-Second Congress's understanding). And, pointedly, Section 14141 does not
include the "subjects or causes to be subjected" language on which the Court based its
adoption of a "policy or custom" requirement in Monell. As the Defendant itself
contends, this Court must '"assume that Congress is aware of existing law when it passes
legislation.'" Deft Resp. 7 (quoting South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,
351 (1998)). When Congress includes particular language in one statute, and fails to do so in a closely related statute, courts should generally treat the omission as intentional.1
In 1994, Members of Congress were clearly aware that Section 1983's "subjects or
causes to be subjected" language had been interpreted to incorporate a "policy or
custom" requirement. By deciding not to include that language in Section 14141 (or to
actually refer directly to a "policy or custom"), Congress plainly expressed an intent that
the "policy or custom" requirement not apply to the newer statute.
To the contrary, the plain text of Section 14141 makes clear that Congress
intended to hold governmental authorities answerable for the acts of their agents, when
those acts are sufficiently pervasive or systematic. Three aspects of the statutory text
make this point evident. First, the statute authorizes injunctive relief against a
government entity whenever the acts of subordinate law enforcement officers aggregate
to a "pattern or practice." 42 U.S.C. § 14141(a). Contrary to the argument of the
1 See, e.g., Custis v. United States, 511 U.S. 485, 492 (1994) ("The language of § 85 l(c) shows that when Congress intended to authorize collateral attacks on prior convictions at the time of sentencing, it knew how to do so. Congress' omission of similar language in § 924(e) indicates that it did not intend to give defendants the right to challenge the validity of prior convictions under this statute."); cf. Bates v. United States, 522 U.S. 23, 29-30 (1997) ("[WJhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.") (internal quotation marks omitted).
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Defendant and the Defendant-Intervenor, the "pattern or practice" standard is significantly less stringent than the "custom" standard applied under Section 1983..
The Supreme Court has not held {cf. Deft Resp. 2-4) that the "custom" test can be satisfied by a mere "pattern" of constitutional violations by low-level employees. Rather, it has limited that test to cases in which the "practices of state officials" are "so permanent and well settled" as to have "the force of law." Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970)); accord Board of Comm 'rs v. Brown, 520 U.S. 397, 404 (1997). Where that stringent requirement cannot be satisfied, the Court has insisted that plaintiffs identify some culpable act or omission of the municipality "itself," City of Canton v. Harris, 489 U.S. 378, 385 (1989), which act must be proven to be a proximate cause of the constitutional violation committed by the municipality's agents. See Board of Comm 'rs, 520 U.S. at 404.
By contrast, the "pattern or practice" test that is applied under many modern civil rights statutes does not require the plaintiff to establish a practice so permanent and well settled as to have the force of law. The Supreme Court has held that the "pattern or practice" test "was not intended as a term of art, and the words reflect only their usual meaning"—a meaning that, as we explained in our principal brief (p. 7), reflects a primary concern with the defendant's actual operations rather than its official policies. Int'l Brotherhood ofTeamsters v. United States, 431 U.S. 324, 336 n.16 (1977). True, the test is not satisfied by "the mere occurrence of isolated or 'accidental' or sporadic [unlawful] acts." Id. at 336. Instead, unlawful acts must constitute "the regular rather than the unusual practice" among the defendants' agents. Id. Although that language (and the Teamsters Court's reference to "standard operating procedure," id.) might suggest a similarity to the "policy or custom" test {cf. Def t-Int. Resp. 6), the Teamsters
-7-

opinion makes clear that the "pattern or practice" test contains no requirement of a
custom that amounts to law, nor does that test impose any requirement that the plaintiff
identify specific culpable acts or omissions by the defendant entity "itself." Indeed, the
Teamsters Court cited with approval the Ninth Circuit's decision in Ironworkers Local
86,443 F.2d at 552, which rejected such a stringent construction of "pattern or practice."
See Teamsters, 431 U.S. at 336 n. 16. The Ironworkers court concluded instead "that it
was the intent of Congress that a 'pattern or practice' be found where the acts of
discrimination are not 'isolated, peculiar or accidental' events." 443 F.2d at 552.
Quoting one of the key sponsors of the Civil Rights Act of 1964, the Teamsters Court
endorsed this reading: "[t]he point is that single, insignificant, isolated acts of
discrimination by a single business would not justify a finding of a pattern or practice." Id. at 336 n.16 (quoting 110 Cong. Rec. 14270 (1964) (statement of Sen. Humphrey)).2
Both before and after Teamsters, courts interpreting various civil rights statutes
have read the "pattern or practice" language in a manner that is entirely incompatible
with any requirement that the Attorney General either identify any specific unlawful act
or culpable omission of the defendant entity "itself or establish that actions of low-level
agents are so widespread as to have the force of law (as is required under the Monell
custom or policy test). Thus, in United States v. Balistrieri, 981 F.2d 916, 929-930 (7th
Cir. 1992), the court upheld a "pattern or practice" finding against an apartment owner
2 The Defendant-Intervenor misreads Teamsters when it states that "the Supreme Court indicated that in a pattern or practice case, 'proof of [the employer's] discriminatory motive is critical'" (Def t-Int. Resp. 8 (quoting Teamsters, 431 U.S. at 335 n.15) (alteration in Resp.)). The quoted portion of Teamsters simply states that in Title VII disparate treatment cases, proof of a discriminatory motive is critical. The Court did not state that the employer's discriminatory motive—as opposed to the motives of the subordinate employees whose conduct makes up the pattern or practice—is the motive that must be proven (which is why the Defendant Intervenor had to add the words "the employer's" in brackets).
-8-

where his rental agent discriminated on five occasions, even though no evidence specifically tied the building owner to the discrimination.3 And in United States v.
Landsdowne Swim Club, 713 F. Supp. 785 (E.D. Pa. 1989), the court noted the range of
factors on which a "pattern or practice" finding might be based: "statistics alone . . .
or . . . a cumulation of evidence, including statistics, patterns, practices, general policies,
or specific instances of discrimination." Id. at 806 (ellipses in original; internal quotation
marks omitted). As the Landsdowne court explained, a "pattern or practice of
discrimination may be found even if a defendant does not discriminate uniformly," and
"no minimum number of acts is required." Id. at 807. These cases illustrate that the
"pattern or practice" test imposes a significantly less onerous burden on the Attorney
General than the "policy or custom" test imposes on private plaintiffs.
Two other features of Section 14141's text confirm that the statute follows the
typical "pattern or practice" approach, in which entities are held responsible for the acts
of their agents. The statute uses the language of agency, defining the class of covered
entities to include "any governmental authority, or any agent thereof, or any person
acting on behalf of a governmental authority." 42 U.S.C. § 14141(a). This language
echoes that of Title VII, in which the definitional section defines the term "employer" to
mean "a person engaged in an industry affecting commerce who has fifteen or more
employees . . . and any agent of such a person." 42 U.S.C. § 2000e(b). In Meritor
3 The Defendant-Intervenor asserts that Balistrieri is irrelevant because it involved the application of the Fair Housing Act to the conduct of a private party rather than a municipality (Def t-Int. Resp. 6 n.10). But the text of the Fair Housing Act's "pattern or practice" provision draws no distinction between private and governmental patterns or practices, and the Sixth Circuit has held that the statute applies equally to public and private conduct. See United States v. City of Parma, 661 F.2d 562, 571-572 (6th Cir. 1981). Indeed, the Defendant-Intervenor itself seems tacitly to acknowledge the applicability of "pattern or practice" cases involving private defendants, given the heavy reliance it places on Teamsters—a private-defendant "pattern or practice" case.
-9-

Savings BankF.S.B. v. Vinson, All U.S. 57 (1986), the Supreme Court interpreted this
language as expressing Congress's intent that employers would be liable in accordance
with traditional agency principles for the acts of their agents." See id. at 70-72; see also
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998) (reaffirming this aspect of
Meritor's analysis); Faragher, 524 U.S. at 791-792 (same); Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 283 (1998) (relying in part on absence of similar "any agent"
language in Title IX of the Education Amendments of 1972 to justify refusal to make
school districts liable for the acts of their agents under that statute). Informed by Title
VII's reference to agency, the Court thus rejected the view, analogous to that of the
Defendant here, that employers should be held liable only when they "themselves"
committed the violation. When it enacted Section 14141 in the wake of Meritor, and
used language referring to "agents" of governmental entities, Congress plainly evinced a
similar intent to impose liability on government entities for the acts of their agents.5
Finally, unlike Section 1983, whose "subjects or causes to be subjected" language
implies that a municipality cannot be liable unless the municipality itself'is the
wrongdoer, see Board ofComm 'rs, 520 U.S. at 406-407, Section 14141 makes clear that 4 The Supreme Court has not yet addressed the question whether the same
language indicates that an agent of an employer may be individually liable under Title VII for discrimination that the agent him or herself committed.
5 Defendant-Intervenor argues that Section 14141's use of the word "or" and its commas indicate that the statute intends for cities to be treated "as distinct from [their] employees." Def t-Int. Resp. 4. The Defendant-Intervenor's argument seems to rest on an erroneous reading of International Primate Protection League v. Administrators of Tulane Educational Fund, 500 U.S. 72, 80 (1991), in which the Court held simply that "when construed in the relevant context" the statutory phrase "[a]ny officer of the United States or any agency thereof referred to "only one grammatical subject, '[a]ny officer,' which is then modified by a compound prepositional phrase: 'of the United States or [of] any agency thereof.'" Id. (alteration in original; parsing 28 U.S.C. § 1442). That is, the Court held that one should interpret statutes in part by looking at the ordinary implications of their grammar and language. But as we develop in the text, it is the Defendant-Intervenor who ignores this instruction.
-10-

the only wrongdoing that matters is the wrongdoing of the municipality's law enforcement agents. The municipality need merely "engage" in a "pattern or practice of conduct by law enforcement officers ... that deprives persons of rights." 42 U.S.C. § 14141(a) (emphasis added). The municipality need not itself "subject[]" the victims to the deprivation of rights, nor need it even "cause[]" the victims to be subjected to the deprivation. It need only participate in its officers' deprivation by, for example, clothing those officers with authority and arming them with weapons. See Websters Third New Int'l Dictionary 751 (1993) ("engage" means, inter alia, "to take part: PARTICIPATE"). If the statute simply made it unlawful for a municipality to "engage in a pattern or practice of conduct that deprives persons of rights," without specifying that the "conduct" at issue was "conduct by law enforcement officers," it might be appropriate to read that language as requiring a more active degree of involvement on the part of the municipality "itself." But Section 14141's text focuses exclusively on the conduct of such officers. By attaching liability to a "pattern or practice of conduct by law enforcement officers," and by eschewing the "subjects or causes to be subjected" language that formed the basis for imposition of the "policy or custom" requirement, Congress plainly intended to avoid the complex search for municipal culpability that is required under Section 1983.
2. The Defendant and the Defendant-Intervenor contend that the "policy or custom" rule is such a firmly established limitation that Congress must expressly disavow that rule if it intends for a statute to impose any broader form of liability on municipalities (Deft Resp. 4-7). As we have explained, however, the language of Section 14141 does makes it "unmistakably clear" (Vermont Agency of Natural Resources v. United States, 120 S. Ct. 1858, 1870 (2000)) that Congress intended to eschew the "policy or custom" limitation in that statute. Section 14141's text makes this
-11-

intent clear in four ways: (1) by omitting the "subjects or causes to be subjected"
language that was the source of the "policy or custom" requirement under Section 1983;
(2) by including instead the broader language of "pattern or practice"; (3) by its "any
agent" language that provides the basis for a form of vicarious liability under Title VII;
and (4) by expressly targeting wrongdoing "by law enforcement officers" rather than by
the municipality "itself."
In any event, the Defendant and the Defendant-Intervenor are simply incorrect to
assert that a congressional decision to adopt a new statute eschewing the "policy or
custom" limitation "would require a radical departure from established law" (Deft Resp.
6). Of the many federal statutes that impose liability on municipalities, the Supreme
Court has held that the "policy or custom" rule applies to exactly one of those statutes: Section 1983.6 It has done so, as we have explained, for reasons that are entirely specific
to the language and the legislative history of that statute. There is no reason why
Congress should have faced any extraordinary burden to make its intentions hyper-clear
when it chose to adopt a different standard of municipal liability under a different statute.
B. The Legislative History Confirms that Congress Did Not Intend to Impose A "Policy or Custom" Limitation on Liability Under Section 14141
As we explained in our principal brief (pp. 10-16), the legislative history confirms
6 In Gebser, 524 U.S. at 290-291, the Supreme Court adopted a similar standard to govern claims by private parties for damages under Title IX of the Education Amendments of 1972. But the issue confronted in Gebser is different in important ways from the issue here. First, Title IX contains no express right of action, a fact that the Court explained gave it "a measure of latitude" in defining the contours of the remedy, id. at 284; Section 14141 expressly provides the Attorney General a right of action. Second, Gebser involved a claim for damages, a fact the Court found "most critical" in its decision to adopt a narrow standard of municipal liability, id. at 283; Section 14141 authorizes "equitable and declaratory relief only, 42 U.S.C. § 14141(b). Finally, Title IX is Spending Clause legislation, to which the Court has applied especially stringent rules of construction, see Gebser, 524 U.S. at 287-288; Section 14141 was enacted pursuant to the Fourteenth Amendment.
-12-

intent clear in four ways: (1) by omitting the "subjects or causes to be subjected"
language that was the source of the "policy or custom" requirement under Section 1983;
(2) by including instead the broader language of "pattern or practice"; (3) by its "any
agent" language that provides the basis for a form of vicarious liability under Title VII;
and (4) by expressly targeting wrongdoing "by law enforcement officers" rather than by
the municipality "itself."
In any event, the Defendant and the Defendant-Intervenor are simply incorrect to
assert that a congressional decision to adopt a new statute eschewing the "policy or
custom" limitation "would require a radical departure from established law" (Deft Resp.
6). Of the many federal statutes that impose liability on municipalities, the Supreme
Court has held that the "policy or custom" rule applies to exactly one of those statutes: Section 1983.6 It has done so, as we have explained, for reasons that are entirely specific
to the language and the legislative history of that statute. There is no reason why
Congress should have faced any extraordinary burden to make its intentions hyper-clear
when it chose to adopt a different standard of municipal liability under a different statute.
B. The Legislative History Confirms that Congress Did Not Intend to Impose A "Policy or Custom" Limitation on Liability Under Section 14141
As we explained in our principal brief (pp. 10-16), the legislative history confirms
6 In Gebser, 524 U.S. at 290-291, the Supreme Court adopted a similar standard to govern claims by private parties for damages under Title IX of the Education Amendments of 1972. But the issue confronted in Gebser is different in important ways from the issue here. First, Title IX contains no express right of action, a fact that the Court explained gave it "a measure of latitude" in defining the contours of the remedy, id. at 284; Section 14141 expressly provides the Attorney General a right of action. Second, Gebser involved a claim for damages, a fact the Court found "most critical" in its decision to adopt a narrow standard of municipal liability, id. at 283; Section 14141 authorizes "equitable and declaratory relief only, 42 U.S.C. § 14141(b). Finally, Title IX is Spending Clause legislation, to which the Court has applied especially stringent rules of construction, see Gebser, 524 U.S. at 287-288; Section 14141 was enacted pursuant to the Fourteenth Amendment.
-12-

what the statutory text makes clear: Congress did not intend to impose the "policy or custom" limitation on municipal liability under Section 14141. In particular, at the congressional hearing that formed the basis for the introduction of the statute that became Section 14141, a number of the participants cited the restrictive nature of the "policy or custom" rule as a crucial defect in then-existing law. Contrary to the Defendant's argument (Deft Resp. 7), the committee report to the 1991 Crime Bill (which all parties seem to agree is the most authoritative piece of legislative history on Section 14141) expressly refers to this hearing as providing the legislative record for the statute that became Section 14141. See H.R. Rep. No. 242, 102d Cong., 1st. Sess. 136 (1991). The statements of the witnesses at this hearing could not themselves make law, but they do indicate that the omission of the "subjects or causes to be subjected" language in Section 14141 was no accident; that omission reflected a deliberate decision to eschew the "policy or custom" limitation under the new statute. Instead, as we explained in our principal brief (pp. 11-12), the committee report states that the statute was drafted to grant the Attorney General the same pattern or practice authority she has in a variety of other civil rights settings. See H.R. Rep. No. 242, 102d Cong., 1st Sess. 137 (1991).
C. Congress's Decision to Dispense With the "Policy or Custom" Requirement Under Section 14141 Raises No Constitutional Problem
We explained in our opening brief (pp. 16-21) that the Magistrate Judge's invocation of the constitutional-doubt canon was incorrect on two counts. First, Section 14141's text is not "genuinely susceptible" to a construction that incorporates the "policy or custom" limitation on municipal liability (p. 17, quoting Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998)). The Defendant-Intervenor attempts to concoct an
-13-

ambiguity by pointing to isolated sentences in our principal brief and in earlier
submissions filed by the Department of Justice in this and another Section 14141 case.
The Defendant-Intervenor asserts that these sentences reflect "at least five different
standards for municipal liability under § 14141" (Deft-Int. Resp. 13-14). Although we do not agree with the Defendant-Intervenor's characterization of these sentences,7 that is
largely beside the point. For (even if there were indeed constitutional doubt here, which
there is not) the Defendant-Intervenor would have to point to more than just some
statutory ambiguity to invoke the constitutional doubt canon to justify adoption of a
"policy or custom" rule. It must show that the statutory text, fairly read, can bear a
"policy or custom" construction. See Almendarez-Torres, 523 U.S. at 238. As we have
explained in the balance of this brief, Section 14141's text forecloses such a construction,
and nothing in the portions of earlier pleadings cited by the Defendant-Intervenor so
much as suggests otherwise.
Second, Congress's decision to forego the "policy or custom" standard under
Section 14141 raises no serious constitutional question. Under the "pattern or practice"
standard, a court cannot issue an injunction against a municipality under Section 14141
unless it finds that law enforcement officers, clothed with power by the municipality,
have committed a "pattern or practice" of conduct that deprived persons of their
constitutional rights. Such an injunction does nothing more than provide a remedy for a
7 Only the first of the sentences quoted by the Defendant-Intervenor purports to set forth a standard for municipal liability. The others: identify the proper defendants in a Section 14141 suit (sentence ii, in which it should be clear that the word "involved" modifies only the word "officer"); point to the other statutes that Congress used as a model in enacting Section 14141 (sentence iii); situate Section 14141's "pattern or practice" rule along the spectrum between simple vicarious liability and the Section 1983 "policy or custom" standard (sentence iv); and describe the ultimate purpose of the statute, rather than the standard it sets forth (sentence v). All of these sentences are consistent with the interpretation of Section 14141 that we have defended.
-14-

set of fully proven constitutional violations. Section 14141 thus is entirely unlike the statutes in United States v. Morrison, 529 U.S. 598 (2000); Florida Prepaid Postecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999); and City of Boerne v. Flores, 521 U.S. 507 (1997)—all of which sought to provide a remedy in circumstances where the Court believed no constitutional violation, by anyone, had been proven.
As we explained in our principal brief (pp. 20-21) the Court has made clear in City of Boerne and subsequent cases that Congress has broad discretion to craft remedies for proven constitutional violations. The remedy authorized by Section 14141 fits well within the permissible bounds of that discretion. "[Vicarious liability is imposed in virtually all areas of the law." Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 434 (1984). It is a commonplace that the imposition of liability on a principal for the acts taken by an agent within the scope of employment serves the important remedial functions of assuring compensation and promoting deterrence. See, e.g., Harper, James & Gray, 5 The Law of Torts § 26.1 at 7-8 (2d 1986); id. § 26.3 at 14-15; id. § 26.6 at 23. Where, as in Section 14141, the principal is held to answer for a "pattern or practice" of its agents' unlawful acts, the imposition of liability serves an especially important remedial function.
The Defendant-Intervenor argues that the Constitution nonetheless bars Congress from imposing liability on a municipality absent "a finding that the municipality rather than its employees violated the Constitution or federal law" (Def t-Int. Resp.16). That argument is truly radical, for it would constitutionally prohibit Congress from applying to municipal corporations the same standards of liability that apply to private corporations "in virtually all areas of the law." Sony Corp., 464 U.S. at 434. Although Congress has
-15-

chosen to apply a different standard under Section 1983, it has followed a vicarious
liability approach under other statutes that regulate municipalities, most notably Title VII
of the Civil Rights Act of 1964. In Faragher, 524 U.S. at 802-809, the Supreme Court
acting under Title VII imposed vicarious liability on a city for acts of sexual harassment
committed by its employees. Defendant-Intervenor's argument would require the
overruling of Faragher; and it would impose an unprecedented limitation on
congressional power in a range of areas of the law.
The Defendant-Intervenor relies on MoneWs statement that "creation of a federal
law of respondeat superior would have raised all the constitutional problems associated
with the obligation to keep the peace, an obligation Congress chose not to impose
because it thought imposition of such an obligation unconstitutional" (Def t-Int. Resp. 18
(quoting Monell, 436 U.S. at 693)). The Defendant-Intervenor's heroic effort to parse
MonelFs text notwithstanding (see id.), both the quoted sentence and its context make it
perfectly clear that respondeat superior liability would have raised "constitutional
problems associated with the obligation to keep the peace" in the minds of members of
the Forty-Second Congress only. See Monell, 436 U.S. at 693-694. The Defendant-
Intervenor's claimed "serious constitutional issue" was in fact authoritatively decided
against it as early as 1880. See Monell, 436 U.S. at 676 (citing Exparte Virginia, 100 U.S. 339 (1880)).8
8 The Defendant-Intervenor also relies on Milliken v. Bradley, 418 U.S. 717 (1974), in which the Supreme Court held that a federal district court attempting to provide a remedy for racial segregation in Detroit's schools exceeded its remedial authority by merging the school districts of the city and a number of suburbs into a single "super school district." Id. at 743. The Milliken Court reasoned that "[djisparate treatment of white and Negro students occurred within the Detroit school system, and not elsewhere, and on this record the remedy must be limited to that system." Id. at 746. In the Court's view of Milliken, neither the surrounding school districts nor their agents had
(continued...) -16-

CONCLUSION For the reasons stated, this Court should reject the Report and Recommendation of the Magistrate Judge to the extent that it restricts the scope of municipal liability under 42 U.S.C.§ 14141 to cases that satisfy a "policy or custom" test.
Respectfully submitted,
Samuel R. Bagenstos 1545 Massachusetts Avenue Cambridge, MA 02138 (617) 495-9299 Margo Schlanger 1525 Massachusetts Ave Cambridge, MA 02138 Counsel for Amici Curiae
(...continued) any connection to the constitutional violation; the violation occurred entirely "within the Detroit school system." Id. The case thus has absolutely no bearing on the question whether a municipality may be held liable for the acts of its own agents; as the Court held in Faragher, a municipality may be held liable for such acts.
-17-

CERTIFICATE OF SERVICE
This is to certify that on this eleventh day of December, a copy of the foregoing Reply Brief of Amici Curiae Members of Congress was sent by fax and regular mail to:
James Eichner, Robert Moossy Special Litigation Section Civil Rights Division U.S. Department of Justice 601 D Street, N.W. Washington, DC 20004 fax:(202)514-6252 Counsel for the Plaintiff, United States
Timothy J. Mangan Office of the Columbus City Attorney 90 West Broad Street Columbus, OH 43215 fax:(614)645-0803 Counsel for the Defendant, City of Columbus
James E. Phillips Vorys, Sater, Seymour and Pease 52 East Gay Street Columbus, OH 43216-1008 fax: (614) 719-5000 Counsel for the Defendant-Intervenor, Fraternal Order of Police, Capital City Lodge No. 9
C. David Henderson 2074 Galisteo, Suite B-5 Post Office Box 4111 Santa Fe, NM 87502 fax: (606) 982-0426 Counsel for Amicus Curiae Grand Lodge of the Fraternal Order of Police
Margo Schlan

 
 US v. City of Columbus

•• • • • • I IIIHI • • • • • • • • • P •• • • HI! IIHHia HHIII • • ) • • • • |IH1 llfll
PN-OH-001-032
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OFAMERICA,

:

n f
U i f v ^ - 6 P}) J : | |
U.S.
SOiifi- ' ^ ' - -

Plaintiff,

:

Civil Case No. C2-99-1097

v.

:

JUDGE HOLSCHUH

CITY OF COLUMBUS, OHIO, et al.,

:

MAGISTRATE JUDGE KING

Defendants.

:

DEFENDANT CITY'S MEMORANDUM REGARDING SUPPLEMENTAL AUTHORITY

In its objections to the Report and Recommendation, defendant City of Columbus

[hereinafter "City"] objected to that portion of the Report and Recommendation which

determined that 42 U.S.C. § 14141 reflects a valid exercise of congressional power under § 5 of

the Fourteenth Amendment. The City's argument is focused on whether § 14141 exhibits

"congruence and proportionality between the injury to be prevented or remedied and the means

adopted to that end." City of Boerne v. Flores, 521 U.S. 507, 520 (1997). Application of the

"congruence and proportionality" test requires, inter alia, an examination of the legislative

record in order to ascertain whether Congress has sufficiently identified the infringing conduct

for which it has authorized a remedy. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 89 (2000);

Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 640-

41 (1999). The United States Supreme Court just last week again addressed this legislative

record inquiry in the context of Congress' § 5 authority in Bd. of Trustees of the Univ. of

Alabama v. Garrett, No. 99-1240, 2001 U.S. LEXIS 1700 (Feb. 21, 2001) [hereinafter

"Garrett"]. While this case also deals with issues inapplicable to the case at bar, such as

sovereign immunity under the Eleventh Amendment and the scope of equal protection, it

provides valuable guidance on the analysis to be used by the courts in determining the propriety of legislation enacted pursuant to § 5 authority.
Section III of Garrett deals with the inadequacy of the legislative record to support any finding that there was a pattern of unconstitutional state action, hi reaching that conclusion, the Court first notes that the legislative record contained only several incidents of refusal by state officials to make accommodations for the disabled as required by the ADA. Garrett, supra, at *24-25. "But even if it were determined that each incident upon fuller examination showed unconstitutional action on the part of the State, these incidents taken together fall far short of even suggesting the pattern of discrimination on which § 5 legislation must be based." Id., at *25, citing Kimel, 528 U.S. at 89-91; City of Boerne, 521 U.S. at 530-31. What is significant about the Court's analysis is that it reaffirms that the legislative record must reflect a pattern of unconstitutional conduct on the part of the entity that will be subjected to the remedial legislation. While in Garrett the focus was on the State because the Eleventh Amendment was at issue in that case, in the instant case the focus entity is the City. The City has argued that there is a lack of any legislative record for 42 U.S.C. § 14141 evidencing a pattern of unconstitutional action—much less a pattern of unconstitutional action on the part of municipalities. And even if the indirect legislative history relied upon by plaintiff and amici is taken into account, such evidence falls far short of the level of evidence that the Court found insufficient in Garrett.
There has already been extensive briefing by the parties and amici on § 14141 's legislative history, or lack thereof. The sole purpose of this memorandum is to note the application to this case of that portion of the Garrett decision that addresses the legislative record inquiry in the context of Congress' § 5 authority.

Respectfully submitted,
CITY OF COLUMBUS, DEPARTMENT OF LAW JANET E. JACKSON, CITY ATTORNEY

t

, VJ \\

Timothy J. Mangan (0025430)

Senior LitigationJAttorney

Trial Attorney for Defendant City of Colu

Andrea C. Peeples (0063226) Joshua T. Cox (0029860) Jeffrey R. Bennington (0072425) Assistant City Attorneys Co-Counsel for Defendant City of Columbus

50 West Broad Street, Suite 1425 Columbus, Ohio 43215 (614) 645-0804

CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing was sent by facsimile and regular U.S. Mail,
postage prepaid, to:
James Eichner Special Litigation Section Civil Rights Division U.S. Dept. of Justice P.O. Box 66400 Washington, DC 20035-6400
James Phillips Vorys, Sater, Seymour & Pease 52 East Gay Street P. O. Box 1008 Columbus, OH 43216-1008
Samuel Bagenstos 1545 Massachusetts Avenue, A127 Cambridge, MA 02138
C. David Henderson 2074 Galisteo, Suite B-5 P.O. Box 4111 Sante Fe, New Mexico 87502

S this

day of February, 2001.

Timothy J. Mangan Senior Litigation Attorm

 
 US v. City of Columbus

PN-OH-001-039
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

Civil No. C2-99-1097

v.

)

Judge Holschuh

CITY OF COLUMBUS, OHIO, et. al.,)

Defendants.

)

Magistrate Judge King ORAL ARGUMENT REQUESTED1

UNITED STATES' OBJECTIONS TO THE MAGISTRATE'S REPORT AND RECOMMENDATION REGARDING DEFENDANTS' DISPOSITIVE MOTIONS On August 3, 2000, Magistrate Judge King issued a Report and Recommendation (Report) in which she recommended that this Court find that (a) 42 U.S.C. § 14141 (§ 14141) is a valid exercise of Congressional authority under § 5 of the Fourteenth Amendment; (b) the United States' Complaint was pled in sufficient detail; (c) the United States' suit is not subject to Ohio statutes of limitation or to a defense of laches; and (d) governmental authority liability under § 14141 is based on standards applicable to cases brought under 42 U.S.C. § 1983 (§ 1983) . Pursuant to Federal Rule of Civil Procedure 72(b), the United States objects to the Report's recommendation that the standard of governmental authority liability under § 14141 is the same as the standard of municipal liability under § 1983.

1 Pursuant to S.D. Ohio Civ. R. 7.1(2) the United States requests oral argument regarding the issues raised in this objection to the Magistrate Judge's Report and Recommendation. The United States makes this request because of the importance and novelty of the issues involved.

I. SUMMARY OF ARGUMENT The United States' Complaint alleges that the City of Columbus and the Columbus Division of Police (City) have violated 42 U.S.C. § 14141. The Complaint alleges that there is a pattern or practice of excessive force, false arrests and reports, and unlawful searches and seizures by Columbus police officers. The Complaint also alleges that the City has "engaged in" and "tolerated" the pattern or practice of misconduct, through its acts and omissions, by failing to have appropriate policies; failing to train, monitor, supervise, or discipline officers adequately; and failing to investigate uses of force and complaints of misconduct adequately. These two sets of allegations, taken as true for the purposes of defendants' dispositive motions,2 state a cause of action under § 14141. The Report erroneously found the Complaint deficient by grafting § 1983 municipal liability standards for damages, in cases brought by private persons, on § 14141 pattern or practice actions brought by the United States for equitable relief. In so doing, the Report ignores the significant differences between § 1983 and § 14141, in statutory language, structure and purpose. These differences clearly demonstrate that § 14141 imposes a different standard of governmental liability than § 1983. Section 14141 imposes liability on any governmental
2 Defendant City of Columbus filed a motion to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant-intervenor Fraternal Order of Police, City Lodge No. 9, filed a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12 (c) .
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authority when it engages in a pattern or practice of constitutional violations by the acts of its law enforcement officers. Section 14141 grants the United States Attorney General the sole authority to bring lawsuits to remedy such violations. In sharp contrast, § 1983 allows individuals to bring suit based on individual unconstitutional actions by a "person" who "cause [s]" constitutional violations. If Congress had actually intended, as the Report concludes, only to improve § 1983 by creating a right of action by the United States under the same standards developed in § 1983 case law, then Congress could simply have amended § 1983.
Congress recognized explicitly in § 14141's legislative history that the United States could bring suits to remedy "pattern or practice" violations under eight different civil rights statutes, and designed § 14141 to provide similar "pattern or practice" authority for patterns of civil rights violations by police. This clear intent of Congress, coupled with the fact that the language and liability standard of § 1983 is atypical among modern civil rights statutes, demonstrates that § 14141 should be interpreted by reference to other civil rights statutes, not § 1983. These other statutes, even those that -unlike § 14141 -- do not specifically incorporate the language of agency law, do not require a finding of deliberate indifference to impose municipal liability.
The Report's error in finding that the legislative history supported grafting § 1983 standards onto § 14141, is clear from
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an analysis of the legislative history upon which the Report relies. First, the legislative history's references to the inadequacies of § 1983 are directed toward the original bill's creation of a private right of action that was deleted from § 14141 before its enactment. Second, the legislative history's reference to the unchanged "standards of conduct" for police officers under § 14141 does not undermine the statute's primary purpose of changing when ("pattern or practice of conduct by law enforcement officers") and how ("appropriate equitable and declaratory relief") governmental authorities would be held accountable for officer misconduct. Third, the legislative history and subsequent evidence do not support the Report's contention that failing to impose § 1983 restrictions on municipal liability "would, contrary to congressional expectations, result in a dramatic expansion of liability and potential for litigation against local governments."
The standards of liability under § 14141 must be interpreted in light of other modern civil rights statutes. Based on comparisons of the language, structure, and purpose of § 14141 with these statutes, the best reading of § 14141 is that it makes municipalities vicariously liable for the constitutional violations of their law enforcement agents. Alternatively, an interpretation of the statute that focuses on the words "engaged in" provides support for a liability standard that requires more than a simple vicarious liability standard, but less than the deliberate indifference standard required by § 1983. Under this
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intermediate standard, the United States would have to show that
the governmental authority "tolerated," "contributed to" or
"played a role in" the pattern or practice of constitutional
violations committed by its law enforcement agents. Indeed,
because the facts pled in the United States• complaint are
sufficient to meet either a vicarious liability standard or an
intermediate standard of liability, the Court need not decide
between these standards to deny the pending motions to dismiss
and for judgment on the pleadings.
Finally, the Report erred in justifying an interpretation of
§ 14141 as requiring the same liability standards as § 1983 based
on a fear that a different standard would pose constitutional
problems. Both the vicarious liability standard and a more
stringent intermediate standard are well within Congress' ability
to enact § 14141 under § 5 of the Fourteenth Amendment. II. THE UNITED STATES' CLAIM3
The United States' Complaint (Complaint) in this case
alleges generally that:
Defendant City of Columbus has engaged in a pattern or practice of subjecting individuals to excessive force, false arrests and charges, and improper searches and seizures. The City has tolerated this conduct through its failure to adequately train, supervise, and monitor police officers, and its failure to adequately accept citizen complaints of misconduct, investigate alleged misconduct,
3 On June 28, 2000, the United States moved to amend its complaint to add claims that the City is engaged in a pattern or practice of racially discriminatory conduct. That motion is pending. The dispositive motions at issue address the original complaint.
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and discipline officers who are guilty of misconduct. Complaint % 1. Defendants1 dispositive motions contend and the Report agrees that the Complaint, as drafted, fails to state a claim under § 14141 because it fails to allege adequately that the City is responsible for the pattern of unconstitutional conduct that the United States will prove at trial. The specific allegations of the Complaint contend that the pattern or practice of unconstitutional conduct encompasses repeated uses of excessive force, false arrests and reports, and illegal searches by Columbus police officers engaging in official activities. Complaint Kf 6-8. However, the Complaint does not rest on these allegations, which would be sufficient to plead vicarious liability. Instead, the Complaint also specifically alleges that the City has "engaged in" and "tolerated" the pattern or practice of misconduct by failing to have appropriate policies; failing to train, monitor, supervise, and discipline officers adequately; and failing to investigate uses of force and complaints of misconduct adequately. Complaint Uf 9-10.
III. ARGUMENT A. Section 14141 Standards of Liability Should Not Be
Governed by S 1983 Case Law The Report erred when it found the Complaint deficient. The Report reached this incorrect result because it applied § 1983 standards to the United States' § 14141 Complaint, despite the significant differences between § 14141 and § 1983, in their language, structure and purpose. These factors clearly
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demonstrate that § 14141 imposes a different standard of
governmental liability than under § 1983.
1. Section 14141 and Section 1983 Use Different Statutory Language to Impose Liability on Governmental Authorities
The language of § 14141 is entirely different from that of
§ 1983. In pertinent part, § 14141(a) reads:
It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority to engage in a pattern or practice of conduct by law enforcement officers ... that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
By contrast, the pertinent part of § 1983 reads:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, . privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.
Section 1983 provides a remedy against any "person" who
through a "statute, ordinance, regulation, custom, or usage"
"subjects or causes to be subjected" any person to a deprivation
of constitutional rights. 42 U.S.C. § 1983. It requires that
the suit must be brought against the "person" who "caused" the
deprivation of rights. The Supreme Court relied primarily on
this textual language in Monell v. Department of Social Services.
436 U.S. 658 (1978) (Monell), where the Court held that § 1983
applied to municipalities, but that municipal liability must be
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based on some municipal "custom" or "policy."4 Subsequently, in
City of Canton v. Harris, 489 U.S. 378 (1989), the Supreme Court
was faced with the question of when a municipality, in the
absence of an actual policy that was unconstitutional, could be
found liable under § 1983 for an unconstitutional act by one of
its police officers. The Court found that a failure to provide
adequate training could be a d£ facto policy that caused a
deprivation of rights, if it evidenced deliberate indifference
and led to a constitutional violation. I&. at 388-392. Thus,
the deliberate indifference standard adopted by the Supreme Court
in § 1983 damages cases was crafted to satisfy both the "custom
or policy" requirement and the strict causation standard
explicitly set forth in the unique language of § 1983. See Board
4 The Report refers to a comment in the Monel.1 decision about "perceived constitutional difficulties" regarding the imposition of respondeat superior liability under § 1983. Monell did not say, however, that imposition of vicarious liability on local governments for the acts of their agents would have posed an actual constitutional question. Instead. Monell states that imposition of vicarious liability would have caused the 19th Century legislators who created § 1983 to perceive that there was a constitutional problem. As Monell notes, this perceived constitutional problem was laid to rest by the Supreme Court in Ex Parte Virginia. 100 U.S. 339 (1879).
Monell discusses constitutional federalism principles only as part of the Court's efforts to determine the intent of the 1871 Congress in enacting § 1983. There is no suggestion in Monell or any other case that Congress would raise any contemporary constitutional question by imposing respondeat superior liability on municipalities for the acts of their employees. For example, the Supreme Court has recently applied respondeat superior liability under Title VII (which applies to governmental entities). See Burlington Indust. v. Ellerth. 524 U.S. 742, 754-66 (1998); Kitchen v. Chippewa Valley Schools. 825 F.2d 1004, 1013-14 (6th Cir. 1987) (applying respondeat superior liability under Title VII to local school board).
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of County Commissioners of Bryan County v. Brown. 520 U.S. 397, 409 (1997) (deliberate indifference standard needed to ensure
that liability attaches only when municipality can be said to cause violation).
By contrast, § 14141 uses the phrase "engage in a pattern or practice of conduct" rather than the phrase "statute, ordinance, regulation, custom, or usage" or the causation language of § 1983. By its terms, § 14141 imposes liability on a government authority based upon an unconstitutional "pattern ... of conduct by law enforcement officers," (emphasis added) whether or not that conduct was pursuant to an explicit policy ("statute, ordinance, regulation") or implicit policy ("custom, or usage") . Furthermore, the plain language of § 14141 explicitly differentiates between the liable entity under the statute -- "a governmental authority, or any agent" -- and the law enforcement officers whose direct actions deprive persons of their constitutional rights. Because § 14141 uses language completely different from that in § 1983, and the holdings in Monell and City of Canton were based on the Court's analysis of the unique language of § 1983 and its legislative history, the deliberate indifference standard for governmental liability does not apply to § 14141. See Dorris v. Absher. 179 F.3d 420, 429 (6th Cir. 1999) (quoting Muscogee (Creek) Nation v. Hodel. 851 F.2d 1439, 1444 (D.C. Cir. 1988)) ("Where the words of a later statute differ from those of a previous one on the same . . . subject, the Congress must have intended them to have a different
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meaning") . 2. Section 14141 and Section 1983 Have Significantly Different Structures and Purposes A different legal standard for determining governmental
liability under § 14141 than under § 1983 is required by the significant differences in the structure and purposes of the two laws. Section 14141 provides a right of action only for the United States Attorney General based on "a pattern or practice of conduct by law enforcement officers." Section 1983 by contrast is primarily designed to provide a right of action for individual plaintiffs based on individual unconstitutional acts.
Neither § 14141 nor § 1983 impose blanket liability on governmental authorities for individual acts of wrongdoing by their law enforcement officers. The two statutes, however, use different mechanisms for limiting liability. Section 1983 limits municipal liability to those cases where private plaintiffs show that the governmental actor, through its policies or deliberate indifference, was the direct cause of an unconstitutional act. See Bryan County, supra. In contrast, § 14141 limits liability to those circumstances where the Attorney General can prove that there is a "pattern or practice" of conduct that violates the Constitution or federal statutes by the governmental defendant's law enforcement officers. Thus, § 14141 imposes a significantly different burden than does § 1983. Once the United States proves a "pattern or practice," the language, structure and purpose of § 14141 do not indicate that Congress intended to impose the additional burden of demonstrating deliberate indifference by the
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governmental defendant to impose liability. 3. The Legislative History of § 14141 Does Not Support Application Of S 1983 Monell Standards Congress1 explicit intent in enacting § 14141 was to provide
the United States with the authority to bring lawsuits against governmental authorities whose law enforcement agents were engaging in a pattern or practice of misconduct, and to obtain appropriate prospective injunctive relief "to eliminate the pattern or practice." 42 U.S.C. § 14141(b). Congress enacted § 14141 in 1994, well after the Supreme Court had established standards for municipal liability under § 1983 in the Monell (decided in 1978) and City of Canton (decided in 1989) decisions. Thus, Congress must be presumed to have been aware of the Supreme Court's interpretation of § 1983 in enacting § 14141. See South Dakota v. Yankton Sioux Tribe. 522 U.S. 329, 351 (1998) (Congress is assumed to be aware of existing law when it passes legislation).
If, as the Report concludes, Congress1 intent in enacting § 14141 was to impose the same deliberate indifference standard for municipal liability that the Supreme Court had established for § 1983 in Monell and City of Canton, there was a simple and straightforward way to do so. Congress could have amended § 1983 to give the United States a cause of action for injunctive relief for a "pattern or practice" of conduct that violates § 1983 . Yet, Congress chose not to do so. Instead, Congress chose to create an entirely new statute, with no textual reference to § 1983, and with completely different language to describe the
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parties, prohibited conduct, and standard for liability. The Report finds, nonetheless, that Congress intended to
apply the § 1983 deliberate indifference standard of liability to § 14141 based largely on three references to the legislative history. As an initial matter, the text and structure of § 14141, not the legislative history, must be viewed as the primarily indicator of Congressional intent. See Holloway v. United States, 526 U.S. 1, 6 (1999) (language of the statute, and its structure, are the most reliable evidence of Congressional intent). Moreover, the legislative history excerpts cited by the Report do not, either individually or collectively, justify imposing the § 1983 standard on § 14141.
a. The legislative history's references to § 1983 do not require imposition of the deliberate indifference standard on § 14141
As correctly noted on page 5 of the Report, § 14141 is a direct successor to a section of the 1991 Police Accountability Act that was not enacted by Congress. The Report is incorrect, however, in concluding that the legislative history of the 1991 bill supports the imposition of § 1983 standards of municipal liability on the Attorney General's authority to sue under § 14141, as enacted. The legislative history's references to the inadequacies § 1983 are directed toward the private right of action that was deleted from § 14141 before its enactment. See
H.Rep. No. 102-242 102nd Cong., 1st Sess. 137-38 (1991) ("Individuals aggrieved by the use of excessive force already can and do sue under 42 U.S.C. 1983 for monetary damages. With
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adoption of this section, such persons will be able to seek
injunctive relief as well.")
The legislative history demonstrates that the original
Police Accountability Act of 19915 was intended to remedy what
Congress viewed as two distinct gaps in the federal statutory-
scheme to protect persons against police misconduct: (1) the gap
created by United States v. City of Philadelphia. 644 F.2d 187
(3d Cir. 1980), which held that absent explicit statutory
authorization, the Department of Justice lacked authority to
5 The proposed Police Accountability Act of 1991 read as follows:
(a) Cause of Action.
(1) Unlawful conduct. It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers that deprives persons of rights, privileges, or immunities, secured or protected by the Constitution or laws of the United States.
(2) Civil action by attorney general. Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
(3) Civil action by injured person. Any person injured by a violation of paragraph (1) may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice. In any civil action under this paragraph, the court may allow the prevailing plaintiff reasonable attorneys' fees and other litigation fees and costs (including expert's fees). A governmental body shall be liable for such fees and costs to the same extent as a private individual.
(b) Definition. As used in this section, the term "law enforcement officer" means an official empowered by law to conduct investigations of, to make arrests for, or to detain individuals suspected or convicted of, criminal offenses.
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bring suit to remedy a pattern or practice of unconstitutional
police misconduct, and (2) the gap created by Los Angeles v.
Lyons. 461 U.S. 95 (1983), which significantly limited the
ability of private plaintiffs to file suits for injunctive relief
to remedy police misconduct under § 1983.6 The 1991 Police
Accountability Act would have cured those two distinct
"inadequacies" in two distinct ways. First, it would have given
the Department of Justice authority to bring pattern or practice
suits, closing the gap created by City of Philadelphia and the
6 This dichotomy is apparent from the following excerpts from the legislative history of the Police Accountability Act:
The Justice Department currently lacks the authority to address systemic patterns or practices of police misconduct. The Justice Department can only [criminally] prosecute individual police officers ... United States v. City of Philadelphia. 644 F.2d 187 (3d Cir. 1980) [held] that the United States does not have statutory or constitutional authority to sue a local government or its officials to enjoin violations of citizens' constitutional rights by police officers. This represents a serious and outdated gap in the federal scheme for protecting constitutional rights.
* *
[A] private citizen injured by police misconduct ... cannot sue for injunctive relief [due to] Los Angeles v. Lyons, 461 U.S. 95 (1983) . . .
The Police Accountability Act would close this gap in the law, authorizing the Attorney General and private parties to sue for injunctive relief ...
H.Rep. No. 102-242 at 137-38.
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absence in federal law of explicit authority for the United States to file suit to remedy systemic police misconduct. Second, it sought to give private individuals injured by police misconduct the standing to obtain injunctive relief for a pattern or practice of misconduct, without the limitations on standing under § 1983 imposed by Lyons.
As noted above, the Police Accountability Act was not enacted in its entirety. When Congress enacted § 14141 in 1994, it intentionally deleted the section of the Police Accountability Act that gave private individuals standing to sue governmental authorities for injunctive relief for the misconduct of their law enforcement officers. Thus, § 14141 as enacted was not intended to remedy deficiencies in § 1983 case law created by Lyons. Rather, the statute was intended solely to remedy the Department of Justice's lack of statutory authority to bring pattern or practice police misconduct suits. Section 14141 does not allow the United States to bring pattern or practice suits under § 1983, but instead creates a new statutory vehicle for the United States to remedy police misconduct.
b. The legislative history's reference to unchanged "standards of conduct" does not support imposition of the deliberate indifference standard on § 14141
The Report also relies on the comment in the legislative history of the 1991 Police Accountability Act that the "standards of conduct under the Act are the same as those under the Constitution, presently enforced in damage actions under Section 1983." Report at 16. This sentence does not, however, support
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the conclusion that the standards of municipal liability developed under § 1983 should be imposed on § 14141.
The "standards of conduct" language in that sentence of the legislative history is intended to explain the previous sentence, which notes that the Police Accountability Act would not "impose any new standards of conduct on police officers." H.Rep. No. 102-242 at 138. This portion of the legislative history simply makes clear that § 14141 is not like other federal civil rights statutes, such as Title VII, which prohibit conduct that is not already unlawful or unconstitutional. Section 14141 did not seek to change the parameters of the constitutional protections against, e.g.. excessive force, false arrest, or improper searches or seizures. Rather, the 1991 Police Accountability Act (and § 14141 as enacted) were designed simply to create new enforcement and remedial mechanisms for eliminating patterns or practices of conduct by law enforcement officers that is already prohibited by federal law. Thus, the "standards of conduct" language does not address the question of under what circumstances a governmental authority can be held liable for such illegal conduct.
More generally, Congress, in the legislative history, made several different statements regarding the "standards of conduct" and "responsibilities" of police officers and law enforcement agencies. None of these should be read as evidencing congressional intent regarding the standard of liability for governmental authorities to be imposed under § 14141. Cf.
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Walters v. Metropolitan Educational Enterprises. Inc.. 519 U.S. 202, 207 (1997) ("In the absence of indication to the contrary, words in a statute are assumed to bear their ordinary, contemporary, common meaning") (internal quotations omitted). If these statements were intended to clarify the liability standard Congress would have used the word "liability" or explicitly referred to Monell. Even if these statements regarding "standards of conduct" and "responsibility" could be fairly read as referring to liability, they cannot outweigh the considerable arguments against applying § 1983 municipal liability standards to § 14141 discussed in this memorandum. The Report erred in giving its reading of ambiguous legislative history primacy over the text of the statute. See Holloway v. United States. 526 U.S. 1, 6 (1999) (language of the statute, and its structure, are the most reliable evidence of Congressional intent).
c. The imposition of municipal liability under a standard different than deliberate indifference will not result in a flood of litigation.
The Report's recommendation to apply § 1983 governmental liability standards to lawsuits under §14141 also was influenced by its conclusion that failure to follow the Monell line of cases "would, contrary to congressional expectations, result in a dramatic expansion of liability and potential for litigation against local governments." Report, at 16. This conclusion does not require application of § 1983 governmental liability standards to § 14141.
Congress did examine the concern about the possibility of a
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potential increase in litigation against local governments, particularly in connection with providing a private right of action for injunctive relief under the 1991 Police AccountabilityAct. The legislative history's discussion, however, reflects Congress1 ultimate expectation that under § 14141, the amount of litigation against police departments would not increase but might in fact decrease, because "pattern or practice" suits for injunctive relief would provide a more efficient impetus for change than had "the cumulative weight" of "successive criminal cases or damages actions." H.Rep. No. 102-242 at 138. Congress concluded that § 14141 either would encourage governmental authorities to address police misconduct through their management practices without awaiting litigation, or would provide a vehicle for resolving in one lawsuit whether and to what extent management practices needed to be changed to eliminate systemic consitutional violations. In either event, the consequence would be a decrease in police misconduct, resulting in fewer police misconduct cases in the long run.
In the six years since the enactment of § 14141 -- without the private right of action that initially prompted the congressional concern about increased litigation -- the United States has brought only one contested, litigated case (this one) and three other filed and settled cases against police departments. Under the United States' view of the § 14141 standard of liability, there has been no dramatic and inappropriate expansion of litigation against local governments.
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Moreover, the evidence now available tends to confirm
congressional expectations, as reflected in the legislative
history, that the remedial measures resulting from § 14141 cases
significantly decrease the number of suits against the local governments involved.7
4. Section 14141 Should Be Interpreted In Light of Civil Rights Statutes That Are More Similar To It Than S 1983
The standard of governmental liability under § 14141 should
be understood in light of the other modern civil rights statutes
that have similar language, structure or purposes. Although the
Report purports to interpret § 14141 "in the light of surrounding
statutes," Report at 13-14 (quoting Vermont Agency of Natural
Resources v. United States. 120 S.Ct. 1858, 1860, n. 17 (2000)),
the Report turns to only one statute for guidance, § 1983. As
discussed above, reliance on § 1983 to interpret § 14141 is
fundamentally flawed. The legislative history makes clear that
other modern civil rights statutes should provide the guidance for interpreting Congress1 actions in designing the Department of
7 For example, in 1997, the United States brought a § 14141 suit against, and simultaneously entered into a Consent Decree with, the City of Steubenville, Ohio. Prior to the United States' action, Steubenville had been the subject of numerous civil rights suits concerning misconduct by its police officers. Subsequent to the filing of the suit and entry of the Consent Decree, there has been a remarkable decrease in the number of suits filed, to the point that in 1999, for the first time in 23 years, there were no pending suits against Steubenville for the conduct of its police officers. See The Steubenville/Weirton Intelligencer, February 3, 1999; the Columbus Dispatch, April 23, 2000, attached as Exhibit A.
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Justice's authority to sue under § 14141.8 In the legislative history concerning the Department of
Justice's authority, Congress declared its intention to fill the "serious and outdated gap in the federal scheme for protecting constitutional rights" created by the absence of federal government "authority to sue a local government or its officials to enjoin violations of citizens' constitutional rights by police officers." Congress explicitly recognized that the Attorney General had "pattern or practice" authority under eight other civil rights statutes, including those governing housing and employment discrimination. Congress noted the parallel between the authority in § 14141 for the Department of Justice to bring a "pattern or practice" lawsuit for injunctive relief against "a police department that tolerates officers beating citizens on the street" and the then-existing authority for such "pattern or practice" lawsuits against state and local governmental authorities in order to reform voter registration practices, educational policies, employment practices by public employers (including police departments), and treatment of institutionalized persons.
The civil rights statutes referenced in the legislative history do not use the § 1983 deliberate indifference standard.
8 As noted above, in Part III(A)(3)(a), supra. the 1991 Police Accountability Act was designed to remedy two perceived gaps in federal civil rights laws. Section 14141, as enacted, remedies only one of those two gaps -- giving the Department of Justice authority it did not previously have to bring suits to obtain injunctive relief for patterns or practices of police misconduct.
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Rather, Title VII of the 1964 Civil Rights Act (Title VII), the Americans With Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Fair Housing Act, and Section 504 of the Rehabilitation Act, all impose vicarious liability on employers for the acts of their agents. As will be discussed in Section III(B)(1) below, courts have held that three of these statutes impose vicarious liability because of their text, and that two impose vicarious liability for policy reasons. These same textual and policy bases are applicable to § 14141.
The clear intent of Congress, coupled with the fact that the language and liability standard of § 1983 is atypical among modern civil rights statutes, demonstrates that Congress drafted § 14141 against the backdrop of civil rights statutes other than § 1983. These other statutes simply do not require a finding of deliberate indifference to impose municipal liability. Thus, the Report erred in grafting § 1983's deliberate indifference standard onto § 14141, and the Court should reject the conclusion that the United States' Complaint is insufficient. B. Section 14141 Imposes a Different Standard of
Governmental Liability than S 1983 The best interpretation of the language, structure, and purpose of § 14141, when read in light of other modern civil rights statutes, is that it makes governmental authorities vicariously liable for the systemic constitutional violations of their law enforcement agents. In the alternative, an interpretation of § 14141 that focuses on the statute's use of the words "engage in" would support an intermediate liability
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standard that requires the municipality to have "tolerated," "contributed to" or "played a role in" the pattern or practice of constitutional violations committed by its law enforcement agents. The facts pled in the United States' complaint are sufficient to meet either a vicarious liability standard or an intermediate standard of liability. Therefore, the motions to dismiss and for judgment on the pleadings should be denied.
1. The Best Reading of § 14141 Is That it Imposes Vicarious Liability
The starting point for interpreting any statute is the text. The text of § 14141(a) recognizes two distinct actors or sets of actors. The first actor is the "governmental authority" which is being held liable. The second actors are the law enforcement officers that deprive persons of their constitutional rights. Section 14141, by its plain terms, provides a remedy in cases in which a governmental authority did not itself cause its agents to deprive anyone of their constitutional rights. Rather, because a municipality can only act through its agents, the governmental authority is held responsible for the unconstitutional acts of its law enforcement employees committed under color of law. Thus, under § 14141, governmental authorities should be liable not only for their own failures, as is the case under § 1983, but also for a pattern of illegal acts by their agents.
a. Civil rights statutes that include the phrase "any agent" in defining the liable entity consistently have been held to impose vicarious liability
The first clause of § 14141(a) defines the liable governmental authority to include both the governmental authority
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and "any agent thereof." The fact that the text of § 14141 uses the phrase "any agent" in this way is particularly significant to understanding Congress' intent regarding the standard of liability to be imposed in § 14141 cases. Federal courts have held that Title VII of the 1964 Civil Rights Act (Title VII), the Americans With Disabilities Act (ADA), and the Age Discrimination In Employment Act (ADEA),9 all impose vicarious liability on governmental authorities or employers, in large part because each of those statutes defines the scope of liability to include "any agent" of those entities or persons. Because § 14141 also includes that same phrase -- "It shall be unlawful for any governmental authority, or any agent thereof ..." -- § 14141 should be interpreted in the same way as Title VII, the ADA, and the ADEA. See. Evans v. United States. 504 U.S. 225, 259 (1992) (stating that when Congress borrows a term of art "it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed").
Three Supreme Court cases have held that Title VII imposes vicarious liability on employers when such imposition of liability is consistent with agency principles. See Meritor Savings Bank. FSB v. Vinson. 477 U.S. 57 (1986); Faragher v. City of Boca Raton. 524 U.S. 775, 791-92 (1998); Burlington
9 42 U.S.C. § 2000e et. seq.; 42 U.S.C. § 12101 et. seq.; 29 U.S.C. § 621 et seq., respectively.
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Industries. Inc.. v. Ellerth. 524 U.S. 742 (1998) . Those decisions rested in large part on the fact that Title VII defines those who are liable to include "any agent." Meritor Savings Bank was decided well before § 14141 was enacted in 1994 (or proposed in 1991). Therefore, Congress must be presumed to have been aware of this decision interpreting "any agent" to impose vicarious liability under Title VII when it enacted § 14141. See South Dakota. 522 U.S. at 351. Indeed, the Supreme Court recently found that by use of the term "any agent," "Congress has directed federal courts to interpret Title VII based on agency principles." Burlington Industries, 524 U.S. at 754.
Similarly, courts have imposed vicarious liability under the ADA and the ADEA because those statutes define those who are liable to include "any agent." Seer e.g. , Silk v. City of Chicago. 194 F.3d 788 (7th Cir. 1999) (employers vicariously liable under ADA for hostile work environment created by supervisor); EEOC v. Walmart, 187 F.3d 1241 (10th Cir. 1999) (employer vicariously liable under ADA for punitive damages); Mason v. Stalling?;. 82 F.3d 1007, 1008-9 (11th Cir. 1996) (use of word "agent" in ADA and ADEA "was included to ensure respondeat superior liability of the employer for the acts of its agents", noting that such liability, by contrast, is not available for § 1983 claims); Anonymous v. Legal Services Corporation of Puerto Rico. 935 F. Supp. 49, 50-51 (D.P.R. 1996) (use of words "any agent" in Title VII, ADEA, and ADA meant "to ensure that courts would impose respondeat superior liability upon employers for the
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acts of their agents") . In each case, the Court found the use of
"any agent" to evidence Congress' desire to impose vicarious
liability.
Section 14141, like Title VII, the ADEA and the ADA, uses
the phrase "any agent" to broaden the scope of liability of
"governmental authorities" to include acts of their agents.
Accordingly, this Court should acknowledge, as did the Supreme
Court in Burlington Industries. Inc.. v. Ellerth. 524 U.S. at 754
(1998), that Congress directed federal courts to interpret
§ 14141 based on agency principles.10
b. The policy justifications for imposing vicarious
10 Under such agency principles, in order to impose vicarious liability on governmental authorities under § 14141, their law enforcement officers must be deemed to be their "agents," and their acts must be imputed to their employer. These issues are ones of federal, not state law. See City of Chicago v. Matchmaker Real Estate Sales Center. Inc.. 982 F.2d 1086, 1096-1097 (7th Cir. 1992); Mail v. Rife., 503 F.2d 735, 740-741 (6th Cir. 1974) (federal, not state, law must determine who is liable under federal civil rights statutes).
When deciding whether principles of agency law require an employer to be held liable for the acts of its employees, the Supreme Court has relied heavily on common law of agency as articulated in the Restatement (second) of Agency. See, e.g.. Faraaher. 524 U.S. at 793 (citing Restatement (Second) of Agency § 2191 (1957 Main Vol.)). Applying these common law agency principles, improper acts of police officers clearly fall within the scope of their employment, thus making a municipality liable for the constitutional violations of its police officers. For this reason, state and federal courts deciding this issue under state agency law, including Ohio law, have found municipalities vicariously liable for the on-duty misconduct of their officers. See, e.g.. Stallworth v. City of Cleveland. 893 F.2d 830, 833-835 (6th Cir. 1990) (under Ohio law, Cleveland was vicariously liable for a use of excessive force by one of its police officers); Red Elk v. United States. 62 F.3d 1102 (8th Cir. 1995) (governmental entity liable for sexual assaults committed by officers on persons within their custody); Mary M. v. City of Los Angeles. 814 P.2d 1341 (1991) (same).
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liability under other civil rights statutes are equally applicable to § 14141 The Fair Housing Act and Section 504 of the Rehabilitation Act, have also been interpreted to impose vicarious liability because of policy considerations, although these statutes do not contain the "any agent" language. Those considerations are equally applicable to § 14141. i. Fair Housing Act The Fair Housing Act imposes vicarious liability for damages and injunctive relief against persons or entities that discriminate in housing decisions based on race, color, religion, sex, familiar status, or national origin. 42 U.S.C. 3604. Federal courts have consistently held that owners of realty companies, rental agencies, and other entities involved in the rent or sale of real estate are vicariously liable for the actions of their employees or agents, regardless of whether the owner actually knew of the employees' conduct and/or took steps to correct it. The rationale for these decisions has rested on both general agency principles and public policy arguments, and not on the language of the Fair Housing Act. The same agency principles and public policy arguments apply to § 14141. For example, City of Chicago v. Matchmaker Real Estate Sales Center. Inc.. 982 F.2d 1086, 1096-1099 (7th Cir. 1992), held a realty company vicariously liable for the acts of its agents noting " [a] principal cannot free itself of liability by delegating to an agent the duty not to discriminate." (citing Green v. Century 21. 740 F.2d 460, 465 (6th Cir. 1984)). The
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Court then framed the vicarious liability issue: which innocent party, the owner whose agent acted contrary to instruction, or the potential renter who felt the direct harm of the agent's discriminatory failure to offer the residence for rent, will ultimately bear the burden of the harm caused
Id. at 1097. (quoting Walker v. Crialer. 976 F.2d 900, 901 (4th Cir. 1992)). City of Chicago agreed with Walker that the Fair Housing Act's "overriding societal priority" mandated that, under these circumstances, an owner must act to compensate the injured party, because the party with the "power to control the acts of the agent ... must compensate the injured party for the harm, and to ensure that similar harm will not occur in the future." Id.
Similarly, Marr v. Rife. 503 F.2d 735, 740-741 (6th Cir. 1974) held the owner of a real estate agency vicariously liable for damages for acts of his employees in violation of the Fair Housing Act, because of the statute's "broad legislative plan to eliminate all traces of discrimination within the housing field." The Court found vicarious liability applies "under the doctrine of respondeat superior and because the duty to obey the law is non-delegable." See also Sanders v. Dorris. 873 F.2d 938, 944 (6th Cir. 1989) (owner cannot escape liability by instructing agents not to discriminate); Northside Realty Associates. Inc. v. United States. 605 F.2d 1348, 1353-54 (5th Cir. 1979) (vicarious liability because corporation maintains authority to hire, fire, discipline, and direct activities of sales agents); United States v. Lorantffy Care Center. 999 F. Supp. 1037, 1045 (N.D. Ohio 1998) (imposing vicarious liability in the Fair Housing Act
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"pattern or practice" suit brought by United States); United States v. Gorman Towers Apartments, 857 F. Supp. 1335, 1340 (W.D. Ark. 1994) (imposing vicarious liability, while dismissing § 1983 cases cited by defendants).
ii. Section 504 Of The Rehabilitation Act Federal courts have also refused to graft Monell liability standards onto cases brought under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits discrimination against persons with disabilities in federally funded programs. Patton v. Dumpson, 498 F. Supp. 933 (S.D.N.Y. 1980), imposed vicarious liability against a governmental authority under § 504, finding that "[w]ith respect to other civil rights statutes, it appears that the general rule is that respondeat superior does apply." Id., at 942. Patton refused to impose § 1983 standards onto § 504 cases: "The Supreme Court's decision in Monell ... that respondeat superior was not applicable to § 1983 suits is confined to the peculiar characteristics of that statute ... In addition the wording of the two statutes is entirely different." Id. Patton noted (and cited) the numerous federal decisions applying vicarious liability in the Fair Housing Act, Title VII, and 42 U.S.C. § 1981 cases and found that imposing vicarious liability under § 504 would be "entirely consistent" with the statute's policy of eliminating discrimination against the handicapped. Id., at 943. See also Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) (expressly adopting Patton for § 504 cases).
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iii. Applicability to § 14141 The same agency principles and policy considerations that have led federal courts to impose vicarious liability in Fair Housing Act and § 504 cases apply equally to § 14141. The reasoning of Monell is no more applicable to § 14141 than it is to the Fair Housing Act or § 504. Section 1983's "peculiar characteristics" are not shared with § 14141. When governmental authorities delegate to officers the right to deprive persons of their liberty and to use force to do so, they cannot escape liability by simply telling officers to use only lawful force or to execute only lawful searches and seizures. Governmental authorities exercise control over hiring, supervising, disciplining, and directing the acts of their law enforcement officers. If courts are forced to choose between an arguably "innocent" governmental authority (that is, in the language of Monel^f one whose "custom or policy" cannot be shown to have caused the constitutional harm) and the citizens whose rights would be violated if the pattern or practice is unabated, the choice is simple: those with authority over the wrong-doers should be liable for appropriate equitable relief.11 The "overriding societal priority" in § 14141 suits in which the United States proves a pattern or practice of illegal conduct by law enforcement officers must be the elimination of the
11 Of course, if the governmental authority adequately trains, supervises, monitors, and disciplines its agents, the "appropriate equitable and declaratory relief" available under § 14141(b) may be of limited scope and duration.
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misconduct, a priority that would be hindered by imposition of Monell standards.
2. Alternatively, Section 14141 Can Be Read to Require That The Governmental Authority Tolerate, Play a Role in or Contribute to the Constitutional Violation
The United States believes the best reading of § 14141 is that it imposes vicarious liability. However, the statute's use of the term "engaged in" as part of the definition of a liable governmental entity also provides support for an intermediate standard of governmental liability, between vicarious liability and the § 1983 deliberate indifference standard. Such an intermediate standard would require that the municipality "tolerate," "contribute to" or "play a role in" the pattern or practice of constitutional violations committed by its law enforcement agents.
Section 14141 states that entities are liable if they "engage" in a pattern or practice of misconduct, but does not define "engage." Black's Law Dictionary defines "engage" as "to employ or involve one's self; to take part in; to embark on." Of these definitions, "to involve one's self" or "take part in" are most apt when inserted into the text of § 14141. Thus, § 14141 could be read to make it unlawful for any governmental authority to "involve itself" or "take part in" a pattern or practice of conduct by law enforcement officers that deprives citizens of their rights.
The allegations of the United States' Complaint plead facts sufficient to satisfy this intermediate standard as well as a
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vicarious liability standard. The Complaint states that the "City of Columbus has tolerated the misconduct of individual officers . . . through its acts or omissions."12 Complaint at 11 9. It then lists a number of acts or omissions by the City that contributed to and played a role in the pattern of deprivation of rights. These include the failure to implement policies, to train, to supervise and to monitor Columbus police officers. id.. Thus, the Complaint refers to actions or inactions by the City that played a part in or contributed to the alleged pattern or practice.
The actions and inactions alleged in the Complaint satisfy this alternative reading of § 14141 because they are sufficient to show that the City is "engage[d] in" the alleged pattern or practice of unconstitutional conduct. The use of the term "engage" does not mean that a governmental authority must undertake the kind of "deliberate" or "intentional" policy-making required by Monell and its progeny. In other statutes containing the word "engage," Congress has repeatedly used the phrase "intent to engage," evidencing a belief that the use of the word "engage," by itself, is not sufficient to establish an intent requirement. For example, 18 U.S.C. § 831, which prohibits certain transactions involving nuclear materials, provides that a party is guilty of a conspiracy in violation of the statute when that
12 As noted above, Section 14141's legislative history also uses the word "tolerate" to describe governmental authority acts that would be reached by the statute. " [DOJ] cannot sue to change the policy of a police department that tolerates officers beating citizens on the street." H.Rep. No. 102-242 at 137.
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party "intentionally engage[s]" in conduct in furtherance of the conspiracy. 18 U.S.C. § 831(a)(8). Similarly, the statute that criminalizes transportation of a person for illegal sexual activity requires that a party must transport the person "with intent that such individual engage in prostitution." 18 U.S.C. § 2421. Thus, the word "engage," without more, does not impose an intent or deliberate indifference requirement, and the analogy to the § 1983 liability standards is inapposite.
3. The Court Need Not Decide the Precise Standard for Municipal Liability to Deny the Defendants' Motions to Dismiss and for Judgment on the Pleadings
The discussion above sets forth the arguments that the best reading of § 14141 is one that leads to the imposition of vicarious liability on a governmental authority for a pattern or practice of unconstitutional conduct by its law enforcement officers, as well as the alternative reading of § 14141 which would impose an intermediate standard of municipal liability. However, this Court also could decide that its resolution of the most appropriate municipal liability standard under § 14141 would be best made at a later stage of the litigation, with the benefit of a fully-developed factual record and presentation of the evidence at trial. Because the United States• Complaint adequately pleads both of these potential standards, the Court need only decide now that § 14141 does not require the United States to meet the deliberate indifference liability standard of § 1983. This finding alone would be sufficient for this Court to reject the Report's conclusion that § 1983 applies, and to deny
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the defendants' pending dispositive motions.
C. Section 14141's Imposition of Municipal Liability with a Standard Different than Deliberate Indifference Does Not Raise Any Serious Constitutional Questions
The Report recommends adopting the § 1983 liability
standard, in part, to avoid what it views as constitutional
concerns raised by applying some lower standards of liability.
This concern is misplaced. Section 14141 clearly falls within
Congressional powers granted by § 5 of the Fourteenth
Amendment.—
1. Section 14141 Is Proportional and Congruent
As discussed in the United States' Supplemental Memorandum
in Opposition to The Fraternal Order of Police's Motion For
Judgment on The Pleadings brief filed before the Magistrate
Judge, an argument we incorporate by reference but do not repeat
here, § 14141's vicarious liability standard is proportional and
congruent to the constitutional harm identified.14 The
13 The United States also objects to the Report's recommendation that the Court rule that Congress lacked power under the Commerce Clause to enact § 14141, for the reasons set forth in our first brief in opposition to defendants' dispositive motions. We believe that Congress had authority under the Commerce Clause to enact § 14141 given the substantial effect on interstate commerce of the consequences of police misconduct, such as the riots that resulted from the Rodney King state court verdict, or the financial impact on Los Angeles of the "Rampart" scandal. See The United States' Memorandum in Opposition to the City of Columbus' Motion to Dismiss and the Fraternal Order of Police's Motion for Judgment on the Pleadings, at 16 n.5 (March 11, 2000). In any event, the Commerce Clause analysis is unnecessary to finding that § 14141 is constitutional because it is sufficient to hold that it was properly enacted pursuant to Congress1 power under Section 5 of the Fourteenth Amendment.
14 It appears that the City raises this issue again in its Objections to the Magistrate's Report and Recommendation,
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alternative intermediate liability standard is even less susceptible to constitutional challenge than a reading of § 14141 that applied the vicarious liability standard. Under the intermediate standard, § 14141 would sanction a governmental authority only when it "contributed to," or "played some role in," the constitutional violation. Finally, because the court would be required by equitable principles to fashion a remedy that addresses precisely the areas in which the municipality's deficiency occurred, there could be no lack of proportionality between the violation and the remedy.
2. Section 14141 Does Not Raise Federalism Concerns The Report's conclusion also appears to be based in part on a concern that imposing vicarious liability will unduly expand the federal role in the operations of local law enforcement. In this case, the remedies that are imposed after trial will be determined by this Court based on the nature and scope of the violations proven by the United States at trial. In enacting § 14141, Congress intended the courts to address any federalism concerns at the remedy stage by applying traditional equitable standards, rather than limiting liability in the first place by adopting § 1983 liability standards. Moreover, in assessing federalism concerns, the Supreme Court has recognized the important difference between suits
filed August 14, 2000. Therefore, the United States' response to the City of Columbus' Objections to the Magistrate Judge's Report, will again elaborate on the reasons why § 14141's imposition of vicarious liability is constitutional.
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brought by the United States against state governmental
authorities, and suits brought by private plaintiffs. In Alden
v. Maine., 527 U.S. 706 (1999), the Court identified
constitutionally significant differences between damage suits by
private persons against States -- which "may threaten the
financial integrity of the States" -- and suits
commenced and prosecuted against a State in the name of the United States by those who are entrusted with the Constitutional duty to •take Care that the Laws be faithfully executed1 U.S. Const. Art. II § 3 ... Suits brought by the United States itself require the exercise of political responsibility for each suit prosecuted against a State, a control which is absent from a broad delegation to private persons to sue nonconsenting States.
Id., at 755-756.
The difference between § 1983 suits for damages15 by private
15 The Report's rejection of a vicarious liability standard under § 14141 appears to be based on an understanding that Monell and its progeny bar vicarious liability in all § 1983 suits. But Monell held only that under § 1983 municipalities are not vicariously liable for damages. Moreover, when Congress enacted § 14141 a substantial number of courts had ruled that Monell does not bar vicarious liability for § 1983 claims seeking prospective injunctive relief. See Chaloux v. Killeen, 886 F.2d 247 (9th Cir. 1989); Los Angeles Police Protective League v. Gates. 995 F.2d 1469 (9th Cir. 1993); Nobby Lobby Inc. v. City of Dallas. 767 F. Supp. 801, 810 (N.D. Tex. 1991), aff'd 970 F.2d 82 (5th Cir. 1992); Santiago v. Miles. 774 F. Supp. 775, 792 (W.D.N.Y. 1991); Joyce v. City and County of San Francisco. 846 F. Supp. 843, 861 (N.D. Cal. 1994); American Association of State Troopers. Inc. v. Preate. 825 F. Supp. 1228, 1229 (E.D. Pa. 1993); Malik v. Tanner. 697 F. Supp. 1294, 1304 (S.D.N.Y. 1988); Ganguly v. New York State Department of Mental Hygiene. 511 F. Supp. 420, 424 (S.D.N.Y. 1981). We recognize that before § 14141 was enacted, the Sixth Circuit, in an unpublished decision, had come to a different conclusion about § 1983. Kennard v. Wray. 19 F.3d 19 (Table) (6th Cir. 1994) (holding without discussion that Monell bars vicarious liability in § 1983 cases for injunctive relief). Nonetheless, against this backdrop, there is nothing in
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persons and § 14141 is precisely the difference Alden identifies as one of constitutional significance. The fact that § 14141 suits brought by the United States are an exercise of political responsibility further undermines the rationale for tying § 1983 to § 14141. While Alden found Congress could not subject States to suit by private citizens over federal laws in their own courts, it expressly distinguished suits by the Department of Justice to enforce those same laws. Thus, the Report's assertion that "federalism" issues would be raised if § 14141 was not limited by Monell standards of liability, Report at 16, is rebutted by Alden. While Monell interpreted § 1983 as limiting private suits for damages against municipalities to those in which a municipal policy or custom caused the harm, Congress did not intend to subject § 14141 suits to that same limitation.
the legislative history to suggest that Congress understood § 1983 to bar vicarious liability claims for injunctive relief.
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IV. CONCLUSION For the foregoing reasons, the United States respectfully requests that this Court reject that portion of the Magistrate Judge King's Report that recommends that § 1983 standards of municipal liability apply to this case, deny defendants' motions to dismiss and for judgment on the pleadings, and rule that the Complaint states a claim under 42 U.S.C. § 14141.16

SHARON J. ZEALEY United States Attorney Southern District of Ohio

BILL LANN LEE Assistant Attorney General Civil Rights Division U.S. Department of Justice

DEBORAH F. SANDERS Assistant United States
Attorney Southern District of Ohio Two Nationwide Plaza 280 North High Street Fourth Floor Columbus, Ohio 43215 (614) 469-5715

STEVEN H. ROSENBAUM , Chief DONNA M. MURPHY Special Counsel MARK MASLING MARK A. POSNER JAMES EICHNER CATHLEEN TRAINOR Attorneys
Special Litigation Section Civil Rights Division U.S. Department of Justice P.O. Box 66400
Washington, D.C. 20035-6400 (202) 514-6252

16 If, however, the Court accepts the Report's challenged recommendation, the United States respectfully requests that it be given an opportunity to amend its Complaint within a reasonable time after the Court's decision.
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CERTIFICATE OF SERVICE I certify that a copy of the United States' Objections To The Magistrate's Report And Recommendation Regarding Defendants' Dispositive Motions was served by facsimile and regular mail on August 21, 2000, on the following:
Timothy J. Mangan Senior Litigation Attorney Columbus City Attorney's Office 90 West Broad Street Columbus, Ohio 43215 614-645-0803 fax James Phillips John J. Kulewicz Douglas L. Rogers Vorys, Sater, Seymour and Pease 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 614-719-5000 fax
Deborah F. Sanders
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EXHIBIT A

THE INTELLIGENCER
WHEELING, W.VA.

STEUBENVILLE/WEIRTON

WEDNESDAY, FEBRUARY 3 , 1 9 9 9
SEVENTEEN

Repella: No Litigation Against Police for First Time in 23 Years

ny ERIC AYRES

department.

the video equipment, officers have solid very fine job, and Chief Jerry McCartney believed (hat the city would benefit from the

The Intelligencer Staff

According to Repella, a pending lawsuit proof of exactly what occurs during arrests. and all of the officers should be commend- agreement and that she is still in support of

Steubenville Law Director Gary Repella that stemmed from a raid by city, county and The number of settlements and claims ed. We're turning around what used to be a annexation when surrounding communities

announced Tuesday that fur the first time in state officials at the Safari Lounge is being awarded from past lawsuits against the major problem for the police department and desire the use of Steubenvillers utilities.

23 years, there is no litigation pending dismissed, and another suit that was pending department had caused the city's insurance the city."

• long awaited legislation amending the

against the city's police department.

in Jefferson County Common Pleas Court premiums to skyrocket, according to In other action Tuesday:

city ordinances to address parking of com-

Repella cited action by city council, the was recently resolved with a summary judg- Repella, who said the Ohio Municipal • council approved nn agreement with mercial vehicles in a residential district

city administration and the pqljce depart- ment in favor of the city.

League "kicked the city out" of their insur- the Ohio Department of Transportation that received a first reading. The safely commit-

ment for helping to bring significant and "We're now down to zero cases with ance pool at one time because of the claims. will give the city the duties of handling bid- tee of council, city leaders and ofticers from

permanent improvements to the force, which none on the horizon," said Repella "1 think Officials noted that the city has not been ding and selection of contractors for the con the traffic division of the police department

had been troubled with civil litigation for it's pretty impressive arid It's my belief that forced to pay a settlement tor one of the stniclion phase of the Sunset Boulevard have been working on the legislation for

years.

we're really beginning to see the benefits of cases for a few years. The city's insurance (Ohio 43) widening project.

months due to an apparent problem with

"For the first time since 1976, there arc the consent decree."

rales had risen to about $360,000 a year at The new agreement is expected to save large vehicles, such as tractor trailers being

no lawsuits pending against the city's police Repella said attorneys who brought law- the height of the lawsuit frenzy, but accord- the project from going through about four parked in residential neighborhoods.

department, Repella told members of city suits against the Steubenville Police ing to City Manager Gary DuPour, the city months of state bureaucracy and red tape.

The proposed legislation amends lan-

council Tuesday. "The city's handled close Dcpnilment would often argue in court recently received u low bid of about • a majority of council members official- guage to slate that trucks of one ton capaci-

In 60 lawsuits against the department since about a lack of training and discipline $ 130,000 for a new insurance policy.

ly ratified an agreement with Jefferson ty or less may park in a private driveway,

then, and there's been about $870,000 in among the officers. Now that the city is Slcubenvillc was the second city in the County which will allow a new sewer sys- but trucks of more than 3/4 ton capacity or

claims' paid out in those cases."

under the watchful eye of the justice depart- nation behind Pittsburgh (o enter into a con- tem to be built in Pottery Addition. The pact more may not park on any street, in any pri-

In 1997, the city entered into a consent ment, the police department is basically sent decree with the U.S. Department of will bring economic development and vate parking space or lot in the residential

decree with the U.S. Department of Justice under mandate to become one of the most Justice and other cities, such as Columbus, improved environmental conditions to the districts between one hour alter sunset and

following a year-lone federal investigation efficiently operated law enforcement agen- have followed. Repella said unlike the other area and is expected to bring a new cooper- one hour before sunrise.

into allegations of police misconduct. Since cies with some of the most professional and cities that are resisting the implementation alive relationship between the city and coun- However, 1st Ward Councilman Bill

then, the city has spent nearly $500,01)0 on most highly-trained officers in the nation. of the consent decree, Steubenville is work- ty.

Sullivan, chairman of the safety committee,

new equipment and training in order to Officials also credited the city's purchase ing hard to come into compliance and is Coundlwoman-at Large

LaDunna noted thnt the new language may create a

come into compliance with the consent and installation of video cameras in police benefiting from it.

Delators, who has been opposed to the leg- problem since school buses will not be pcrr

decree and is continuing to work towards cruisers for the dramatic decline in lawsuits "We're in very good shape," said islation, cast the sole dissenting vote on the milted to park in residential areas at nightj-

improving the operations at the police against the department. Through the use of Repella. "Our police department is doing a agreement. Dclalore noted that she has never even during games and special events. \

Page 1

Citation

Seaxch Result

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2000 WL 18890309

Rank 2 of 50

THE COLUMBUS DISPATCH (c) Copyright 2000 Columbus Dispatch. All Rights Reserved.

Database COLDIS

Sunday, April 23, 2000

NEWS

AUDITOR WATCHES OVER POLICE STEUBENVILLE CHANGES ITS WAYS TO MEET CONSENTDECREE CRITERIA
Bruce Cadwallader Dispatch Staff Reporter

STEUBENVILLE, Ohio — The police officer shifted nervously in the witness chair when he saw the spectator in the back of the Jefferson County courtroom.

Then he continued his testimony. He had struggled with the motorist, he told the judge, used a chemical irritant on him and finally tackled the man after a foot chase.

The defendant dropped a loaded pistol, and other officers found another gun and cocaine in the man's car, the officer said.

"I guess I'll have to pull that file," the spectator said at the preliminary hearing as he listened to the officer describe how he helped apprehend the defendant.

The spectator was Charles D. Reynolds, the federal auditor assigned to monitor the "patterns and practices" of police in this town of 22,000 on the West Virginia border. Reynolds provides the same type of oversight the federal government is suing to put in place over the Columbus Division of Police.

Reynolds is the federal sledgehammer that Steubenville Police Chief Jerry McCartney feared in September 1997 when city officials signed a negotiated settlement -- called a consent decree -- with the U.S. Department of Justice.

Instead, Reynolds, a retired police chief from Dover, N.H., is the tool that's straightened out the kinks in McCartney's chain of command. Though he objects to the decree, McCartney acknowledges it is one of the best things that's happened to his department.

Reynolds visits Steubenville only once every three months, conducting most of his business via e-mail. The city pays him $500, plus expenses, for the days he visits and $400 a day when he works on the consent decree, expected to be in force about five years, from his New Hampshire office. Since 1997, the city has paid him $70,000.

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Having a monitor like Reynolds looking over their shoulders is what Columbus police officials and the officers' union worry will result from a civil-rights lawsuit against the city.

The U.S. Justice Department suit contends Columbus police have engaged in a pattern of abusing civil rights by filing false charges, using excessive force and conducting illegal searches. City officials are accused of tolerating such abuses.

The Justice Department sued Columbus in October after city officials failed to accept a consent decree with the federal government.

The decree outlines training standards, procedures for citizens to complain about police, and measures for investigating and disciplining officers.

A consent decree would resolve all pending civil-rights complaints and require the city to improve police training and policies. A monitor like Reynolds would make sure the provisions are carried out.

"You shouldn't be afraid of me," Reynolds said, as if he were speaking to cities facing a decree. "I don't see or feel from Justice a desire to have the police department do anything more than what is generally accepted of a police department."

Steubenville Law Director S. Gary Repella said the consent decree forced his city into 21st-century policing. Taxpayers, he said, saved more than $1 million avoiding the estimated four years of litigation fighting the Justice Department.

For 20 years before that, though, Steubenville fought a reputation as rough and tumble. Six city police officers were once federally prosecuted for beating prisoners, and black steelworkers twice won settlements for false arrest.

In Steubenville today, police officer candidates must have a two- year associate's degree to even apply. Before, applicants needed only a high-school diploma.

"We hope it's a success story. We hope Steubenville wants it to become a success story," Reynolds said. "Success is simply this: We had some issues and worked hard to correct those issues and worked hard to regain the trust of the public and made a lot of progress."

Rank-and-file Steubenville officers address him warmly as "chief." However, the officers decline to comment about Reynolds or the consent decree, as does Jim Marquis, president of the Steubenville chapter of the Fraternal Order of Police.

Reynold's spartan office in the police department's internal-affairs

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division has a desk, telephone, computer and one chair.

"I understand the inner workings of a police department and understand their management systems. From my perspective, everybody started off with a clean slate here," Reynolds said.

He calls the consent decree "the bible" as he holds up the 41-page document, which is similar to the one under which Pittsburgh police are operating.

"This is pretty fundamental stuff," Reynolds said. "It's hard for me to understand why a professional police officer would disagree with the contents of this decree."

Former Columbus Mayor Greg Lashutka and City Attorney Janet Jackson worked last year to sign a similar agreement with the Justice Department. Jackson shuttled back and forth to Washington, D.C., to pursue the agreement.

However, Police Chief James G. Jackson, who is not related to the city attorney, and the Columbus chapter of the Fraternal Order of Police union objected. Attorneys for the city and the FOP Capital City Lodge No. 9, which has joined the city as a defendant, have asked that the lawsuit be dismissed.

Repella, Steubenville's law director, said officials there decided to avoid that costly fight. He expects Steubenville will pay a total of $500,000 to implement the decree.

"Columbus is going to spend something like $4 million on this. I think for half the price they could implement these programs and in three or four years they could be out," he said. "We'll be out of our consent decree before Columbus ever goes to court."

Repella said Justice Department officials requested hundreds of documents concerning 100 civil-rights complaints. He gave them enough to fill a pickup truck, and in six months the federal lawyers had found the city's worst cases.

From 1976 to 1997, the city of Steubenville and its officers were sued 45 times and paid out about $850,000 in settlements and judgments. Since the signing of the consent decree, the city and its officers have not been named in a major lawsuit. In addition, the city's insurance carrier has lowered its premiums by two-thirds because of the increased police training.

"We've come a long way since the decree was signed," Repella said.

Chief McCartney publicly has spoken out against the consent decree from the start. He acknowledges, however, that because of it his department has become computerized, his officers have undergone intensive training and the public has benefited from a complaint policy.

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"There's things in that consent decree I really appreciate and like, such as the monetary value of the computers," the chief said. "The things I appreciate the most is the schooling and education. In the past it was always a problem getting the money. Now, since the consent decree, it's a must."

The money comes from a city council that had been reluctant in the past to approve such funds for training, he said.

McCartney said he has made a new friend in Columbus' Chief Jackson, who has visited Steubenville to discuss the consent decree.

"I can't give the Columbus police and the FOP any more credit just for doing what they're doing -- just for the simple reason I don't think there's any pattern of abuse here in Steubenville," McCartney said, applauding Columbus for opposing the Justice Department lawsuit.

Still, the Steubenville chief said his department will continue to comply with the consent decree.

"We have nothing to hide."

TABULAR OR GRAPHIC MATERIAL SET FORTH IN THIS DOCUMENT IS NOT DISPLAYABLE

(1) Neal C. Lauron / Dispatch photos; As part of the federal consent decree, the Steubenville Police Department has boosted training efforts. Officer Eric Hart takes aim during a simulation at the municipal building. Sgt. Robert Gotshall, left, trainer Tony Piergallini, center, and officer Jim Marquis observe.; (2) Charles D. Reynolds, a retired police chief, makes sure Steubenville police meet their end of a consent decree signed to resolve civilrights complaints. Reynolds visits Steubenville once every three months and also works by e-mail.; (3) Map; (4) Jerry McCartney; Photo, Map

INDEX REFERENCES

NEWS SUBJECT:

Lawsuits; General News; Law Enforcement (LWS GEN LEN)

REGION:

North America; Eastern U.S.; United States; Ohio; Central

U.S. (NME USE US OH USC)

EDITION:

HOME FINAL

Word Count: 1208 4/23/00 COLDIS 01D END OF DOCUMENT

Copr. © West 2000 No Claim to Orig. U.S. Govt. Works

 
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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

US v. City of Columbus

•IIIlIillllH

CITY OF COLUMBUS, OHIO, et. al.,

PN-OH-001-040

Defendants.

Civil No. C2-99-1097

Judge Holschuh

Magistrate Judge King

THE UNITED STATES' MEMORANDUM IN OPPOSITION

TO THE CITY OF COLUMBUS' MOTION TO DISMISS AND THE

FRATERNAL ORDER OF POLICE'S MOTION FOR JUDGMENT ON THE PLEADINGS

SHARON J. ZEALEY

BILL LANN LEE

United States Attorney

Acting Assistant Attorney General

Southern District of Ohio

Civil Rights Division

DEBORAH F. SANDERS

U.S. Department of Justice STEVEN H. ROSENBAUM

Assistant United States Attorney

Chief

Southern District of Ohio

DONNA M. MURPHY

Two Nationwide Plaza

Special Counsel

280 North High Street

MARK MASLING

Fourth Floor

MARK A. POSNER

Columbus, Ohio 43215

Attorneys

(614)469-5715

Special Litigation Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66400

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P.O. Box 66400 Washington, D.C. 20035-6400 (202)514-6252

TABLE OF CONTENTS

SUMMARY OF ARGUMENT

1

FACTUAL BACKGROUND: HISTORY OF § 14141

6

ARGUMENT

11

I. SECTION 14141 IS CONSTITUTIONAL

11

A. The Fact That Congress Did

Not Identify The Source Of Its

Power To Enact § 14141 Is Irrelevant

11

B. Section 14141 Is A Valid Exercise Of Congress1 Power

Under § 5 Of The Fourteenth Amendment

13

1. Because The Strictures Of The

Fourth Amendment Are Applied To

State And Local Governments Through

The Fourteenth Amendment, Congress Has

The Power To Enforce Them Through § 5 14

2. Section 14141 Is "Appropriate Legislation"

To Enforce Fourth Amendment Prohibitions

Against Excessive Force, False Arrests,

False Reports, and Unlawful Searches 17

3. The City Relies On Inapposite

§ 5 Cases That Have No Bearing

On The Constitutionality Of § 14141

20

4. Section 14141 is

'Congruent and Proportional1

22

5. The Tenth Amendment Does

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Not Limit Congressional Action

Under The Fourteenth Amendment

25

II. THE COMPLAINT STATES A COGNIZABLE CLAIM OF SYSTEMIC

CONSTITUTIONAL VIOLATIONS BY CDP OFFICERS FOR

WHICH THE CITY MAY BE HELD LIABLE UNDER SECTION 14141 . 28

A. The Complaint State A Valid Claim For Relief 29

1. Excessive Force

29

2. False Arrests

29

Page

3. Unlawful Searches

30

4. False Reports

30

B. The City Is Vicariously Liable

Under § 14141 For CDP Officer Misconduct

31

1. Section 14141 Imposes Vicarious Liability .... 31

2. There Is No Constitutional Bar To Imposing Vicarious Liability On The City 36

C. Rizzo v. Goode Does Not

Mandate The Complaint's Dismissal

38

III. THE COMPLAINT IS A SHORT AND

PLAIN STATEMENT THAT IS NOT

SUBJECT TO A HEIGHTENED PLEADING STANDARD

39

A. The Complaint Satisfies Fed. R. Civ. P. 8

39

B. The Complaint Alleges Facts In

Support Of Each Element Of Its Claim

42

C. Federal Courts Have Consistently Held That

Civil Rights 'Pattern Or Practice' Complaints

Are Not Required To Contain Detailed Facts 44

IV. THE UNITED STATES' COMPLAINT IS NOT

LIMITED BY OHIO'S TWO YEAR STATUTE

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OF LIMITATIONS FOR PERSONAL INJURY CLAIMS

46

CONCLUSION

49

SUMMARY OF ARGUMENT

The United States opposes the City of Columbus' (the City) motion to dismiss and the Fraternal Order of Police's (FOP) motion for judgment on the pleadings. The United States' Complaint — brought pursuant to 42 U.S.C. § 14141 (§ 14141) -- alleges that the City is liable for equitable relief for a pattern or practice of unconstitutional excessive force, false arrests, false reports, and illegal searches by Columbus Division of Police (CDP) officers. The Complaint need not plead that the City "caused" the unconstitutional pattern or practice, since

§ 14141 imposes vicarious liability on the City for the acts of its officers.

Section 14141 is constitutional because its enactment was a valid exercise of Congressional authority pursuant to § 5 of the 14th Amendment. Section 14141 does not run afoul of the Tenth Amendment because legislation enacted pursuant to § 5 is not subject to Tenth Amendment attack.

The United States' memorandum in opposition to Defendants' motions contains the following arguments:

Section I(B)(1) Congress has the power to enact appropriate legislation to enforce the Fourth Amendment, as applied to the States through the Fourteenth Amendment (pages 14-17). The United States alleges that CDP officers have violated citizens' Fourth Amendment rights by using excessive force, making false arrests, writing false reports, and conducting unlawful searches. Section 5 of the Fourteenth Amendment provides a grant of* legislative power to Congress to remedy such conduct by appropriate means because the Fourth Amendment is applicable to States and local governments through the Due Process Clause of the Fourteenth Amendment. Wolf v. Colorado, 338 U.S. 25, 28 (1949); Mapp v. Ohio, 367 U.S. 643 (1961); cf. City of Boerne v. Flores, 521 U.S. 507, 519 (1997).

Section I(B)(2) Section 14141 is "appropriate legislation" to enforce the Fourth Amendment (pages 17-20). By granting the United States authority in federal court to obtain equitable relief to redress systemic police misconduct, § 14141 provides "appropriate legislation" to enable the United States to remedy Fourth Amendment violations. United States v. Raines, 362 U.S. 17 (1960). Congress has enacted several statutes authorizing the Attorney General to bring pattern or practice suits to remedy unconstitutional or unlawful conduct; all have been held to be constitutionally adequate. Santana v. Collazo, 89 F.R.D. 369, 372-73 (D.P.R. 1981); United States v. City of Parma, 661 F.2d 562 (6th Cir. 1981).

Section I(B)(3) The City relies on inapposite § 5 cases (pages 20-22). The "proportional and congruent" test of the constitutionality of legislation enacted under Congress' § 5 power (set forth in City of Boerne v. Flores, 521 U.S. 507 (1997), and Kimel v. Florida Board of Regents, 120 S.Ct. 631, 644 (2000)), applies only when Congress has enacted legislation that goes beyond what the Constitution itself prohibits. Flores, 521 U.S. at 519. In this case, § 14141 by its terms simply provides a new remedy for existing violations of the Constitution and does not redefine the substantive prohibitions of the Fourth Amendment.

Section I(B)(4) Section 14141 is 'congruent and proportional' (pages 22-25). In any event, the harms prevented by § 14141 are congruent and proportional to the means provided by the statute to prevent them if that test were to be applied. All the injuries § 14141 seeks to prevent are, by definition, constitutional injuries. Section 14141 authorizes the Attorney General only to "obtain appropriate equitable and declaratory relief to eliminate the pattern or practice." (emphasis added)

Section I(B)(5) Section 14141 does not violate the Tenth Amendment (pages 25-28). When Congress enacts legislation pursuant to its powers to enforce § 5 of the Fourteenth Amendment, that legislation is not subject to the Tenth Amendment. City of Rome v. United States, 446 U.S. 156,179 (1980); Ex parte

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Virginia, 100 U.S. (10 Otto) 339, 345 (1880); Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976); Hunter v. Underwood, 471 U.S. 222, 233 (1985); EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983).
Section II(A)(l)-(4) The complaint states a valid claim for relief (pages 29-31). Complaint f^f 6-8 allege that CDP officers have engaged in excessive force, false arrests and charges, unlawful searches, and falsifying official reports. These types of misconduct individually or collectively violate citizens' constitutional rights. Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor, 490 U.S. 386 (1989); Albright v. Oliver, 510 U.S. 266 (1994); Deitrich v. Burrows, 167 F.3d 1007,1013 (6th Cir. 1999); Olson v. Tyler, 771 F.2d 277 (7th Cir. 1985); Knowles v. Iowa, 119 S.Ct. 484 (1998); Wyoming v. Houghton, 119 S.Ct. 1297 (1999); Kalina v. Fletcher, 118 S.Ct. 502 (1997); Hill v. Mclntyre, 884 F.2d 271, 275 (6th Cir. 1989); Bruning v. Pixler, 949 F.2d 352, 357 (10th Cir. 1991).
Section II(B)(1) Section 14141 imposes vicarious liability on the City for the acts of its officers (pages 31-36). Section 14141(a) clearly states that a "governmental authority" can be liable for "engag[ing] in a pattern or practice of conduct by law enforcement officers." Had Congress intended that the City would not be liable for the acts of its officers under § 14141, the statute would have omitted the term "governmental authorities" from § 14141(a) and only made it unlawful for the "agents" or "person[s] acting on behalf of' a governmental authority to engage in a pattern of conduct by law enforcement officers. Instead, the text of the statute makes clear that Congress chose specifically to make governmental bodies liable for "conduct by law enforcement officers" (and the legislative history is not to the contrary).
Section II(B)(2) The Constitution does not bar the imposition of vicarious liability (pages 36-38). It is clearly within Congress' authority to impose vicarious liability on governmental agencies for patterns or practices of unconstitutional conduct. Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998); Faragher v. Boca Raton, 118 S.Ct. 2275 (1998).
Section III(A) The Complaint satisfies Fed. R. Civ. P. 8. (pages 39-42). The United States was not required to allege in its Complaint each and every fact in support of its allegations, and its complaint alleging municipal liability is not subject to a heightened pleading standard. Crawford-El v. Britton, 523 U.S. 574, 595 (1998); Leatherman v. Tarrant County, 507 U.S. 163 (1993); Conley v. Gibson, 355 U.S. 41 (1957).
Section III(B) The Complaint alleges facts in support of each element of its claim (pages 42-44). The United States' cause of action is set forth in § 14141(a), and its Complaint alleges facts in support of each material element of that cause of action: that CDP officers engage in a pattern or practice of acts that deprive citizens of their constitutional rights to be free from excessive force, false arrests, false reports, and unlawful searches (Complaint Iff, 6-8), and that the City is liable for that pattern or practice, Complaint 1fl[ 9-10. Under § 14141, the City is vicariously liable for the illegal pattern or practice of its police officers, and hence the Complaint need not allege causation or deliberate indifference.
Section IV The United States is not subject to state statutes of limitation (pages 44-46). The Supreme Court and lower federal courts have held repeatedly that when, as here, the United States sues in its sovereign capacity, it is not subject to state statutes of limitation. Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977); United States v. John Hancock Mutual Life Ins. Co., 364 U.S. 301, 306 (1960).
LEGAL BACKGROUND: HISTORY OF § 14141 On March 3, 1991, members of the Los Angeles Police Department were captured on videotape as they assaulted Rodney King with repeated baton blows, kicks, and an electric stun device. That event shocked the national conscience, and led directly to consideration by the Judiciary Committee of the United States House of Representatives of "The Police Accountability Act of 1991." A copy of that proposed legislation and the accompanying committee report, Omnibus Crime Control Act of 1991, Report of the House Committee on the Judiciary on H.R. 3371 (Report), is attached as Exhibit A. Although the proposed Police Accountability Act was not enacted, its first two sections were enacted several years later as part of the Violent Crime Control and Law Enforcement Act of 1994. Section 210401 of that Act, codified as 42 U.S.C. § 14141, reads as
follows:

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CAUSE OF ACTION.
(a) UNLAWFUL CONDUCT. ~ It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
(b) CIVIL ACTION BY ATTORNEY GENERAL. -- Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) [sic] has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
Congressional intent regarding § 1414 l's enactment is set forth in the Committee Report that discussed the Police Accountability Act of 1991JD
The Report described or referenced numerous, egregious instances of recent patterns or practices of unconstitutional police misconduct. The Report summarized the findings of the Committee's Sub-Committee on Civil and Constitutional Rights, which had held hearings on police misconduct and received evidence of systemic misconduct in law enforcement agencies, including:
* Testimony from various experts in policing concerning widespread police misconduct in American cities.
* Evidence that Boston police routinely conducted harassing stops and searches of minority individuals.
* Evidence that New York City police harassed witnesses to police misconduct.
* Evidence that a special unit in the Reynoldsburg, Ohio police department called itself the SNAT team, for "Special Nigger Arrest Team."
* Evidence that the Los Angeles police department had a policy of using "nun-chuks" on passive demonstrators.
Report at 135-36.
The Committee noted that United States v. City of Philadelphia, 644 F.2d 187 (3d Cir. 1980), held that absent explicit statutory authority, the United States lacked authority to address by civil remedy the unconstitutional exercise of police power. The Committee noted that the absence of such authority was anomalous, since the Attorney General has "pattern or practice" authority in eight civil rights statutes, including those concerning voting, housing, employment, education, public accommodations, access to public facilities, and conditions of confinement.^ Report at 137.
The Committee was also concerned that private citizens were unable to obtain broad injunctive relief against police misconduct as a result of Los Angeles v. Lyons, 461 U.S. 95 (1983), which held that private citizens could not obtain injunctive relief against police misconduct absent a showing of likely future harm to the individual plaintiff. The Committee urged passage of the Police Accountability Act because the United States' lack of authority to remedy civilly police misconduct was inconsistent with other civil rights legislation, and because Lyons had limited the ability of individuals to obtain injunctive relief. Report at 136-38. According to the Committee, "The Act creates an enforceable right to be free of patterns of police brutality ... The Act does not increase responsibilities of police departments or impose any new standards of conduct on police officers ... [which] are the same as those under the Constitution, presently enforced in damage actions under section 1983." Report at 138.

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The Committee stated that it believed that authorizing civil "pattern or practice" suits for police misconduct may lead to a decrease in police misconduct litigation, since reform could be achieved in a single suit, rather than piecemeal after each individual criminal or civil prosecution. The Committee noted also that Justice Department criminal prosecutions were inadequate to address the causes of patterns or practices of misconduct such as deficient training, an absence of monitoring, and inadequate discipline. Report at 138. The Committee cited the following two examples of patterns of police misconduct that it believed required injunctive relief:
* In a nine month period in a Washington State county, there were four separate incidents of police beatings of motorists after traffic stops. A jury awarded damages, which the Ninth Circuit upheld, citing the lack of officer training. Under the Police Accountability Act, the court could have awarded injunctive relief to stop future violations.
* A jury awarded damages to the family of a man who was strangled by officers of the Goldsboro, North Carolina police department. There was evidence presented at trial that the city had a policy of not investigating deadly force incidents. Under the Police Accountability Act, the court could have awarded injunctive relief to require investigation of such incidents.
Report at 139.
Section 14141 grants the United States authority to assert a cause of action against entities that engage in a pattern or practice by law enforcement officers of conduct that violates citizens' Constitutional rights. Section 14141 does not create any new standards of conduct for law enforcement agents or responsibilities for law enforcement agencies.^ Section 14141 limits the cause of action to violations that involve a pattern or practice of unlawful acts. The statute is not novel. It merely expands the Attorney General's authority to seek equitable remedies for patterns or practices of violations of citizens' constitutional rights to a new area: law enforcement officer conduct. Congress has previously given the Attorney General authority to seek such relief for patterns or practices of unconstitutional conduct in areas including housing, employment, institutionalized persons, and voting. A decision declaring
§ 14141 unconstitutional would be at odds with decisions holding those statutes constitutional.
ARGUMENT
I. SECTION 14141 IS CONSTITUTIONAL
Congress has the authority to enact § 14141 under § 5 of the Fourteenth Amendment; legislation enacted pursuant to § 5 does not violate the Tenth Amendment.
A. The Fact That Congress Did Not Identify The
Source Of Its Power To Enact § 14141 Is Irrelevant
Under established Supreme Court precedent, § 1414 l's constitutionality is unaffected by the lack of direct legislative history, or by the fact that the Committee Report on the Police Accountability Act did not specify the constitutional basis for its enactment.
Congress does not need to explain why it enacted a particular piece of legislation or by what power it sought to enact it. The Supreme Court has "never require[d] a legislature to articulate its reasons for enacting a statute." FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993); see also Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622,665 (1994) ("Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review."); Katzenbach v. McClung, 379 U.S. 294, 299 (1964) (noting that "no formal findings were made, which of course are not necessary").
Under the Constitution, in order to enact a statute, a bill must be passed by a majority of both houses of Congress and be signed by the President. U.S. Const., Art. I, § 7. Nothing in the Constitution requires

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Congress to identify the constitutional provision by which it legislates. Thus it has long been the law that "[t]he constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise." Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948); EEOC v. Wyoming, 460 U.S. 226, 244-245 n.18 (1983) (quoting Woods); Franks v. Kentucky School For The Deaf, 142 F.3d 360, 363 (6th Cir. 1998) ("The question is whether Congress actually had the authority to adopt the legislation pursuant to that provision, not whether Congress correctly guessed the source of its authority").
That proposition is consistent with the traditional cannon of judicial review that statutes are presumed constitutional and must be shown to be beyond Congress' power. See, e.g., Reno v. Condon, 120 S.Ct. 666, 670 (2000) ("We of course begin with the time-honored presumption that the [statute] is a constitutional exercise of legislative power"); Close v. Glenwood Cemetery, 107 U.S. 466, 475 (1883) ("Every legislative act is to be presumed to be a constitutional exercise of legislative power until the contrary is clearly established."); United States v. Harris, 106 U.S. (16 Otto) 629, 635 (1883) ("Proper respect for a co-ordinate branch of the government requires the courts of the United States to give effect to the presumption that Congress will pass no act not within its constitutional power. This presumption should prevail unless the lack of constitutional authority to pass an act in question is clearly demonstrated."); United States v. Stewart, 531 F.2d 326, 337 (6th Cir. 1976) ("It is, of course, accepted law that an act of Congress carries a presumption of constitutionality.").
When constitutional challenges are brought "question[ing] the power of Congress to pass the law ... [i]t is, therefore, necessary [for the court] to search the constitution to ascertain whether or not the power is conferred." Harris, 106 U.S. (16 Otto) at 636 (emphasis added). This central separation of powers principle has been adhered to in more recent cases. See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 473-478 (1980) (opinion of Burger, C.J.); United States v. Butler, 297 U.S. 1, 61 (1936).
Thus, this Court should "search the Constitution" to see whether Congress had the authority to enact § 14141. As set forth in detail below, the Court may find § 5 of the Fourteenth Amendment was the source of Congress' authority to enact § 14141.
B. Section 14141 Is A Valid Exercise Of
Congress' Power Under § 5 Of The Fourteenth Amendment
Section 5 of the Fourteenth Amendment states, "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." Section 5 is "a positive grant of legislative power" to Congress. City of Boerne v. Flores, 521 U.S. 507, 517 (1997) (quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)). As Flores recently reaffirmed, "[i]t is for Congress in the first instance to 'determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference." Id. at 536 (quoting Morgan, 384 U.S. at 651).
1. Because The Strictures Of The Fourth
Amendment Are Applied To State And Local
Governments Through The Fourteenth Amendment,
Congress Has The Power To Enforce Them Through § 5
The United States alleges that CDP officers have violated citizens' Fourth Amendment rights by using excessive force, making false arrests, writing false reports, and conducting unlawful searches. See pages 29-31, below. Section 5 of the Fourteenth Amendment provides a "grant of legislative power" to Congress to remedy by appropriate means such conduct because the Fourth Amendment is applicable to States and local governments through the Fourteenth Amendment.
The Supreme Court first applied the Fourth Amendment's prohibitions to the States through the

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Fourteenth Amendment in Wolf v. Colorado, 338 U.S. 25, 28 (1949), which held that:
The security of one's privacy against arbitrary intrusion by the police — which is at the core of the Fourth Amendment ~ is basic to a free society. It is therefore implicit in 'the concept of ordered liberty1 and as such enforceable against the States through the Due Process Clause [of the Fourteenth Amendment].
Mapp v. Ohio, 367 U.S. 643 (1961), extended Wolf by holding that a central method of enforcing the Fourth Amendment, the exclusionary rule, was also applicable to the States through the Fourteenth Amendment.^
The proposition that Congress may enact legislation pursuant to its § 5 power to redress violations of constitutional amendments made applicable to the states through the Fourteenth Amendment is not novel. In Flores, 521 U.S. at 519, the Court said:
We agree ... of course, that Congress can enact legislation under § 5 enforcing the constitutional right to the free exercise of religion. The "provisions of this article," to which § 5 refers, include the Due Process Clause of the Fourteenth Amendment. Congress' power to enforce the Free Exercise Clause follows from our holding in Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) that the "fundamental concept of liberty embodied in the [Fourteenth Amendment's Due Process Clause] embraces the liberties granted by the First Amendment.
By the same logic Congress has the power under § 5 to enforce the Fourth Amendment, which has been made applicable to the States through that same constitutional mechanism, the Fourteenth Amendment's Due Process Clause. As such, § 5 grants Congress the power to enforce the Fourth Amendment's restrictions on the ban of excessive force, false arrests, false reports, and unlawful searches by police.^
18 U.S.C. § 242 makes certain conduct by persons acting "under color of law" that violates citizens' constitutional rights a federal criminal offense.^
The Supreme Court has twice upheld the constitutionality of 18 U.S.C. § 242 and its predecessors, first in Screws v. United States, 325 U.S. 91 (1944), and again in Williams v. United States, 341 U.S. 97 (1950). Both Screws and Williams concerned federal criminal prosecution of local, municipal law enforcement officers for use of excessive force. Since § 242 is constitutional, then surely
§ 14141 is as well, for § 242 authorizes the more severe remedy of federal prosecutions of criminal violations of the Constitution, including the Fourth Amendment, while § 14141 simply authorizes civil suits to enjoin patterns or practices of such conduct.
2. Section 14141 Is "Appropriate Legislation" To Enforce
Fourth Amendment Prohibitions Against Excessive Force, False Arrests, False Reports, and Unlawful Searches
The House Judiciary Committee's Report regarding the Police Accountability Act made clear that a primary purpose of the legislation that became § 14141 was to remedy the gap in the enforcement of citizens' Fourth Amendment rights created by the decisions of Los Angeles v. Lyons, 461 U.S. 95 (1983), and United States v. City of Philadelphia, 644 F.2d 187 (3d Cir. 1980).O) Report at 137-38. By granting the United States authority in federal court to obtain equitable relief to redress systemic police misconduct, § 14141 provides "appropriate legislation" to enable the United States to remedy those constitutional violations.
United States v. Raines, 362 U.S. 17 (1960), makes clear that Congress has the power under § 5 to grant the United States authority to bring a suit for injunctive relief to enforce citizens' constitutional rights. Raines reversed a lower court decision finding unconstitutional a section of the Civil Rights Act of 1957, 42 U.S.C. § 1971(c), that gave the Attorney General authority to enjoin interference with citizens' voting rights. The Court rejected a contention that because the aggrieved citizens may have had a remedy under

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state law, § 1971(c) was invalid, stating, "the conduct charged — discrimination by state officials ... is subject to the ban of [the Fifteenth] Amendment, and ... legislation designed to deal with such discrimination is 'appropriate legislation' under it." Id. at 25.
Raines also rejected the argument that, "it is beyond the power of Congress to authorize the United States to bring this action in support of private constitutional rights," saying
But there is the highest public interest in the due observance of all the constitutional guarantees, including those that bear the most directly on private rights, and we think it perfectly competent for Congress to authorize the United States to be the guardian of that public interest in a suit for injunctive relief.
Id. at 27.
Congress has enacted several statutes authorizing the Attorney General to bring pattern or practice suits to remedy unconstitutional or unlawful conduct. All of those statutes have been held to be constitutionally adequate. Perhaps the statute most similar to § 14141 is the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et. seq., which grants the Attorney General authority to seek equitable relief to remedy unlawful patterns or practices that affect persons institutionalized in government prisons, jails, mental retardation and mental health facilities, and nursing homes. CRIPA was held constitutional in Santana v. Collazo, 89 F.R.D. 369, 372-73 (D.P.R. 1981) ("there appears to be ample authority under the Fourteenth Amendment for Congress to have enacted [CRIPA] and we find it to pass constitutional scrutiny."), and no court has subsequently questioned its constitutionality. Since CRIPA and § 14141 are substantively identical (both give the Attorney General authority to remedy equitably patterns or practices of institutional misconduct), because CRIPA is constitutional, so too is § 14141.(8}
Section 14141 gives the United States authority to seek equitable relief for violations of citizens' private rights under the Fourth Amendment, applied to State and local governments through the Fourteenth Amendment. As such, it is 'appropriate legislation1 to allow the United States to be the guardian of those rights.^
3. The City Relies On Inapposite § 5 Cases That Have No Bearing On The Constitutionality Of § 14141
Citing several recent Supreme Court cases, the City alleges that § 14141 is unconstitutional because its scope is not proportional or congruent with the harms it seeks to redress. City Mem. at 8-12. The City has misread those cases, for the proportional and congruent test applies only when Congress has enacted legislation pursuant to § 5 of the Fourteenth Amendment that goes beyond what the Constitution itself prohibits. That test determines whether preventative or remedial measures going beyond the constitution cross the line between "measures that remedy or prevent unconstitutional actions and measures that change the governing law ...." Flores, 521 U.S. at 519. In this case, § 14141 by its terms simply provides a new remedy for existing violations of the Constitution or federal law.dQi
Flores concluded that the Religious Freedom Restoration Act (RFRA) could not properly be viewed as legislation to "enforce" any recognized constitutional right. Because § 5 gives Congress the power only to "enforce," not to define, constitutional rights, the Court held that RFRA was not a permissible exercise of the § 5 power. See id. at 519 ("Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause.").
Kimel v. Florida Board of Regents, 120 S.Ct. 631, 644 (2000), held that Congress did not have power under § 5 to enact the Age Discrimination in Employment Act because, "the ADEA prohibits very little conduct likely to be held unconstitutional," and was "an attempt to substantively redefine the States' legal obligations with respect to age discrimination." Id. at 648. Kimel reaffirmed that the 'congruence and proportionality' test is only applicable when Congress seeks to exercise its "authority both to remedy and to deter violation of the rights guaranteed thereunder by prohibiting a... broader swath of conduct, including that which is not itself forbidden by the Amendment's text." quoting Flores, 521 U.S. at 518.

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Kimel noted that, "Congress1 § 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment."
Kimel and Flores are inapposite because § 14141 prohibits only unconstitutional conduct, and as stated in the legislative history, "[the statute] does not increase responsibilities of police departments or impose any new standards of conduct on police officers ... [which] are the same as those under the Constitution." Report at p. 138. Section 14141 prohibits only a pattern or practice of police conduct that "deprive[s] persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States," 42 U.S.C. § 14141(a). Section 14141 does not redefine the substantive prohibitions of the Fourth Amendment. To the contrary, § 14141 only provides an additional remedy for constitutional violations, granting the United States authority to bring suits to end systemic Fourth Amendment violations. Since § 14141 prohibits only unconstitutional conduct, and only parrots the prohibitions of the Fourth Amendment, it is constitutional and not subject to the 'congruence and proportionality1 test of Flores and its progeny.0-0
4. Section 14141 is 'Congruent and Proportional'
If, notwithstanding the foregoing arguments, the Court determines that it must assess whether there is a congruence and proportionality between the harms sought to be addressed by
§ 14141 and the statutory remedies, then the United States asserts that § 14141 satisfies that test, because all the injuries § 14141 seeks to prevent are, by definition, constitutional injuries. Section 14141 authorizes the Attorney General to bring suit to redress patterns or practices that "deprive persons of rights, privileges or immunities, secured or protected by the Constitution or laws of the United States."
The remedy for violations of § 14141 is congruent and proportional to the harms meant to be redressed by the statute. Section 14141 authorizes the Attorney General only to "obtain appropriate equitable and declaratory relief to eliminate the pattern or practice." (emphasis added)
Throughout its motion to dismiss, the City complains about the intrusiveness and breadth of the injunctive relief sought by the United States, arguing for dismissal of the Complaint because the relief sought is not congruent or proportional to the harm sought to be remedied.tl^ This argument is belied by the Complaint, which seeks only (a) a declaration that the City has engaged in the pattern or practice described in the Complaint, (b) an order enjoining that pattern or practice, and (c) an order requiring the City to adopt and implement policies, practices, and procedures to remedy the pattern or practice. Complaint
111-
The United States seeks the types of remedies previously recognized by federal courts to redress unlawful police conduct:
officer trainingi-!-^ and supervision,^!^ adequate misconduct investigations,^-^ adequate discipline for misconduct,Oil and implementation of policies that do not violate citizen rights. These remedies are appropriate and congruent to the constitutional violations alleged in the Complaint.
Finally, even if the remedies sought in the Complaint were not appropriate and congruent to the alleged violation, that alleged deficiency would not be grounds for the Complaint's dismissal. Ultimately, what matters is the relief the Court grants, and § 14141 specifically requires the Court to award "appropriate" relief. In determining the appropriateness of any relief, the equitable powers of the Court will be guided by the traditional doctrines of the law of equity. "Equitable remedies ... [are] to be determined by the nature and scope of the constitutional violation." Milliken v. Bradley, 433 U.S. 267,280 (1977). This equitable doctrine will ensure that, if the United States prevails at trial, the Court will fashion appropriate and congruent equitable relief to remedy the patterns or practices proved at ^i
5. The Tenth Amendment Does Not Limit

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Congressional Action Under The Fourteenth Amendment
The Supreme Court has held repeatedly that when Congress enacts legislation pursuant to its powers to enforce § 5 of the Fourteenth Amendment, that legislation is not subject to the Tenth Amendment. Defendants' argument, therefore, that § 14141 violates the strictures of the Tenth Amendment is incorrect, for as shown above, § 14141 is 'appropriate legislation1 under § 5.
In City of Rome v. United States, 446 U.S. 156, 179 (1980), the Court stated that, "principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the [Fourteenth and Fifteenth] Amendments 'by appropriate legislation.'" That is because those Amendments "were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress." Ex parte Virginia, 100 U.S. (10 Otto) 339, 345 (1880). Since Ex parte Virginia was decided, a long "line of cases has sanctioned intrusions by Congress, acting under the [Fourteenth and Fifteenth] Amendments, into the judicial, executive, and legislative spheres of autonomy previously reserved to the States." Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976). See also Hunter v. Underwood, 471 U.S. 222, 233 (1985) ("the Tenth Amendment cannot save [state] legislation prohibited by the subsequently enacted Fourteenth Amendment"); EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983) ("when properly exercising its power under § 5 [of the Fourteenth Amendment], Congress is not limited by the same Tenth Amendment constraints that circumscribe the exercise of its Commerce Clause powers."); Marshall v. Owensboro-Daviess County Hospital, 581 F.2d 116, 119 (6th Cir. 1978) ("Congress' enforcement power under the Fourteenth Amendment is not limited by the Tenth Amendment").
Monell v. Department of Social Services, 436 U.S. 658 (1978) held that under certain circumstances, municipalities are liable for civil rights violations under § 1983, and rejected a Tenth Amendment challenge to that ruling: "There is certainly no constitutional impediment to municipal liability. 'The Tenth Amendment's reservation of nondelegated powers to the States is not implicated by a federal-court judgement enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment.1" Id. at 690-91, quoting Miliken v. Bradley, 433 U.S. 267, 291 (1977). Just as § 1983 allows individuals to sue municipalities for unconstitutional conduct without violating those municipalities' Tenth Amendment rights, so too does § 14141 allow the United States to bring "pattern or practice" misconduct suits against municipalities without violating the Tenth Amendment.
The City cites two cases in support of its argument that
§ 14141 violates the Tenth Amendment, New York v. United States, 505 U.S. 144 (1992) and Printz v. United States, 521 U.S. 898 (1997). Those cases, however, invalidated legislation passed pursuant to Congress1 Commerce Clause power^ not its § 5 power.
Moreover, those cases do not support the City's argument that § 14141 violates the Tenth Amendment because § 14141 does not present the constitutional flaw present in New York and Printz. Unlike the federal statute in New York, § 14141 does not commandeer the state legislative process, in fact, it does not require the passage of any legislation at all. And, unlike the federal statute in Printz, § 14141 does not conscript state officers to enforce the regulations established by Congress. Indeed, § 14141 simply authorizes the United States to file suit in federal court to vindicate pre-existing federal rights; any action required by state or local officials is the result of a Federal court finding liability and imposing equitable remedies.
The conclusion that § 14141 does not violate the federalism principles contained in the Tenth Amendment is bolstered by the Supreme Court's recent decision in Reno v. Condon, 120 S.Ct. 666 (2000), which upheld the constitutionality of the Driver's Privacy Protection Act (DPPA) against a Tenth Amendment challenge. In upholding the law, the Court stated
[DPPA] does not require [states] to enact laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals. We accordingly conclude that the DPPA is consistent with the constitutional principles enunciated in New York and Printz.

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Id. at 672.
Section 14141 does not require states or municipalities to enact laws or regulations, and is enforced only by the Attorney General of the United States. State officials may become subject to its provisions, but only after a federal court has adjudicated them to be liable for a pattern or practice of unlawful police conduct. Section 14141, therefore, does not violate the Tenth Amendment.
II. THE COMPLAINT STATES A COGNIZABLE CLAIM OF SYSTEMIC
CONSTITUTIONAL VIOLATIONS BY CDP OFFICERS FOR
WHICH THE CITY MAY BE HELD LIABLE UNDER SECTION 14141
The City moves pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the United States' Complaint on the grounds that it fails to state a claim upon which relief may be granted. The motion should be denied because the Complaint states a cognizable claim for relief based on a pattern or practice of unconstitutional acts for which the City is liable.
A. The Complaint State A Valid Claim For Relief
Complaint *|ffl 6-8 allege that CDP officers have engaged in a pattern or practice of (a) excessive force, (b) false arrests and charges, (c) unlawful searches, and (d) falsifying official reports. Federal courts have held that these types of misconduct individually or collectively violate citizens' constitutional rights.^U^ Because § 14141 makes it unlawful for any governmental entity to engage in a pattern or practice of conduct by its law enforcement officers that violates citizens' constitutional rights, the Complaint states a cognizable claim for relief.
1. Excessive Force: Tennessee v. Garner, 471 U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386 (1989), affirm that a citizen's Fourth Amendment rights are violated when police use more force than is "objectively reasonable in light of the facts and circumstances confronting them ...." Graham, 490 U.S. at 397.
2. False Arrests: The Fourth Amendment prohibits arrests made without probable cause. See e.g., Albright v. Oliver, 510 U.S. 266 (1994) (plurality opinion) (arrests made without probable cause were, in appropriate circumstances, Fourth Amendment violations); Deitrich v. Burrows, 167 F.3d 1007, 1013 (6th Cir. 1999) (it is "clearly established that warrantless arrests made without probable cause are repugnant to the precepts embodied in the Fourth Amendment"); Olson v. Tyler, 771 F.2d 277 (7th Cir. 1985) (Fourth Amendment violated when arrest based on false information).
3. Unlawful Searches: The Fourth Amendment prohibits "unreasonable searches." See, e.g., Knowles v. Iowa, 119 S.Ct. 484 (1998) (Fourth Amendment violation to conduct full search of car after speeding citation); Wyoming v. Houghton, 119 S.Ct. 1297 (1999) ("reasonableness" of search determined by whether degree of privacy intrusion is necessary to satisfy legitimate government interests).
4. False Reports: The Fourth Amendment is violated when police intentionally fabricate information contained in documents such as warrants or police reports. See Kalina v. Fletcher, 118 S.Ct. 502 (1997) (prosecutor may be liable under
§ 1983 for making false statements in application for arrest warrant); Hill v. Mclntyre, 884 F.2d 271, 275 (6th Cir. 1989) ("An action under § 1983 does lie against an officer who obtains an invalid search warrant by making, in his affidavit, material false statements either knowingly or in reckless disregard for the truth."); Bruning v. Pixler, 949 F.2d 352, 357 (10th Cir. 1991) ("the law was clear that an officer would violate a plaintiffs Fourth and Fourteenth Amendment rights by knowingly or recklessly making a false statement in an affidavit in support of an arrest or search warrant"); Olson v. Tyler, 771 F.2d 277 (7th Cir. 1985) (Fourth Amendment violated when arrest based on false reports); Tribblet v. Sanchez, 1996 WL 496603 (N.D. 111. 1996) (plaintiff states claim for, inter alia, conspiracy to file false arrest

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report).
These cases show that the United State's Complaint alleges a pattern or practice by the CDP of officer acts that individually and collectively violate the Constitution.
B. The City Is Vicariously Liable
Under § 14141 For CDP Officer Misconduct
1. Section 14141 Imposes Vicarious Liability
The FOP's motion for judgment on the pleadings argues that the Complaint should be dismissed because it allegedly fails to plead, as required by case law under 42 U.S.C. § 1983, that the City caused, or was deliberately indifferent to, the pattern or practice of CDP officer misconduct alleged in the Complaint. FOP Mem. at 6-12. The FOP's argument fails because § 14141 imposes vicarious liability on the City for the acts of its officers.
The FOP's argument that under § 14141 the City is liable only if it "caused" the illegal pattern or practice of CDP officers, consists solely of analogizing §14141 to § 1983. But the FOP's argument ignores the differences between the specific language of § 14141, which clearly imposes vicarious liability on the City, and the quite different language of § 1983, which explicitly requires causation to impose liability on municipalities.
Section 14141(a)0^1 refers to two separate and distinct actors: a governmental authority (or agent), which engages in the pattern or practice, and law enforcement officers, whose conduct deprives persons of federal rights. The statute's structure marks Congress's intent that the identities of the party liable for the pattern or practice, and the identity of the persons whose direct actions violate the Constitution may be different under § 14141.
Moreover, § 14141(a) clearly states that a "governmental authority" can be liable for"engaging] in a pattern or practice of conduct by law enforcement officers." Had Congress intended that the City would not be liable for the acts of its officers under § 14141, the statute would have omitted the term "governmental authorities" from the first part of the sentence and only made it unlawful for the "agents" or "person[s] acting on behalf of a governmental authority to engage in a pattern of conduct by law enforcement officers. Instead, Congress chose specifically to make governmental bodies liable for "conduct by law enforcement officers." How can a "governmental authority" engage in "conduct by law enforcement officers"? Clearly, the only way is through the acts of its agents, i.e., the officers. Thus, Congress has indicated in § 14141(a) that vicarious liability applies to governmental authorities under §14141.
The conclusion that the statute is designed to impose vicarious liability on governmental authorities is buttressed by the language of § 14141(b). That paragraph states that the Attorney General is to sue "to eliminate the pattern or practice." Though the statute does not name the appropriate party defendant, it implicitly directs the Attorney General to sue the actor -- the "governmental authority," or its agent ~ that "engage[s] in a pattern or practice." The defendant, that is, should ordinarily be the governmental authority in which the pattern occurred, or whose policies, procedures or practices enabled the constitutional violation.
The statutory language and structure thus indicate that Congress in § 14141 has intended that government authorities be vicariously liable in equity for a pattern or practice of wrongs committed by their law enforcement officers. The legislative history confirms this reading, stating that the statute was intended to reverse the Justice Department's lack of "authority to sue [a] police department itself to correct... underlying policies]" such as "lack of training or the routine use of deadly techniques like chokeholds, or the absence of a monitoring and disciplinary system." Report at 137,138. (emphasis added)
The FOP's entire argument for imposing § 1983 standards of municipal liability on § 14141 cases is

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based on two sentences in the 1991 Police Accountability Act's legislative history, FOP Mem. at 7: "The Act does not increase responsibilities of police departments or impose any new standards of conduct on police officers. The standards of conduct under the Act are the same as those under the Constitution, presently enforced in damage actions under section 1983." Report at 138.
The FOP's argument fails for several reasons. First, "[r]esort to legislative history is only justified where the face of the Act is inescapably ambiguous," Garcia v. United States, 469 U.S. 70, 76, fn. 3 (1984), quoting Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395-396 (1951) (concurrence). Since § 14141(a) is not "inescapably ambiguous," the two sentences in the statute's legislative history upon which the FOP relies should not be used to guide statutory interpretation.
Second, the two sentences upon which the FOP relies refer only to "responsibilities" and "standards of conduct," not standards of liability. It is quite correct to note that § 14141 does not render any conduct of police officers illegal which had not been deemed illegal before its enactment. But that is an entirely different issue from the question of who should be liable for such illegal conduct. And the fact that § 14141 imposes vicarious liability on governmental authorities does not mean that those agencies have increased "responsibilities," because all law enforcement agencies previously had the "responsibility" to eliminate unlawful conduct by their officers. Section 14141 simply provides an enforcement mechanism for the United States when such agencies and governmental authorities fail in their responsibility for prevent a pattern or practice of unlawful conduct.
The Supreme Court's decision in Monell v. Department of Social Services, 436 U.S. 658 (1978), does not support the FOP's claim that the United States must plead that the City caused the pattern or practice alleged in the Complaint. Monell held that 42 U.S.C. § 1983 applied to municipalities, but that municipalities are not subject to vicarious liability under that statute. 42 U.S.C. § 1983 reads in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ... (emphasis added)
Monell's conclusion that § 1983 did not impose vicarious liability on municipalities was derived in large part from
§ 1983's explicit use of the word "cause," bolstered by § 1983's legislative history: municipalities are liable only if they "cause" constitutional violations. Id. at 690-95. But Congress did not include the word "cause" ~ or any word of equal
import ~ when drafting § 14141. Instead, as discussed above, Congress subjected "governmental authorities" to liability for "patterns or practices of [unlawful] conduct by law enforcement officers," and did not require that the municipality "cause" the pattern or practice.^
In sum, both a textual analysis of § 14141 and the relevant precedent show that United States did not have to allege that the City caused, or was deliberately indifferent to, the pattern or practice at issue, because § 14141 imposes vicarious liability on the City.
2. There Is No Constitutional Bar To Imposing Vicarious Liability On The City
It is clearly within Congress' authority to impose vicarious liability on governmental agencies for patterns or practices of unconstitutional police conduct. There are numerous examples of decisions upholding federal statutes that impose vicarious liability on governments and employers.
Just recently the Supreme Court held that employers were vicariously liable for the sexual misconduct of their supervisory employees under Title VII (the Court did not exempt municipal employers from that holding). Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998). Other courts have held that corporate or other entities are responsible vicariously for Fair Housing Act violations of their employees. See City of Chicago v. Matchmaker Real Estate Center, Inc.,

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982 F.2d 1086,1096 (7th Cir. 1992); Northside Realty Assoc. Inc. v. United States, 605 F.2d 1348, 1353-54 (5th Cir. 1979).
Moreover, courts have historically drawn distinctions when discussing vicarious liability between actions for damages and actions for equitable relief. See Wood v. Strickland, 420 U.S. 308, 315 n. 6 (1975) (recognizing that "immunity from damages does not ordinarily bar equitable relief as well"). Section 14141 imposes vicarious liability on governmental entities only for prospective injunctive relief, not for awards of monetary damages. Accordingly, the usual arguments against the imposition of such liability are inapplicable to § 14141.
Finally, the fact that Monell refused to allow vicarious liability under § 1983 does not mean that it would be unconstitutional to impose vicarious liability on municipalities under § 14141. As discussed above, Monell was based on statutory language and legislative history, and not on an analysis of the constitutionality of imposing vicarious liability on governmental bodies for acts of their agents.i2il
C. Rizzo v. Goode Does Not
Mandate The Complaint's Dismissal
The City suggests that Rizzo v. Goode, 423 U.S. 362 (1976), is a basis to dismiss the United States' Complaint, because Rizzo disapproved of the breadth of an injunction imposed on the Philadelphia police department to remedy 19 constitutional violations by a small number of officers. Def. Mem. at 12-13. The City's argument is misplaced.
Rizzo did not purport to forbid all injunctions for systemic relief in police cases, as seen in the subsequent cases affirming such relief.£=2] Instead, Rizzo simply required that private plaintiffs have appropriate standing to bring such a case, that the plaintiffs in a § 1983 case prove liability of the municipality and its administrators, and that the scope of relief be tailored to the proven violations.^}
Here, § 14141 grants the United States authority, the statute imposes vicarious liability on governmental agencies whose officers engage in a pattern or practice of unlawful conduct, and §14141(b) requires the scope of relief to be "appropriate."^^
Thus, Rizzo is not grounds to dismiss the United States' Complaint.
III. THE COMPLAINT IS A SHORT AND PLAIN STATEMENT
THAT IS NOT SUBJECT TO A HEIGHTENED PLEADING STANDARD
The City contends that the United States' Complaint lacks sufficient factual detail,^^} City Mem. at 2, 3, 4, 10, 14, 17, 18, 19, 20, and argues that the Complaint should be dismissed for this alleged deficiency. The FOP contends that the Complaint should be dismissed because it fails to allege facts supporting all material elements of the United States' claim. FOP Mem. at 4-6. These arguments fail because they ignore the relevant Federal Rules of Civil Procedure, and Supreme Court and lower federal court decisions interpreting those rules.
A. The Complaint Satisfies Fed. R. Civ. P. 8.
The Federal Rules do not require a plaintiff to set out in detail each and every fact upon which a claim is based. Rule 8 requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2). The United States' Complaint meets that requirement.
The Supreme Court endorsed simplified notice pleading 40 years ago. Conley v. Gibson, 355 U.S.41 (1957), reversed a dismissal of a civil rights complaint, even though the defendant — like the City here ~ argued that "the complaint failed to set forth specific facts to support its general allegations of discrimination." Id. at 47. The Court reasoned as follows:

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[A]ll the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests .... Such simplified 'notice pleading1 is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.
Id. at 47-48. See also Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976) ("A complaint need not set down in detail all the particularities of a plaintiff s claim against a defendant."); Summit Technology, Inc. v. High-Line Medical Instruments, Co., 933 F. Supp. 918, 937 (E.D. Cal. 1996) ("Clearly, Rule 8(a) does not require plaintiff to set forth specific allegations or evidentiary facts. All that is required is a 'short and plain statement' of plaintiff s claim for relief.").
The United States' Complaint satisfies Rule 8(a). The Complaint sets forth clearly and unambiguously the United States' claim that the City is violating the constitutional rights of citizens to be free from excessive force, false arrests, false reports and illegal searches by the CDP. The United States was not required to allege in its Complaint each and every fact in support of its allegations.
The City appears to argue that the United States' Complaint should be subject to a heightened pleading standard because to prevail at trial the United States must prove a pattern or practice of unlawful conduct by CDP officers. The City, however, cites no case specifically endorsing this proposition. City Mem. at 14-19. Indeed, in 1993, the Supreme Court again spoke to the issue of the specificity of pleading required by civil rights complaints. In Leatherman v. Tarrant County, 507 U.S. 163 (1993), the Court unanimously rejected a "heightened pleading standard" for civil rights complaints against municipalities filed under 42 U.S.C. § 1983. In rejecting the requirement of pleading detailed facts in civil rights complaints, the Court specifically found that "it is impossible to square the 'heightened pleading standard1 applied ... in this case with the liberal system of'notice pleading' set up by the Federal Rules." Id. at 168. See also Crawford-El v. Britton, 523 U.S. 574, 595 (1998) ("We refused to change the Federal Rules governing pleading by requiring ... pleadings of heightened specificity in cases alleging municipal liability."); Vaugh v. Small Business Administration, 82 F.3d 684, 685 (6th Cir. 1996) (acknowledging that several Sixth Circuit cases requiring a heightened pleading standard have been superceded by Leatherman); Vector Research, Inc. v. Howard & Howard, 76 F.3d 692, 697 (6th Cir. 1996) (citing Leatherman with approval); LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1104 (6th Cir. 1995) (same).(26}
B. The Complaint Alleges Facts In
Support Of Each Element Of Its Claim
The FOP's central argument is that the United States' complaint should be dismissed because it fails to allege facts in support of each element of its claim. The FOP's argument misstates the law, and is wrong about the facts alleged in the Complaint.
The FOP relies heavily on Veney v. Hogan, 70 F.3d 917 (6th Cir. 1995), to support its claim that all civil complaints must set forth specific factual detail. That reliance is misplaced. Even a cursory reading of Veney reveals that it requires heightened pleading only in complaints raising issues of qualified immunity (an issue specifically left open in Leatherman), not in complaints alleging municipal liability, the issue in Leatherman and this case.
The other cases cited by the FOP are equally inapposite.^ Those cases stand for the proposition that civil complaints must allege facts in support of each material element of all claims set forth in the complaint.
Here, the United States' cause of action or claim is set forth in § 14141(a): "It shall be unlawful for any governmental authority ... to engage in a pattern or practice of conduct by law enforcement officers ... that deprives persons of rights ... secured or protected by the Constitution... of the United States." The

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United States' complaint alleges facts in support of each material element of that cause of action: that CDP officers engage in a pattern or practice of acts that deprive citizens of their constitutional rights to be free from excessive force, false arrests, false reports, and unlawful searches (Complaint Iffl 6-8), and that the City is liable for that pattern or practice, Complaint fflj 9-10.
Thus, the Complaint alleges facts in support of each material element of § 14141's cause of action.
Of course, the real crux of the FOP's argument that the Complaint is factually deficient is that the Complaint fails to allege that the City "caused" or is "deliberately indifferent" to the CDP's pattern or practice of violating citizen rights. Even assuming that the FOP's description of the Complaint is accurate, the FOP's argument fails because, as set forth at length above, under § 14141 the City is vicariously liable for the illegal pattern or practice of its police officers, and hence the Complaint need not allege causation or deliberate indifference.^)
C. Federal Courts Have Consistently Held That
Civil Rights 'Pattern Or Practice' Complaints
Are Not Required To Contain Detailed Facts
The sufficiency of the United States' Complaint is supported by numerous federal court decisions rejecting challenges to the sufficiency of complaints filed by the United States in other civil rights "pattern or practice" areas, including institutionalized persons, Title VII, and housing. Because those "notice pleading" complaints were similar to the one at issue here, decisions rejecting challenges to their factual specificity are relevant.
The Civil Rights Of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997 et. seq., is similar to § 14141 in that it provides the Department of Justice with authority to obtain equitable and injunctive relief for patterns or practices of unlawful conduct in state and local institutions such as jails and prisons. Complaints filed pursuant to CRIPA are identical in structure and format to that filed in this case. Federal courts have frequently upheld CRIPA complaints against challenges to their lack of specificity. For example, in United States v. Pennsylvania, 832 F. Supp. 122 (E.D. Pa. 1993), the United States brought a CRIPA action alleging unconstitutional conditions at the Embreeville Center, a state facility for persons with mental retardation. The complaint in that case, attached as Exhibit B, is almost identical in form to the Complaint filed in this case, in both the structure and style of its factual allegations. In United States v. Pennsylvania, defendants argued, just as the City does here, "that plaintiffs complaint lacks the factual specificity required by the Third Circuit to state a claim for civil rights violations." Id. at 125. Citing Leatherman, the court soundly rejected defendants' claim that the complaint was factually deficient. "The complaint here provides sufficient facts giving rise to the cause of action.... plaintiffs complaint contains a short and plain statement of the claim, giving the defendants fair and adequate notice to respond." Id.
Similarly, court have rejected challenges to "notice pleading" complaints filed by the Attorney General alleging employment and housing discrimination. See, e.g., United States v. Gustin-Bacon Division, 426 F.2d 539, 542-43 (10th Cir. 1970) (holding that employment discrimination complaint did not need to contain specific detail); United States v. Metro Development Corp., 61 F.R.D. 83, 87 (N.D. Ga. 1973) (holding that housing discrimination complaint that simply repeated the statutory language was sufficient); United States v. Bob Laurence Realty, Inc., 313 F. Supp. 870, 873 (N.D. Ga. 1970) (holding that housing discrimination complaint that simply repeated the statutory language was sufficient); United States v. Georgia Power Co., 301 F. Supp. 538, 544 (N.D. Ga. 1969) (holding that employement discrimination complaint did not need to contain specific detail).
Defendants' arguments that the complaint should be dismissed because it fails to plead sufficient facts upon which to base its pattern or practice allegations is contrary to Conley, Leatherman, relevant Sixth Circuit cases, and decisions opining on the sufficient of "notice pleading" pattern or practice civil rights complaints, and should be rejected.i29)

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IV. THE UNITED STATES' COMPLAINT IS NOT LIMITED BY OHIO'S
TWO YEAR STATUTE OF LIMITATIONS FOR PERSONAL INJURY CLAIMS
The City erroneously argues, Def. Mem. at 19-20, that the United States' complaint is limited by Ohio's two-year statute of limitations for personal injury claims, because (a) private suits brought under 42 U.S.C. § 1983 — under which individuals may sue for damages for unconstitutional police acts — are governed by state personal injury statutes of limitation, and (b) § 14141 violations must be based on conduct that would be actionable under § 1983. This argument for dismissal fails because the Supreme Court and lower federal courts have held repeatedly that when, as here, the United States sues in its sovereign capacity, it is not subject to state statutes of limitation unless a federal statute contains or references such a statute. Section 14141, of course, does not mention, discuss, or otherwise provide for a statute of limitations period. See Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977) (holding that EEOC actions for backpay are suits in its sovereign capacity, and are not subject to state statutes of limitation); United States v. John Hancock Mutual Life Ins. Co., 364 U.S. 301, 306 (1960) (citing "the rule that the United States is not subject to local statutes of limitations"); Board of County Commissioners v. United States, 308 U.S. 343, 351 (1939) ("state statutes of limitations have no applicability to suits by the Government... This is so because the immunity of the sovereign from these defenses is historic. Unless expressly waived, it is implied in all federal enactments."); E.I. Dupont De Nemours & Co. v. Davis, 264 U.S. 456,462 (1924) ("an action on behalf of the United States in its governmental capacity ... is subject to no time limitation, in the absence of congressional enactment clearly imposing it.").£HH
This rule has been applied to "pattern or practice" suits brought by the Attorney General on behalf of the United States for alleged housing and employment civil rights violations. See United States v. City of Parma, 494 F. Supp. 1049, 1094, n.63 (N.D. Ohio) (United States is not subject to state statutes of limitation when it brings a pattern or practice claim under the Fair Housing Act), affd 661 F.2d 562, 573 (6th Cir. 1981) ("a pattern or practice suit necessarily involves a number of discriminatory acts, not a particular one for which the time for bringing suit may be measured"); United States v. Marsten Apartments, Inc. 175 F.R.D. 257, 262 (E.D. Mich. 1997) (same); United States v. City of Yonkers, 592 F. Supp. 570, 586-89 (S.D.N.Y. 1984) (United States was not subject to a state statute of limitations when it sued the City of Yonkers under Title VII for an alleged pattern or practice of employment discrimination in its police department); United States v. McHenry County, 1994 WL 447419 (N.D. 111. 1994) (same).
The United States brings § 14141 suits in its sovereign capacity, and there is no reason to distinguish "pattern or practice "employment and housing discrimination suits brought by the Attorney General from suits brought under § 14141. Therefore, Ohio's two year statute of limitations on personal injury claims does not limit this suit to remedy a pattern or practice of excessive force, false arrests, false reports, and unlawful searches by CDP.
CONCLUSION
For the foregoing reasons, the City's motion to dismiss and the FOP's motion for judgment on the pleadings should be denied in their entirety.

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SHARON J. ZEALEY United States Attorney Southern District of Ohio
DEBORAH F. SANDERS Assistant United States Attorney Southern District of Ohio Two Nationwide Plaza 280 North High Street Fourth Floor Columbus, Ohio 43215 (614)469-5715

Respectfully submitted, BILL LANN LEE Acting Assistant Attorney General Civil Rights Division U.S. Department of Justice STEVEN H. R0SENBAUM Chief DONNA M. MURPHY Special Counsel MARK MASLING MARK A. POSNER Attorneys Special Litigation Section Civil Rights Division U.S. Department of Justice P.O. Box 66400 Washington, D.C. 20035-6400 (202)514-6252

1. The differences between the 1991 Police Accountability Act and § 14141 are the deletion from the latter of provisions that authorized "pattern or practice" suits by private individuals and the definition section, and the expansion of the former to cover organizations and juvenile institutions that deal with juvenile justice. Except for the 'juvenile justice1 clause, § 14141's two paragraphs are identical to the first two paragraphs of the Police Accountability Act (which accounts for the typographical error in § 14141(b): the first paragraph in
§ 14141 is labeled "(a)" while in the Police Accountability Act it is labeled "(1)"). The FOP recognizes that the legislative history to the Police Accountability Act informs issues concerning § 14141. FOP Mem. at 6-7.
2. That anomaly is reflected in the fact before § 14141, the United States could bring civil pattern or practice suits against police departments for employment discrimination (under Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e et. seq.) and could sue jails or prisons regarding officers' excessive force (under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et. seq.) but could not sue police departments for officers' excessive force.
3. As discussed at length below, pp. 31-36, § 14141 does impose vicarious liability on governmental

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bodies for the acts of their law enforcement officers. Section 14141(a) creates a "cause of action" in which "any governmental authority" violates the law when it "engage[s] in a pattern or practice of conduct by law enforcement officers" that violates citizens' constitutional rights. Section 14141(a) thus makes "governmental authorities]" liable for a pattern or practice of unlawful acts by law enforcement agents. The fact that § 14141 imposes vicarious liability on governmental authorities does not mean that those agencies have increased responsibilities, because all law enforcement agencies previously had the "responsibility" to eliminate unlawful conduct by their officers. Section 14141 simply provides an enforcement mechanism for the United States when such agencies and governmental authorities fail in their responsibility to prevent a pattern or practice of unlawful conduct.
4. The Supreme Court has time and again affirmed the rule laid down in Wolf and Mapp that states are subject to the Fourth Amendment's requirements through the Fourteenth Amendment. See O'Connor v. Ortega, 480 U.S. 709, 714 (1987) ("The strictures of the Fourth Amendment [have been] applied to the States through the Fourteenth Amendment..."); New Jersey v. T.L.O., 469 U.S. 325, 334 (1985) ("It is now beyond dispute that 'the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers.'") quoting Elkins v. United States, 364 U.S. 206, 213 (1961); Robbins v. California, 453 U.S. 420, 423 (1981) ("The Fourth Amendment to the Constitution ... is made applicable to the States through the Fourteenth Amendment"); Colorado v. Bannister, 449 U.S. 1, 2 (1980) ("The provisions of the Fourth Amendment are enforceable against the States through the Fourteenth"); Ker v. California, 374 U.S. 23, 30 (1963) (same).
5. Of course, Congress has the power under the Necessary and Proper Clause to authorize the United States to bring actions to enforce statutory rights validly created pursuant to an enumerated Article I power. Thus, § 14141 is a valid exercise of the Commerce Clause and Spending Clause to the extent it is used to enforce "laws" enacted pursuant to those sources of authority (which would be true, for example, if the United States brings a racial discrimination claim, which could also be authorized under the Fourteenth Amendment's equal protection clause). Moreover, Congress had amply authority under the Commerce Clause to enact
§ 14141 given the substantial effect on interstate commerce of the consequences of police misconduct, such as the riots that resulted from the Rodney King state court verdict, or the financial impact on Los Angeles of the "Ramparts" scandal.
6. Section 242 reads in part: "Whoever, under color of any law ... willfully subjects any person in any State ... to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States ... shall be fined under this title or imprisoned not more than
M
7. As discussed above, City of Philadelphia prevented the United States from obtaining injunctive relief for systemic police misconduct absent a specific statutory grant of authority, and Lyons limited the circumstances under which individual plaintiffs could obtain injunctive relief against police misconduct.
8. See also United States v. City of Parma, 661 F.2d 562 (6th Cir. 1981) (pattern or practice suit brought by Attorney General under Fair Housing Act constitutional because it is 'appropriate legislation' under § 2 of the Thirteenth Amendment); United States v. Bob Lawrence Realty, Inc., 474 F.2d 115 (5th Cir. 1973) (upholding grant of authority to Attorney General under 42 U.S.C. § 3613 relating to housing); United States v. Hunter, 459 F.2d 205 (4th Cir. 1972) (same);
9. Prior to the enactment of § 14141, several courts had held that it is for Congress, not the executive (or the courts) to enforce the Fourteenth Amendment through appropriate legislation in this area. See, e.g., United States v. Philadelphia, 644 F.2d at 200 (§ 5 of the fourteenth amendment confers on Congress, not the Executive or the Judiciary, the "power to enforce, by appropriate legislation, the provisions of this article"); United States v. Mattson, 600 F.2d 1295, 1297 (9th Cir. 1979) (showing of authority "can be easily made with specific statutory authority"); United States v. Solomon, 563 F.2d 1121,1129 (4th Cir. 1977) (permitting non-statutory authority "would authorize the executive to do what Congress has repeatedly declined to authorize him to do."). Cf. United States v. California, 332 U.S. 19 (1947) (Congress can grant and limit power of Attorney General to prosecute claims for the government under

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Art. IV, § 3, cl. 2). By enacting § 14141, Congress has exercised its power, which it had not in these cases, to enforce the Fourteenth Amendment by providing statutory authority for the Attorney General to sue.
10. Because the United States' Complaint in this case alleges only constitutional violations, § 14141's grant of authority to the United States to remedy patterns or practices of conduct that violates federal statutes is not at issue here.
11. Defendants' reliance on Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S.Ct. 2199 (1999), which held the Patent Remedy Act not to be permissible
§ 5 legislation, also is misplaced. Section 14141 does not suffer from the defects that the Court found in the Patent Remedy Act. In Florida Prepaid, the Court emphasized that "Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations." Id. at 2207. In contrast, Congress did identify a pattern of constitutional violations in enacting Section 14141. Moreover, in Florida Prepaid, the Court noted the Patent Remedy Act's "indiscriminate scope," which would expose a State to liability for "[a]n unlimited range of state conduct." Id. at 2210. Section 14141 subjects governmental authorities to liability only for the unconstitutional acts of their officers.
12. The City apparently bases its argument concerning the intrusiveness of the remedies sought by the United States not on the Complaint, but on the provisions of a Consent Decree tentatively agreed to by the City and the United States in pre-suit negotiations. That Decree, of course, was never finalized or signed. The specific relief sought by the United States in this case will be directed toward curing the violations found by the Court.
13. City of Canton v. Harris, 489 U.S. 378, 390 (1989) (city may be liable for failure to train); Zuchel v. City of Denver, 997 F.2d 730 (10th Cir. 1993) (failure to train in use of deadly force, five recent police shooting deaths); Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991) (failure to train can be deliberate indifference); Parker v. District of Columbia, 850 F.2d 708, 712 (D.C. Cir. 1988) (municipality may be liable for failing to train).
14. Leach v. Shelby County Sheriff, 891 F.2d 1241, 1247-48 (6th Cir. 1989) (failure to investigate and supervise sufficient to support municipal liability); Parker v. District of Columbia, 850 F.2d 708, 712 (D.C. Cir. 1988) (municipality may be liable for failing to supervise); Cox v. District of Columbia, 821 F. Supp. 1, 11-14 (failure to investigate citizen complaints).
15. Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir. 1986) (failure to investigate claims of police brutality sufficient to support municipal liability); Green v. Francis, 705 F.2d 846 (6th Cir. 1983) (failure to investigate racial crimes); Czajkowski v. City of Chicago, 810 F. Supp. 1428 (N.D. 111. 1992) (denial of summary judgment for defendants; evidence could show systemic failure to investigate complaints of excessive force and violence against officers' wives).
16. Bielevicz v. Dubinon, 915 F.2d 845, 852-53 (3d Cir. 1990) (acquiescence to custom of arresting individuals without probable cause sufficient to support municipal liability); Parker v. District of Columbia, 850 F.2d 708, 712 (D.C. Cir. 1988) (municipality may be liable for failing to discipline); Harris v. City of Pagedale, 821 F.2d 499, 504-06 (8th Cir. 1987) (failure to take remedial action against known pattern of sexual misconduct by police officers sufficient to support municipal liability); Czajkowski v. City of Chicago, 810 F. Supp. 1428 (N.D. 111. 1992) (denial of summary judgment for defendants; evidence could show inadequate discipline for excessive force and domestic violence against officers' wives, officers knew unlawful conduct unlikely to result in discipline).
17. Although the award of equitable relief must be tailored to the harm found, the Court's power to fashion appropriate remedies is wide. See Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1,15 (1971) ("Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies."); United States v. Paradise, 480 U.S. 149, 183 (1987) ("A district court has 'not merely the power but the duty to render a decree which will so far as possible eliminate the [unlawful] effects of the past as well as bar

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like [illegality] in the future.1").
18. Most of the cases cited in this section concern a single incident of unlawful police conduct. As discussed above, § 14141 creates a cause of action to allow the United States to remedy a pattern or practice of such acts.
19. "It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers . . . that deprives persons of [federal] rights . . . "
20. If the Court decides that § 14141 does not impose vicarious liability on the City, and that the United States' Complaint is therefore not well pled, the United States requests that the Court not dismiss the Complaint, but instead allow the United States sufficient time to re-plead its allegations.
21. Although the discussion in Monell includes the historical issue that "creation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace ... Congress ... thought... such an obligation unconstitutional," that sentence should not affect this Court's analysis of whether there is a constitutional bar to imposing vicarious liability under § 14141, because it refers to perceived Civil War era constitutional problems that have been mooted by subsequent Supreme Court decisions. There is no suggestion in Monell or any other case that Congress would raise any contemporary constitutional question by imposing respondeat superior liability on municipalities for the acts of their employees. For example, the Supreme Court has recently applied respondeat superior liability under Title VII (which applies to municipal organizations). See Burlington Indust. v. Ellerth, 524 U.S. 742, 754-66 (1998); Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1013-14 (6th Cir. 1987) (applying respondeat superior liability under Title VII to local school board). In modern cases deciding when and whether to apply vicarious liability, the Court has consistently looked to the intent of Congress and has not felt limited by any constitutional restrictions. See, e.g., Gebser v. Lago Vista Indep. Sch. Dist, 524 U.S. 274 (1998) (refusing to apply Title VII respondeat superior rule in Title IX cases because of differences in statutory language and congressional intent).
22. See Thomas v. County of Los Angeles, 978 F.2d 504, 508-509 (9th Cir. 1993) ("A state law enforcement agency may be enjoined from committing constitutional violations where there is proof that officers within the agency have engaged in a persistent pattern of misconduct."); LaDuke v. Nelson, 762 F.2d 1318, 1324 (9th Cir. 1985) ("the Supreme Court has repeatedly upheld the appropriateness of federal injunctive relief to combat a 'pattern' of illicit law enforcement behavior."); Pennsylvania v. Porter, 659 F.2d 306 (3rd Cir. 1981) (upholding injunction in action Commonwealth brought under its parens patriae power to enjoin pattern or practice of local police department's excessive force, false arrests, illegal searches, and other misconduct).
23. To the extent that Rizzo could be read to indicate disapproval of imposing municipal liability for unlawful police conduct under § 1983, later decisions in Monell and City of Canton v. Harris, 489 U.S. 378 (1989), clarified any such interpretation: municipalities can be liable for unlawful conduct under § 1983.
24. Althought the City complains about the scope of relief they believe will be sought by the United States, "[questions as to the relief sought by the United States are posed, but remedial issues are hardly properly presented at this stage in the litigation," Raines, 362 U.S. at 27-28.
25. The City's allegation that the Complaint fails to specify particular incidents, officers, and victims, rings hollow given the fact that the majority of the allegations of misconduct that animated the Complaint were referenced in documents provided to the United States by the City during the course of the United States' pre-suit § 14141 investigation. The City has in its possession the records needed to answer much of the question it raises so insistently in its motion to dismiss.
26. The cases upon which the City relies to argue that the complaint is not sufficiently pled are either inapposite or have been overruled by Leatherman. Carrol v. Bristol Township, 827 F. Supp. 332 (1993), required a heightened pleading standard for civil rights complaints, a holding explicitly overruled by

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Leatherman. East v. City of Chicago, 719 F. Supp. 683 (1989) relied explicitly on Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985), which was later abrogated by Leatherman. See Carney v. White, 843 F. Supp. 462 (E.D. Wise. 1994) ("the district courts within the Seventh Circuit consistently have read Leatherman to nullify the pleading requirement set forth in Strauss."). Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434 (6th Cir. 1988), is inapposite because it dismissed a complaint for failing to allege, directly or inferentially, any facts to support one of the material elements of an age discrimination claim. In this case, the United States's claim is that the City is liable for patterns or practices of excessive force, false arrests, false reports and unlawful searches. The complaint alleges facts sufficient to support its claim: the CDP has engaged in a pattern or practice of unconstitutional police conduct for which the City is liable.
27. The FOP cites a number of unpublished Sixth Circuit opinions deemed by the Court not suitable for publication.
28. If the Court rules that the Complaint is deficient, the United States requests that the Court give the United States sufficient time to amend the Complaint to cure whatever deficiencies are identified by the Court.
29. If the Court decides that the Complaint is not well pled, either because it fails to allege that the City caused, or was deliberately indifferent to, the pattern or practice alleged in the Complaint, or because it lacks sufficient factual specificity, the United States requests that the Court grant the United States sufficient time to amend the Complaint to remedy any identified deficiency.
30. See also EEOC v. Frank's Nursery and Crafts, Inc., 177 F.3d 448 (6th Cir. 1999) (noting Occidental's rejection of applicability of state statutes of limitation to the EEOC); United States v. Telluride Co., 146 F.3d 1241 (10th Cir. 1998) (held that five year statute of limitation contained in Clean Water Act for the United States' recovery of a "civil penalty" did not apply to injunctive relief, because injunctive relief is not a penalty); United States v. Alvarado, 5 F.3d 1425,1427-8 (1 lth Cir. 1993) (citing cases); United States v. Gera, 409 F.2d 117, (3d Cir. 1969) (United States' complaint under Medical Care Recovery Act not subject to state statute of limitations. "It has long been settled that the United States is not bound by state statutes of limitation..."); United States v. Johnson, 946 F. Supp. 915,918-19, (D. Utah 1996) ("The United States Supreme Court and the lower courts of appeals have consistently held that the United States and its agencies are not bound by state statutes of limitations" citing to 14 Supreme Court and other federal cases).

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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

CITY OF COLUMBUS, OHIO, et al. )

)

Defendants.

)

CIVIL NO. C2-99-1097 Judge Holschuh Magistrate Judge King

AMENDED COMPLAINT The United States of America alleges: 1. The United States brings this action under 42 U.S.C. § 14141, the Omnibus Crime Control and Safe Streets Act, as amended, 42 U.S.C. § 3789d(c), and other, related federal funding statutes, to remedy a pattern or practice of conduct by law enforcement officers of the Columbus, Ohio Division of Police that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, including the Fourth and Fourteenth Amendments, and rights protected by the anti-discrimination provisions and implementing regulations of the Omnibus Crime Control and Safe Streets Act, as amended, 42 U.S.C. § 3789d(c). Defendant City of Columbus has subjected individuals to a pattern or practice of excessive force, false arrests and charges, and improper searches and seizures, and has engaged in a pattern or practice of racially discriminatory conduct. The City has tolerated this conduct through its failure to adequately train, supervise, and monitor police officers, and its failure to adequately accept

USv. City of Columbus

PN-OH-001-041

citizen complaints of misconduct, investigate alleged misconduct, and discipline officers who are guilty of misconduct.
DEFENDANT 2. The City of Columbus ("City") is a municipality in the State of Ohio. The Columbus Division of Police ("CDP") is a law enforcement agency operated by the City.
JURISDICTION AND VENUE 3. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1345. 4. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 14141, 42 U.S.C. § 3789d(c)(3), the Department of Justice Appropriations Act, 1999 (112 Stat. 2681, 2681-62), and the Department of Justice Appropriations Act, 2000 (113 Stat. 1501, 1501A-14). 5. Venue is proper in the Southern District of Ohio pursuant to 28 U.S.C. § 1391, as the City resides in and the claims arose in the Southern District of Ohio.
FACTUAL ALLEGATIONS 6. CDP officers have engaged and continue to engage in a pattern or practice of using excessive force against persons in Columbus. This use of excessive force includes, but is not limited to:
a. use of excessive force in effecting arrests or detaining persons suspected of engaging in criminal activity,- and
- 2-

b. use of excessive force against persons who are carrying out a routine activity and either have not committed any crime or infraction or have committed a minor infraction.
7. CDP officers have engaged and continue to engage in a pattern or practice of falsely arresting and charging persons in Columbus. These false arrests and charges include, but are not limited to:
a. falsely arresting or charging persons who witness incidents of police misconduct or who otherwise are observing police conduct;
b. falsely arresting or charging persons who are believed likely to complain of police misconduct; and
c. falsely arresting or charging persons who behave or speak in a manner that is perceived by a CDP officer to be disrespectful but which does not constitute criminal behavior.
8. CDP officers have engaged in and continue to engage in other misbehavior, including, but not limited to:
a. falsifying official reports; and b. conducting searches without lawful authority or in an improper manner. 9. The City has tolerated the misconduct of individual officers, described in paragraphs 6-8 above, through its acts or omissions. These acts or omissions include, but are not limited to: a. failing to implement a policy on use of force that appropriately guides the actions of individual officers;
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b. failing to train CDP officers adequately to prevent the occurrence of misconduct;
c. failing to supervise CDP officers adequately to
prevent the occurrence of misconduct;
d. failing to monitor CDP officers adequately who engage in or who may be likely to engage in misconduct;
e. failing to establish a procedure whereby citizen complaints are adequately investigated;
f. failing to investigate adequately incidents in which a police officer uses lethal or non-lethal force;
g. failing to fairly and adequately adjudicate or review citizen complaints, and incidents in which a police officer uses lethal or non-lethal force; and
h. failing to discipline adequately CDP officers who engage in misconduct.
10. CDP is a program or activity of the City funded, in part, by funds made available under the Omnibus Crime Control and Safe Streets Act,- 42 U.S.C. § 3701, et seq.. and the Department of Justice Appropriations Acts of 1999 and 2000.
11. CDP officers have engaged in and continue to engage in a pattern or practice of performing motor vehicle, bicycle, and pedestrian stops of, and conducting post-stop enforcement actions and procedures against, African Americans that:
a. has the intent of discriminating on the basis of race,- and
b. use criteria or methods of administration that
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have the effect of discriminating on the basis of race. 12. The City, through its acts or omissions, has tolerated
racially discriminatory law enforcement by the CDP, described in paragraph 11 above. These acts or omissions include, but are not limited to:
a. failing to implement and enforce policies related to motor vehicle, bicycle, and pedestrian stops that appropriately guide and limit the discretion of individual CDP officers;
b. failing to train, supervise, and monitor CDP officers adequately to prevent racially discriminatory conduct related to motor vehicle, bicycle, and pedestrian stops; and
c. failing to establish and implement procedures whereby all civilian complaints are documented, and are investigated and adjudicated adequately.
CAUSES OF ACTION 13. Through the actions described in paragraphs 6-9 above, the City has engaged in and continues to engage in a pattern or practice of conduct by CDP officers that deprives persons in Columbus of rights, privileges, or immunities secured or protected by the Constitution (including the Fourth and Fourteenth Amendments) or the laws of the United States, in violation of 42 U.S.C. § 14141. 14. Through the actions described in paragraphs 11-12 above, the City has engaged in and continues to engage in a pattern or practice of conduct that subjects persons in Columbus,
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Ohio, to discrimination on the basis of race in violation of 42 U.S.C. § 14141, the Omnibus Crime Control and Safe Streets Act, as amended, 42 U.S.C. 3789d(c), and the Department of Justice Appropriations Acts of 1999 and 2000.
PRAYER FOR RELIEF 15. The Attorney General is authorized under 42 U.S.C. § 14141 to seek declaratory and equitable relief to eliminate a pattern or practice of law enforcement officer conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, including the Fourth and Fourteenth Amendments. IS. The Attorney General is authorized under 42 U.S.C. § 14141, 42 U.S.C. § 3789d(c)(3), and the Department of Justice Appropriations Acts of 1999 and 2000 to seek declaratory and equitable relief to eliminate a pattern or practice of discriminatory law enforcement conduct that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, including the Fourteenth Amendment, and rights protected by the antidiscrimination provisions and implementing regulations of the Omnibus Crime Control and Safe Streets Act, as amended, 42 U.S.C. § 3789d(c). WHEREFORE, the United States prays that the Court: a. declare that the City has engaged in a pattern or practice by CDP officers of depriving persons of rights, privileges, or immunities secured or protected by the
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Constitution or laws of the United States, in violation of 42 U.S.C. § 14141, the Omnibus Crime Control and Safe Streets Act, as amended, 42 U.S.C. § 3789d(c), and the Department of Justice Appropriations Acts of 1999 and 2000, as described in paragraphs 6-9 and 11-12 above;
b. order the City to refrain from engaging in any of the predicate acts forming the basis of the pattern or practice of conduct as described in paragraphs 6-9 and 11-12 above;
c. order the City to adopt and implement policies, practices, and procedures to remedy the pattern or practice of conduct described in paragraphs 6-9 and 11-12 above, and to prevent officers from depriving persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, including the Fourteenth Amendment, and rights protected by the anti-discrimination provisions and implementing regulations of the Omnibus Crime Control and Safe Streets Act, as amended, 42 U.S.C. § 3789d(c);
d. order such additional permanent relief under 42 U.S.C. § 14141, 42 U.S.C. § §3789d(c)(3), and the Department of Justice Appropriations Acts of 1999 and 2000 as necessary or appropriate, including the suspension, termination, or repayment of funds made available to the CDP pursuant to these statutes; and
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JUN-28-00 WED 09:08 All

FAX NO.

e. order such other appropriate relief as the interests of justice may require.
Respectfully submitted,
JANET RENO Attorney General of/he

SHARON J. ZEALEY United States Attorney Southern District ofOhio Two Nationwide Plaza 4th Floor 280 North High Street Columbus, Ohio 43215 (614) 469-5715

DJ.JJ.U Urti^lN JJCCi

^~_>

Acting Assistant Attorney

General

Civil Rights Division

U.S. Department of Justice

STEVEN Chief

ROSENBAUM

DONNA M. Special Cou

MARK A. POSNER JAMES EICHNER CATHLEEN TRAINOR Attorneys Special Litigation Section Civil Rights Division U.S, Department of Justice P.O. Box 66400 Washington, D.C. 20035-6400 (202) 514-6252

JUN-29-2000 09=13

- 8" 96*

P. 02

 
 U.S. v. City of Columbus, Ohio, Not Reported in F.Supp.2d (2000)

2000 WL 1133166 Only the Westlaw citation is currently available. United States District Court, S.D. Ohio, Eastern
Division.
UNITED STATES of America, Plaintiff, v.
CITY OF COLUMBUS, Ohio, et al., Defendants.
No. CIV.A.2;99CV1097. | Aug. 3, 2000.
Attorneys and Law Firms
Deborah F Sanders, United States Attorney’s Office—2, Columbus, Mark nmi Masling, Mark A Posner, U S Department of Justice, Civil Rights Division, Special Litigation Section, Washington, DC, for USA, plaintiffs.
Timothy Joseph Mangan, Joshua T Cox, Andrea C Peeples, Columbus City Attorney’s Office—2, Columbus, for City of Columbus, OH, defendants.
Opinion
REPORT AND RECOMMENDATION
KING, Magistrate J.
*1 This is an action for injunctive and declaratory relief, instituted under the provisions of 42 U.S.C. § 14141, in which the United States alleges that officers of the Columbus Division of Police have engaged in a pattern or practice of conduct violative of federal law and that the defendant city has tolerated the alleged misconduct by failing to implement adequate policies, training, supervision, monitoring and incident investigation procedures. This matter is now before the Court on the motion to dismiss filed by the defendant city and on the motion for judgment on the pleadings filed by the defendant-intervenor, the Fraternal Order of Police, City Lodge No. 9 [referred to jointly as “movants”].
In their motions, the movants argue, first, that the Court is without subject matter jurisdiction over the claims asserted in the action because Congress exceeded its constitutional authority in promulgating the statute upon which the complaint is based, 42 U.S.C. § 14141. Movants argue, in the alternative, that the original complaint fails to state a claim upon which relief can be granted because it purports to impose vicarious liability on the defendant city, because it fails to allege with specificity the claimed wrongdoing of the defendant city or its police officers, and because its allegations are, in

whole or in part, untimely. Although plaintiff has filed a motion for leave to amend the complaint in order to assert an additional claim of racially discriminatory conduct, that motion remains pending. The Court will therefore consider the movants’ motions solely by reference to the original complaint.
I. STANDARD Where the Court’s subject matter jurisdiction is challenged under Fed.R.Civ.P. 12(b)(1), the plaintiff bears the burden of proving jurisdiction. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F .3d 1125, 1134 (6th Cir.1996). When considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Roth Steel Products v. Sharon Steel Corporation, 705 F.2d 134, 155 (6th Cir.1983). “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Conley v. Gibson, 355 U.S. 41, 45–46 (1957); see also McClain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, (1980); Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983). Because a motion under Rule 12(b)(6) is directed solely to the complaint itself, Roth Steel Products, 705 F.2d at 155, the Court must focus on whether the plaintiff is entitled to offer evidence to support the claims, rather than whether the plaintiff will ultimately prevail. Scheuer v. Rhodes, 416 U.S. at 236.
In resolving a motion for judgment on the pleadings under F.R. Civ. P. 12(c), the Court must likewise accept all well-pleaded material allegations as true. Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir.1973). “The motion is granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.” United States v. Moriarty, 8 F.3d 329, 332 (6th Cir.1993); Paskvan v. City of Cleveland Civil Serv. Comm’n., 946 F.2d 1233, 1235 (6th Cir.1991). The Court need not, however, accept as true legal conclusions or unwarranted factual inferences. Lewis v. ACB Business Serv., Inc., 135 F.3d 389, 405 (6th Cir.1998); Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). Where the motion for judgment on the pleadings raises the defense of failure to state a claim upon which relief can be granted, the standard of F.R. Civ. P. 12(b)(6) is applicable. Nixon v. State of Ohio, 193 F.3d 389, 399 (6th Cir.1999). See also Romero v. Intl. Terminal Operating Co., 358 U.S. 354, 358 n. 4 (1959).
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U.S. v. City of Columbus, Ohio, Not Reported in F.Supp.2d (2000)

II. THE ORIGINAL COMPLAINT *2 The original complaint alleges that Columbus police officers have engaged in, and continue to engage in, a pattern or practice of using excessive force, Complaint, ¶ 6, falsely arresting individuals, Id., ¶ 7, and falsifying official reports and conducting searches either without lawful authority or in an improper manner. Id., ¶ 8(a),(b). The complaint further alleges that the City of Columbus has “tolerated the misconduct of individual officers,” Id., ¶ 9, by failing “to implement a policy on use of force that appropriately guides the actions of individual officers,” Id., ¶ 9(a), by failing to adequately “train,” “supervise,” and “monitor” officers, Id., ¶ 9(b)—(d), and by failing to “establish a procedure whereby citizen complaints are adequately investigated,” Id., ¶ 9(e), “investigate adequately incidents in which a police officer uses lethal or non-lethal force,” Id., ¶ 9(f), “fairly and adequately adjudicate or review citizen complaints, and incidents in which an officer uses lethal or non-lethal force,” Id., ¶ 9(g), and “discipline adequately ... officers who engage in misconduct.” Id., ¶ 9(h). The complaint seeks a declaration that the city “is engaged in a pattern or practice by ... officers of depriving persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States,” and asks that the Court enjoin the city “from engaging in any of the predicate acts forming the basis of the pattern or practice of conduct as described ...” and order the city “to adopt and implement policies, practices, and procedures to remedy the pattern or practice of conduct described ... and to prevent officers from depriving persons of rights, privileges or immunities secured or protected by the Constitution or laws of the United States....” Id., at pp. 4–5.
III. THE STATUTE The original complaint asserts claims under 42 U.S.C. § 14141. That statute, enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, reads in full as follows:
Cause of action
(a) Unlawful Conduct
It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives

persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
(b) Civil action by Attorney General
Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice. *3 The parties agree that § 14141, which has no direct legislative history and which has never been construed by any court, is a successor to an earlier, nearly identical, provision of the Omnibus Crime Control Act of 1991, which was never actually promulgated.1 Defendant City’s Motion to Dismiss, at 9; Motion for Judgment on Pleadings by the Fraternal Order of Police, City Lodge No. 9, at 6; The United States’ Memorandum in Opposition to the City of Columbus’ Motion to Dismiss and the Fraternal Order of Police’s Motion for Judgment on the Pleadings, at 6 [hereinafter “Memorandum contra ”]. All parties also refer to the legislative history of that provision in their discussion of 42 U.S.C. § 14141. H.R.Rep. No. 102–242, 102nd Cong., 1st Sess., at 402, 1991 WL 206794 *399 (Leg.Hist.). Like § 14141, the earlier statute was intended to confer standing on the United States Attorney General to obtain civil injunctive relief against governmental authorities for patterns or practices of unconstitutional police practices. In considering the need for such legislation, the House Subcommittee on Civil and Constitutional Rights held two days of hearings and, in its report, the Committee on the Judiciary specifically referred to the Rodney King incident in Los Angeles, and to alleged misconduct within the Boston, New York City and Reynoldsburg, Ohio, Police Departments. Although recognizing that police misconduct violates the United States Constitution and, under 18 U.S.C. §§ 241, 242, can give rise to federal criminal liability, the Committee also noted that, under United States v. City of Philadelphia, 644 F.2d 187 (3d Cir.1980), the United States had neither statutory nor constitutional authority to sue a police department itself “to correct the underlying policy.” 1991 WL 206794 *404. The problem was compounded, the Committee concluded, by the Supreme Court’s holding, in Los Angeles v. Lyons, 461 U.S. 95 (1983), that, although a private citizen victimized by police misconduct could recover monetary relief under 42 U.S.C. § 1983, future injunctive relief remained unavailable absent a showing of likely future harm to that particular plaintiff. The proposed statute, the committee stated in its report, “would close this gap in the law, authorizing the Attorney General ... to sue for injunctive relief against abusive police practices.” Id., at 406. Significantly, the Committee
2

U.S. v. City of Columbus, Ohio, Not Reported in F.Supp.2d (2000)

went on to explain:
The Act does not increase the responsibilities of police departments or impose any new standards of conduct on police officers. The standards of conduct under the Act are the same as those under the Constitution, presently enforced in damage actions under section 1983. The Act merely provides another tool for a court to use, after a police department is held responsible for a pattern or practice of misconduct that violates the Constitution or laws of the United States.
Because the Act imposes no new standard of conduct on law enforcement agencies, it should not increase the amount of litigation against police departments. Individuals aggrieved by the use of excessive force already can and do sue under 42 U.S.C. § 1983 for monetary damages. With adoption of this section, such persons will be able to seek injunctive relief as well, if their injury is the product of a pattern or practice of misconduct.
*4 This provision may in fact decrease the number of lawsuits against police departments. Currently, changes in a police department’s policy are prompted by successive criminal cases or damage actions; the cumulative weight of convictions or adverse monetary judgments may lead the police leadership to conclude that change is necessary. This is an inefficient way to enforce the Constitution and is not always effective. Some police departments have shown they are willing to absorb millions of dollars of damage payments per year without changing their policies. If there is a pattern of abuse, this section can bring it to an end with a single legal action.
Id., at *406–08.
The movants argue that 42 U.S.C. § 14141, either as drafted or as applied in the original complaint in this action, does not reflect a valid exercise of congressional authority. This Court, movants contend, therefore lacks jurisdiction to entertain the claims asserted under that statute.
IV. Congressional Authority to Promulgate § 14141
A
It has been long established that each act of Congress, which is a branch of a government of only enumerated powers, must find its ultimate authority in the United States Constitution. Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). The parties only briefly address the broad congressional authority to regulate “Commerce with foreign Nations, and among the several States, and

with the Indian Tribes.” U.S. Const. art. I, § 8. The proper exercise of that authority permits Congress to regulate the channels of interstate commerce, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964), the instrumentalities of interstate commerce or persons or things in interstate commerce, e.g., Shreveport Rate Cases, 234 U.S. 342 (1914), and those activities that “substantially affect interstate commerce,” e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37(137). See generally United States v. Lopez, 514 U.S. 549 (1995). The United States takes the position that Congress “had ample authority under the Commerce Clause to enact § 14141 given the substantial effect on interstate commerce of the consequences of police misconduct, ...” Memorandum contra, at 16 n. 5. There is no indication, however, that, in enacting § 14141, Congress intended the statute to effect a regulation of interstate commerce. More important, the United States Supreme Court has recently held that Congress may not regulate “non-economic [mis]conduct ... based solely on that conduct’s aggregate effect on interstate commerce.” United States v. Morrison, 120 S.Ct. 1740, 1754 (2000). This Court concludes that § 14141 cannot be justified as a valid exercise of congressional authority under the Commerce Clause.
In their memoranda, all parties also discuss, in comprehensive fashion, whether § 14141 reflects a valid exercise of congressional power under § 5 of the Fourteenth Amendment. The Fourteenth Amendment provides, in relevant part:
*5 Section 1.... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
U.S. Const. amend. XIV. Congressional power under § 5 to enforce the Fourteenth Amendment includes the authority both to remedy and to prevent the violation of rights guaranteed by the amendment. North Carolina v. Katzenbach, 383 U.S. 301, 326 (1966). However, it does not include the power “to decree the substance of the Fourteenth Amendment’s restrictions on the states.” City of Boerne v. Flores, 521 U.S. 507, 519 (1997). “Congress does not enforce a constitutional right by changing what the right is.” Id . The limitations on the power of Congress to act, as reflected in both the language and purpose of the Fourteenth Amendment, “are necessary to prevent the Fourteenth Amendment from obliterating the Framers’ carefully crafted balance of power between the States and the National Government.” United States v. Morrison, 120 S.Ct. at 1755.
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U.S. v. City of Columbus, Ohio, Not Reported in F.Supp.2d (2000)

The distinction between remedial measures properly taken by Congress pursuant to § 5 and substantive changes to the Fourteenth Amendment forbidden to Congress is, as the Supreme Court has recognized, “not easy to discern.” City of Boerne, 521 U.S. at 519. Critical to the distinction is the existence of “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Id., at 520. Legislation purportedly promulgated pursuant to § 5 of the Fourteenth Amendment, but which lacks such “congruence and proportionality, may become substantive in operation and effect” and is prohibited. Id. Although lapses in the legislative history are not necessarily fatal, Kimel v. Florida Bd. of Regents, 120 S.Ct. 631, 649–50 (2000); Florida Prepaid Postsecondary Education Expense Bd. v. College Savings Bank, 119 S.Ct 2199, 2210 (1999); City of Boerne, 521 U.S. at 531, Congress must nevertheless “identify conduct transgressing the Fourteenth Amendment’s substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.” Florida Prepaid, 119 S.Ct. at 2207. Moreover, where congressional action would prohibit conduct not otherwise unconstitutional, it cannot be said, in the absence of a significant pattern of unconstitutional misconduct by state officials, that the action is congruent and proportional to the authority conferred upon Congress by § 5 of the Fourteenth Amendment. Kimel, 120 S.Ct. at 650. Where legislation “is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior,” the statute may be characterized as attempting to effect “a substantive change in Constitutional protections.” City of Boerne, 521 U.S. at 532. “Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one.” Florida Prepaid, 119 S.Ct. at 2157 (quoting South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)).
*6 With these standards in mind, the Court will consider whether § 14141 reflects a valid exercise of congressional power under § 5 of the Fourteenth Amendment.

[false affidavits in support of application for arrest warrant]. Moreover, the legislative history referred to by all parties in this action makes clear that the House Committee perceived the problem of police misconduct in constitutional terms and described the problem in its report as “serious,” “real,” and “not limited to Los Angeles.” This Court has no doubt that, in enacting § 14141, Congress intended to respond, by both remedial and preventative measures, to a widespread pattern of violations of the Fourteenth Amendment by police officials acting under color of state law. The first test of the “congruence and proportionality” test, addressed in Florida Prepaid and Kimel, has been met.
The movants argue that any remedy under § 14141, and particularly the far-reaching relief sought by plaintiff in this action, is disproportionate to any claimed Fourteenth Amendment violations in light of the availability of private civil actions under § 1983 and the possibility of criminal prosecutions under 18 U.S.C. §§ 241, 242. However, as the House Committee report noted, some forms of unconstitutional police misconduct will, by operation of current judicial law, fall beyond the reach of private litigants and the possibility of remedy. The fact that Congress has previously promulgated 42 U.S.C. § 1983 and 18 U.S.C. §§ 241,242 does not transform § 14141 into an incongruent and disproportionate method of enforcing Fourteenth Amendment violations.
Once a Fourteenth Amendment violation has been identified, Congress is entitled to “much deference” in determining “whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.” City of Boerne, 521 U.S. at 536; Katzenbach v. Morgan, 384 U.S. 641, 651 (1966). That the method of enforcement selected by Congress in the lawful exercise of its authority under § 5 may be unprecedented and even severe does not necessarily militate a finding of incongruity and disproportionality. City of Boerne, 521 U.S. at 526. As the United States Supreme Court has cautioned, “Difficult and intractable problems often require powerful remedies, and we have never held that § 5 precludes Congress from enacting reasonably prophylactic legislation.” Kimel, 120 S.Ct. at 648.

B
Without doubt, the Fourteenth Amendment offers substantive protection from various forms of misconduct on the part of state law enforcement officials. See, e.g., Graham v. Connor, 490 U.S. 386 (1989) [excessive force]; Dietrich v. Burrows, 167 F.3d 1007 (6th Cir.1999) [arrest without probable cause]; cf. Malley v. Briggs, 475 U.S. 335 (1986); Pierson v. Ray, 386 U.S. 547 (1967) [false arrest]; Albright v. Oliver, 510 U.S. 266, 271n.4 (1994); Knowles v. Iowa, 525 U.S. 113 (1998) [unlawful searches]; cf. Klina v. Fletcher, 522 U.S. 118 (1997)

C
*7 In a jurisdictional argument that overlaps an argument made in support of the motion to dismiss for failure to state a claim for relief, the movants disagree with the plaintiff’s interpretation of the language of the statute and the remedy actually created by it. The United States contends that the statute authorizes “appropriate equitable and declaratory relief,” 42 U.S.C. § 14141, even where the defendant governmental authority has not itself caused
4

U.S. v. City of Columbus, Ohio, Not Reported in F.Supp.2d (2000)

the pattern or practice of constitutional violations. In other words, the plaintiff argues, the statute authorizes vicarious liability as a predicate for relief. The movants contend that to impose liability on the City of Columbus for—not its own misconduct—but the alleged misconduct of police officers,2 is neither congruent nor proportional to the claimed constitutional violations. They argue that, if § 14141 is construed to effect such a result, either on its face or as applied in this action, the statute is disproportional to the perceived harm and cannot be justified as a lawful exercise of authority under § 5 of the Fourteenth Amendment.
In determining whether or not § 14141, either on its face or as applied in this action, is congruent and proportional to the authority conferred upon Congress under § 5 of the Fourteenth Amendment, it becomes necessary to construe the actual language of the statute. The United States contends that § 14141 is unambiguous in its authorization of liability based upon vicarious liability. This Court does not agree. Rather, the awkwardness of the language and grammatical structure of the statute renders it difficult to construe and interpret. Thus, in construing § 14141, the Court will be guided by the time-honored tenet of statutory interpretation which requires that a Court “interpret the text of one statute in the light of text of surrounding statutes ...,” Vermont Agency of Natural Resources v. United States, 120 S.Ct. 1858, 1860 n. 17 (2000), as well as by the corollary that, “if Congress intends to alter the usual constitutional balance between States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.” Id. at 1860. Finally, the Court is mindful that statutes should be construed so as to avoid difficult constitutional questions.
As the House Committee report makes clear, and as all parties to this action appear to concede, the grant of authority to the Attorney General reflected in both the Police Accountability Act of 1991 and in § 14141 was drafted in light of and was intended to remedy the inadequacies of 42 U.S.C. § 1983. That statute provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress.
*8 Section 1983 does not impose vicarious liability solely on the basis of an employment relationship between a governmental agency and a tortfeasor. Rizzo v. Goode, 423 U.S. 362 (1976). Before a city can be held liable under § 1983, some “action pursuant to official municipal policy of some nature [must have] caused a constitutional tort.” Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691 (1978). Simply put, cities are not subject to liability under § 1983 on a theory of respondeat superior. Id.
That having been said, cities can nevertheless be held liable under § 1983 for more than just the most direct and egregious violations of an individual’s Fourteenth Amendment rights. For example, if the constitutional violation is the result of inadequate police training, the city may be held liable under § 1983 if “the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). Liability under § 1983 can be imposed on a municipality where “ ‘a deliberate choice to follow a course of action is made from among various alternatives’ by city policy makers.” Id., at 389 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483–84 (1986)).
[I]t may happen that in light of the duties assigned to specific officers or employees, the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of Constitutional rights, that the policy makers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.
Id., at 390 (footnotes omitted).3
The Supreme Court based its relatively narrow construction of § 1983 on the express language of the statute, its legislative history, Monell, 436 U.S. at 691, and “perceived constitutional difficulties” on the part of the drafters of the statute. Id. at 694. Moreover, the Supreme Court noted in Rizzo v. Goode that important principles of federalism “militate against the proposition ... that federal equity power should fashion prophylactic procedures designed to minimize misconduct by a handful of state employees....” Rizzo v. Goode, 423 U.S. at 362. In City of Canton, Ohio v. Harris, the Supreme Court

5

U.S. v. City of Columbus, Ohio, Not Reported in F.Supp.2d (2000)

reaffirmed its rejection of liability under § 1983 based on a theory of vicarious liability because federal courts “are ill-suited to undertake” the resultant wholesale supervision of municipal employment practices; to do so, moreover, “would implicate serious questions of federalism.” Id., at 392.
This Court concludes that § 14141 is properly construed to similar effect. Its language does not unambiguously contemplate the possibility of vicarious liability and such legislative history as exists manifests a congressional intent to conform its substantive provisions to the standards of § 1983. For example, the House Committee report contemplates civil actions by the Justice Department “to change the policy of a police department that tolerates officers beating citizens on the street,” 1991 WL 206794 *404(emphasis added), and commented that the standards of conduct under the act “are the same as those under the constitution, presently enforced in damage actions under Section 1983.” Id., at *406. Moreover, to eliminate the restriction placed on municipal liability under § 1983 by Rizzo, Monell and City of Canton, Ohio, would, contrary to congressional expectations, result in a dramatic expansion of liability and potential for litigation against local governments. Under these circumstances, the Court cannot conclude that Congress, which is presumed to alter the usual constitutional balance between states and the federal government only in unmistakable terms, intended to do so here. The Court therefore construes § 14141 to require the same level of proof as is required against municipalities and local governments in actions under § 1983.
*9 As so construed, the Court concludes that § 14141 is a valid and proper exercise of congressional authority under § 5 of the Fourteenth Amendment.4 As the House Committee report makes clear, the authority conferred on the Attorney General by § 14141 was intended to “close [the] gap in the law” as it had developed in litigation under § 1983 by providing the remedy of broad injunctive relief where “appropriate.” The remedy authorized by § 14141 is clearly responsive to the constitutional harm identified in the House Committee report and is no more expansive than is necessary to address that harm. The statute therefore reflects a valid exercise of Congress’ constitutional mandate to identify, remedy and even prevent substantive violations of the Fourteenth Amendment. As so construed, § 14141 is neither incongruent nor disproportionate to Congress’ constitutional prerogative and responsibility.
To the extent that the complaint seeks to posit liability against the City of Columbus on a theory of respondeat superior, the original complaint is deficient. However, the United States asks that, in such event, “the Court grant the United States sufficient time to amend the complaint to remedy any identified deficiency.” Memorandum contra, at 35. The Court will grant that request. Plaintiff may file

its amended complaint within ten (10) days of the later of the resolution of its motion for leave to amend the complaint to assert an additional claim, and Judge Holschuh’s final disposition of the movants’ motions.5
V. SUFFICIENCY OF THE ORIGINAL COMPLAINT The movants also take the position that, wholly apart from the contentions addressed supra, the allegations contained in the original complaint are not sufficiently detailed to state a claim upon which relief can be granted. Ordinarily, a complaint is sufficient if it contains “(1) a short and plain statement of the grounds upon which the court’s jurisdiction depends ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.” F.R. Civ. P. 8(a). The original complaint meets this standard. The city argues that, in order to avoid the constitutional issues addressed supra, the Court should impose heightened pleading requirements on the United States in this action. For its part, the defendant intervener contends that Veney v. Hogan, 70 F.3d 917, 921 (6th Cir.1995), requires heightened pleading in this case. Neither position has merit. The United States Supreme Court has expressly rejected a requirement of heightened pleading standards in § 1983 actions against municipalities. Leatherman v. Tarrant Cy. Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993). Moreover, the heightened pleading required by Veney applies only in response to a defense of qualified immunity. The defendant city in this action cannot, of course, invoke that defense. See Owens v. City of Independence, 445 U.S. 622 (1980). Setting aside the deficiency in the complaint identified supra, the complaint is not inadequate for its failure to include factual or evidentiary detail best left to the discovery process.
VI. STATUTE OF LIMITATIONS *10 Claims under 42 U.S.C. § 1983 must be brought within the time period established by the relevant state statute of limitations governing personal injury actions. Owens v. Okure, 488 U.S. 235, 249–50 (1989). In Ohio, that period is two years. Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir.1989). Both movants contend that the two-year statute of limitations applicable to claims under § 1983 is likewise applicable to this action under § 14141. It follows, they argue, that plaintiff cannot base any aspect of its claims on allegations of police misconduct that occurred more than two years prior to the filing of the complaint on October 21, 1999.
Section 14141 does not include an express limitation on the period of time during which the Attorney General
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U.S. v. City of Columbus, Ohio, Not Reported in F.Supp.2d (2000)

must act. Congress may create a cause of action without restricting the period of time within which the claim may be asserted. Occidental Life Ins. Co. v. Equal Employment Opportunity Comm’n., 432 U.S. 355 (1977). Moreover, in actions brought in its sovereign capacity on behalf of the public interest, the United States is not bound by any limitations period, nor is it subject to the defense of laches, unless Congress explicitly provides otherwise. United States v. Summerlin, 310 U.S. 414 (1940); Guaranty Trust Co. v. United States, 304 U.S. 126 (1938). See also United States v. Peoples Household Furnishings, Inc., 75 F.3d 252, 254 (6th Cir.), cert. denied, 519 U.S. 964 (1996). Even assuming, without deciding, that principles of equity are available to protect the movants from demonstrated prejudice caused by any delay in instituting this action, see Equal Employment Opportunity Comm’n. v. AT & T, 36 F .Supp.2d 994, 997 (S.D.Ohio 1998), the motions to dismiss and for judgment on the pleadings, which call into question only the allegations contained in the original complaint, do not provide the proper vehicle for invoking such principles. The motions are without merit in this regard.
To summarize, the Court concludes that, when construed to impose liability on a municipality only upon a showing that the municipality itself has engaged in a constitutional violation, as municipal liability under 42 U.S.C. § 1983 has been authoritatively defined by the United States Supreme Court in Monell and its progeny, 42 U.S.C. § 14141 represents a proper exercise of congressional authority under § 5 of the Fourteenth Amendment. Because the allegations of the original complaint do not

conform to this construction, the United States may amend the complaint to do so. That amendment must be filed within ten (10) days of the later of the resolution of its pending motion for leave to amend the complaint to assert an additional claim, and Judge Holschuh’s final disposition of the motions to dismiss and for judgment on the pleadings.
IT IS THEREFORE RECOMMENDED that the motions to dismiss and for judgment on the pleadings be DENIED on the condition that the United States amend the complaint accordingly.
*11 If any party seeks review by the District Judge of this Report and Recommendation, that party may, within ten (10) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teaches, Local 231 etc., 829 F.2d 1370 (6th Cir.1987); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
	  

Footnotes

1

This provision, § 1202 of the Police Accountability Act of 1991, was incorporated into H.R. 3371, the Omnibus Crime Control Act

of 1991. The bill passed the House of Representatives and was forwarded to the Senate, which “failed to achieve cloture on the

Conference Report. In the second session, the Senate again failed to achieve cloture, and the Conference Report on H.R. 3371 was

never approved by the Senate.” H.R. No. 102–1085, 102nd Cong., 2nd Sess.1992, 1992 WL 396419 *154 (Leg.Hist.)

2

Neither movant concedes that any constitutional violations have in fact occurred.

3

Indeed, the Supreme Court anticipated municipal liability under § 1983 where “the police, in exercising their discretion, so often

violate constitutional rights that the need for further training must have been plainly obvious to the city policy makers who,

nevertheless, are ‘deliberately indifferent’ to the need.” Id., at 390 n. 10.

4

In reaching this conclusion, the Court expresses no opinion on whether or not Congress could, consistent with its authority under §

5 of the Fourteenth Amendment, choose to expressly base liability under 42 U.S.C. § 14141 on a theory of respondeat superior.

The Court merely concludes that Congress has not done so.

5

The movants also contend that, to impose liability on the defendant city under § 14141 would violate the Tenth Amendment, which

reserves to the states all powers not delegated by the constitution to the federal government. However, the Tenth Amendment is not

implicated by the proper enforcement of the provisions of the Fourteenth Amendment. See Monell v. Department of Social

Services, 436 U.S. at 691 n. 54. See also City of Rome v. United States, 446 U.S. 156, 179 (1980) [the Thirteenth, Fourteenth and

Fifteenth Amendments “were specifically designed as an expansion of federal power and an intrusion on state sovereignty.”] The

motions are without merit in this regard.

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U.S. v. City of Columbus, Ohio, Not Reported in F.Supp.2d (2000)
	  
8

 
 VIA FAX and REGULAR MAIL
The Honorable Michael Coleman City of Columbus Mayor's Office 90 West Broad Street, Room 247 Columbus, OH 43215
Re: United States v. City of Columbus CA No. C2-99-1097
Dear Mayor Coleman:
Thank you for your September 4, 2002 proposal for resolving the above referenced litigation. As described in more detail below, we accept your proposal.
As you note in your letter, since the time this lawsuit was filed, the Columbus Division of Police (CDP) has made substantial alterations to many of the policies, procedures, and training that we sought to change through the lawsuit. For example, the CDP has expanded the staffing of the Internal Affairs Bureau (IAB), extended the time in which citizen complaints can be filed, eliminated the practice of treating certain complaints as "inquiries," prohibited officers involved in an incident from conducting the investigation of that incident, expanded the scope of investigations conducted by IAB, and engaged in a community outreach program regarding the citizen complaint process. If implemented properly, these changes should address the concerns we previously raised with respect to the intake of citizen complaints and the internal investigations conducted by the chain of command.
Over the last year, the CDP has also made significant changes to its use of force policies and procedures. The CDP has expanded its definition of what constitutes force, enhanced reporting of all uses of force, and adopted a use of force continuum. The CDP has revised its policy regarding the use of chemical spray and intermediate weapons, and provided for increased supervisor scrutiny of uses of chemical spray against restrained individuals. The CDP has also clarified its policy regarding what constitutes deadly force. In addition, the CDP has clarified its policies and training materials regarding the use of defensive tactics and boxing techniques. If implemented properly, these changes should address many of our concerns regarding the CDP's use of force policies.
In addition, the CDP has recently taken steps to address allegations of racially discriminatory policing by explicitly prohibiting bias-based profiling, providing additional training to CDP officers on this prohibition, and committing to the collection and analysis of data on traffic stops. The CDP has also initiated an effort to install video and audio cameras in police vehicles. Moreover, the City has advised us that it is considering enhancements to its electronic risk management system.
At this juncture, we are persuaded that the CDP has made significant changes to the policies and procedures that we sought to change through the pattern or practice lawsuit. You have committed to appropriate training on these changes by December 31, 2002. You have promised to provide us, at least several weeks in advance, with the schedules of all relevant in-service and new recruit training classes implementing these changes and to videotape any such training classes upon our request. Finally, you have promised to provide the United States with access to the appropriate information to evaluate the effect that implementation of these changes has on the practices of the CDP. Specifically, you have promised to continue to provide us with all relevant documents, including all internal reports and investigative files regarding any incidents that occur (or are alleged to have occurred in a citizen complaint) during the training period and the twelve months after the training on the measures is completed.
Given the significant changes in circumstances since we filed our complaint, we accept these promises, and, in exchange, will enter into the necessary stipulated order of dismissal. The procedure described above allows the United States to evaluate whether the CDP fully implements the changes in policies and procedures, and whether these changes are reflected in the actual practices of the CDP. Should the City

fail to live up to these promises, the United States retains the right to refile its claims under 42 U.S.C. ï½§ 14141.
The goal of the United States since this lawsuit began has been to ensure that the constitutional rights of all who come in contact with the CDP are protected, by obtaining changes in the way the CDP carries out its policing responsibilities. In light of the significant improvements in the CDP's policies and procedures that the City has initiated, the City's assurances that these changes will be completed, and the mechanism we have secured to evaluate the impact of the changes, it is our view that active litigation with the City is no longer necessary.
In closing, I would like to offer my thanks to you, to Director Mitchell Brown, and to the CDP for the continued commitment to improving the policing services provided to the citizens of Columbus. Resolving this matter without further litigation serves all parties' interests, and the resolution would not have been possible without your leadership on these issues.
Thank you again for your efforts to help resolve this matter. I look forward to full implementation of the changes to the CDP that have been undertaken.
Sincerely,
Ralph F. Boyd, Jr. Assistant Attorney General
cc: James Phillips, Esq. Vorys, Sater, Seymour and Pease 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008
>

 
 Ralph F. Boyd, Jr. Assistant Attorney General for Civil Rights U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Dear Mr. Boyd:
I am proud of the nearly 1800 men and women of the Division of Police who put their lives at risk every day serving the citizens of Columbus. As reflected in the Division's Mission and Values Statements, these men and women are dedicated to improving the quality of life in Columbus by enhancing public safety through cooperative interaction with the community and with other public and private agencies. They are committed to reducing fear by maintaining order and peace and by protecting life and property, enforcing the law, and taking all appropriate measures to combat crime. These officers work to fulfill their mission of public service in a manner that inspires the public's trust and confidence and that protects the Constitutional rights of every citizen.
The City of Columbus is a vibrant, growing, increasingly diverse and constantly changing community. In meeting the law enforcement needs and expectations of this community, the Division of Police has not been stagnant. The Division is constantly reviewing its policies and procedures and exploring ways to improve its performance. Some of the initiatives that have been implemented recently, like the reengineering of our citizen complaint procedures, our efforts to address the issue of bias-based profiling, and the installation of video and audio recorders in our cruisers, have required significant investment at a time when our City faces tremendous budgetary constraints along with many other demands on our resources. This Administration has used every administrative and budgetary tool at its disposal to support the ongoing efforts of the Division of Police to provide policing of the highest quality. And with the support and cooperation of Columbus City Council, these initiatives have been accomplished.
Other changes are the result of on-going commitments. The Division of Police recently received reaccreditation by the Commission on Accreditation of Law Enforcement Agencies ("CALEA"), having demonstrated that the Division meets professionally-recognized criteria for excellence in management and service delivery. And, like every other law enforcement agency around the country in the wake of the events of September 11th, the Columbus Division of Police has taken on additional responsibilities to help ensure and maintain the security of this community and our nation.
I have no doubt that the Division of Police will continue to review its policies and practices and make positive changes to those policies and practices. This Administration is committed to making every effort to facilitate and encourage that process. However, protracted and expensive litigation between the Department of Justice and the City of Columbus is counterproductive to those efforts. For that reason, and given the substantive changes that have already taken place at the Division of Police, I believe it is in the best interest of the citizens of Columbus that the litigation be ended. For your consideration, I have summarized below what I regard as the most significant changes that have been made to the Division's policies and practices during my tenure as Mayor.
Reengineering our Citizen Complaint Procedures
• Over $1.2 million and significant human resources, including the addition of 15 new sergeants, have been invested to expand the staffing and scope of responsibility of the Internal Affairs Bureau ("IAB"). As a result of this expansion, approximately 10% of all the sergeants for the entire Division are now assigned to the IAB. This investment was necessary to enable a fundamental change in the way citizen complaints are handled by the Division--a change that was implemented in July, 2001.
• The time in which a citizen complaint can be filed has been expanded from twenty-eight to sixty days. As reflected in CDP Directive 3.10, all citizen complaints are forwarded to the IAB for a prompt investigation and recommended disposition. All complaints receive the same level of

scrutiny. Additionally, complainants are periodically notified of the progress of the investigation. All IAB supervisors and investigators have undergone specialized training on this new process and on proper investigation practices. • The IAB continues to actively engage in community outreach programs to publicize and explain the new citizen complaint process, and it will continue to evaluate and make improvements to that process. Finally, with an expenditure of $1.7 million, the IAB will be moving out of police headquarters to a separate, renovated facility. The move is planned for the Fall of 2003.
Enhancing Use of Force Procedures
• The revision of CDP Directive 3.25 provides for an expanded definition of actions that constitute a use of force, enhanced reporting of all uses of force and adoption of a use of force continuum. All Division supervisors have been trained on these changes, resulting in a higher level of monitoring and accountability. That directive has also been revised to identify the potential for the use of intermediate weapons to result in serious injury or death.
• CDP Directive 3.23 provides additional guidance to officers as to the circumstances in which the use of chemical spray or intermediate weapons are appropriate under the Division's use of force continuum. This includes the procedures that are to be followed before chemical spray is used in crowd control situations. The revision clarifies the current practice that the use of chemical spray for a punitive or retaliatory purpose is prohibited.
• The Division has also implemented new procedures that provide for increased investigation and supervisory review of all incidents in which chemical spray is used to control a handcuffed individual.
• Revisions have been made to the Supervisor's Manual to include the requirement that photographs be taken as part of all use of force and injury to prisoner investigations. The revisions also require that no supervisor who was present, witnessed, participated in, or ordered a use of force is permitted to conduct the investigation of that use of force incident.
• Language has been added to the Division's training materials to reflect the guidelines officers are trained to follow when using certain defensive tactics, including boxing techniques.
Reaffirming our Commitment to Prohibit Racial Profiling
• The Division has taken a number of steps to reaffirm its commitment to all the citizens of Columbus that it will not tolerate unequal treatment of any person by stopping, questioning, searching, detaining or arresting based upon the person's ethnic or racial characteristics, gender, religion, or sexual orientation. As reflected in CDP Directive 3.53, the practice of bias-based profiling is explicitly prohibited.
• Additionally, in order to clarify the prohibition against racial profiling, Ordinance 1475-01 was passed by Columbus City Council on September 24, 2001. This ordinance amended the Columbus City Code to specifically include racial profiling as a criminal offense.
• The long-standing principles supporting the directive and the ordinance also provide the basis for new training that was specially designed to address bias-based profiling. All Division personnel have participated in this training, at a cost of more than $250,000. This specialized training has also been added as a component of recruit training at the Training Academy.
• As reflected in Directive 3.53, the Division is collecting data on all self-initiated traffic stops. With the assistance of statistical expertise from The Ohio State University, and with input from a committee that includes representatives from Columbus' minority community, this data will undergo regular, periodic review by the Division.
Installing Video and Audio Recorders in Cruisers
• Keeping pace with advances in technology, and for the benefit of officers and the public, the Division has initiated an effort to install video and audio recorders in police cruisers. When the cost of equipment, record keeping, facilities, storage space and personnel are taken into

consideration, this has been an expensive undertaking. Thus far, approximately 100 cruisers have been equipped at an overall expense of more than $500,000.
Change is natural and necessary for any organization to function effectively and efficiently. Accordingly, the particulars of the above-summarized changes to the Division's policies and practices, which are reflected primarily in the referenced directive or manual, are subject to periodic review and revision. I can assure you that the City of Columbus and its Division of Police are committed to making only those changes that improve the quality of policing in our city. The changes under my Administration have been made because they are appropriate and improve our policing practices. We are committed to continued improvement in our Division of Police and have no intention of stopping this process simply because the City is no longer a defendant in a lawsuit.
Because of my confidence in our Division of Police, the City would agree to a dismissal without prejudice. Further, the City would provide the DOJ with videotape copies of pertinent recruit and inservice training courses, covering one complete recruit class and one cycle of in-service phase training. The changes referenced above will be incorporated into the on-going phase training for current officers and the recruit class training, both of which will be completed by the end of this year. Finally, the City would agree to provide copies of relevant Division of Police documents to the DOJ through the end of 2003, including documents reflecting the completion of investigations of any incidents alleged to have occurred within that time period.
It is my firm belief that this proposal provides the basis for a resolution to this litigation. This resolution would be detrimental to neither party and benefit the citizens of Columbus, whose interests are paramount to us both.
Sincerely,
/s/ Michael B. Coleman
Michael B. Coleman Mayor
cc: James Phillips

 
 I1IHIII US v. City of Columbus

IN THE UNITED STATES DISTRIGT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

Civil No. C2-99-1097

)

v.

)

Judge Holschuh

)

CITY OF COLUMBUS, OHIO, et al..

)

Magistrate Judge King

)

Defendants.

)

J
>'v,

REPLY IN SUPPORT OF MOTION FOR LEAVE TO PARTICIPATE AS AMICI CURIAE
Individual Members of Congress frequently seek to file amicus briefs in cases raising
novel issues of the interpretation or constitutionality of important federal statutes, and courts
routinely accept those briefs.* Members of Congress do so to call a court's attention to aspects of
'See, e.g., Wright v. West, 505 U.S. 277, 279 (1992) (Sen. Biden, et al, filed brief in case involving interpretation of federal habeas corpus statute); United States v. Eichman, 496 U.S. 310, 311 (1990) (Sen. Biden filed brief in case involving constitutionality of federal flag burning statute); Bowen v. American Hosp. Ass'n, 476 U.S. 610, 612 (1986) (Sen. Hatch filed brief in case involving interpretation of Section 504 of the Rehabilitation Act of 1973); Milk Industry Found, v. Glickman, 949 F. Supp. 882, 897 (D.D.C. 1996) (four senators filed amicus brief in constitutional and statutory challenge to administration of Northeast Interstate Dairy Compact); NAACP, Jefferson County Branch v. U.S. Sec 'y of Labor, 865 F. Supp. 903, 909 & n.6 (D.D.C. 1994) (Reps. William Ford, George Miller, and Howard Berman filed brief in case challenging Department of Labor's interpretation of regulations governing "piece-rate" pay of sugar cane workers); Nat'I Comm. to Preserve Social Security v. Bowen, 735 F. Supp. 1069, 1071 n.3 (D.D.C. 1990) (five Members of Congress filed brief in statutory challenge to practices of Social Security Administration); State of New Yorkv. Bowen, 690 F. Supp. 1261, 1263 n.2 (S.D.N.Y. 1988) (Sen. Humphrey and Rep. Tauke filed brief in constitutional and statutory challenge to regulations implementing statutory prohibition on funding programs where abortion is a method of family planning); see also Brief Amicus Curiae of Sens. Orrin Hatch, et al, Dickerson v. United States, 2000 WL 272002 (U.S., filed March 9, 2000) (ten senators filed brief in case involving constitutionality of 18 U.S.C. § 3501, which purported to govern admissibility of

the statutory text or legislative history that might otherwise be overlooked. The motion by
fourteen Members of Congress to file an amicus brief in this case is a typical example of that
practice. The fourteen Members of Congress - three of whom were original cosponsors of the
legislation that became 42 U.S.C. § 14141, and all of whom share a particular concern with
issues of police misconduct - seek to file an amicus brief in this case to assure that the Court is
aware of important aspects of the statute's text and legislative history that substantially undercut
the Report and Recommendation filed by the Magistrate Judge.
The City contends that "[t]he legislative branch of government has a strict and time-tested
method for-enacting laws and expressing legislative intent regarding those laws." Memorandum
Contra Motion for Leave to Participate at 3. We agree. The fourteen Members of Congress seek
to file an amicus brief precisely because the Magistrate Judge's report disregarded the "time-
tested" indicia of congressional intent in at least two respects. First, the Magistrate Judge
disregarded Congress's considered decision - reflected in the text of Section 14141 - to forego
the "policy or custom" requirement that applies to private lawsuits under 42 U.S.C. § 1983 and
instead to adopt the "pattern or practice" test for public enforcement of modern civil rights
statutes. See [Proposed] Brief of Amici Curiae at 3-10. Second, the Magistrate Judge ignored
important statements in the legislative history that bear directly on the "policy or custom" issue.
confessions in federal court); Brief of Sens. Harkin, et al, as Amici Curiae in Support of Respondents, Bragdon v. Abbott, 1998 WL 52258 (U.S., filed Feb. 9, 1998) (three senators and three representatives - all of whom sponsored or cosponsored the Americans with Disabilities Act - filed brief in case involving interpretation of the statute); Brief of Sen. Joseph Biden, Jr., as Amicus Curiae in Support of Petitioners, United States v. Morrison, 1999 WL 1072538 (U.S., filed Nov. 12, 1999) (Senate sponsor of Violence Against Women Act filed brief in case involving constitutionality of a provision of that statute); Brief for Sen. Orrin Hatch, et al., as Amici Curiae Supporting Respondent, Felker v. Turpin, 1996 WL 277110 (U.S., filed May 17, 1996) (twenty senators and thirty-four representatives filed brief in case involving constitutionality and scope of the Antiterrorism and Effective Death Penalty Act of 1996).
-2-

Those statements make clear that the "policy or custom" requirement was a substantial part of the problem Congress sought to address in Section 14141; reading the statute to incorporate such a requirement is thus particularly inappropriate. See [Proposed] Brief of Amici Curiae at 12-15.
Contrary to the position of the City (Memorandum Contra at 4-5), no party to this litigation adequately represents the interests of the fourteen Members of Congress who seek to participate as amici. It is notable that no party - neither the City, the United States, nor the Fraternal Order of Police - directed this Court's attention to the portions of the legislative history that directly address the "policy or custom" requirement. Indeed, the United States appears to have argued that this legislative history - which dispositively confirms the reading that is apparent from the statutory text - is irrelevant to this Court's decision. See United States' Objections to the Magistrate's Report and Recommendation at 12, 15. Because the Magistrate Judge's report relied so significantly on Section 14141's legislative history, the fourteen Members of Congress could reasonably have feared that the parties' failure to bring the most relevant portions of the legislative history to the Court's attention had influenced her mistaken conclusion.
Finally, the City is simply wrong to suggest (Memorandum Contra at 3-4) any improper collusion with the Justice Department. No attorney or other official of the Justice Department solicited the brief amici seek to file, and the argument in the brief is not, in any event, entirely consistent with the argument presented by the United States. Nor is there anything sinister about the fact that both counsel for the amici formerly served as attorneys for the Justice Department's Civil Rights Division. More than two years have passed since either attorney was employed by the Department or the Division. Clients frequently retain counsel who have developed subjectmatter expertise during their government service. Just as a company seeking to file an antitrust
-3-

suit against a competitor might logically turn to counsel with Justice Department antitrust experience, counsel with experience dealing with Section 14141 are plainly a plausible choice to write a brief about the interpretation of that important but infrequently litigated statute.
CONCLUSION For the foregoing reasons, this Court should follow the normal practice and grant the fourteen Members of Congress leave to file their brief as amici curiae.
Respectfully submitted,
Samuel R. Bagenstos o SchlangeV \
1545 Massachusetts Avenue Cambridge, MA 02138 (617)495-9299 Counsel for Amici Curiae
-4-

CERTIFICATE OF SERVICE
This is to certify that on this nineteenth day of September, a copy of the foregoing Reply in Support of Motion for Leave to Participate as Amici Curiae was sent by Federal Express, next day delivery, to:
Mark Masling Special Litigation Section Civil Rights Division U.S. Department of Justice 601 D Street, N.W. Washington, DC 20004 Counsel for the Plaintiff, United States
Timothy J. Mangan Office of the Columbus City Attorney 90 West Broad Street Columbus, OH 43215 Counsel for the Defendant, City of Columbus
James E. Phillips Vorys, Sater, Seymour and Pease 52 East Gay Street Columbus, OH 43216-1008 Counsel for the Defendant-Intervenor, Fraternal Order of Police, Capital City Lodge No. 9
rgo Schlanger

 
 Columbus findings letter

Page 1 of 2

Janet E. Jackson, Esq. City Attorney City of Columbus 90 West Broad Street Columbus, Ohio 43215-9013
Dear Ms. Jackson:
As you are aware, the Civil Rights Division has been conducting a civil investigation pursuant to federal civil rights laws of allegations of police misconduct by officers of the Columbus Division of Police ("CDP"). As a result of our investigation, we have determined that CDP officers are engaged in a pattern or practice of using excessive force, making false arrests and lodging false charges, and conducting improper searches and seizures in violation of the Fourth and Fourteenth Amendments to the Constitution. Accordingly, I have authorized the filing of a civil suit in United States District Court, pursuant to 42 U.S.C. § 14141, to obtain equitable and declaratory relief to eliminate the pattern or practice of misconduct. We would be willing to defer filing suit, however, if you are interested in negotiating a voluntary settlement in the form of a consent decree to be filed with our civil complaint.
Our investigation further has examined whether the CDP discriminates on the basis of race in its treatment of civilians, in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d(c). These statutes, together, prohibit law enforcement agencies that receive Justice Department financial assistance (such as the CDP) from discriminating on the basis of race, color, national origin, sex, or religion. At this juncture, we have not reached any conclusion about whether the CDP has violated these statutes in its treatment of civilians, and our investigation of this issue is continuing. We also understand that a separate investigation is being conducted by the Office for Civil Rights in the Justice Department's Office of Justice Programs into allegations that the CDP is engaging in employment discrimination in violation of Title VI and the Safe Streets Act.
The information we have reviewed in conducting this investigation includes: CDP internal files relating to over 300 citizen complaints of misconduct filed with the CDP; documents from recent civil lawsuits against the City and CDP officers relating to police misconduct; CDP "use of force" reports, "injury to prisoner" reports, and reports on the use of mace; statistical data on citizen complaints and other matters that are maintained on computer by the CDP; policies and procedures of the CDP relating to the supervision and monitoring of officers, the receipt of citizen complaints, and the investigation and adjudication of citizen complaints; the June 30, 1997 Mayoral Investigative Report of the Columbus Division of Police; the April 14, 1998 report of Chief Jackson to the mayor; and other city documents that address whether reforms are needed in CDP management practices. We also have interviewed numerous individuals, and have met with city officials including you, the Chief of Police, and the Director of Public Safety.
Our investigation indicates that incidents of police misconduct in Columbus frequently share many common elements. Many of the victims of excessive force, false arrest or charges, and/or an improper search are, at the time when the misconduct occurs, carrying out some ordinary, routine daily activity (either not violating the law or committing some minor infraction). Misconduct often is triggered by the officer's perception that the victim in some way disrespected the officer, although often the victim's conduct in fact is relatively or completely innocuous. On other occasions, the misconduct stems from some emotional turmoil experienced by the officer resulting from some unrelated, prior occurrence, or involves other misconduct. Often, victims are arrested and charged with such crimes as disorderly conduct, resisting arrest, and/or obstruction of official business, but the charges then are dismissed or the victim is found not guilty. Victims frequently are African American, or are young, female, or lower income whites. The officers involved in misconduct many times have a history of complaints against them, and fail to report accurately to their superiors what transpired in the incident (changing the facts to

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Columbus findings letter

Page 2 of 2

portray the victim as responsible for the arrest, the use of force, and/or the search).
Our investigation further indicates that the pattern or practice of misconduct is tolerated by the failure of the CDP to adopt and implement proper management practices and procedures. There exist significant problems with the manner in which the CDP trains, supervises, and monitors police officers, investigates and adjudicates citizen complaints, and disciplines officers who are found guilty of misconduct.
The management deficiencies include:
inadequate academy and in-service training, and the absence of an appropriate system for reviewing the effectiveness of training or for reviewing individual incidents to determine the training needs of police personnel;
an overly restrictive definition of what constitutes a use of force (which excludes, among other things, the use of mace and some forms of "hands on" force); the restrictive definition in turn limits reporting and supervision of uses of force, undermines citizen complaints of excessive force where the force used is not "force" according to the CDP, and encourages the use and misuse of force that is not "force" according to the CDP;
a complaint process that discourages complainants at intake and transforms about half of the complaints that are filed into "inquiries" that are not properly investigated;
a process for investigating complaints, uses of force (lethal and non-lethal), and injuries to prisoners that is biased in favor of the involved officers; and
the absence of any comprehensive, effective system for monitoring and addressing patterns of conduct by individual officers, and patterns of conduct that are unit-wide or Division-wide.
We recognize that city officials have discussed some potential reforms and that, in particular, efforts are being made to improve training. We also have spoken with city officials who expressed a desire to work toward positive reform of police practices. We hope to build on this and work together with all involved to settle this matter through the entry of a consent decree enforceable by the United States District Court. To that end, Mark A. Posner, an attorney in the Civil Rights Division, will contact you shortly to discuss this matter.
Sincerely,
Bill Lann Lee Acting Assistant Attorney General Civil Rights Division

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 CM/ECF LIVE - U.S. District Court:OHSD - Docket Report

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CLOSED, R/R
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:99-cv-01097-JDH-NMK

USA v. City of Columbus, OH Assigned to: John D. Holschuh Referred to: Norah McCann King Demand: $0 Cause: 28:1331 Fed. Question Plaintiff USA
V. Defendant City of Columbus, OH

Date Filed: 10/21/1999 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff
represented by Deborah F Sanders United States Attorney's Office - 2 303 Marconi Boulevard 2nd Floor Columbus, OH 43215 614-469-5715 Fax: 614-469-5240 Email: Deborah.Sanders@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Eichner US Department of Justice - 1 601 D Street., N.W. Washington, DC 20004 202-514-9811 Fax: 202-514-0212 Email: jim.eichner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark A Posner U S Department of Justice Civil Rights Division Special Litigation Section Post Office Box 66400 Washington, DC 20035 202-514-6261 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrea C Peeples

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V.
Intervenor Defendant
Fraternal Order of Police Capital City Lodge No 9

Columbus City Attorney's Office - 2 Special Litigation Unit 50 W Broad Street Suite 1425 Columbus, OH 43215 614-645-0804 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua T Cox Columbus City Attorney's Office - 2 90 W Broad Street Room 200 Columbus, OH 43215 614-645-7385 Email: JTCox@columbus.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Joseph Mangan Columbus City Attorney's Office - 2 90 W Broad Street Room 200 Columbus, OH 43215 614-645-7385 Email: TJMangan@Columbus.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Edgar Phillips Vorys Sater Seymour & Pease - 2 PO Box 1008 52 E Gay Street Columbus, OH 43216-1008 614-464-6400 Email: jephillips@vssp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margo Schlanger 1545 Massachusetts Avenue Cambridge, MA 02138 617-495-9299 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos

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Amicus Grand Lodge of the Fraternal Order of Police
Amicus John Conyers, Jr
Amicus Howard Berman
Amicus Maxine Waters
Amicus

1545 Massachusetts Avenue Cambridge, MA 02138 617-495-9299 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by C David Henderson PO Box 4111 2074 Galisteo Suite B-5 Santa Fe, NM 87502 505-988-1848 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margo Schlanger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margo Schlanger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margo Schlanger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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William D Delahunt
Amicus Sheila Jackson-Lee
Amicus Zoe Lofgren
Amicus Melvin L Watt
Amicus Danny K Davis

represented by Margo Schlanger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margo Schlanger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margo Schlanger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margo Schlanger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margo Schlanger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos

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Amicus Harold E Ford, Jr
Amicus Carolyn Cheeks Kilpatrick
Amicus Gregory W Meeks
Amicus Juanita Millender-McDonald
Amicus Donald M Payne

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margo Schlanger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margo Schlanger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margo Schlanger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margo Schlanger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margo Schlanger

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Amicus Edolphus Towns

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margo Schlanger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/21/1999 10/21/1999 10/21/1999 10/21/1999 10/22/1999 10/25/1999 11/01/1999
11/01/1999
11/15/1999

#

Docket Text

1 COMPLAINT (referred to Mag. Judge Norah M. King ) ( no. pgs: 6) (sem) (Entered: 10/21/1999)

2 MOTION by plaintiff USA to stay proceedings ( no pgs: 9) (sem) (Entered: 10/21/1999)

Summons issued as to defendant City of Columbus, OH (sem) (Entered: 10/21/1999)

3 RESPONSE by defendant City of Columbus, OH to motion to stay proceedings [2-1] ( no pgs: 2) (gk) (Entered: 10/22/1999)

4 RETURN OF SERVICE executed upon defendant City of Columbus, OH on 10/21/99 ( no pgs: 2) (sem) (Entered: 10/25/1999)

5 MOTION by movant FOP Capital City to intervene as a deft ( no pgs: 19 + exh) (pl) (Entered: 10/26/1999)

6 ORDER by Mag. Judge Norah M. King granting in part motion to stay proceedings until 12/20/99 [2-1]; all proceedings stayed except that motion to intervene shall proceed in accordance with the local rules of this court (cc: all counsel) ( no pgs: 1) (pl) (Entered: 11/03/1999)

CIVIL MINUTES: Proceeding before Judge John D. Holschuh Judge announces decision of Mgst Judge King to stay all proceedings except the motion of the FOP to Intervene, until 12/10/99 (cc: all counsel) ( no pgs: 1) (pl) (Entered: 12/03/1999)

7 RESPONSE by defendant City of Columbus, OH to motion to intervene as a deft [5-1] ( no pgs: 3) (pl) (Entered: 11/16/1999)

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11/15/1999 11/23/1999 12/07/1999
12/08/1999 12/16/1999 12/16/1999 12/23/1999 01/07/2000 01/07/2000 01/10/2000 01/13/2000 01/18/2000 01/26/2000 02/07/2000 02/07/2000

8 RESPONSE by plaintiff USA to motion to intervene as a deft [5-1] ( no pgs: 32) (pl) (Entered: 11/16/1999)
9 REPLY by defendant City of Columbus, OH to response to motion to intervene as a deft [5-1] ( no pgs: 18 plus Exhibits A thru C) (gk) (Entered: 11/26/1999)
10 ORDER by Mag. Judge Norah M. King: Movant to provide a copy of the current CBA and supplemental memo in support of its motion w/i 10 days. Pltf & City of Columbus have 14 days from date of filing to respond to the supplemental memo. Movant may have 10 days therafter to reply if responses express disagreement with the suppl memo (cc: all counsel) ( no pgs: 3) (pl) (Entered: 12/08/1999)
11 AMICUS CURIA BRIEF FILED by John W Timson ( no pgs: 2) (sem) (Entered: 12/09/1999)
12 MOTION by movant FOP Capital City to extend until 12/24/99 to file suppl memo in response to the Court's 12/7/99 Order ( no pgs: 3) (gk) (Entered: 12/16/1999)
13 ORDER by Mag. Judge Norah M. King granting motion to extend until 12/24/99 to file suppl memo in response to the Court's 12/7/99 Order [121] (cc: all counsel) ( no pgs: 2) (gk) (Entered: 12/16/1999)
14 MEMORANDUM by movant FOP Capital City in support of motion to intervene as a deft [5-1] (44 + exh) (pl) (Entered: 12/27/1999)
15 RESPONSE by defendant City of Columbus, OH to supplemental memo of Fraternal Order of Police in support of motion to intervene as a deft [51] ( no pgs: 5) (pl) (Entered: 01/10/2000)
16 RESPONSE by plaintiff USA to supplemental memo of Fraternal Order of Police re motion to intervene as a deft [5-1] ( no pgs: 11) (pl) (Entered: 01/10/2000)
17 MOTION by defendant City of Columbus, OH to extend time to 2/10/00 to respond to complaint ( no pgs: 3) (pl) Modified on 01/18/2000 (Entered: 01/12/2000)
18 ORDER by Mag. Judge Norah M. King granting motion to extend time to 2/10/00 to respond to complaint [17-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 01/14/2000)
19 REPLY by movant FOP Capital City to response to motion to intervene as a deft [5-1] ( no pgs: 11) (pl) (Entered: 01/19/2000)
20 NOTICE setting this action for Preliminary PTC 2:45 3/8/00 no pgs: 1 (cc: all counsel) (gk) (Entered: 01/26/2000)
21 OPINION AND ORDER: by Mag. Judge Norah M. King granting motion to intervene as a deft [5-1] ; Status conference set 2:45 3/8/00 (cc: all counsel) ( no pgs: 9) (pl) (Entered: 02/08/2000)
22 ANSWER by intervenor-defendant FOP Capital City ( no pgs: 5) (pl)

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02/09/2000 02/18/2000 02/29/2000 02/29/2000
03/08/2000
03/08/2000 03/09/2000 03/09/2000 03/09/2000 03/09/2000 03/13/2000 04/14/2000 04/17/2000 04/26/2000

(Entered: 02/11/2000)
23 MOTION by defendant City of Columbus, OH to dismiss ( no pgs: 22) (pl) Modified on 02/11/2000 (Entered: 02/10/2000)
24 MOTION by intervenor-defendant FOP Capital City for judgment on the pleadings ( no pgs: 14 + exh) (pl) (Entered: 02/19/2000)
25 UNOPPOSED MOTION by plaintiff USA to extend time to 3/13/00 to respond re City of Columbus motion to Dismiss; USA oppos to motion for jgmt on pleadings due 3/13/00 ( no pgs: 2) (pl) (Entered: 03/01/2000)
26 ORDER by Mag. Judge Norah M. King granting motion to extend time to 3/13/00 to respond re City of Columbus motion to Dismiss; USA oppos to motion for jgmt on pleadings due 3/13/00 [25-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 03/01/2000)
27 PRELIMINARY SCHEDULING ORDER by Mag. Judge Norah M. King ; Preliminary pretrial conf was held on 3/8/00; US may move to amend complaint by 6/9/00; deft m/dism & for jgmt on pleadings pending; US response due 3/13/00; deft rply due 4/17/00; pltf resp to deft-intv disc req due 4/13/00; cont'd PPTC set 2:00 6/15/00 ( no pgs: 2) (cc: all counsel) (pl) (Entered: 03/10/2000)
28 ATTORNEY APPEARANCE for plaintiff USA by Mark Masling as trial atty ( no pgs: 2) (pl) (Entered: 03/14/2000)
29 NOTICE setting this action for Preliminary PTC 2:00 6/15/00 no pgs: 1 (cc: all counsel) (pl) (Entered: 03/14/2000)
30 NOTICE of Substitution of Trial Atty by defendant City of Columbus, OH to Timothy J. Mangan ( no pgs: 2) (pl) (Entered: 03/14/2000)
31 ATTORNEY APPEARANCE for defendant City of Columbus, OH by Andrea C Peeples as co-counsel ( no pgs: 2) (pl) (Entered: 03/14/2000)
32 ATTORNEY APPEARANCE for defendant City of Columbus, OH by Joshua T Cox as co-counsel ( no pgs: 2) (pl) (Entered: 03/14/2000)
33 RESPONSE by plaintiff USA to motion for judgment on the pleadings [24-1], motion to dismiss [23-1] ( no pgs: 49 + exh) (pl) (Entered: 03/14/2000)
34 REPLY by intervenor-defendant FOP Capital City to response to motion for judgment on the pleadings [24-1], motion to dismiss [23-1] ( no pgs: 34 + exh) (pl) (Entered: 04/17/2000)
35 REPLY by defendant City of Columbus, OH to response to motion to dismiss [23-1] ( no pgs: 19) (pl) (Entered: 04/19/2000)
36 ORDER by Judge John D. Holschuh Case referred to Mag. Judge Norah M. King for report and recommendation re motions to dismiss and for judgment on the pleadings (cc: all counsel) ( no pgs: 1) (pl) (Entered: 04/28/2000)

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05/11/2000 05/11/2000 05/11/2000 05/11/2000 05/17/2000 05/19/2000 05/26/2000 05/31/2000 06/01/2000 06/01/2000 06/05/2000 06/06/2000 06/08/2000 06/16/2000 06/16/2000 06/23/2000

37 MOTION by intervenor-defendant FOP Capital City to compel disc , and for sanctions ( no pgs: 14) (pl) (Entered: 05/11/2000)
38 MOTION by plaintiff USA for leave to file supplemental memo ( no pgs: 4) suppl memo attached (pl) Modified on 05/12/2000 (Entered: 05/12/2000)
39 ORDER by Mag. Judge Norah M. King granting motion for leave to file supplemental memo [38-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 05/12/2000)
40 Supplemental RESPONSE by plaintiff USA to motion for judgment on the pleadings [24-1] ( no pgs: 20) (pl) (Entered: 05/12/2000)
41 MOTION by defendant City of Columbus, OH to compel disc ( no pgs: 9 + exh) (pl) (Entered: 05/18/2000)
42 REPLY by intervenor-defendant FOP Capital City to response to motion for judgment on the pleadings [24-1] ( no pgs: 14) (pl) (Entered: 05/23/2000)
43 MOTION by defendant City of Columbus, OH for leave to file a reply to pltf's supplemental memo ( no pgs: 3 + attachment) (pl) (Entered: 05/30/2000)
44 ORDER by Mag. Judge Norah M. King granting motion for leave to file a reply to pltf's supplemental memo [43-1] (cc: all counsel) ( no pgs: 1) (sem) (Entered: 06/01/2000)
45 REPLY by defendant City of Columbus, OH to pltf's supplemental memorandum [38-1] ( no pgs: 9) (sem) (Entered: 06/01/2000)
46 RESPONSE by plaintiff USA to City of Columbus's motion to compel disc [41-1], FOP's motion to compel disc [37-1] ( no pgs: 17 + exh) (sem) (Entered: 06/01/2000)
47 REPLY by defendant City of Columbus, OH to response to motion to compel disc [37-1] ( no pgs: 5) (pl) (Entered: 06/07/2000)
48 REPLY by intervenor-defendant FOP Capital City to response to motion to compel disc [37-1] ( no pgs: 8) (pl) (Entered: 06/07/2000)
49 Stipulation and ORDER by Mag. Judge Norah M. King : ; A/complaint ddl reset 6/23/00 (cc: all counsel) ( no pgs: 2) (pl) (Entered: 06/09/2000)
50 ORDER by Mag. Judge Norah M. King denying motion for sanctions [37-2] ; Prelim pretrial conf held on 2:00 6/15/00 (cc: all counsel) ( no pgs: 2) (sem) (Entered: 06/16/2000)
51 NOTICE setting this action for Continued Preliminary PTC 11:00 9/7/00 no pgs: 1 (cc: all counsel) (sem) (Entered: 06/16/2000)
52 Stipulation and ORDER by Mag. Judge Norah M. King that USA may have until 6/28/00 to file an amended complaint: (cc: all counsel) ( no pgs: 3) (sem) (Entered: 06/23/2000)

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06/28/2000 07/18/2000 07/19/2000 07/31/2000 08/03/2000
08/07/2000 08/08/2000 08/08/2000 08/08/2000 08/08/2000 08/09/2000 08/09/2000 08/14/2000 08/21/2000 08/28/2000 09/05/2000

53 MOTION by plaintiff USA to amend complaint ( no pgs: 7 + attachment) (pl) (Entered: 06/28/2000)
54 RESPONSE by defendant City of Columbus, OH to motion to amend complaint [53-1] ( no pgs: 5) (pl) (Entered: 07/19/2000)
55 RESPONSE by intervenor-defendant FOP Capital City to motion to amend complaint [53-1] ( no pgs: 13) (pl) (Entered: 07/20/2000)
56 REPLY by plaintiff USA to response to motion to amend complaint [531] ( no pgs: 12) (pl) (Entered: 08/01/2000)
57 REPORT AND RECOMMENDATION by Mag. Judge Norah M. King that motion for judgment on the pleadings [24-1], motion to dismiss [231] be DENIED on the condition that the USA amend the complaint as set forth in the R&R; Such amendment to be due w/i 10 days of the later of the resolution of its pending motion for leave to amend the complaint to assert an additional claim and Judge Holschuh's final disposition of the motions to dismiss and for jgmt on the pleadings NOTICE: Parties have 10 days to file objections (cc: all counsel) ( no pgs: 21) (pl) (Entered: 08/03/2000)
CERT RECEIPT # Z209-261-192 exec 8/4/00 upon Deborah Sanders (pl) (Entered: 08/08/2000)
CERT RECEIPT # P209-261-189 exec 8/7/00by John Orban for Joshua Cox (pl) (Entered: 08/10/2000)
CERT RECEIPT # Z209-261-188 exec 8/7/00 by Kepley for James Phillips (pl) (Entered: 08/10/2000)
CERT RECEIPT # P289-793-369 exec 8/7/00 by John Orban for Timothy Mangan (pl) (Entered: 08/10/2000)
CERT RECEIPT # P289-793-368 exec 8/7/00 by John Orban for Andrea Peoples (pl) (Entered: 08/10/2000)
CERT RECEIPT # Z209-261-190 exec 8/7/00 by Leon Williams for N. Masling (pl) (Entered: 08/10/2000)
CERT RECEIPT # Z209-261-191 exec 8/7/00 by Leon Williams for Mark Posner (pl) (Entered: 08/10/2000)
58 OBJECTIONS by defendant City of Columbus, OH to Report and Recommendation [57-1] ( no pgs: 12) (pl) (Entered: 08/14/2000)
59 OBJECTIONS by plaintiff USA to Report and Recommendation [57-1] ( no pgs: 44) (pl) (Entered: 08/22/2000)
60 RESPONSE by plaintiff USA to objections to Report and Recommendation [57-1] ( no pgs: 14) (gk) (Entered: 08/29/2000)
61 RESPONSE by intervenor-defendant FOP Capital City to objections to Report and Recommendation [57-1] ( no pgs: 41 plus Exhibits A thru M) (gk) Modified on 09/19/2000 (Entered: 09/06/2000)

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09/06/2000
09/06/2000 09/06/2000 09/07/2000 09/07/2000
09/08/2000 09/15/2000 09/21/2000 09/29/2000
10/13/2000 10/13/2000 10/13/2000

62 MOTION for leave to participate as amici curia by US Representatives John Conyers, Jr, Howard L Berman, Danny K Davis, William D Delahunt, Harold E Ford, Jr, Sheila Jackson-Lee, Carolyn Cheeks Kilpatrick, Zoe Lofgren, Gregory W Meeks, Juanita MillenderMcDonald, Donald M Payne, Edolphus Towns, Maxine Waters, and Melvin L Watt ( no pgs: 4) (gk) Modified on 09/19/2000 (Entered: 09/06/2000)
63 MOTION by amicus John Conyers for admission of attorney pro hac viceof Samuel R Bagenstos and Margo Schlanger phv filing fee pd ( no pgs: 5) (gk) Modified on 09/19/2000 (Entered: 09/06/2000)
64 RESPONSE by defendant City of Columbus, OH to objections to Report and Recommendation [57-1] ( no pgs: 12 plus Exh A) (gk) (Entered: 09/13/2000)
PHV Filing Fee Paid: on 9/7/00 in the amount of $ 100.00, receipt # 200222132 for M Schlanger and S Bagenstos. (gk) (Entered: 09/07/2000)
65 ORDER by Mag. Judge Norah M. King, Prelim pretrial conf held 11:00 9/7/00 re motion to participate amici curiae, motion to amdcmp, and report & recommendation; Status conference set for 11:00 9/28/00 (cc: all counsel) ( no pgs: 2) (gk) Modified on 09/13/2000 (Entered: 09/07/2000)
66 NOTICE of hearing before Magistrate Judge King Status conference set for 11:00 9/28/00 (cc: all counsel) (gk) Modified on 09/13/2000 (Entered: 09/11/2000)
67 RESPONSE by defendant City of Columbus, OH to motion for leave to participate as amici curia [61-1] ( no pgs: 6) (pl) (Entered: 09/16/2000)
68 REPLY by movant John Conyers Jr and 13 other Representatives to response to motion for leave to participate as amici curia [62-1] ( no pgs: 5) (pl) (Entered: 09/22/2000)
69 ORDER by Mag. Judge Norah M. King ; Status conference held 9/28/00 ; If motion to participate as Amici curiae is granted, defts have 10 days including intervening weekends & holidays, to respond to the memo of the amici; pltf & amici have 7 days thereafter to reply; cont'd PPT Conf will be held following resolution of pending motions to dismiss, for jgmt on pleadings and to amend complaint (cc: all counsel) ( no pgs: 1) (pl) (Entered: 09/29/2000)
70 MOTION by movant Grand Lodge of FOP to file amicus brief ( no pgs: 5 + amicus brief) (pl) (Entered: 10/13/2000)
71 MOTION by movant Grand Lodge of FOP for admission of attorney pro hac vice of C David Henderson ( no pgs: 3); PHV filing fee paid (gk) (Entered: 10/25/2000)
Filing Fee Paid: on 10/13/00 in the amount of $ 50.00, receipt # 200 222705. (gk) (Entered: 10/25/2000)

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10/16/2000 11/07/2000 11/07/2000 11/20/2000
11/20/2000 11/20/2000
11/30/2000 11/30/2000 12/05/2000 12/05/2000 12/05/2000 12/11/2000 12/12/2000

72 Addendum by movant Grand Lodge of FOP re motion to file amicus brief [70-1] ( no pgs: 2) (sln) Modified on 10/25/2000 (Entered: 10/17/2000)
73 ORDER by Mag. Judge Norah M. King granting motion for admission of attorney pro hac vice of Samuel R Bagenstos and Margo Schlanger [631] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 11/07/2000)
74 ORDER by Mag. Judge Norah M. King granting motion for admission of attorney pro hac vice of C David Henderson [71-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 11/07/2000)
75 OPINION AND ORDER: by Judge John D. Holschuh granting motion to file amicus brief [70-1] an amicus brief by Grand Lodge of FOP, John Conyers Jr, Howard Berman, Maxine Waters, William D Delahunt, Sheila Jackson-Lee, Zoe Lofgren, Melvin L Watt, Danny K Davis, Harold E Ford Jr, Carolyn Cheeks Kilpatrick, Gregory W Meeks, Juanita Millender-McDonald, Donald M Payne, Edolphus Towns (cc: all counsel) ( no pgs: 4) (pl) (Entered: 11/20/2000)
76 BRIEF FILED by amicus Grand Lodge of FOP ( no pgs: 19) (pl) (Entered: 11/21/2000)
77 BRIEF FILED by amicus John Conyers Jr, amicus Howard Berman, amicus Maxine Waters, amicus William D Delahunt, amicus Sheila Jackson-Lee, amicus Zoe Lofgren, amicus Melvin L Watt, amicus Danny K Davis, amicus Harold E Ford Jr, amicus Carolyn Cheeks Kilpatrick, amicus Gregory W Meeks, amicus Juanita Millender-McDonald, amicus Donald M Payne, amicus Edolphus Towns ( no pgs: 22 + exh) (pl) (Entered: 11/21/2000)
78 MOTION by plaintiff USA to extend time 12/5/00 to respond to Memoranda of Amici ( no pgs: 4) (pl) (Entered: 12/01/2000)
79 ORDER by Mag. Judge Norah M. King granting motion to extend time 12/5/00 to respond to Memoranda of Amici [78-1] (cc: all counsel) ( no pgs: 1) (pl) (Entered: 12/01/2000)
80 RESPONSE by plaintiff USA to Memo of Amicus Curiae Grand Lodge [76-1] ( no pgs: 18 + exh) (pl) (Entered: 12/06/2000)
81 RESPONSE by defendant City of Columbus, OH to Brief of Amici Curiae Members of Congress [77-1] ( no pgs: 12) (pl) (Entered: 12/06/2000)
82 RESPONSE by intervenor-defendant FOP Capital City to Brief of Amicus Curiae Department of Justice [77-1] ( no pgs: 21 + exh) (pl) (Entered: 12/06/2000)
83 REPLY by intervenor-defendant FOP Capital City re USA's response to memo of amicus curiae Grand Lodge of FOP [80-1] ( no pgs: 24) (pl) (Entered: 12/12/2000)
84 REPLY BRIEF by amicus John Conyers Jr, amicus Howard Berman,

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12/12/2000 02/21/2001 02/28/2001 02/28/2001 03/06/2001
03/06/2001 03/06/2001 03/16/2001 03/19/2001 03/30/2001 04/02/2001 04/19/2001 05/02/2001 05/02/2001

amicus Maxine Waters, amicus William D Delahunt, amicus Sheila Jackson-Lee, amicus Zoe Lofgren, amicus Melvin L Watt, amicus Danny K Davis, amicus Harold E Ford Jr, amicus Carolyn Cheeks Kilpatrick, amicus Gregory W Meeks, amicus Juanita Millender-McDonald, amicus Donald M Payne, amicus Edolphus Towns in support of USA's objections re R&R [59-1] ( no pgs: 18) (pl) (Entered: 12/12/2000)
85 REPLY by defendant City of Columbus, OH to Pltf's response to memo of amicus curiae Grand Lodge of FOP re [80-1] ( no pgs: 5) (pl) (Entered: 12/13/2000)
86 NOTICE of hearing ; Status conference set 1:00 3/2/01 Before Judge Holschuh (cc: all counsel) (pl) (Entered: 02/26/2001)
87 ATTORNEY SUBSTITUTION: terminating attorney Mark nmi Masling for USA and substituting attorney James Eichner ( no pgs: 2) (pl) (Entered: 02/28/2001)
88 MOTION by defendant City of Columbus, OH for leave to file a memo re suppl authority ( no pgs: 3) (pl) (Entered: 03/01/2001)
89 ORDER by Judge John D. Holschuh granting motion for leave to file a memo re suppl authority [88-1]; the other parties have 15 days to file a resp to the City's memo and the City shall then have an additional 15 days to file a reply brief (cc: all counsel) ( no pgs: 1) (sln) (Entered: 03/06/2001)
90 Supplemental memorandum by defendant City of Columbus, OH in re supplemental authority to objection to the R & R [58-1] ( no pgs: 4) (sln) (Entered: 03/06/2001)
TRANSCRIPT filed of proceedings held 3/2/01 before Judge Holschuh (pl) (Entered: 03/08/2001)
91 RESPONSE by intervenor-defendant FOP Capital City to deft City's memo re supplemental authority [90-1] ( no pgs: 4) (pl) (Entered: 03/21/2001)
92 RESPONSE by plaintiff USA to City's Memo re Suppl Authority [90-1] ( no pgs: 9) (pl) (Entered: 03/21/2001)
93 REPLY by defendant City of Columbus, OH in re their supplemental authority [90-1] ( no pgs: 7) (sem) (Entered: 04/02/2001)
94 Supplemental memorandum by plaintiff USA in support of their objection to the Report and Recommendation in re dfts' dispostive motions [59-1] ( no pgs: 22 + exh) (sem) (Entered: 04/03/2001)
95 ORDER by Mag. Judge Norah M. King in re 4/19/01 discovery conference (cc: all counsel) ( no pgs: 1) (sem) (Entered: 04/19/2001)
96 RESPONSE by intervenor-defendant FOP Capital City to [94-1] to the supplemental memorandum by the USA (bw) (Entered: 05/03/2001)
97 RESPONSE by defendant City of Columbus, OH to USA's supplemental

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05/17/2001 06/04/2001 06/06/2001 06/29/2001 07/18/2001
07/19/2001 07/30/2001 08/10/2001 08/14/2001 08/14/2001 09/04/2002 09/04/2002

memorandum in re its objections to the R & R [94-1] ( no pgs: 13) (sem) (Entered: 05/08/2001)
98 REPLY by plaintiff USA in further support of their supplemental memorandum [94-1] ( no pgs: 14) (sem) (Entered: 05/18/2001)
99 Submission of proposed script for contact by plaintiff USA with former employees of the City of Columbus ( no pgs: 3) (sem) (Entered: 06/04/2001)
100 ORDER by Mag. Judge Norah M. King that the script for contact by the USA with former employees of the City of Columbus is approved by the Court (cc: all counsel) ( no pgs: 1) (sem) (Entered: 06/06/2001)
101 MOTION by plaintiff USA for order to engage in ex parte contacts with current city employees ( no pgs: 10) (sem) (Entered: 07/02/2001)
102 RESPONSE (memo in opposition) by intervenor-defendant FOP Capital City to pltf USA's motion for order to engage in ex parte contacts with current city employees [101-1] ( no pgs: 8 + exh) (sem) (Entered: 07/19/2001)
103 RESPONSE by defendant City of Columbus, OH to pltf's motion for order to engage in ex parte contacts with current city employees [101-1] ( no pgs: 10) (sem) (Entered: 07/20/2001)
104 REPLY by plaintiff USA to response to their motion for order to engage in ex parte contacts with current city employees [101-1] ( no pgs: 9) (sem) (Entered: 07/31/2001)
105 MOTION by plaintiff USA for order to hold in abeyance their motion to amend the complaint ( no pgs: 6) (sem) (Entered: 08/13/2001)
106 ORDER by Mag. Judge Norah M. King granting USA's motion for order to hold in abeyance their motion to amend the complaint [105-1] (cc: all counsel) ( no pgs: 1) (sem) (Entered: 08/14/2001)
107 NOTICE of hearing ; Status conference set for 3:00 8/30/01 with NMK (cc: all counsel) (sem) (Entered: 08/15/2001)
108 MOTION by plaintiff USA to dismiss case without prejudice ( no pgs: 3) (sem) (Entered: 09/04/2002)
109 ORDER by Judge John D. Holschuh granting pltf's motion to dismiss case without prejudice [108-1] dismissing case (cc: all counsel) ( no pgs: 1) (sem) (Entered: 09/04/2002)

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Docket Report

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2:99-cv-01097-JDHNMK
0.56

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10/25/2005

 
 Resolution Pattern or Practice Litigation Columbus Police

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Ralph F. Boyd, Jr. Assistant Attorney General for Civil Rights U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Dear Mr. Boyd:
I am proud of the nearly 1800 men and women of the Division of Police who put their lives at risk every day serving the citizens of Columbus. As reflected in the Division's Mission and Values Statements, these men and women are dedicated to improving the quality of life in Columbus by enhancing public safety through cooperative interaction with the community and with other public and private agencies. They are committed to reducing fear by maintaining order and peace and by protecting life and property, enforcing the law, and taking all appropriate measures to combat crime. These officers work to fulfill their mission of public service in a manner that inspires the public's trust and confidence and that protects the Constitutional rights of every citizen.
The City of Columbus is a vibrant, growing, increasingly diverse and constantly changing community. In meeting the law enforcement needs and expectations of this community, the Division of Police has not been stagnant. The Division is constantly reviewing its policies and procedures and exploring ways to improve its performance. Some of the initiatives that have been implemented recently, like the reengineering of our citizen complaint procedures, our efforts to address the issue of bias-based profiling, and the installation of video and audio recorders in our cruisers, have required significant investment at a time when our City faces tremendous budgetary constraints along with many other demands on our resources. This Administration has used every administrative and budgetary tool at its disposal to support the ongoing efforts of the Division of Police to provide policing of the highest quality. And with the support and cooperation of Columbus City Council, these initiatives have been accomplished.
Other changes are the result of on-going commitments. The Division of Police recently received reaccreditation by the Commission on Accreditation of Law Enforcement Agencies ("CALEA"), having demonstrated that the Division meets professionally-recognized criteria for excellence in management and service delivery. And, like every other law enforcement agency around the country in the wake of the events of September 11th, the Columbus Division of Police has taken on additional responsibilities to help ensure and maintain the security of this community and our nation.
I have no doubt that the Division of Police will continue to review its policies and practices and make positive changes to those policies and practices. This Administration is committed to making every effort to facilitate and encourage that process. However, protracted and expensive litigation between the Department of Justice and the City of Columbus is counterproductive to those efforts. For that reason, and given the substantive changes that have already taken place at the Division of Police, I believe it is in the best interest of the citizens of Columbus that the litigation be ended. For your consideration, I have summarized below what I regard as the most significant changes that have been made to the Division's policies and practices during my tenure as Mayor.
Reengineering our Citizen Complaint Procedures
Over $1.2 million and significant human resources, including the addition of 15 new sergeants, have been invested to expand the staffing and scope of responsibility of the Internal Affairs

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Bureau ("IAB"). As a result of this expansion, approximately 10% of all the sergeants for the entire Division are now assigned to the IAB. This investment was necessary to enable a fundamental change in the way citizen complaints are handled by the Division--a change that was implemented in July, 2001.
The time in which a citizen complaint can be filed has been expanded from twenty-eight to sixty days. As reflected in CDP Directive 3.10, all citizen complaints are forwarded to the IAB for a prompt investigation and recommended disposition. All complaints receive the same level of scrutiny. Additionally, complainants are periodically notified of the progress of the investigation. All IAB supervisors and investigators have undergone specialized training on this new process and on proper investigation practices.
The IAB continues to actively engage in community outreach programs to publicize and explain the new citizen complaint process, and it will continue to evaluate and make improvements to that process. Finally, with an expenditure of $1.7 million, the IAB will be moving out of police headquarters to a separate, renovated facility. The move is planned for the Fall of 2003.
Enhancing Use of Force Procedures
The revision of CDP Directive 3.25 provides for an expanded definition of actions that constitute a use of force, enhanced reporting of all uses of force and adoption of a use of force continuum. All Division supervisors have been trained on these changes, resulting in a higher level of monitoring and accountability. That directive has also been revised to identify the potential for the use of intermediate weapons to result in serious injury or death.
CDP Directive 3.23 provides additional guidance to officers as to the circumstances in which the use of chemical spray or intermediate weapons are appropriate under the Division's use of force continuum. This includes the procedures that are to be followed before chemical spray is used in crowd control situations. The revision clarifies the current practice that the use of chemical spray for a punitive or retaliatory purpose is prohibited.
The Division has also implemented new procedures that provide for increased investigation and supervisory review of all incidents in which chemical spray is used to control a handcuffed individual.
Revisions have been made to the Supervisor's Manual to include the requirement that photographs be taken as part of all use of force and injury to prisoner investigations. The revisions also require that no supervisor who was present, witnessed, participated in, or ordered a use of force is permitted to conduct the investigation of that use of force incident.
Language has been added to the Division's training materials to reflect the guidelines officers are trained to follow when using certain defensive tactics, including boxing techniques.
Reaffirming our Commitment to Prohibit Racial Profiling
The Division has taken a number of steps to reaffirm its commitment to all the citizens of Columbus that it will not tolerate unequal treatment of any person by stopping, questioning, searching, detaining or arresting based upon the person's ethnic or racial characteristics, gender, religion, or sexual orientation. As reflected in CDP Directive 3.53, the practice of bias-based profiling is explicitly prohibited.

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Additionally, in order to clarify the prohibition against racial profiling, Ordinance 1475-01 was passed by Columbus City Council on September 24, 2001. This ordinance amended the Columbus City Code to specifically include racial profiling as a criminal offense.
The long-standing principles supporting the directive and the ordinance also provide the basis for new training that was specially designed to address bias-based profiling. All Division personnel have participated in this training, at a cost of more than $250,000. This specialized training has also been added as a component of recruit training at the Training Academy.
As reflected in Directive 3.53, the Division is collecting data on all self-initiated traffic stops. With the assistance of statistical expertise from The Ohio State University, and with input from a committee that includes representatives from Columbus' minority community, this data will undergo regular, periodic review by the Division.
Installing Video and Audio Recorders in Cruisers
Keeping pace with advances in technology, and for the benefit of officers and the public, the Division has initiated an effort to install video and audio recorders in police cruisers. When the cost of equipment, record keeping, facilities, storage space and personnel are taken into consideration, this has been an expensive undertaking. Thus far, approximately 100 cruisers have been equipped at an overall expense of more than $500,000.
Change is natural and necessary for any organization to function effectively and efficiently. Accordingly, the particulars of the above-summarized changes to the Division's policies and practices, which are reflected primarily in the referenced directive or manual, are subject to periodic review and revision. I can assure you that the City of Columbus and its Division of Police are committed to making only those changes that improve the quality of policing in our city. The changes under my Administration have been made because they are appropriate and improve our policing practices. We are committed to continued improvement in our Division of Police and have no intention of stopping this process simply because the City is no longer a defendant in a lawsuit.
Because of my confidence in our Division of Police, the City would agree to a dismissal without prejudice. Further, the City would provide the DOJ with videotape copies of pertinent recruit and inservice training courses, covering one complete recruit class and one cycle of in-service phase training. The changes referenced above will be incorporated into the on-going phase training for current officers and the recruit class training, both of which will be completed by the end of this year. Finally, the City would agree to provide copies of relevant Division of Police documents to the DOJ through the end of 2003, including documents reflecting the completion of investigations of any incidents alleged to have occurred within that time period.
It is my firm belief that this proposal provides the basis for a resolution to this litigation. This resolution would be detrimental to neither party and benefit the citizens of Columbus, whose interests are paramount to us both.
Sincerely,
Michael B. Coleman Mayor
cc: James Phillips

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VIA FAX and REGULAR MAIL
The Honorable Michael Coleman City of Columbus Mayor's Office 90 West Broad Street, Room 247 Columbus, OH 43215
Re: United States v. City of Columbus CA No. C2-99-1097
Dear Mayor Coleman:
Thank you for your September 4, 2002 proposal for resolving the above referenced litigation. As described in more detail below, we accept your proposal.
As you note in your letter, since the time this lawsuit was filed, the Columbus Division of Police (CDP) has made substantial alterations to many of the policies, procedures, and training that we sought to change through the lawsuit. For example, the CDP has expanded the staffing of the Internal Affairs Bureau (IAB), extended the time in which citizen complaints can be filed, eliminated the practice of treating certain complaints as "inquiries," prohibited officers involved in an incident from conducting the investigation of that incident, expanded the scope of investigations conducted by IAB, and engaged in a community outreach program regarding the citizen complaint process. If implemented properly, these changes should address the concerns we previously raised with respect to the intake of citizen complaints and the internal investigations conducted by the chain of command.
Over the last year, the CDP has also made significant changes to its use of force policies and procedures. The CDP has expanded its definition of what constitutes force, enhanced reporting of all uses of force, and adopted a use of force continuum. The CDP has revised its policy regarding the use of chemical spray and intermediate weapons, and provided for increased supervisor scrutiny of uses of chemical spray against restrained individuals. The CDP has also clarified its policy regarding what constitutes deadly force. In addition, the CDP has clarified its policies and training materials regarding the use of defensive tactics and boxing techniques. If implemented properly, these changes should address many of our concerns regarding the CDP's use of force policies.
In addition, the CDP has recently taken steps to address allegations of racially discriminatory policing by explicitly prohibiting bias-based profiling, providing additional training to CDP officers on this prohibition, and committing to the collection and analysis of data on traffic stops. The CDP has also initiated an effort to install video and audio cameras in police vehicles. Moreover, the City has advised us that it is considering enhancements to its electronic risk management system.
At this juncture, we are persuaded that the CDP has made significant changes to the policies and procedures that we sought to change through the pattern or practice lawsuit. You have committed to appropriate training on these changes by December 31, 2002. You have promised to provide us, at least several weeks in advance, with the schedules of all relevant in-service and new recruit training classes implementing these changes and to videotape any such training classes upon our request. Finally, you have promised to provide the United States with access to the appropriate information to evaluate the effect that implementation of these changes has on the practices of the CDP. Specifically, you have promised to continue to provide us with all relevant documents, including all internal reports and

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investigative files regarding any incidents that occur (or are alleged to have occurred in a citizen complaint) during the training period and the twelve months after the training on the measures is completed.
Given the significant changes in circumstances since we filed our complaint, we accept these promises, and, in exchange, will enter into the necessary stipulated order of dismissal. The procedure described above allows the United States to evaluate whether the CDP fully implements the changes in policies and procedures, and whether these changes are reflected in the actual practices of the CDP. Should the City fail to live up to these promises, the United States retains the right to refile its claims under 42 U.S.C. § 14141.
The goal of the United States since this lawsuit began has been to ensure that the constitutional rights of all who come in contact with the CDP are protected, by obtaining changes in the way the CDP carries out its policing responsibilities. In light of the significant improvements in the CDP's policies and procedures that the City has initiated, the City's assurances that these changes will be completed, and the mechanism we have secured to evaluate the impact of the changes, it is our view that active litigation with the City is no longer necessary.
In closing, I would like to offer my thanks to you, to Director Mitchell Brown, and to the CDP for the continued commitment to improving the policing services provided to the citizens of Columbus. Resolving this matter without further litigation serves all parties' interests, and the resolution would not have been possible without your leadership on these issues.
Thank you again for your efforts to help resolve this matter. I look forward to full implementation of the changes to the CDP that have been undertaken.
Sincerely,
Ralph F. Boyd, Jr. Assistant Attorney General
cc: James Phillips, Esq. Vorys, Sater, Seymour and Pease 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008

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 FOR IMMEDIATE RELEASE WEDNESDAY, SEPTEMBER 4, 2002 WWW.USDOJ.GOV

AG (202) 514-2008 TDD (202) 514-1888

JUSTICE DEPARTMENT REACHES AGREEMENT TO RESOLVE POLICE MISCONDUCT CASE AGAINST COLUMBUS POLICE DEPARTMENT

WASHINGTON, D.C. – The Department of Justice today announced that it has reached agreement with the city of Columbus, Ohio to resolve its police misconduct lawsuit against the Columbus Division of Police (CDP).
Under the agreement, the United States will review CDP training classes, the documentation of alleged misconduct and internal investigations. Today's agreement allows the Department to review CDP procedures through December 2003. If the Justice Department determines that a pattern or practice of misconduct exists, it has the authority to re-file the lawsuit.
"We are pleased that a resolution of this matter has finally been reached," said Assistant Attorney General Ralph F. Boyd, Jr. "We believe this agreement will help protect everyone's constitutional rights without compromising the effectiveness of the CDP in carrying out its critical law enforcement responsibilities."
The October 1999 lawsuit, filed in U.S. District Court for the Southern District of Ohio, alleged that the CDP engaged in a pattern or practice of excessive force. Since the complaint's filing, the CDP has made significant improvements in its policies, procedures and practices. These reforms include:
§revised "use of force" policies, procedures for reporting and investigating allegations of misconduct, and training to ensure that the conduct of CDP officers meets constitutional standards;
§changes to handle police misconduct complaints, including the expansion of the CDP's Internal Affairs Bureau;
§procedures that ensure comprehensive investigations into citizen complaints of police brutality and other serious misconduct; and
§policies to address allegations of racial discriminatory policing.

If implemented properly, these reforms should remedy the pattern or practice of misconduct. The agreement provides mechanisms to ensure that reforms are implemented.
Under the 1994 Crime Bill, the Justice Department has the authority to conduct investigations and file civil suits against law enforcement agencies that engage in a pattern or practice of misconduct. The lawsuit against Columbus has been the only time the Justice Department has filed contested litigation.
Today's agreement is the eighth settlement under the 1994 Crime Bill. Other settlements entered during the Bush Administration include the Cincinnati Police Department, the District of Columbia Metropolitan Police Department and the Highland Park, Illinois Police Department. The Justice Department continues to monitor settlements covering the Los Angeles Police Department, the New Jersey State Police, the Steubenville, Ohio Police Department and the Pittsburgh Bureau of Police.
For more information on the Justice Department's enforcement efforts, see www.usdoj.gov/crt/split.