William H. Rehnquist: We'll hear argument now in No. 91-1657, Charlene Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit. Mr. Gladden.
Richard Gladden: Mr. Chief Justice, and may it please the Court: In this case, the petitioners challenge what's known as the Fifth Circuit's heightened pleading requirement, which that court applies in civil rights cases brought pursuant to 42 U.S.C., section 1983 with respect to allegations against local governmental entities wherein plaintiffs allege that the local governmental entity has failed to adequately train, allegations similar to those presented in City of Canton v. Harris. It's the petitioners' contention that the heightened pleading requirement violates the system of notice pleading set out in rule 8(a)(2) of the Federal Rules of Civil Procedure, and alternatively, to the extent that a heightened pleading requirement is permissible under rule 8, petitioners go further and state that they believe that that violates the rule's enabling act, title 28 U.S.C., section 2072(b). Before going much further, I would like to briefly outline for the Court the procedural and factual background which led to this case. The case originally arose out of a search of the Leatherman residence which occurred in May of 1989. In that case, governmental officers, under the control of the Tarrant County narcotics task force, secured a search warrant for their premises and upon entering the premises shot and killed two of their dogs, and after discovering, just within moments, that there was no narcotics laboratory within the premises, proceeded to lounge about in the front of the yard, basically just kind of enhancing and aggravating the anxiety that the family was already experiencing. Mrs. Leatherman and her son Travis were there on the premises at the time the dogs were shot... or at the end of the driveway, some 100 feet away. They filed a lawsuit in State court pursuant to section 1983 alleging a violation of the Fourth Amendment with respect to the manner in which the search was conducted by the officers and the shooting of their dogs, which they considered to be an unreasonable seizure of their effect, the dog being the effect in question. The petitioner... the Leatherman petitioners' former counsel filed the case in State court and was unable, prior to filing it in State court, to get access to any documents to identify the individual officers. He made numerous attempts to try to secure documents which would more particularly describe what customs they may have and what prior incidents might have occurred similar to this. He was unable to do so. Following the filing of his complaint and our petition in State court, the respondents immediately removed the case to Federal court, and immediately thereafter filed a motion to dismiss on 12(b) or for summary judgment. The petitioner... the Leatherman petitioners' former counsel had not been admitted to practice in Federal court and while he was trying to locate other counsel to handle the case, the court initially acted on the motion to dismiss and dismissed the case. Following my becoming involved in the case, I moved the court to vacate the dismissal and allow the petitioners to replea their complaint, if possible to conform to the technical pleading requirements that the court in the Fifth Circuit or courts in the Fifth Circuit apply, specifically the heightened pleading requirement. During the course in time in which we were drafting the amended complaint, our office became aware of another incident also involving the Tarrant County drug task force wherein the officers had displayed similar lack of supervision with respect to the entry of the residence unannounced, clubbing of an elderly gentleman, remaining on the premises some hour and a half to 2 hours after determining that there was no drugs on the premises or drug laboratory on the premises. I came to the conclusion that there was a consistent pattern there, and for that reason, pursuant to 20(a), rule 20(a), I added this separate incident, together with the Leathermans' lawsuit.
William H. Rehnquist: Rule 20(a) of the Rules of Civil Procedure?
Richard Gladden: Yes, Chief Justice.
William H. Rehnquist: What does that provide?
Richard Gladden: Chief Justice, if I recollect, it says that you have a common transaction in question element. If you have a pattern of actions by the same identified source and you have common legal questions or common factual questions, the rules permit a joinder of what would otherwise seem to be separate incidences if you have a common factual question or a common legal question.
William H. Rehnquist: This was a motion to--
Richard Gladden: Well, it was... we just amended the complaint. I know the district court was uncertain at the time it acted or entered its decision as to what legal authority. The issue had never been raised by the respondents, and therefore it had never been briefed. In any event, following the amended complaint being filed, the respondent, TCNICU, who I'll just call the drug task force, filed virtually the identical motion to dismiss or for summary judgment, and at that time attached some unverified police reports and such like that that allowed us to get a little bit more information, but still not enough to recognize on an evidentiary basis sufficient facts to perhaps defend a motion for summary judgment. At that time, I filed a motion to stay action on the motion for summary judgment pursuant to rule 56(f) because there had not been sufficient discovery from my position to feel comfortable with the court acting on it at that time, and that was also briefed in the district court in response to their motion for summary judgment. In response... discovery or motion for... excuse me... production of documents, the respondent drug task force filed a motion for a protective order, and they claimed, I believe, four different privileges, including executive privilege, why they shouldn't have to disclose any documents in connection with the operation of their drug task force. As a result, the court, the district court, entered a protective order and prevented me from getting any other documents other than those voluntarily provided by the drug task force. Some... and I had also asked for a hearing on that, and the hearing was denied. Some 3 weeks later, the court granted their motion to dismiss based on the heightened pleading requirement, but went further and acted on the motion for summary judgment. And, however, on appeal the Fifth Circuit only affirmed on the basis of the heightened pleading requirement. That pretty much concludes the procedural posture of the case. It's the petitioners' position that there are several reasons why the heightened pleading requirement is inconsistent with the notice pleading that this Court set out in Conley v. Gibson. In Conley v. Gibson, the Court said that fair... that a plaintiff under rule 8... and that was yet again a case where the people, the respondents, had said that you had to have specific allegations to support your claims, and the Court in response to that said that under rule 8 a plaintiff only need show fair notice of their claim and the grounds upon which it rests. We believe that in this case, the respondent certainly had fair notice of both the legal and factual basis of the claim with respect to the constitutional allegation and certainly had an understanding that the theory of relief was pursuant to City of Canton v. Harris. They were so able to understand the allegations that they were able to file a motion for summary judgment. However, they didn't provide any documentation with respect to what their training was or whether there had been prior incidences. Yet again, because the protective order had been entered, I was unable to get such documents. It's our position that not only does rule 8 and Conley v. Gibson preclude any understanding of rule 8 to allow a heightened pleading requirement, but we also believe that rule 9(b) certainly read in harmony with rule 8 would negate the possibility of a heightened pleading requirement.
William H. Rehnquist: --Well, is there some indication or do you believe, I... do you think the district judge would have allowed you the discovery that he previously didn't allow you if he had denied the motion to dismiss?
Richard Gladden: I have no way of knowing.
William H. Rehnquist: Because--
Richard Gladden: That would be just speculation.
William H. Rehnquist: --You know, one of the things you're telling us about is how you couldn't get any information through discovery, and I'm wondering how that is related to the heightened pleading requirement.
Richard Gladden: Well, Your Honor, I think the court denied the discovery, and it's my impression that he denied the discovery on the basis that the heightened pleading requirement foreclosed the lawsuit proceeding further to discovery because under a heightened pleading requirement, you wouldn't be allowed discovery unless you could get through a motion to dismiss.
William H. Rehnquist: So, then perhaps your answer to my question should be yes, that had the district court denied the motion to dismiss, it would have been more lenient about allowing discovery.
Richard Gladden: I certainly think so. I think in the absence of a heightened pleading requirement, he would have been more lenient. Most of the case law that he cited in support of denying discovery was connected or intertwined with cases involving the heightened pleading requirement. Back to rule 9(b), another suggestion we have or argument we have is that 9(b) sets out what kinds of claims there are that require particularity in pleading complaints. It's limited to fraud and mistake. Nowhere is there any mention of a heightened pleading requirement for civil rights cases or some unidentified other class of cases. And then it goes on to say that allegations involving knowledge, malice, intent, or other condition of mind, which I think in this case deliberate indifference on the part of the municipal policymaker would certainly be a condition of mind... rule 9(b) says that only general allegations are required with respect to pleading. Now, it seems to me that throughout this litigation, both the respondents and the lower courts, not necessarily Judge Goldberg, but they have concluded... or they have confused the difference between a rule for summary judgment where evidence has to be pled and presented and a motion to dismiss where you are only required to give fair notice of the claim that you're presenting. I would say again the respondents in this case had fair notice of what the factual basis of the constitutional allegation was, and they had fair notice, at least to my ability to plead it, that we were challenging the inadequacy of their training and that we believed, on information and belief, that there were other incidences that would support our claim. Justice Scalia has, on more than one occasion, stated that we should apply the text to the rules and not improve upon them. It seems to me that the lower courts who have imposed the heightened pleading requirement have done so in an effort to improve upon what they consider to be a problem with the Federal rules in protecting municipalities. The City of Owen... or Owen v. City of Independence addressed the question of whether municipalities are entitled to qualified immunity, and the Court ruled that it wasn't. This heightened pleading requirement originally derived out of the need to protect individual defendants who had a right to assert qualified immunity from broad ranging discovery. I don't think that there's necessarily a problem with limiting broad ranging discovery in any case under rule 16. I think a district judge certainly could isolate issues and allow discovery to go forward on that basis.
William H. Rehnquist: How about a heightened pleading rule where you're dealing with individuals who will claim qualified immunity?
Richard Gladden: Well, I don't think that... first of all, I don't think that issue is presented to the Court, but I would take the position in Anderson v. Creighton, Justice Scalia noted that when you do have issues of fact involved, that you can have discovery limited to the fact issue involved go forward. And that would not be inconsistent with qualified immunity.
William H. Rehnquist: Well, who wrote the opinion in Anderson? Justice O'Connor?
Richard Gladden: No. Justice Scalia.
William H. Rehnquist: Justice Scalia. And so, you think that Anderson requires what answer to my question?
Richard Gladden: I think Anderson would suggest that qualified immunity or not would... there is no need for a heightened pleading requirement or it would be inconsistent to apply a heightened pleading requirement at the same time that you said before that you could allow discovery to go forward where qualified immunity has been raised, only limited to the specific issue. That way we could eliminate this threat or exaggerated threat of over-ranging and overbroad discovery.
William H. Rehnquist: So, the discovery in a case would be only limited to facts bearing on qualified immunity.
Richard Gladden: In the district courts... well, now, for local governmental entities, they don't--
William H. Rehnquist: No. But when I say a case like--
Richard Gladden: --Okay. Yes, okay.
William H. Rehnquist: --that, I meant one where there are individuals involved who can claim qualified--
Richard Gladden: Oh, certainly. I think that would be in the district court's discretion, and certainly he would have discretion to do so. And I wouldn't be here to argue to the contrary.
Anthony M. Kennedy: --Now, I take it... maybe I'm wrong. Is it correct that you're going to go on to say that qualified immunity is not involved here?
Richard Gladden: That's correct. And as I pointed out a moment ago, that issue... Siegart v. Gilley I believe was going to address that, and I recall your concurring opinion. The Court didn't reach that issue in Siegart v. Gilley, and that is not presented in this case although I recognize that the outcome of this case may have some bearing on a subsequent case that would address that issue.
Anthony M. Kennedy: Is the municipality's claim here just characterized as a defense?
Richard Gladden: It's their position that the heightened pleading requirement is a substantive form of immunity. We take the contrary position. We don't believe... we think that Owen v. City of Independence disposed of the issue of whether or not local governmental entities are entitled to qualified immunity. By allowing a cause of action to exist under section 1983, that disposes of any absolute immunity. And so, what we're talking about here is whether or not the limitations on discovery should be addressed through a limitation, like a rule 56(f) motion, whether or not... or rule 16 limitation on discovery at the summary judgment stage, not at the initial pleading stage because rule 8 expressly was intended to only provide fair notice to defendants in these cases. Unless there's a legitimate claim of not having notice, I don't think it's appropriate to impose this pleading requirement, and in this case, no one filed a motion for more definite statement because in my view there was never any question about notice involved.
Antonin Scalia: Mr. Gladden, can I ask you, is there... what in the Federal rules, if anything... and if your theory is adopted... would prevent a plaintiff routinely, whenever there has been any malfeasance on the part of a police officer, for example, to file a lawsuit claiming that it is a policy of the city? You know, the policeman shoots a fleeing miscreant who's committed a misdemeanor.
Richard Gladden: I think there's--
Antonin Scalia: And you just file a complaint saying this is a policy of the city and then it can't be dismissed on the pleadings, so you get to the summary judgment stage. But you're entitled to discovery for summary judgment. So, in other words, you don't really know when you file the suit that you have a proper cause of action, and you're using the suit as a means of investigation, which doesn't seem to me is proper.
Richard Gladden: --Okay, well--
Antonin Scalia: What stops it?
Richard Gladden: --Yes. I'll respond to that by saying, first of all, we do have rule 11, which imposes upon plaintiff's counsel an obligation to make a reasonable inquiry into a prefiling investigation into the facts and law.
Antonin Scalia: Yes, but that only applies to the facts that are asserted in the complaint, doesn't it?
Richard Gladden: Well, it doesn't say that they have to plead the facts, but it says they do have an obligation to make a reasonable investigation into the facts. And--
Antonin Scalia: I assume that means the facts pleaded.
Richard Gladden: --Well, not necessarily. You can have someone fail to do a reasonable investigation and have a boiler plate allegation like you have, or you could have someone who had done a reasonable investigation. The threat of sanctions would foreclose some--
Antonin Scalia: Do you have to find something in that reasonable investigation? Suppose I do a reasonable investigation and I cannot identify any municipal policy, but I still file the lawsuit. Have I complied with rule 11?
Richard Gladden: --I don't think you would necessarily have to find something, but you'd have to have good reason to believe that discovery would bring forth factual specifics to support your claim. I believe you've said in Lujan v. Defenders of Wildlife and in another case also involving Lujan--
Antonin Scalia: You don't want to keep attributing this to me. This was the Court that said this. [Laughter]
Richard Gladden: --Okay.
Antonin Scalia: I don't always speak for the whole Court.
Richard Gladden: Yes, I understand.
Antonin Scalia: Often... I often don't.
Richard Gladden: But under 12(b)(6), general allegations, unlike a summary judgment motion... under 12(b)(6) general allegations are presumed to have particular facts supporting them. I think that it would certainly be sanctionable conduct for someone, without conducting a reasonable prefiling investigation, to just without doing an investigation file a boiler plate complaint and then cause it to go forward to the summary judgment motion stage. I think that someone would have a good argument to file for sanctions. Then again, we would have a very limited amount of litigation involved where the sanctions would not be that enormous, and you would have to impose sanctions limited to the specific event that caused, as the Court has said in the rule 11 cases.
David H. Souter: What would the significance under rule 11 be in a case in which the plaintiff did all the prefiling investigation he could do and just couldn't find out anything? I think that's what you are saying happened in this case. And yet, based on the behavior of the police officers, he thinks there's at least a reasonable possibility that there was a policy of inadequate training and so on. So, he goes ahead and files based upon generalized allegations and then hopes for discovery. Would there be a rule 11 sanction imposable there?
Richard Gladden: I don't think so. I think if he did everything reasonably... every reasonable effort to discover... in this case, we had naturally an intelligence organization, by the very name, who were very secretive of the information they had in their files and elsewhere. Rule 9(b), of course, does isolate two cases for mistake and fraud, but you'd have to have particular allegations. We think it's different in this case because in fraud cases you're going to have a course of dealing and you're going to have some reliance of the person who's the victim of the fraud. Mistake would be similar. That's a different category. A case like this, you've got agents of a local governmental entity who are causing damage to the victim and then because we don't have respondeat superior, we've got the supervisors or the policymaker somewhere else. And the victims themselves never have... necessarily have direct contact with the policymakers. And that's why we have a problem in the absence of respondeat superior, which of course we don't have.
Antonin Scalia: What was the basis for the knowledge, information, or belief in this case that this was a municipal policy?
Richard Gladden: It had been my experience... mostly a lot of rumors, of course. We did have these two incidences that are about 3 and a half months apart with officers remaining on the premises for some 2 hours after determining there was no drugs or contraband on the premises, the shooting of the dogs, which certainly disclosed... the location of the dogs was such that it indicated that the officers had no reason to be shooting the dogs.
Antonin Scalia: That doesn't show a policy. I mean, it just shows--
Richard Gladden: Well, of course, there was a statement that was made to the plaintiff in that case, Mrs. Leatherman, by one of the officers. Why did you shoot my dog? Standard procedure, lady. Okay? Now, he didn't say... you know, as Judge Goldberg noted in the court of appeals, that doesn't indicate under what circumstance the procedure allowed them to shoot dogs, but it did create the inference in my mind and certainly in her mind that it was completely unreasonable, the manner in which they executed their dogs. That was... that's part, but not all of the inference that was created in my mind. Is it relevant too that you had a... I don't know the number, but you had a multiplicity of officers here... I don't know how many there were... as opposed simply to one officer? If one officer goes in and shoots the dog, I suppose you can't draw much of an inference from that. But if 10 are participating in what seems to you to be outrageous conduct, that is more probative, isn't it, on the face of it that there's something more than just individualized caprice at work here? I certainly think that would add to it. I know there's a First Circuit case... I forget the name of it... that actually has applied that theory, that when you have a number of officers together, like in a Rodney King incident, for instance, there's... to have an isolated act by one officer is completely different than to have 15 officers out there hanging around for 2 hours drinking beer, shooting people's dogs, using obscene language towards the plaintiffs. I think certainly that should be considered as to whether or not there was a reasonable basis to believe that there was a lack of supervision.
David H. Souter: --So, in any case, in theory you could win this case and still leave open the question as to whether the... an allegation of unreasonable conduct against one officer in one incident would be sufficient under rule--
Richard Gladden: Yes, but I think for future plaintiffs that have to file these cases, it's going to excruciating for them to determine how the Court has ruled and what's going to be specific enough or particular enough. And I think that really we ought to just interpret the rules as they're written and not stretch the rules to try to incorporate, outside of the rules' enabling act, a particularity in the pleading requirement under section 1983. It seems to me that that's a policy oriented decision that shouldn't be made by the Court. It should be made through the rules' enabling act if it's going to be made.
Sandra Day O'Connor: --Counsel, did you allege in the complaint a policy of the city to... or the county to always shoot dogs, or was the allegation really a failure to train?
Richard Gladden: It was... our allegation was more or less loosely patterned on Tennessee v. Garner.
Sandra Day O'Connor: I read it as a failure to train allegation--
Richard Gladden: It was a failure to train. It was a failure to--
Sandra Day O'Connor: --not a municipal policy allegation.
Richard Gladden: --Okay. I interpreted the failure to train cases, such as City of Canton v. Harris, as being another way of pleading a policy under section 1983.
Sandra Day O'Connor: I think that's sort of a strange way to plead a policy, but in any event, I wanted to clarify what it was you've alleged.
Richard Gladden: Okay. I can elaborate if you'd like. Our allegation was is that we identified who we knew to be the policymaker. We felt like the policy with respect to the shooting of dogs and under what circumstances it was reasonable to be shooting dogs reflected or evidenced a deliberate indifference by the policymaker which had resulted or caused... was a substantial factor or cause in the constitutional violation that had been visited upon the plaintiffs by the agents of the governmental entity.
Sandra Day O'Connor: Yes. I read allegations of failure to train and deliberate indifference.
Richard Gladden: Yes, that's correct, as well as an allegation of who the policymaker was and causation and under color of law.
Sandra Day O'Connor: And the court below alternatively ruled for the defendants on a summary judgment motion?
Richard Gladden: The district court did.
Sandra Day O'Connor: The district court did.
Richard Gladden: Yes, the district court did.
Sandra Day O'Connor: And the court of appeals did not address that.
Richard Gladden: That's correct.
Sandra Day O'Connor: And the court of appeals did not address the collateral estoppel question.
Richard Gladden: No. I don't believe that had been raised in the court of appeals.
Sandra Day O'Connor: So, those would be open in any event.
Richard Gladden: I believe so, certainly. However, with respect to the collateral estoppel, I would mention that the case, Andert v. Bewley, which is referred to by the respondents, is currently on appeal. The verdict in that case did not address the constitutional violations. So, we are dealing with a situation different than City of Los Angeles v. Heller. That case involved a situation where the constitutional violation had actually been acted upon or a decision had been rendered by the court. That has not occurred here. The officers in question... 2 of the officers of the 15 that were sued, the 2 officers in Andert v. Bewley... well, first of all, only 2 of the officers there. Secondly, they were let out of the lawsuit on the basis of qualified immunity under the--
William H. Rehnquist: There's no issue before this Court about collateral estoppel, is there?
Richard Gladden: --Well, I believe it was raised in terms of mootness. Some people can construe it as collateral estoppel and some people construe it as mootness. I know City of Los Angeles v. Heller dealt with it in terms of mootness. But I don't think there's anything moot in this case. We're dealing with different defendants and several other reasons why I think that's not applicable. If there's no further questions, Mr. Chief Justice, I'd like to reserve the remainder of my time for rebuttal.
William H. Rehnquist: Yes, very well, Mr. Gladden. Mr. Ringle.
Brett A. Ringle: Mr. Chief Justice, and may it please the Court: The respondents in this case, various municipalities in Tarrant County, ask that the Fifth Circuit's opinion... judgment be affirmed, and that this Court embrace a heightened pleading requirement in cases arising under section 1983 against municipalities alleging that officers have not been properly trained or what has been known as failure to train cases. This is especially critical in cases against municipalities. Until and unless there is a demonstration of a municipal policy at issue, the case amounts to nothing more than an allegation of vicarious liability for which municipalities are not and have never been liable either at the common law or under 1983. This Court has consistently reaffirmed that proposition, having stated in Monell that municipalities may not be sued under a theory of respondeat superior. This case is more than just a Monell case. This case is actually governed by City of Canton v. Harris. In a failure to train case, the heightened pleading requirement we submit should contain three requirements. First, the plaintiff should be required to allege a clearly established constitutional violation for without such an allegation, there is, indeed, no policy. This is not a case like Monell where all the plaintiff should have to demonstrate is the presence of a policy of the municipality and that policy caused harm. By definition, in a case like this, there is no policy unless there is deliberate indifference. It is only when a failure to train arises to the level of deliberate indifference that a policy, which is actionable under 1983, has even been identified. Secondly, the plaintiff should be required to plead sufficient facts to indicate a pattern of similar allegedly unconstitutional acts. More than a single act is clearly necessary for liability, as this Court has taught us in Oklahoma City v. Tuttle. Similarly, a failure to train case at bottom is a case alleging that municipal policymakers responsible for the training of police officers have not responded to a concern or a problem of which they have notice.
William H. Rehnquist: Mr. Ringle, this is a fairly elaborate heightened pleading requirement that you're suggesting. And I would think that perhaps before, in our deliberations, we got to what the content of such a requirement should be, we would get to whether it's authorized at all under the rules in view of the plain statement language in rule 8 and the fact that certainly some sort of expressio unius argument derives from the fraud and mistake special pleading requirement in rule 9. I hope fairly soon in your argument, you will address that, what I see as a kind of a preceding question to the content of a heightened pleading requirement.
Brett A. Ringle: First, rule 8 has been represented not in the terms that it's written. I think the petitioners want the Court to put the word notice as the only requirement of rule 8. Rule 8 is more than a requirement of giving factual notice. Rule 8 requires notice of a claim. So, even if you have a case where all of the facts that could conceivably be known are laid out... in essence, there is attached to the pleading, as an exhibit, a videotape which contains every fact upon which the claim is asserted... rule 8 is still not met unless it states a claim. For example, let's use the pleading in this case as an example. I suggest that the pleading in this case is nothing more than a case of individual responsibility of an officer to which is attached a boiler plate allegation that there is failure to train and deliberate indifference. Nothing more is alleged.
Anthony M. Kennedy: Well, did the court of appeals suggest that the complaint was deficient under rule 8? The court of appeals invoked the heightened pleading requirement, did it not?
Brett A. Ringle: The court did not address that question. Rule 8--
Anthony M. Kennedy: So, I think we take the case on the assumption that it's the heightened pleading requirement that's the defect in the pleading.
Brett A. Ringle: --Yes, that's correct. But the point I'm making is for there to be a claim stated, under City of Canton v. Harris, there has to be a policy present, and unless there's some basis to suggest that there is deliberate indifference, it doesn't even state a policy. Deliberate indifference in a City of Canton v. Harris case is part of the definition of a policy unlike in other cases against municipalities. And as... rule 8 is not controlling in a situation if what that procedural rule permits would violate a substantive right. And I believe the right of a municipality to be free from liability for what is nothing more than a respondeat superior or vicarious liability theory is going to be thwarted. That right will cease to exist if municipalities must defend cases where on the bare allegation of the existence of a policy and the bare allegation of deliberate indifference, the municipality must defend that case.
William H. Rehnquist: Well, we would really be opening a big door if we bought that argument because every defendant in the country would be here saying that we have a right not to be held liable just on an allegation of negligence. I mean, almost every tort action in the country you could find some reason to say that it should be more specifically pleaded than rule 8 requires or we'll be deprived of a substantive right, to wit, the right to keep our money until we're found liable by a jury.
Brett A. Ringle: There is no question that this is not and could not be an across-the-board rule, nor do I suggest that it should be. The result--
William H. Rehnquist: Why is your client, which is a municipal corporation, more entitled to a heightened pleading requirement than a railroad such as we heard this morning... a heightened pleading requirement at a crossing accident?
Brett A. Ringle: --I assure you I won't suggest that the pattern requirement I'm suggesting has anything to do with RICO as an analog either. The fact of the matter is what we have is a case involving intrusion into municipal governmental affairs. That distinguishes this case from others, and we have a case where a defendant enjoys an immunity from liability which, as this Court has reiterated as recently as this morning, also involves an immunity from suit. This is a case in which the same factors--
John Paul Stevens: Are you talking about the municipality has immunity from suit?
Brett A. Ringle: --The Puerto Rico Aqueduct case--
John Paul Stevens: No, but we don't have a State here or a territory.
Brett A. Ringle: --No, that's correct.
John Paul Stevens: What is the immunity you're referring to?
Brett A. Ringle: The immunity is the immunity from respondeat superior liability.
John Paul Stevens: Oh.
Brett A. Ringle: That was an immunity which I think was recognized at the common law. It was clearly an immunity then which was protected in Monroe v. Pate, and it was an immunity which was not affected by this Court's decision in Monell.
John Paul Stevens: But they're not suing on a respondeat superior theory, are they?
Brett A. Ringle: Well, that is our problem. The complaint alleges nothing more than that. It is on its face--
John Paul Stevens: We're back to whether the complaint states a cause of action now without a heightened pleading requirement. I thought we took the case to decide whether there's a heightened pleading requirement when someone brings a 1983 action alleging the municipality is liable for its own conduct.
Brett A. Ringle: --That's correct, and this is the perfect example of why that heightened pleading is necessary because if there isn't a heightened pleading requirement, we get what we have in this case, a case asserting allegedly unconstitutional activities by police officers without the barest determination or factual support that it is pursuant to a policy.
John Paul Stevens: Well, how many officers were involved?
Brett A. Ringle: Well, there were two officers perhaps who were involved in the shooting of the dogs.
John Paul Stevens: And how many were sitting on the lawn afterwards?
Brett A. Ringle: That I do not know. In the other situation, in the Andert case, only one officer is involved. Multiple officers, of course, made the entry, but only one officer was alleged to have actually struck Mr. Andert.
John Paul Stevens: Weren't other officers present?
Brett A. Ringle: Certainly other officers were present.
John Paul Stevens: How many officers were present in the two combined incidents?
Brett A. Ringle: I don't know the answer to that, Your Honor.
John Paul Stevens: How big is this entire police force?
Brett A. Ringle: Well, they are both small police forces. That is--
John Paul Stevens: Maybe we have 75 percent of the police force involved?
Brett A. Ringle: --No, not in either situation. I would suggest that if, in fact, you had 75 percent of the police force involved in one instance, that certainly there would be some indication there it's a policy.
John Paul Stevens: Some inference of policy.
Brett A. Ringle: Absolutely. If we have a--
John Paul Stevens: How large did you say the police force is?
Brett A. Ringle: --I don't know how large the police force in these two municipalities are. They are both... one of them is a fairly good size municipality, Grapevine. The other, Lake Worth, is not so large.
John Paul Stevens: How big are they?
Brett A. Ringle: I don't know--
John Paul Stevens: You don't know.
Brett A. Ringle: --the population of--
John Paul Stevens: 100,000 or 5,000?
Brett A. Ringle: --Grapevine is over 100,000.
Byron R. White: You claim that something more was necessary to state a cause of action than was stated in the amended complaint.
Brett A. Ringle: Yes, I do, Your Honor.
Byron R. White: And you say the amended complaint did not allege a failure in training?
Brett A. Ringle: It only stated that there was a failure to train. There's nothing--
Byron R. White: Well, it's... as I read it, it says the defendant City of Lake Worth failed to formulate and implement an adequate policy to train its officers on the proper manner in which to respond.
Brett A. Ringle: --That is correct, Justice White.
Byron R. White: Now, you say that... why is that inadequate?
Brett A. Ringle: Because that is nothing more than a boiler plate assertion of the conclusion, and under rule 12, certainly the facts that are alleged in a complaint must be--
Byron R. White: What more should it have said?
Brett A. Ringle: --I think what more it has to do is first state clearly the constitutional violation, and we have two different circumstances here. Secondly, I think it must clearly allege that the conduct engaged in was conduct engaged in by officers of the same municipality, and there must be some allegation that the first incident could somehow, as a factual basis, put a reasonable policymaker on notice that the first incident should tell you that there's something wrong with the training that should be corrected prior to the first incident. This gets directly to what the problems are that are illustrated in this complaint. What we really have are not two allegations of conduct against one police force.
Byron R. White: So, you think that they should have recounted in the complaint various other acts, similar acts--
Brett A. Ringle: I think that there needs--
Byron R. White: --and that they would have to prove perhaps at trial to show that there was a deliberate indifference--
Brett A. Ringle: --Precisely.
Byron R. White: --to the training. But you think you have to state those underlying facts in the complaint.
Brett A. Ringle: I think that something beyond--
Byron R. White: Yes. Your answer is yes.
Brett A. Ringle: --Yes. My answer is absolutely yes.
David H. Souter: Well, beyond the policy reasons that you have given us for your yes answer, is there any textual basis in the rules for a yes answer because we're considering a question under the rules?
Brett A. Ringle: There is certainly a textual basis under rule 11. Rule 11 does not--
David H. Souter: Well, why don't... may I just start with the contrast between 8 and 9? 8 and 9, in effect, sets up a kind of a dichotomy: a plain statement in 8, statement with particularity in cases of fraud and mistake in 9. The Chief Justice suggested a moment ago that the... that rule 9 sets up a kind of exclusio alterius argument. Isn't that correct?
Brett A. Ringle: --Only to an extent. Rule 8 does recognize that notice pleading is sufficient, but rule 8 has no authority behind it unless that authority can be found in the rule's enabling act. The rule's enabling act specifically provides that a rule of procedure cannot be used to abrogate a substantive right. Now, rule 9 sets out a policy. In a fraud case, for example, more particularity must be alleged.
David H. Souter: Well, you're suggesting that on your sort of analysis that this case is involving a kind of municipal immunity, that the immunity is being abrogated by the failure to demand the heightened pleading.
Brett A. Ringle: That is correct.
David H. Souter: Well, then what do you do about Anderson and Creighton? So, that must have been wrongly decided.
Brett A. Ringle: No. Anderson--
David H. Souter: Because Anderson and Creighton assumes that before the resolution of the immunity issue, there may be some discovery. Does Anderson and Creighton, therefore, imply that there is an abrogation of the substantive immunity?
Brett A. Ringle: --No, I don't believe it does at all.
David H. Souter: Well, if Anderson and Creighton doesn't imply that, why would it be implied by a rule of pleading or the recognition of a rule of pleading here that may allow some discovery of fact, i.e., leading... prior to and leading to summary judgment before you resolve what you refer to as the immunity to any municipal liability beyond respondeat superior?
Brett A. Ringle: Because I believe that rule 11 requires more than a plaintiff to just have done an investigation and have found nothing, and having found nothing, that plaintiff is then free to allege a cause of action. That's not what rule 11 requires. Rule 11 requires that after an investigation, the pleader has a reasonable belief that the claim has a basis in fact. And absent some additional pleading which would establish either a pattern of similar behavior that would put a policymaker on notice or absent some fact that would show deliberate indifference or perhaps a fact that would show that the person who was actually responsible for providing and setting up the policy was involved in the illegal act, without something that shows that the municipality is involved as opposed to simply being a case dealing with a wrongful conduct of an individual--
David H. Souter: May I just ask one question? Isn't the answer to that impose rule 11 sanctions? Don't impose pleading requirements that aren't in the pleading rules.
Brett A. Ringle: --The problem with rule 11 sanctions typically is they're assessed at the end of the case, and if in fact there's an immunity or protection for a municipality to be free from both liability and suit in a context that would otherwise allege only vicarious liability, it seems like that municipality has lost the benefit of that immunity if they must, in fact, defend the suit and rely on rule 11 sanctions down the road after the municipality--
David H. Souter: Well, you--
Brett A. Ringle: --has gone through all of the defense, costs, and potentially even costs of settlement.
David H. Souter: --You seem to be positing in a rhetorical way a full-blown trial. I presume these kinds of issues are going to be generally resolvable, if resolvable in your favor they may be, on summary judgment.
Brett A. Ringle: Well, they could be resolvable on summary judgment if the--
Sandra Day O'Connor: Well, and this very case was.
Brett A. Ringle: --It's exactly what I was going to say, if the summary judgment is something that is ruled on prior to discovery. The district court relied on two grounds. First was the complaint was dismissed under 12(b)(6) and summary judgment was granted. Contrary to what the petitioners are suggesting, the petitioners before the amended complaint was dismissed had access to all of the information that would have solved the problems they have here. Let me recount, if I may, the problems with the pleading--
John Paul Stevens: If that's true, why did you oppose discovery? Or did you? I think he said you did oppose discovery.
Brett A. Ringle: --It was additional discovery. What was provided to the plaintiffs was information that gave a clear indication of which police forces were involved. The police--
John Paul Stevens: Did you give the names of the officers and their rank and all the rest?
Brett A. Ringle: --The police--
John Paul Stevens: Did you do that?
Brett A. Ringle: --Yes. The police reports signed by the officers and identifying the conduct engaged in were provided, and indeed, the agreement that set up the Tarrant County narcotics intelligent coordination unit was given to them. That is key. We do not have in this case two incidents of actions by the same municipality.
Byron R. White: You claim that the complaint should have stated these details, and I thought the complaint was dismissed based on the fact that the complaint itself was inadequate.
Brett A. Ringle: The complaint was dismissed on that grounds and the district court also, as an alternative ground for his holding, granted summary judgment.
Byron R. White: Well, what's the... what was the affirmance based on?
Brett A. Ringle: The affirmance was based on the dismissal under rule 12(b)(6).
Byron R. White: Exactly, and that's the issue we got before us.
Brett A. Ringle: Yes, it is.
Byron R. White: Well, if there's any other ground that judgment could be affirmed on, it's not before us right now.
Brett A. Ringle: That's--
Byron R. White: We got to rule on the 12(b)(6) issue.
Brett A. Ringle: --That is correct, Justice White.
Anthony M. Kennedy: Getting back to your rule 11 point, it seems to me that rule 11 doesn't inform rules 8 and 9. It works the other way around. Rule 11 is a certification that you've complied with rules 8 and 9. That's all it is. It's a very surprising contention to me that by enacting rule 11, it was intended to alter or modify rules 8 and 9.
Brett A. Ringle: I don't think it did alter rules 8 or 9.
Anthony M. Kennedy: Well, then that's the issue, whether or not rules 8 or 9 are complied with. And you refer to the city as having an immunity. I thought our Owen case indicated that it does not. The city doesn't have an immunity. It just has non... it just has a defense against liability.
Brett A. Ringle: Even if the protection of a municipality from a vicarious liability case is judged to be predicated upon a construction of section 1983, and the fact that Congress in enacting the Ku Klux Klan Act did not grant a claim for vicarious liability, the result I suggest is the same as whether that protection from suit arises from an actual immunity. The fact of the matter is there is no claim stated because no cause of action was ever granted to sue a municipality for anything other than a case in which its policies were the moving factor behind allegedly unconstitutional actions of its agents.
Anthony M. Kennedy: Well, it's true if there had been respondeat superior, there would be no need to sue the city for negligent training.
Brett A. Ringle: Well, except there is no--
Anthony M. Kennedy: But given the fact that there is no respondeat superior liability, the Court has said that the city is directly liable for failure of training. So, it's not an immunity.
Brett A. Ringle: --It's directly liable for failure to train, but not for negligence in doing so. This is not a situation where a bare allegation of negligence should suffice. A municipality in a failure to train case is liable only if there is a policy amounting to failure to train, and there is a policy only if the failure to train was consciously indifferent. It's not a two-pronged test. It's not an issue of is there a policy of failure to train, and if that's answered yes, the Court then asks... answers the question was failing to train deliberately indifferent. The test set out by this Court in City of Canton v. Harris is there isn't even a policy unless the failure to train amounts to deliberate indifference of the rights of those with whom the police come into contact. And the result which we are asking this Court for I think is also counseled by the Court's decision in Harlow v. Fitzgerald. Yes, that was a case involving qualified immunity, but I believe the same factors that counseled the Court in Harlow in suggesting that these issues of immunity or freedom from suit should be resolved sconer rather than later also apply in a case against a municipality when there is nothing more in the complaint than a bare allegation that there is a municipal policy. For example, a municipality is faced with the same expenses of litigation as an individual officer if it must defend a case which it should not be defending because a claim is not stated against it. Indeed, in that case, rather than being free from suit, the municipality is going to be required to direct its resources to the defense of the case or to settlement.
Antonin Scalia: Mr. Ringle, you keep referring to this as immunity from liability. It's a strange way to put it. The fact is the city is simply not liable unless you prove a certain thing. I guess you can call that immunity from liability, but it certainly is not... it certainly is not... immunity from suit.
Brett A. Ringle: I think it is a protection from suit. I think the Court said--
Antonin Scalia: No. It's not a protection from suit. They can be sued till the cows come home. It's a protection against liability.
Brett A. Ringle: --Yes, but the point I think that we're looking at is we are going to be in a situation with municipalities that unless there is at least some allegation to indicate the implication of a municipal policy, then what we are really doing are defending the kinds of cases that whether it's because of immunity or because Congress never conferred the right to sue for vicarious liability under 1983--
Antonin Scalia: But that happens all the time, that people have to defend suits which turn out to be baseless.
Brett A. Ringle: --It does happen all the time, but not in the circumstances where there is an impact, an intrusion on the affairs of a municipal government. I think--
Antonin Scalia: So, you're saying municipalities are different.
Brett A. Ringle: --I think municipalities, indeed--
Antonin Scalia: That's what the case comes down to. Right?
Brett A. Ringle: --are different, and I would suggest--
Antonin Scalia: It should have been in rule 9 then. I mean, you know, rule 9 could have read pleading special matters, A, municipalities.
Brett A. Ringle: --Well, there have been--
Antonin Scalia: You could say, you know, when there's a municipality, you have to plead everything. It doesn't say that.
Brett A. Ringle: --There have been a variety of cases, though, where lower courts, and indeed this Court, seems to have sanctioned the possibility that something more than bare notice pleading is going to be required. In the Associated General Contractors case versus the plumbers in a footnote in that case, the Court indicated that in the context of a massive antitrust suit, maybe the court needs to step in early and require something more in the way of factual allegations before the parties are required to launch into a case that's going to involve massive expense, massive discovery, and massive disruption.
William H. Rehnquist: Mr. Ringle, take paragraph 25 of one of these complaints which appears on page 39 of the tan appendix, and reading midway through that, the allegation is that defendant City of Lake Worth failed to formulate and implement an adequate policy to train its officers on the proper manner in which to respond when confronted by family dogs. Why is that deficient?
Brett A. Ringle: It's deficient--
William H. Rehnquist: Even under the approach you've been talking about, why is that deficient?
Brett A. Ringle: --It's not deficient perhaps to state a claim. It's just not deficient to state a claim against the municipality. These two events--
William H. Rehnquist: Well, what does it lack?
Brett A. Ringle: --Well, I think if that is held to state a constitutional violation, perhaps that allegation is sufficient to state a claim. It simply isn't sufficient to state a claim against the municipality. It's sufficient to state perhaps the claim that Congress granted to a potential plaintiff, and that is a lawsuit against the individual officer.
William H. Rehnquist: But I thought your complaint was that to go further and hold a municipality, you have to allege a policy.
Brett A. Ringle: Yes.
William H. Rehnquist: Here they allege a policy.
Brett A. Ringle: Yes, again without any basis in fact. It's just the statement. That kind of policy--
William H. Rehnquist: If the thing has no basis in fact, that's not a pleading problem. That's either a discovery problem, a summary judgment problem, or a trial problem. There are all sorts of complaints that comply fully with rule 8 that have no basis in fact.
Brett A. Ringle: --That's perhaps so as a factual basis, but there is some reason to believe when the claim is asserted that there is a factual basis for it. The problem with these kinds of cases is if this pleading is held to be appropriate and satisfactory under rule 12, every case that involves the potential qualified immunity of an officer, every case of allegedly wrongful or unconstitutional activities by a lower level officer of a municipality will state a claim under City of Harris... City of Canton v. Harris. And that is, I would submit, an anomalous result that these kinds of pleadings could state a cause of action under City of Canton v. Harris even though we are counseled by that opinion that a policy can't even be established unless there can be some demonstration of deliberate indifference. Deliberate indifference seems to me to be cast in the notion of disregard--
Sandra Day O'Connor: Well, they also alleged deliberate indifference.
Brett A. Ringle: --I'm sorry, Your Honor.
Sandra Day O'Connor: The amended complaint also alleges deliberate indifference.
Brett A. Ringle: Again without basis. Everything that's alleged with respect to the municipal policy is simply cut and pasted from this Court's opinion in City of Canton v. Harris. There's no basis for it. The only allegations of conduct... there is nothing in the pleading--
John Paul Stevens: Wouldn't you also agree these facts are a little bit unusual?
Brett A. Ringle: --I think the facts are highly unusual, but I don't think the facts are sufficient to put a policymaker on notice of--
John Paul Stevens: They don't give rise to any suggestion that anybody might have trained these officers a little bit better? They argue it's so obvious that there was a failure to train that you don't need anything more than this. That's one of their allegations.
Brett A. Ringle: --That is an allegation. I don't believe that's the situation here.
John Paul Stevens: It's fairly routine to go out shooting dogs and hanging around afterwards talking on the lawn and all that? That does seem to be a rather obvious lack of training if your officers behave in that manner.
Brett A. Ringle: Well, standing around and doing the things they're alleged to do may, indeed, be outrageous, perhaps even wrongful behavior, but--
John Paul Stevens: And also somewhat indicative of not well disciplined, professional officers. That's the notion that I get from the complaint. Now, maybe the facts aren't true, of course. I can't--
Brett A. Ringle: --That, indeed, could be something that is assumed. Again, that can be assumed from any allegation of a wrong by an officer.
John Paul Stevens: --Oh, no, it couldn't because these are rather... these... you say any allegation, but these are rather unusual facts. They're not a... this is not a typical complaint at all.
Brett A. Ringle: The fact--
John Paul Stevens: At least I don't think it is. I haven't seen one quite like this before.
Brett A. Ringle: --The facts are bizarre, but I'm not sure that the facts are egregious, Justice Stevens.
John Paul Stevens: Well, as soon as you say they're bizarre, they're not typical.
Brett A. Ringle: They are not typical. There's no question about that. But what we have in one instance is the shooting of dogs. We don't know what the circumstances are. The police reports, which are attached to the affidavits that were filed in the district court, indicate that in both instances the officers were attacked by the dogs. Now, if that is the fact and, indeed, this was a German shepherd dog and a Doberman which were unleashed, uncaged, I'm not sure that that is outrageous conduct. As far as the fact that the officers may have been... let me assume they were... standing around the premises after the search, that again may be inappropriate conduct. Whether it's illegal I question. Whether it's--
Antonin Scalia: Sitting around in lawn chairs drinking beer, as I got it.
Brett A. Ringle: --That is, indeed, the allegation. And I think that sometimes a conduct, for example, the shooting of a fleeing felon, can be so outrageous, it's the kind of outrageous conduct that counsels there must be a failure of training. Now, if we really have a lot of police officers sitting around in lawn chairs drinking beer, I suggest that doesn't counsel that... a failure of training. I think there the outrageous conduct is the outrageous conduct of the officers.
Byron R. White: But if all... if they had just said that, well, and last week and the week before they did the same thing or something very similar, you wouldn't be here I suppose.
Brett A. Ringle: Absolutely not. If there had been some indication to let the policymaker know, the person who is responsible for establishing the policy--
William H. Rehnquist: Thank you, Mr. Ringle. Your time has expired. Mr. Gladden, you have 4 minutes remaining.
Richard Gladden: Thank you, Mr. Chief Justice. I think we've pretty much covered everything there is to cover. If the Court has no further questions, I'm prepared to go ahead and stop at this point.
William H. Rehnquist: Please do so. The case is submitted.
Speaker: The honorable court is now adjourned until tommorow at ten o'clock.


Warren E. Burger: We will hear arguments next in number 70-69, United States against Orito. Mr. Solicitor General.
Erwin N. Griswold: Mr. Chief Justice and may it please the Court. This case is in some ways like the one just argued and in some ways different. It is a prosecution under Section 1462 of Title 18 of the United States Code which would have been applicable in the prior case because it makes it a crime to bring into the Unites States obscene material. But it is also applicable to any person who knowingly uses any express company or other common carrier for carriage and interstate or foreign commerce of any obscene, lewd, lascivious, and so on a book or other material. This case started with an indictment which appears on page 1 of the appendix involving a charge that a substantial amount, 68 reels of 8-millimeter color films, 216-millimeter negatives, 315-millimeter black and white films, and a number of other items were cause to be transported and carried in interstate commerce from San Francisco to Milwaukee by Trans World Airlines and North Central Airlines. There was then a motion to dismiss and that motion appears on page 3. This case has been thought to involve the same question as the previous case namely whether that statute can constitutionally apply to a private transportation, but I would like to suggest to the Court that that question is not really here and that the question which is here is one which was decided by six or seven members of the court in Thirty-seven Photographs. For the motion to dismiss on page 3 comes now the defendant and the above entitled action respectfully moves this Court for the entry of an order dismissing the indictment on the ground at Section 1462 of Title 18 is unconstitutional. And then skipping a few lines, defendant respectfully asserts that regardless of whether the transportation is for the purpose of commercial distribution or for the personal possession and enjoyment of the transporter, this statute violates rights guaranteed by the First and the Ninth Amendments. And then at the bottom of page 6, six lines from the bottom have having dealt previously with the private transportation. On the other hand, should the statute be construed to impose criminal sanctions only upon those who utilize interstate commerce for the purpose of the commercial distribution of obscene material, then the statute denies to the defendant the right to sell and distribute obscene material which is predicated upon the correlative right of an intended recipient to purchase and enjoy this material. Thus, it seems to me quite clear that this case involves exactly the same questions as those in Thirty-seven Photographs two questions. First, is the statute unconstitutional because it might apply to private importation and the court in Thirty-seven Photographs held that the statute should not be so construed and that even though it might be invalid as applied to private importation in that case, that it would be valid as applied to commercial importation. The result of the decision below is to deprive the United States of its opportunity to prove that this was a commercial transportation and not a private transportation. If it was a commercial transportation, United States against Thirty-seven Photographs is clear authority for the constitutional validity of the statute.
Warren E. Burger: Well are you suggesting Mr. Solicitor General that we could not hold the private use in the preceding case protected without making the situation you just described?
Erwin N. Griswold: No, Mr. Chief Justice. The question which we argued in the last case is there. I have little more that I can say about that. All I am saying is that that question isn’t here. That question is not presented by this record.
Warren E. Burger: This District Judge struck down the statute on its face, is it not?
Erwin N. Griswold: This judge cut down the statute on its face held that it was unconstitutional entirely, and I think that is demonstrably wrong because I think the court has decided that it is constitutional as applied to a commercial transportation in Thirty-seven Photographs, and I think that the court had decided that even though it might be unconstitutional as applied to a private transportation, that is not a sufficient basis for holding the entire statute unconstitutional on its face. And in this connection, I would point out two other decisions. The very District Judge below who decided this case has subsequently decided in effect that his decision was wrong. Since this Court decided Thirty-seven Photographs, he has sustained a prosecution under the statute. In United States against Zacher, 332 F. Supp. 883, now there was confusion at the earlier argument where my associate Mr. Greenawalt said 833 and the case could not be found, but it exists. It is 332 F. Supp. 883. And also at the same time that the case was coming through the Wisconsin Court, there was another case in which the same defendant, George Joseph Orito was convicted under the same statute in the United States District Court for the Central District of California, that conviction was affirmed it being a commercial dissemination and this Court denied certiorari in 402 U.S. 987 almost contemporaneously with the decisions in Reidel and Thirty-seven Photographs. And so, this is my argument in this case that the question involved in the previous case 200 reels of film is not in this case. It is not properly before the court and that the only questions to which are in this case have already been squarely decided by a clear majority of the court in Thirty-seven Photographs.
Warren E. Burger: Mr. Solicitor General.
Erwin N. Griswold: Mr. Chief Justice as I have already indicated, I do not think that the question of private use of pornographic or obscene materials is involve in this case, and I would rather hesitate to hazard that, shall we say ultimate issue on this particular case. I would like to observe however that even at best, this is not a very private situation. The indictment here charges the shipping of a substantial quantity of material by Air Express. Not personal luggage, not accompanying the traveler, but the transportation over a distance of some 2,000 miles within the United States. If that is personal, then the underlying foundation of Stanley which I take it to be thought control and I just like thought control but it can be a kind of a shibboleth which serves to stifle further the thought. If that is private, then Stanley it seems to me has little or no limitation. And in that connection, I would like to refer to another case which was once before this Court. This is B & H Distributing Corporation. United States against B & H Distributing Corporation which was where an indictment was dismissed by the United States District Court for the Western District of Wisconsin, Judge Doyle and that case Judge Gordon here, the United States took an appeal and this Court on June 21, 1971 in 403 U.S. 927 vacated the judgment and the remanded it for consideration for reconsideration in the light of this Court’s decision in United States against Reidel and United States against Thirty-seven Photographs. Now in Judge Doyle’s first opinion in that case, he drew the distinction between private and public. He did not make it between private and commercial, but he drew it between private and public and he said if the terms are employed, then public uses or conduct must be defined as those which are in conflict with the goal or interest of protecting children from exposure to obscenity or with the goal or interest of preventing assaults on the sensibilities of an unwilling adult public, private uses or conduct must be defined as those which are not so in conflict. Now, that you see extends the private conception to everything except children and nonconsenting adults. That seems to me to have no proper foundation and the concern about thought control which underlies Stanley. I would point out that the decision that commercial distribution may be made criminal has a thought control element because if the material is more difficult to obtain through commercial distribution, it becomes harder for these ideas such as they are to be communicated and thought about by individuals. Now, this B & H case went back to the Western District of Wisconsin. The court has again dismissed the indictment relying on Stanley against Georgia, and I have authorized the taking of a further appeal to this Court not only because of the issue, but because I feel a considerable obligation to lay before this Court any decision in which a court holds an act of Congress to be unconstitutional. It seems to me that if an act of Congress is unconstitutional, it ought to be by decision of this Court with full respect of course to the lower courts which must develop the cases for our presentation here.
William J. Brennan, Jr.: I gather Solicitor General that that case does present the private aspects of --
Erwin N. Griswold: In this sense Mr. Justice --
William J. Brennan, Jr.: Same facts of this case?
Erwin N. Griswold: No. In the sense that it is private unless it involves children or nonconsenting adults which I think sometimes is put under the head of pandering.
William J. Brennan, Jr.: Now really what I was trying to get out was whether that case like this has a defect that you see in this one, or this one really involving commercial?
Erwin N. Griswold: That I cannot tell you Mr. Justice, but we do not concede in that case that it was private. What I am using the case to illustrate is that if you draw that line between private and commercial. Item one, it is afar from clear line. Item two, like so many ideas which I have a tendency to expand the private notion is already expanding in lower court decisions and would apparently take over everything except pandering. Now, I look at the --
Potter Stewart: Before you proceed Mr. Solicitor General, looking just at the face of the indictment in the appendix in the present case, is it clear to you? It certainly isn’t to me offhand that this involved Air Express. It says that the defendant did knowingly transport and carry at interstate commerce from San Francisco to Milwaukee and so on. These materials by common carrier that is Trans World Airlines and North Central Airlines and I would supposed that those words could be even more readily read as that he took them with him on his own trip.
Erwin N. Griswold: I think you may be right Mr. Justice. It’s -- sometimes it’s not easy to separate what’s in the record from what one --
Potter Stewart: Though all we have in the record, I think --
Erwin N. Griswold: I think all you have in the record is that he did transport by means of a common carrier.
Potter Stewart: Transport and carry. Carry.
Erwin N. Griswold: Yes, that is because the statute says transport and carry, I believe. I would suggest that it is quite a lot of itself to take along with you 68 reels of --
Potter Stewart: Because of unlimited weight these days on domestic airlines.
Erwin N. Griswold: I am sorry Mr. Justice.
Potter Stewart: Well one can carry with you on domestic airlines these days.
Erwin N. Griswold: Yes. I agree that the indictment is --
Potter Stewart: Anyway, it is not clear that this was in shipment.
Erwin N. Griswold: Yes, it is not, it is not clear that this was an ordinary shipment. I read the First Amendment of course with great respect and indeed gratitude. I have been in places where there is nothing like the First Amendment and I know the feeling that can be gendered and people who are subject to such a regime. But no matter how much I read it, I don’t find anything in it about commercial or private. I do not find anything in it about children, non consenting adults or pandering to the extent that these terms have come in to the discussion of these problems. They are obviously used to define or describe concepts or ideas which are derived out of the First Amendment in some way or another. Obviously, the First Amendment cannot be limited to the precise words. One can speak by raising his finger or by shaking his head. It is not limited to actuation of the vocal cords. On the other hand, there is very real room to question, how far the expansion of the amendment should be carried? How far matters of this sort should be left to legislative judgment when they do not involve any direct violation of anything which is contained in the amendment? And I mentioned these ideas about children and nonconsenting adult in private and commercial to show how far the conception has expanded.
William J. Brennan, Jr.: Well I assume that New York Times is commercial, Washington Post is commercial, and Christian Science Monitor is commercial?
Erwin N. Griswold: Yes, Mr. Justice. I argued that in the previous case. I don’t think that the distinction between private and commercial can find any support on the amendment. I can see some reasons when one thing is in term to thought control, but I do not find anything in the First Amendment that says anything about thought control. If one thinks in terms of thought control, then I think he can focus in on the man’s library in his own home. It was extraordinarily unfortunate that those Georgia officials who had power to under a search warrant to seize gambling equipment took it upon themselves to take materials out of the man’s private library and thereby create a case which came to this Court and I have great sympathy with the conclusion which was reached that is was not appropriate for them to prosecute him for the mere possession of materials in his own library, though I would have put it on Fourth Amendment grounds rather than on First Amendment grounds. I suggest to say that that establishes a doctrine that the First Amendment prevents thought control. And therefore, this right of privacy must be extended to a man no matter where he is, no matter what he does to his luggage, to his importations into the United States is to erect a very large structure on a very narrow base.
Byron R. White: But if you put the Stanley on the Fourth Amendment, then concededly, they can get a search warrant and seize it?
Erwin N. Griswold: Yes. Yes, I suppose you could and that it seems to me might conceivably involve a question under the Fourth Amendment which allows only reasonable searches and seizures, and a search for printed material, a man’s diary for example in the privacy of his own home might well be established by decisions of this Court. Boyd case comes -- approaches it doesn’t quite get there long ago as being beyond the scope of a reasonable search and seizure. Thus, if this case does involve any question of the applicability of the First Amendment to private possession of obscene material, we would make the same argument here that we made in the previous case that there is no appropriate basis for construing the First or shall I say expanding the First Amendment to make it applicable here, and that the decision below should be reversed.
Warren E. Burger: Mr. Shellow.
James M. Shellow: Mr. Chief Justice and may it please the Court. Let me at the outset correct if I may, a few impressions that may have been left with this Court by the Solicitor. The opinion of Judge Doyle in B & H Distributing Company rendered on September 14, 1972 after remand by this Court held only one thing and that is it held at Section 1462 is overbroad. It did not have anything whatsoever to do with children. It had nothing whatsoever to do with nonconsenting adults. It had nothing whatsoever to do with pandering. It merely held that Section 1462 as enacted can be applied to constitutionally protected activity, and for this reason is overbroad and it is therefore void. Secondly, incidentally Judge Doyle in that opinion assumed for the purposes of that opinion that the defendants in that case where engaged in the commercial distribution of obscenity, and he assumed that on the basis of the fact among other things that a large number of magazines where involved that it was not -- it was transportation by an express company and further that one of the defendants was the B & H Book Distributing Company and he figured that it was a reasonable assumption that it was a commercial venture. Second of all, the Zacher case which has been alluded to by the Solicitor is the companion case to Orito. Zacher and Orito while charged in different indictments where charged with the same transportation. And so, the record in Zacher flashes out the facts that are of course absent here for we are here on an indictment and its dismissal only. And in that, in the hearings in Zacher, it is quite clear that Mr. Justice Stewart’s inference is quite correct. And that is that the luggage was with him. This was personal hand luggage carried by it on an airplane in the cargo compartment. So, with those two matters out of the way, I can address what I conceived to be as the logic of our position. We approach the Court and ask the Court to look at Stanley and if Stanley means anything, it means that in our society today, a person can read what he wants, can look at what he wants, can enjoy the kind of material he wants to enjoy regardless of whether it has social value or not, that the private consumption of ideas is beyond the criminal sanctions of the Federal Government and beyond the criminal sanctions of any state including Georgia. The question then arises, does it really make any difference whether I am reading the obscene magazine in my home or whether I am reading it on an airplane, or whether I am taking it from my home to my summer home on an airplane or in a train and we asserted clearly does not. That the statute by its terms explicitly applies to the kind of reading to which I have referred. It referred to persons who carry obscene material by common carrier. There is no exception, there is no exclusion. The statute as it is written is overbroad and I think the question is what do we now? I think in its last argument and the last time we are here and again today, the Solicitor suggests that what you do is you give the statute a limiting construction, and you limit this construction to apply only to transportation in aid of or in furtherance of some commercial venture or distributive process. Without arguing, what the merits of such a statute would be and I have serious questions whether such a statute would be constitutional. It certainly would be a better statute than the one we have. And the question then is, can this Court do it? Can such a limiting construction be placed on Section 1462 so that the statute instead of reading transports in interstate commerce by common carrier would read transports with intent to sell or distribute. That’s what would have to be done to the statute and I submit you can’t do it and you can’t do it for several reasons. The first reason you can’t do it is that Congress did it and did it at 1894 and the legislative history of this statute shows that in 1894, in 1896, in 1897 and all the way up to 1909, this statute included the words with intent to sell. In 1909, there was a general revision of the Penal Code, and in the general revision of the Penal Code, the issue came up, whether or not we should include in the statute the phrase that had been there for 15 years, that is should we include in the statute “for intent to sell or distribute?” And the congressional history and the comments of those who addressed themselves to this Bill in the revision in 1909 and 1910 shall quite clearly that it was the intent of those who change the statute to make the statute now encompass personal possession, non-commercial possession, non-distributive possession, and why? Assembling Congressman Shurley said, we want to do it so that it is consistent with Section 1461. It wasn’t 1461 then, it was a different number. I think perhaps 212. He said we want to do it so it is consistent with the Comstock Act. The Comstock Act does not have any exemption, doesn’t exclude personal distribution by the mails. Therefore, we don’t want this one to do it, sort of an abstract symmetry; that’s one. Secondly, it was pointed out that if this only covered persons who transport with intent to sell, it would be impossible to enforce that nobody could ever prove up a case under the statute that we have to have a statute that covers both personal and commercial transportation, or will never get any convictions. The statute was changed in 1909. The intent to sell was dropped out. We have essentially today with some changes, albeit but not in pertinent part the statute that was adopted in 1909. And perhaps the argument could be made well. Congress did not know of the kind of reasoning that would come up in Stanley. The statute was tapered with again last year. Certainly, Congress knew Stanley, it has been decided by last year and last year when Congress withdrew from the reach of the statute, persons who shipped material advising others to use contraceptive devices certainly could have tinkered with the statute in this area as well. It is not as though the statute’s never been fussed with. The statute was changed in 1920 to include motion pictures. It was a changed, I guess I say again last year, to exclude contraceptive devices. So, the legislative history is squarely against any rewriting of this statute. In order to rewrite the statute, you would have to rewrite it back the way it was in 1894 and 1897, and essentially, you have to be telling Congressman Vilas, Congressman Shurley, and Congressman Houston that you didn’t mean what you said, and really the statute as you originally enacted, it should be permitted to stand. And I submit that’s legislation, that’s not adjudication. Secondly, the second reason that you can’t draft the statute is because one limiting construction won’t save it. Shall we have a statute that we are going to draft which will prohibit us was suggested in our last argument some months ago, my delivering by interstate carrier, my library of obscenity to the Library of Congress. Shall we have a statute that excludes gifts? Shall we have a statute at which we will write in a presumption such as is written in the 1465 so that those in the Attorney General’s Office and the Department of Justice have a chance of winning a prosecution under it? 1465 needs a presumption because without the presumption, nobody would ever get a conviction. Must you also then write a presumption into 1462? Yet, still another problem. What shall you do if you are going to rewrite the statute for Congress? If you are going to rewrite the statute for us all about those jurisdictions in which it is now lawful for adults to buy/sell, possess and transport admittedly obscene material? I know that Oregon is such a state now. I am advised that Hawaii has recently enacted similar legislation. Shall you draft into the statute as has been drafted into number of other federal statutes, exemptions to exempt those who ship this material and the jurisdictions in which it is not contraband? I submit this is not such a statute that you can rewrite it. You are not dealing with the procedural problems of Luros. You are dealing with the whole fabric of the statute as you were in Blount versus Rizzi. The statute must go back to Congress. It cannot -- it cannot I submit be given a limiting construction by this Court consonant with any of the principles which you have previously expressed concerning limiting statutes and interpreting congressional enactments. The -- this is not a question where you can sever out an offending word from a statute. There are no offending words. What you must do is you must take the language of the statute itself and add clauses to it. Now in Luros, you have a severability statute that permitted you to sever out certain applications, and perhaps you could do so. You do not have the same severability statute in Title 18. Now, regardless of how you see the roots of Stanley, I think it’s possible perhaps to see Stanley having its roots as a First Amendment problem, as a First Amendment right. The right perhaps to read, the right to acquire ideas, perhaps it’s a Fourth Amendment right and kind of a strange sense that the home gives the whole problems of Stanley and added dimension. Perhaps also it’s a Ninth Amendment right, just the right to be let alone, the right to read and enjoy what you like. And if Stanley has Fourth Amendment, Fourth Amendment dimensions, so Orito also has added dimensions. Although Orito is on an airplane with his luggage, and Mancusi and Katz tell us that where one has a reasonable expectation of privacy, the Fourth Amendment gives him such privacy. Other cases speak to the same issue, if you look at Edwards versus California, long time ago back in 1941, and more recently Dunn versus Blumstein, and still more recently I think Shapiro versus Thompson. We have another right. Somehow Mr. Orito has a right to travel within the continental United States and no one can place a burden on that right. I don’t know that this Court has ever set forth clearly what the roots of the right -- of that right are. But somewhere, somewhere in the fabric of our constitution is Mr. Orito’s right to go from Washington to Milwaukee. And if he can go from Washington to Milwaukee, if he can go one place to another, then he can go carrying something as long it is not contraband. As long as it’s not goods made with convict made labor, as long as it’s not goods made with children, as long as it’s not contaminated fruit, what Mr. Orito can read in the privacy of his home in Milwaukee, Wisconsin, he can carry with him to California. For he has the right to read and the right to travel, and the two of them come together in much the same way as Stanley has right to read and his right to be let alone in his own home, sort of come together --
Thurgood Marshall: Does he have the right to have nine copies at the same film and ten copies of another one, and eight copies of another one?
James M. Shellow: And -- what we do is we look to overbreadth. Perhaps Mr. Orito is transporting this material in his luggage for as a commercial venture. Nonetheless, he has standing to raise the overbreadth of the statute as you recently said in Gooding v. Wilson. He raises the application even if you infer from this that it’s a commercial venture. He has the right to raise those whose transportation is purely personal.
Thurgood Marshall: How (Inaudible) if he had nine copies and ten copies of some (Inaudible)?
James M. Shellow: It seems --
Thurgood Marshall: This case doesn’t go too far.
James M. Shellow: No. All right, let us, if you wish. I am not prepared to assume in we did not stipulate as Reidel did and as Luros did. We stipulate no commercial venture. We look to the indictment and say the statute is overbroad. But even, even this is a commercial venture, he has the right to assert the overbreadth of the statute for it would apply to noncommercial transportation, so said this Court in Gooding most recently. Orito was search to stand. He comes before the Court and says this statute is no good and you can’t construe it so that it is any good. And that is why it doesn’t make any difference. If in this case Mr. Orito has one copy of one dirty magazine, 10 copies of films or 150 copies, incidentally, there is nothing in this indictment which tells us the films are the same. That is we don’t know there copies, I don’t think, but let us -- I am willing to infer it. I don’t think it’s central to my argument and I don’t think it’s central to Mr. Orito’s right.
Thurgood Marshall: You say nine copies labeled number 5 other than that they had duplicate copies?
James M. Shellow: I read United States v. Ross in which this Court held you cannot pile one inference upon another.
Thurgood Marshall: But what is there in Roth that had an indictment?
James M. Shellow: Not Roth, Ross Your Honor.
Thurgood Marshall: Or any other one? This is nine copies labeled?
James M. Shellow: Fine. Let us assume I’ll concede that for you if you want to you where the purpose of this argument alone that they are the same. Must we conclude from the fact that they are the same that he is in the business? I’ll even give you that inference. And yet, he has the right to assume that this prosecution would lie if he had one deck of playing cards in his pocket on that airplane. You cannot restrict Mr. Orito’s right under a statute which would restrict my right to bring exhibits to this Court.
Thurgood Marshall: Well, do you agree that you do not have the personal right in your case that you had in the cases before this? Do you agree with that?
James M. Shellow: There is no stipulation in this case that it was for commercial ventures. If you wish to draw the inference and feel the inference is not so attenuated that it can be drawn --
Thurgood Marshall: At least, you don’t have an admission by the U.S. Government that is for private purposes, do you?
James M. Shellow: I have no admissions from the United States Government in this case whatsoever, and we have no concessions by the defendant either. We stand before the Court and say the statute is no good. It can’t be applied to Mr. Orito, and it can’t be applied to Mr. Zacher, and it can’t be applied to me if I happen to have the exhibits in this case one copy of them as I go back on the plane to Milwaukee. That is not an indictable offense and it can’t be made an indictable offense, and for carrying exhibits to this Court, I can’t go to the penitentiary for five years, and you got to figure out someway of making the statute say that and you can’t do it because the legislative history is against you. You throw the statute out and give it back to Congress and say give us a statute that comports with the First Amendment, the Fourth Amendment, the Ninth and maybe the Fourteenth, and maybe the right to travel, maybe somewhere woven in there is the right that -- Let me suggest to you that maybe -- maybe the way to distinguish a way Reidel and Luros, and I’m not awfully happy with this distinction. But maybe the way to distinguish it is -- if you are transporting on a common carrier obscene material, you seek no one’s aid but the common carrier whereas Mr. Reidel sought the aid of the United States Government in purveying his stock as did Mr. Luros seek the affirmative assistance of our Customs Agency. Those who are prosecuted under 1462 seek no one’s help. We do not seek to make the Government a partner in this enterprise. We just seek to be left alone and maybe that’s the distinction. The historic interest that this Government is taking unto to this Court has taken. In the mails, in the customs, we have different rules. A reading of a border’s search problem convinces anyone, do you know, that customs problems are sui generis, even in the criminal field. And yet, I submit to you that’s a distinction that’s so viable one perhaps in this area of obscenity for Luros was a custom’s case and he sought the Government’s help as Reidel sought it to use the mails. I suggest one further problem the if the statute is rewritten by this Court to add the phrase that was deleted in 1909 and to take us back to the statute that was enacted in 1894, that would we then not to be confronted with a statute that had no determinable limits. How can I advise anyone at to what are the elements of a crime if all that’s necessary is the intent? I suggest to you that you said in the Campos-Serrano, not too long ago that the principal restrict them structure criminal statute demands that some determinable limits be established based upon the actual words of the statute. That’s what Mr. Justice Stewart said. The actual words of the statute don’t place determinable limits on it. The actual words of the statute make me criminally liable for taking these exhibits to Milwaukee. Actual words of the statute actually conform to what Congress wanted to enact. Congress wanted to enact the statute that covered the transportation of material by private persons not for gain, not for hire, not for distribution, and Congress enacted such a law and the law is unconstitutional, and we can’t save it as much as we would like to. I submit that the language that appears in Thirty-seven Photographs where the Blount case is discussed is apposite, where the Court said that in Blount and I submit as in Orito, you are dealing with the federal statute and you have a power to give in an authoritative construction. However, in this case as in Blount salvation of the statute would have require to complete rewriting of it, in a manner inconsistent with the expressed intentions of some of its authors. The language was from Blount, but the application is crystal clear to Orito. There is absolutely no way of escaping the fact that a rewriting of the statute flies in the face of what its authors wanted, of what they explicitly said they wanted, and in that case -- in this case, even more so they have the statute that should have to rewrite and repealed it or amended it. So, I suggest that we seek not an extension really of Stanley. Stanley does not say much more, I don’t think that an individual has a right to read what he likes, where he likes. Stanley wanted to read it in his home, perhaps I want to read it on an airplane. As long as I do not show it kids and don’t poke the person next to me and say, hey look at my magazine. I think I have the right to read it.
Warren E. Burger: What statute or what part of the First Amendment brings in that last factor?
James M. Shellow: My right to read, my right to read on an airplane.
Warren E. Burger: No, no, the prohibition that you suggested as long as you didn’t show it to anyone else. Where does that prohibition arise?
James M. Shellow: I think just as I have a right to be left alone, so perhaps to everyone else. And somehow, my right to read that which may offend others does not extend to my right to offend them. And perhaps this Court can’t enact or this Court cannot adjudicate good manners, and maybe that’s all I am saying.
Potter Stewart: Well, can’t you -- to all cases like Pollack and so on indicate that there’s an affirmative right on your -- that your neighbor in the airplane has or anybody else has not to read? Doesn’t the First Amendment include the right not to read and not to listen to what you don’t want to read?
James M. Shellow: Of course.
Potter Stewart: And don’t want to listen to?
James M. Shellow: Of course.
Potter Stewart: More than just to -- But there was the dissent in Pollack in the opinion.
James M. Shellow: I think -- I think that --
Potter Stewart: In any event, it’s been suggested that [Voice Overlap].
James M. Shellow: I certainly think so. I think that the -- I don’t know the [Voice Overlap].
Potter Stewart: Include the right not to read.
James M. Shellow: The right not to be exposed to loud speakers in a bus perhaps.
William H. Rehnquist: Well, Mr. Shellow but when you poke your neighbor on the airplane, that’s not the United States Government imposing any burden on him?
James M. Shellow: I understand. That’s why I suggested to that there maybe nothing more nor less than good manner.
William H. Rehnquist: Well, yes. You suggested earlier into the argument, you are making of the Chief Justice request about that this was some sort of a limitation on the First Amendment, I thought.
James M. Shellow: No. I suggest that the individual’s right to -- maybe the individual who rides next to me and the zone of privacy which surrounds him and his expectation of privacy, maybe that imposes upon me under the constitution, a correlative obligation not to invade it.
William H. Rehnquist: Well, what Section of the Constitution?
James M. Shellow: I don’t know, I can’t, maybe it’s First Amendment, maybe it’s Ninth --
Potter Stewart: What it does is authorize the Government to prevent you from poking your neighbor --
James M. Shellow: I think so.
Potter Stewart: -- and you’re shoving this under his nose, and that’s the First Amendment.
James M. Shellow: I will buy that and I think that -- thank you. That is way I look at it.[Laughter]
William H. Rehnquist: Well, but Mr. Shellow, unless the Government has taken some action that right doesn’t come to life I take it.
James M. Shellow: Unless the Government takes some action or unless Congress enacts a statute that says that he who thrust obscene material upon his neighbor on an airplane shall be subject to five years imprisonment and a fine of $10,000 then maybe that statute would be constitutional.
William H. Rehnquist: But short of some affirmative congressional act, it’s hard to bring [Voice Overlap].
James M. Shellow: Short of congressional action, its good manners; with congressional action, it maybe constitutional. Under neither circumstance, this 1462 withstand analysis. Thank you.
Warren E. Burger: Thank you Mr. Shellow. Mr. Solicitor General, do you have anything further?
Erwin N. Griswold: No, we’re fine.
Warren E. Burger: Thank you gentlemen. The case is submitted.