B. Introduction to Equitable Relief

  1. Why would a plaintiff seek equitable relief under Section 1983?
  2. How should courts apply the general standards governing the awarding of equitable relief where the plaintiff has proven a constitutional violation?
    1. Is the remedy at law generally adequate to redress deprivations of a constitutional right? See Elrod v. Burns, 427 U.S. 347, 373 (1976) (“the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”).
    2. Is any legal remedy available where the State itself is responsible for the invasion of constitutional liberties? See Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 356, 362 (4th Cir. 1991) (“[T]he conclusion that, in most circumstances, ‘the possibility that adequate compensatory … relief will be available at a later date … weighs heavily against a claim of irreparable harm’ [citation omitted] is not present here. The … narrowing of remedies available under § 1983 limits the Company’s ability to obtain damages [against the West Virginia State Police].”); United States v. State of New York, 708 F.2d 92, 93 (2d Cir. 1983) (Irreparable harm suffered where Eleventh Amendment forecloses federal court damage action against State, even where state law damage action is available). See also Quern v. Jordan, 440 U.S. 332, 345 (1979) (“Nor does our reaffirmance of Edelman [v. Jordan] render § 1983 meaningless insofar as States are concerned. See Ex Parte Young, 209 U.S. 123 (1908)”).
    3. Is there an adequate remedy at law where the individual government official has qualified immunity? See Blum v. Schlegel, 830 F. Supp. 712, 728 (W.D.N.Y. 1993) (irreparable injury demonstrated where defendant shielded from damages liability by qualified immunity).
    4. May the government ever successfully argue that the hardship of enjoining the government from contravening the constraints of the Constitution outweighs the hardship of relegating the plaintiff to a damage remedy? See Owen v. City of Independence, Missouri, 445 U.S. 622, 649 (1980) (“[A] municipality has no ‘discretion’ to violate the Federal Constitution; its dictates are absolute and imperative.”).
    5. Are there ever circumstances where the public interest favors permitting the government to continue to transgress constitutional norms?
  3. What standards for the issuance of equitable relief did the Court apply in Part II of the majority opinion in Rizzo v. Goode, 432 U.S. 362 (1976) (Chapter II(C), infra.  What additional criteria did the Court apply in assessing the propriety of injunctive relief for the constitutional violations in Rizzo?
  4. In Mitchum v. Foster, 407 U.S. 225 (1972), the Court held that Section 1983 is one of the expressly authorized exceptions to the federal anti-injunction statute, which provides in pertinent part that a federal court “may not grant an injunction to stay proceedings in a state court except as expressly authorized by Act of Congress.” 28 U.S.C. § 2283. While finding that Section 1983 conferred authority upon federal courts to issue injunctions against pending state proceedings, the Court made clear that ”[i]n so concluding, we do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. These principles, in the context of state criminal prosecutions, were canvassed at length last Term in Younger v. Harris

    Mitchum, 407 U.S. at 225.

    In Younger v. Harris, 401 U.S. 37 (1971) the Court held that considerations of comity barred federal courts from enjoining pending state criminal prosecutions absent extraordinary circumstances:

    The precise reasons for this longstanding public policy against federal court interference with state court proceedings have never been specifically identified but the primary sources of the policy are plain. One is the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief….

    This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of “comity,” that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as “Our Federalism.” … What the concept [represents] is a system in which there is sensitivity to the legitimate interests of both the State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.

    Younger, 401 U.S. at 43-44. See also Samuels v. Mackell, 401 U.S. 66, 73 (1971) (the “same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory injunction, and that where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well.”). The Younger Court held that the mere fact that the statute that is the subject of the criminal prosecution is on its face unconstitutional does not merit an injunction against a good-faith prosecution, presumably because the Section 1983 plaintiff may raise the constitutional issue as a defense to the state court criminal proceeding. The scope of the Younger bar to interference with pending state proceedings has been the subject of considerable Supreme Court attention. See MARTIN A. SCHWARTZ AND JOHN E. KIRKLIN, SECTION 1983 LITIGATION: CLAIMS, FEES AND DEFENSES, §§ 14.6-14.11.

ASHCROFT v. MATTIS, 431 U.S. 171 (1977).

Missouri State Trooper Car and Logo
Missouri State Trooper Car. Bill Kast. Flickr

Per Curiam

[1]Appellee’s 18-year-old son was shot and killed by police while attempting to escape arrest. Appellee filed suit under 42 U.S.C. § 1983 against the police officers in the United States District Court for the Eastern District of Missouri. He sought to recover damages, and also to obtain a declaratory judgment that the Missouri statutes authorizing the police action were unconstitutional.[1] The District Court held that a defense of good faith had been established, and denied both forms of relief. No appeal was taken from the denial of damages, but appellee did seek review of the denial of declaratory relief. The Eighth Circuit held that declaratory relief was available and remanded for consideration of the merits of the constitutional issue. Mattis v. Schnarr, 502 F. 2d 588 (1974).

[2]On remand, appellee filed an amended complaint, in which he made no claim for damages. The Missouri Attorney General was allowed to intervene in defense of the statutes, and the case was then submitted on stipulated facts. The District Court upheld the statutes, Mattis v. Schnarr, 404 F. Supp. 643 (1975), but was reversed by a divided Court of Appeals, sitting en banc, 547 F.2d 1007 (1976). The Attorney General brought an appeal under 28 U.S.C. § 1254(2) from the holding that the state statutes were unconstitutional.

[3]Although we are urged to consider the merits of the Court of Appeals’ holding, we are unable to do so, because this suit does not now present a live “case or controversy.” This suit was brought to determine the police officers’ liability for the death of appellee’s son. That issue has been decided, and there is no longer any possible basis for a damages claim. Nor is there any possible basis for a declaratory judgment. For a declaratory judgment to issue, there must be a dispute which “calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 242 (1937). See also Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). Here, the District Court was asked to answer the hypothetical question whether the defendants would have been liable apart from their defense of good faith. No “present right” of appellee was at stake. Indeed, appellee’s primary claim of a present interest in the controversy is that he will obtain emotional satisfaction from a ruling that his son’s death was wrongful.[2] Appellee’s Motion to Affirm 5-6, n.1. Emotional involvement in a lawsuit is not enough to meet the case-or-controversy requirement; were the rule otherwise, few cases could ever become moot.
[4]The judgment of the Court of Appeals is vacated, and the case is remanded with instructions to direct the District Court to dismiss the second amended complaint.

It is so ordered.


  1. These statutes permit police to use deadly force in apprehending a person who has committed a felony, following notice of the intent to arrest. Mo. Rev. Stat. §§ 559.040 and 544.190 (1969); see Mattis v. Schnarr, 502 F.2d 588, 591, and n.4 (CA8 1974).


  2. The second amended complaint also alleges that appellee has another son who “if ever arrested or brought under an attempt at arrest on suspicion of a felony, might flee or give the appearance of fleeing, and would therefore be in danger of being killed by these defendants or other police officers.” 3 App. in Mattis v. Schnarr, No. 75-1849 (CA8), p. 5 (emphasis added). Such speculation is insufficient to establish the existence of a present, live controversy.

Notes on Ashcroft v. Mattis

  1. After Ashcroft, is there any way to challenge the constitutionality of the Missouri statute authorizing state police officers to use deadly force against a fleeing felon following notice of arrest?
    1. Is there any circumstance under which the shooting officer’s reliance on the Missouri statute would not confer qualified immunity in an action for damages against the police officers?
    2. What would be the outcome if plaintiff brought a damage action against the State? Against the shooting officers in their official capacities? Against the legislators who passed the statute?
    3. Is there any circumstance under which a case or controversy would exist if the plaintiff sought equitable relief? Even if the fleeing felon survived the shooting, could he establish a live case or controversy for an action for a declaratory judgment? For an injunction against use of deadly force should plaintiff in the future commit a felony, flee and disregard the police officers’ notice of intent to arrest?
  2. In American Federation of Railroad Police, Inc. (AFRP), v. National Railroad Passenger Corp. (AMTRAK), 832 F.2d 14 (2d Cir. 1987), the union representing policemen employed by Amtrak brought an action under Section 1983 seeking a declaratory judgment that Amtrak’s policy of ejecting homeless persons from Penn Station in New York violated the constitutional rights of the homeless as well as requesting an injunction restraining Amtrak from requiring the policemen to carry out the policy. The court of appeals affirmed the district court’s dismissal of the complaint:

    AFRP’s claim that Amtrak’s policy exposes its members to physical injury is based on the premise that the persons Amtrak policemen seek to eject from Penn Station will respond with violence. The premise is insufficient to support a claim on which relief can be granted. Violent resistance to police orders would of course be unlawful, and no basis has been presented for believing that the routine response of a homeless person to an ejectment order would be violence.

    * * * * *

    AFRP also alleges that Amtrak’s policy “is unreasonably causing AFRP member AMTRAK police employees emotional injury, pain and suffering.” Such a claim is too abstract to give AFRP standing to invoke the jurisdiction of the federal court…. The principal impetus for this lawsuit … is the apprehension that the policemen may be exposed to liability for violating the civil rights of the persons ejected from the station. The complaint does not allege that any AFRP member has been sued or threatened with suit. In the circumstances, this claim is based on a series of speculations, including the hypothesis that an ejected person will bring suit; that all defenses, including that of qualified immunity, will fail; and that Amtrak would fail to honor its bylaw-undertaking to indemnify an officer for legal expenses and liability incurred as a result of his good faith compliance with Amtrak instructions. Reliance on such a series of speculative premises reveals a lack of the concreteness necessary to present a genuine case or controversy.

    * * * * *

    The doctrine of standing in the federal courts, which has its principal roots in Article III of the Constitution, generally prohibits a plaintiff from asserting another person’s legal rights [P]rudential considerations lead us to deny a party standing to pursue a claim of a nonparty unless, inter alia, the plaintiff “can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal.” [citation omitted].

    AFRP’s attempt to assert the rights of the homeless does not meet this test. As noted above, the main impetus of this suit is the policemen’s fear of incurring liability for violating the civil rights of those ejected. The concern that policemen not be held liable, however, would be allayed just as well by a ruling that AFRP does not violate homeless persons’ constitutional rights as by a ruling that the policy is unconstitutional. Accordingly, there is no reasonable basis for expecting AFRP to press the rights of the homeless with the necessary vigor, and we conclude that AFRP lacks standing to assert those rights.

    AFRP, 832 F.2d at 16-18; but see Harley v. Schuylkill, 476 F. Supp. 191, 194 (E.D. Pa. 1979) (“The duty to refrain from acting in a manner which would deprive another of constitutional rights is a duty created and imposed by the constitution itself. It is logical to believe that the concurrent right is also one which is created and secured by the constitution. Therefore, we hold that the right to refuse to perform an unconstitutional act is a right ‘secured by the Constitution’ within the meaning of § 1983.”).

  3. The Supreme Court ultimately addressed the constitutionality of state statutes authorizing the use of deadly force to prevent the escape of a fleeing felon in Tennessee v. Garner, 471 U.S. 1 (1984). Unlike Ashcroft, the action for damages in Garner arose out of a shooting by City of Memphis—rather than State—police officers pursuant to departmental policy and the Tennessee statute authorizing use of deadly force against fleeing felons. Plaintiff not only sued the individual officers involved in the shooting, but also named the Police Department and City of Memphis as defendants. As in Ashcroft, the officers were granted qualified immunity by virtue of their reliance on the state statute. However, because the local entity defendants were not entitled to assert immunity, the Court proceeded to assess the constitutionality of the City policy and, in turn the Tennessee statute. The Court held that under the Constitution, deadly force may not be used “unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Garner, 471 U.S. at 3.Will it always be possible to adjudicate the constitutionality of a state statute by suing a local governmental entity for damages?
  4. Could Mattis establish standing to challenge the constitutionality of the Missouri statute on the ground that his claim is “capable of repetition yet evading review?” See Friends of Earth v. Laidlaw Environmental Servs., 528 U.S. 167, 191 (2000) (“[I]f a plaintiff lacks standing at the time the action commences, the fact that the dispute is capable of repetition yet evading review will not entitle the complainant to a judicial forum.”).

CITY OF LOS ANGELES v. LYONS, 461 U.S. 95 (1983).

left: Los Angeles Police Chief Daryl F. Gater; middle: Los Angeles Police Officer badge; right: Anatomical diagram of chokehold
Left: Officer Gater. PicClick Middle: L.A. police badge. SOG Military Collectables. Pinterest.; Right: chokehold diagram



left: Photo of police officer applying chokehold; middle: Anatomical diagram of carotid artery hold; right: Photo of police officer applying carotid artery hold
Left: Chokehold. Republic Reporters New York.; Middle: carotid artery diagram; Right: police apply carotid artery hold

Justice White delivered the opinion of the Court.

[1]The issue here is whether respondent Lyons satisfied the prerequisites for seeking injunctive relief in the Federal District Court.


[2]This case began on February 7, 1977, when respondent, Adolph Lyons, filed a complaint for damages, injunction, and declaratory relief in the United States District Court for the Central District of California. The defendants were the City of Los Angeles and four of its police officers. The complaint alleged that on October 6, 1976, at 2 a.m., Lyons was stopped by the defendant officers for a traffic or vehicle code violation and that although Lyons offered no resistance or threat whatsoever, the officers, without provocation or justification, seized Lyons and applied a “chokehold”[3]—either the “bar arm control” hold or the “carotid-artery control” hold or both—rendering him unconscious and causing damage to his larynx. Counts I through IV of the complaint sought damages against the officers and the City. Count V, with which we are principally concerned here, sought a preliminary and permanent injunction against the City barring the use of the control holds. That count alleged that the City’s police officers, “pursuant to the authorization, instruction and encouragement of Defendant City of Los Angeles, regularly and routinely apply these choke holds in innumerable situations where they are not threatened by the use of any deadly force whatsoever,” that numerous persons have been injured as the result of the application of the chokeholds, that Lyons and others similarly situated are threatened with irreparable injury in the form of bodily injury and loss of life, and that Lyons “justifiably fears that any contact he has with Los Angeles Police officers may result in his being choked and strangled to death without provocation, justification or other legal excuse.” Lyons alleged the threatened impairment of rights protected by the First, Fourth, Eighth, and Fourteenth Amendments. Injunctive relief was sought against the use of the control holds “except in situations where the proposed victim of said control reasonably appears to be threatening the immediate use of deadly force.” Count VI sought declaratory relief against the City, i.e., a judgment that use of the chokeholds absent the threat of immediate use of deadly force is a per se violation of various constitutional rights.

* * * * *

[3]The District Court found that Lyons had been stopped for a traffic infringement and that without provocation or legal justification the officers involved had applied a “Department-authorized chokehold which resulted in injuries to the plaintiff.” The court further found that the department authorizes the use of the holds in situations where no one is threatened by death or grievous bodily harm, that officers are insufficiently trained, that the use of the holds involves a high risk of injury or death as then employed, and that their continued use in situations where neither death nor serious bodily injury is threatened “is unconscionable in a civilized society.” The court concluded that such use violated Lyons’ substantive due process rights under the Fourteenth Amendment. A preliminary injunction was entered enjoining “the use of both the carotid artery and bar arm holds under circumstances which do not threaten death or serious bodily injury.” An improved training program and regular reporting and recordkeeping were also ordered.[4] The Court of Appeals affirmed in a brief per curiam opinion stating that the District Court had not abused its discretion in entering a preliminary injunction. 656 F.2d 417 (1981). We granted certiorari, 455 U.S. 937 (1982), and now reverse.


[4]Since our grant of certiorari, circumstances pertinent to the case have changed. Originally, Lyons’ complaint alleged that at least two deaths had occurred as a result of the application of chokeholds by the police. His first amended complaint alleged that 10 chokehold-related deaths had occurred. By May 1982, there had been five more such deaths. On May 6, 1982, the Chief of Police in Los Angeles prohibited the use of the bar-arm chokehold in any circumstances. A few days later, on May 12, 1982, the Board of Police Commissioners imposed a 6-month moratorium on the use of the carotid artery chokehold except under circumstances where deadly force is authorized.

[5]Based on these events, on June 3, 1982, the City filed in this Court a memorandum suggesting a question of mootness, reciting the facts but arguing that the case was not moot. Lyons in turn filed a motion to dismiss the writ of certiorari as improvidently granted. We denied that motion but reserved the question of mootness for later consideration. 457 U.S. 1115 (1982).

[6]In his brief and at oral argument, Lyons has reasserted his position that in light of changed conditions, an injunctive decree is now unnecessary because he is no longer subject to a threat of injury. He urges that the preliminary injunction should be vacated. The City, on the other hand, while acknowledging that subsequent events have significantly changed the posture of this case, again asserts that the case is not moot because the moratorium is not permanent and may be lifted at any time.

[7]We agree with the City that the case is not moot, since the moratorium by its terms is not permanent. Intervening events have not “irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). We nevertheless hold, for another reason, that the federal courts are without jurisdiction to entertain Lyons’ claim for injunctive relief.


[8]It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controversy. Flast v. Cohen, 392 U.S. 83, 94-101 (1968); Jenkins v. McKeithen, 395 U.S. 411, 421-425 (1969) (opinion of Marshall, J.). Plaintiffs must demonstrate a “personal stake in the outcome” in order to “assure that concrete adverseness which sharpens the presentation of issues” necessary for the proper resolution of constitutional questions. Baker v. Carr, 369 U.S. 186, 204 (1962). Abstract injury is not enough. The plaintiff must show that he “has sustained or is immediately in danger of sustaining some direct injury” as the result of the challenged official conduct and the injury or threat of injury must be both “real and immediate,” not “conjectural” or “hypothetical.”

* * * * *

[9]In O’Shea v. Littleton, 414 U.S. 488 (1974), we dealt with a case brought by a class of plaintiffs claiming that they had been subjected to discriminatory enforcement of the criminal law. Among other things, a county magistrate and judge were accused of discriminatory conduct in various respects, such as sentencing members of plaintiff’s class more harshly than other defendants.

* * * * *

[10][W]e observed that “[past] exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief … if unaccompanied by any continuing, present adverse effects.” Id. at 495-496. Past wrongs were evidence bearing on “whether there is a real and immediate threat of repeated injury.” Id. at 496. But the prospect of future injury rested “on the likelihood that [plaintiffs] will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners.” Ibid. The most that could be said for plaintiffs’ standing was “that if [plaintiffs] proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed.” Id., at 497. We could not find a case or controversy in those circumstances: the threat to the plaintiffs was not “sufficiently real and immediate to show an existing controversy simply because they anticipate violating lawful criminal statutes and being tried for their offenses….” Id. at 496. It was to be assumed that “plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners.” Id. at 497.

* * * * *

[11]Another relevant decision for present purposes is Rizzo v. Goode, 423 U.S. 362 (1976), a case in which plaintiffs alleged widespread illegal and unconstitutional police conduct aimed at minority citizens and against city residents in general. The Court reiterated the holding in O’Shea that past wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy. The claim of injury rested upon “what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman’s perception” of departmental procedures. 423 U.S. at 372. This hypothesis was “even more attenuated than those allegations of future injury found insufficient in O’Shea to warrant [the] invocation of federal jurisdiction.” Ibid. The Court also held that plaintiffs’ showing at trial of a relatively few instances of violations by individual police officers, without any showing of a deliberate policy on behalf of the named defendants, did not provide a basis for equitable relief.

* * * * *


[12]No extension of O’Shea and Rizzo is necessary to hold that respondent Lyons has failed to demonstrate a case or controversy with the City that would justify the equitable relief sought. Lyons’ standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers. Count V of the complaint alleged the traffic stop and choking incident five months before. That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part. The additional allegation in the complaint that the police in Los Angeles routinely apply chokeholds in situations where they are not threatened by the use of deadly force falls far short of the allegations that would be necessary to establish a case or controversy between these parties.

[13]In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such manner. Although Count V alleged that the City authorized the use of the control holds in situations where deadly force was not threatened, it did not indicate why Lyons might be realistically threatened by police officers who acted within the strictures of the City’s policy. If, for example, chokeholds were authorized to be used only to counter resistance to an arrest by a suspect, or to thwart an effort to escape, any future threat to Lyons from the City’s policy or from the conduct of police officers would be no more real than the possibility that he would again have an encounter with the police and that either he would illegally resist arrest or detention or the officers would disobey their instructions and again render him unconscious without any provocation.

[14]Under O’Shea and Rizzo, these allegations were an insufficient basis to provide a federal court with jurisdiction to entertain Count V of the complaint.[5]

* * * * *

[15]For several reasons—each of them infirm, in our view—the Court of Appeals thought reliance on O’Shea and Rizzo was misplaced and reversed the District Court.

[16]First, the Court of Appeals thought that Lyons was more immediately threatened than the plaintiffs in those cases since, according to the Court of Appeals, Lyons need only be stopped for a minor traffic violation to be subject to the strangleholds. But even assuming that Lyons would again be stopped for a traffic or other violation in the reasonably near future, it is untenable to assert, and the complaint made no such allegation, that strangleholds are applied by the Los Angeles police to every citizen who is stopped or arrested regardless of the conduct of the person stopped. We cannot agree that the “odds,” 615 F.2d, at 1247, that Lyons would not only again be stopped for a traffic violation but would also be subjected to a chokehold without any provocation whatsoever are sufficient to make out a federal case for equitable relief. We note that five months elapsed between October 6, 1976, and the filing of the complaint, yet there was no allegation of further unfortunate encounters between Lyons and the police.

[17]Of course, it may be that among the countless encounters between the police and the citizens of a great city such as Los Angeles, there will be certain instances in which strangleholds will be illegally applied and injury and death unconstitutionally inflicted on the victim. As we have said, however, it is no more than conjecture to suggest that in every instance of a traffic stop, arrest, or other encounter between the police and a citizen, the police will act unconstitutionally and inflict injury without provocation or legal excuse. And it is surely no more than speculation to assert either that Lyons himself will again be involved in one of those unfortunate instances, or that he will be arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury.

[18]Second, the Court of Appeals viewed O’Shea and Rizzo as cases in which the plaintiffs sought “massive structural” relief against the local law enforcement systems and therefore that the holdings in those cases were inapposite to cases such as this where the plaintiff, according to the Court of Appeals, seeks to enjoin only an “established,” “sanctioned” police practice assertedly violative of constitutional rights. O’Shea and Rizzo, however, cannot be so easily confined to their facts. If Lyons has made no showing that he is realistically threatened by a repetition of his experience of October 1976, then he has not met the requirements for seeking an injunction in a federal court, whether the injunction contemplates intrusive structural relief or the cessation of a discrete practice.

[19]The Court of Appeals also asserted that Lyons “had a live and active claim” against the City “if only for a period of a few seconds” while the stranglehold was being applied to him and that for two reasons the claim had not become moot so as to disentitle Lyons to injunctive relief: First, because under normal rules of equity, a case does not become moot merely because the complained of conduct has ceased; and second, because Lyons’ claim is “capable of repetition but evading review” and therefore should be heard. We agree that Lyons had a live controversy with the City. Indeed, he still has a claim for damages against the City that appears to meet all Art. III requirements. Nevertheless, the issue here is not whether that claim has become moot but whether Lyons meets the preconditions for asserting an injunctive claim in a federal forum. The equitable doctrine that cessation of the challenged conduct does not bar an injunction is of little help in this respect, for Lyons’ lack of standing does not rest on the termination of the police practice but on the speculative nature of his claim that he will again experience injury as the result of that practice even if continued.

[20]The rule that a claim does not become moot where it is capable of repetition, yet evades review, is likewise inapposite. Lyons’ claim that he was illegally strangled remains to be litigated in his suit for damages; in no sense does that claim “evade” review. Furthermore, the capable-of-repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality. DeFunis v. Odegaard, 416 U.S. 312, 319 (1974). As we have indicated, Lyons has not made this demonstration.

[21]The record and findings made on remand do not improve Lyons’ position with respect to standing. The District Court, having been reversed, did not expressly address Lyons’ standing to seek injunctive relief, although the City was careful to preserve its position on this question. There was no finding that Lyons faced a real and immediate threat of again being illegally choked. The City’s policy was described as authorizing the use of the strangleholds “under circumstances where no one is threatened with death or grievous bodily harm.” That policy was not further described, but the record before the court contained the department’s existing policy with respect to the employment of chokeholds. Nothing in that policy, contained in a Police Department manual, suggests that the chokeholds, or other kinds of force for that matter, are authorized absent some resistance or other provocation by the arrestee or other suspect. On the contrary, police officers were instructed to use chokeholds only when lesser degrees of force do not suffice and then only “to gain control of a suspect who is violently resisting the officer or trying to escape.” App. 230.

[22]Our conclusion is that the Court of Appeals failed to heed O’Shea, Rizzo, and other relevant authority, and that the District Court was quite right in dismissing Count V.


[23]Lyons fares no better if it be assumed that his pending damages suit affords him Art. III standing to seek an injunction as a remedy for the claim arising out of the October 1976 events. The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again—a “likelihood of substantial and immediate irreparable injury.” O’Shea v. Littleton, 414 U.S. at 502. The speculative nature of Lyons’ claim of future injury requires a finding that this prerequisite of equitable relief has not been fulfilled.

[24]Nor will the injury that Lyons allegedly suffered in 1976 go unrecompensed; for that injury, he has an adequate remedy at law. Contrary to the view of the Court of Appeals, it is not at all “difficult” under our holding “to see how anyone can ever challenge police or similar administrative practices.” 615 F.2d at 1250. The legality of the violence to which Lyons claims he was once subjected is at issue in his suit for damages and can be determined there.

[25]Absent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional.

* * * * *

[26]We decline the invitation to slight the preconditions for equitable relief; for as we have held, recognition of the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the States’ criminal laws in the absence of irreparable injury which is both great and immediate.

* * * * *

[27]As we noted in O’Shea, 414 U.S. at 503, withholding injunctive relief does not mean that the “federal law will exercise no deterrent effect in these circumstances.” If Lyons has suffered an injury barred by the Federal Constitution, he has a remedy for damages under § 1983. Furthermore, those who deliberately deprive a citizen of his constitutional rights risk conviction under the federal criminal laws. Ibid.

[28]Beyond these considerations the state courts need not impose the same standing or remedial requirements that govern federal-court proceedings. The individual States may permit their courts to use injunctions to oversee the conduct of law enforcement authorities on a continuing basis. But this is not the role of a federal court, absent far more justification than Lyons has proffered in this case.

* * * * *

Justice Marshall, with whom Justice Brennan, Justice Blackmun, and Justice Stevens join, dissenting.

[29]The District Court found that the city of Los Angeles authorizes its police officers to apply life-threatening chokeholds to citizens who pose no threat of violence, and that respondent, Adolph Lyons, was subjected to such a chokehold. The Court today holds that a federal court is without power to enjoin the enforcement of the city’s policy, no matter how flagrantly unconstitutional it may be. Since no one can show that he will be choked in the future, no one—not even a person who, like Lyons, has almost been choked to death—has standing to challenge the continuation of the policy. The city is free to continue the policy indefinitely as long as it is willing to pay damages for the injuries and deaths that result. I dissent from this unprecedented and unwarranted approach to standing.

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[30]Respondent Adolph Lyons is a 24-year-old Negro male who resides in Los Angeles. According to the uncontradicted evidence in the record, at about 2 a.m. on October 6, 1976, Lyons was pulled over to the curb by two officers of the Los Angeles Police Department (LAPD) for a traffic infraction because one of his taillights was burned out. The officers greeted him with drawn revolvers as he exited from his car. Lyons was told to face his car and spread his legs. He did so. He was then ordered to clasp his hands and put them on top of his head. He again complied. After one of the officers completed a patdown search, Lyons dropped his hands, but was ordered to place them back above his head, and one of the officers grabbed Lyons’ hands and slammed them onto his head. Lyons complained about the pain caused by the ring of keys he was holding in his hand. Within 5 to 10 seconds, the officer began to choke Lyons by applying a forearm against his throat. As Lyons struggled for air, the officer handcuffed him, but continued to apply the chokehold until he blacked out. When Lyons regained consciousness, he was lying face down on the ground, choking, gasping for air, and spitting up blood and dirt. He had urinated and defecated. He was issued a traffic citation and released.

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[31]Although the city instructs its officers that use of a chokehold does not constitute deadly force, since 1975 no less than 16 persons have died following the use of a chokehold by an LAPD police officer. Twelve have been Negro males. The evidence submitted to the District Court established that for many years it has been the official policy of the city to permit police officers to employ chokeholds in a variety of situations where they face no threat of violence. In reported “altercations” between LAPD officers and citizens the chokeholds are used more frequently than any other means of physical restraint. Between February 1975 and July 1980, LAPD officers applied chokeholds on at least 975 occasions, which represented more than three-quarters of the reported altercations.

[32]It is undisputed that chokeholds pose a high and unpredictable risk of serious injury or death. Chokeholds are intended to bring a subject under control by causing pain and rendering him unconscious. Depending on the position of the officer’s arm and the force applied, the victim’s voluntary or involuntary reaction, and his state of health, an officer may inadvertently crush the victim’s larynx, trachea, or hyoid. The result may be death caused by either cardiac arrest or asphyxiation. An LAPD officer described the reaction of a person to being choked as “[doing] the chicken,” Exh. 44, p. 93, in reference apparently to the reactions of a chicken when its neck is wrung. The victim experiences extreme pain. His face turns blue as he is deprived of oxygen, he goes into spasmodic convulsions, his eyes roll back, his body wriggles, his feet kick up and down, and his arms move about wildly.

[33]Although there has been no occasion to determine the precise contours of the city’s chokehold policy, the evidence submitted to the District Court provides some indications. LAPD Training Officer Terry Speer testified that an officer is authorized to deploy a chokehold whenever he “feels that there’s about to be a bodily attack made on him.” App. 381 (emphasis added). A training bulletin states that “[control] holds … allow officers to subdue any resistance by the suspects.” Exh. 47, p. 1 (emphasis added). In the proceedings below the city characterized its own policy as authorizing the use of chokeholds “‘to gain control of a suspect who is violently resisting the officer or trying to escape,'” to “subdue any resistance by the suspects,” and to permit an officer, “where … resisted, but not necessarily threatened with serious bodily harm or death, … to subdue a suspect who forcibly resists an officer.” (Emphasis added.)

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[34]Since Lyons’ claim for damages plainly gives him standing, and since the success of that claim depends upon a demonstration that the city’s chokehold policy is unconstitutional, it is beyond dispute that Lyons has properly invoked the District Court’s authority to adjudicate the constitutionality of the city’s chokehold policy. The dispute concerning the constitutionality of that policy plainly presents a “case or controversy” under Art. III. The Court nevertheless holds that a federal court has no power under Art. III to adjudicate Lyons’ request, in the same lawsuit, for injunctive relief with respect to that very policy. This anomalous result is not supported either by precedent or by the fundamental concern underlying the standing requirement. Moreover, by fragmenting a single claim into multiple claims for particular types of relief and requiring a separate showing of standing for each form of relief, the decision today departs from this Court’s traditional conception of standing and of the remedial powers of the federal courts.


[35]It is simply disingenuous for the Court to assert that its decision requires “[no] extension” of O’Shea v. Littleton, 414 U.S. 488 (1974), and Rizzo v. Goode, 423 U.S. 362 (1976). Ante, at 105. In contrast to this case O’Shea and Rizzo involved disputes focusing solely on the threat of future injury which the plaintiffs in those cases alleged they faced. In O’Shea the plaintiffs did not allege past injury and did not seek compensatory relief. In Rizzo, the plaintiffs sought only declaratory and injunctive relief and alleged past instances of police misconduct only in an attempt to establish the substantiality of the threat of future injury. There was similarly no claim for damages based on past injuries in Ashcroft v. Mattis, 431 U.S. 171 (1977), or Golden v. Zwickler, 394 U.S. 103 (1969), on which the Court also relies.

[36]These decisions do not support the Court’s holding today. As the Court recognized in O’Shea, standing under Art. III is established by an allegation of “‘threatened or actual injury.'” 414 U.S. at 493, quoting Linda R. S. v. Richard D., 410 U.S. 614, 617 (1973) (emphasis added). See also 414 U.S. at 493, n.2. Because the plaintiffs in O’Shea, Rizzo, Mattis, and Zwickler did not seek to redress past injury, their standing to sue depended entirely on the risk of future injury they faced. Apart from the desire to eliminate the possibility of future injury, the plaintiffs in those cases had no other personal stake in the outcome of the controversies.

[37]By contrast, Lyons’ request for prospective relief is coupled with his claim for damages based on past injury. In addition to the risk that he will be subjected to a chokehold in the future, Lyons has suffered past injury. Because he has a live claim for damages, he need not rely solely on the threat of future injury to establish his personal stake in the outcome of the controversy. In the cases relied on by the majority, the Court simply had no occasion to decide whether a plaintiff who has standing to litigate a dispute must clear a separate standing hurdle with respect to each form of relief sought.[6]


[38]The Court’s decision likewise finds no support in the fundamental policy underlying the Art. III standing requirement—the concern that a federal court not decide a legal issue if the plaintiff lacks a sufficient “personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult … questions.” Baker v. Carr, 369 U.S. at 204. As this Court stated in Flast v. Cohen, 392 U.S. 83, 101 (1968), “the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” See also Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982) (standing requirement ensures that “the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action”).

[39]Because Lyons has a claim for damages against the city, and because he cannot prevail on that claim unless he demonstrates that the city’s chokehold policy violates the Constitution, his personal stake in the outcome of the controversy adequately assures an adversary presentation of his challenge to the constitutionality of the policy. Moreover, the resolution of this challenge will be largely dispositive of his requests for declaratory and injunctive relief. No doubt the requests for injunctive relief may raise additional questions. But these questions involve familiar issues relating to the appropriateness of particular forms of relief, and have never been thought to implicate a litigant’s standing to sue. The denial of standing separately to seek injunctive relief therefore cannot be justified by the basic concern underlying the Art. III standing requirement.


[40]By fragmenting the standing inquiry and imposing a separate standing hurdle with respect to each form of relief sought, the decision today departs significantly from this Court’s traditional conception of the standing requirement and of the remedial powers of the federal courts. We have never required more than that a plaintiff have standing to litigate a claim. Whether he will be entitled to obtain particular forms of relief should he prevail has never been understood to be an issue of standing. In determining whether a plaintiff has standing, we have always focused on his personal stake in the outcome of the controversy, not on the issues sought to be litigated, Flast v. Cohen, supra, at 99, or the “precise nature of the relief sought.” Jenkins v. McKeithen, 395 U.S. at 423 (opinion of Marshall, J., joined by Warren, C. J., and Brennan, J.).

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[41]The Court’s fragmentation of the standing inquiry is also inconsistent with the way the federal courts have treated remedial issues since the merger of law and equity. The federal practice has been to reserve consideration of the appropriate relief until after a determination of the merits, not to foreclose certain forms of relief by a ruling on the pleadings. The prayer for relief is no part of the plaintiff’s cause of action. See 2A J. MOORE & J. LUCAS, MOORE’S FEDERAL PRACTICE para. 8.18, p. 8-216, and n.13 (1983) (Moore), and cases cited therein; C. Wright, A. MILLER, & M. KANE, FEDERAL PRACTICE AND PROCEDURE § 2664 (1983) (Wright, Miller, & Kane). Rather, “[the usual rule is] that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.” Bell v. Hood, 327 U.S. 678, 684 (1946) (footnote omitted).

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[42]Apart from the question of standing, the only remaining question presented in the petition for certiorari is whether the preliminary injunction issued by the District Court must be set aside because it “[constitutes] a substantial interference in the operation of a municipal police department.” Pet. for Cert. I. In my view it does not.

* * * * *

[43]The principles of federalism simply do not preclude the limited preliminary injunction issued in this case. Unlike the permanent injunction at issue in Rizzo, the preliminary injunction involved here entails no federal supervision of the LAPD’s activities. The preliminary injunction merely forbids the use of chokeholds absent the threat of deadly force, permitting their continued use where such a threat does exist. This limited ban takes the form of a preventive injunction, which has traditionally been regarded as the least intrusive form of equitable relief. Moreover, the city can remove the ban by obtaining approval of a training plan. Although the preliminary injunction also requires the city to provide records of the uses of chokeholds to respondent and to allow the court access to such records, this requirement is hardly onerous, since the LAPD already maintains records concerning the use of chokeholds.

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[44]Apparently because it is unwilling to rely solely on its unprecedented rule of standing, the Court goes on to conclude that, even if Lyons has standing, “[the] equitable remedy is unavailable.” Ante, at 111. The Court’s reliance on this alternative ground is puzzling for two reasons.

[45]If, as the Court says, Lyons lacks standing under Art. III, the federal courts have no power to decide his entitlement to equitable relief on the merits. Under the Court’s own view of Art. III, the Court’s discussion in Part V is purely an advisory opinion.

[46]In addition, the question whether injunctive relief is available under equitable principles is simply not before us. We granted certiorari only to determine whether Lyons has standing and whether, if so, the preliminary injunction must be set aside because it constitutes an impermissible interference in the operation of a municipal police department. We did not grant certiorari to consider whether Lyons satisfies the traditional prerequisites for equitable relief. See n.22, supra.

[47]Even if the issue had been properly raised, I could not agree with the Court’s disposition of it. With the single exception of Rizzo v. Goode, supra, all of the cases relied on by the Court concerned injunctions against state criminal proceedings. The rule of Younger v. Harris, 401 U.S. 37 (1971), that such injunctions can be issued only in extraordinary circumstances in which the threat of injury is “great and immediate,” id. at 46, reflects the venerable rule that equity will not enjoin a criminal prosecution, the fact that constitutional defenses can be raised in such a state prosecution, and an appreciation of the friction that injunctions against state judicial proceedings may produce. See ibid.; Steffel v. Thompson, 415 U.S. 452, 462 (1974); 28 U.S.C. § 2283.

[48]Our prior decisions have repeatedly emphasized that where an injunction is not directed against a state criminal or quasi-criminal proceeding, “the relevant principles of equity, comity, and federalism” that underlie the Younger doctrine “have little force.”

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[49]If the preliminary injunction granted by the District Court is analyzed under general equitable principles, rather than the more stringent standards of Younger v. Harris, it becomes apparent that there is no rule of law that precludes equitable relief and requires that the preliminary injunction be set aside. “In reviewing such interlocutory relief, this Court may only consider whether issuance of the injunction constituted an abuse of discretion.” Brown v. Chote, 411 U.S. 452, 457 (1973).

[50]The District Court concluded, on the basis of the facts before it, that Lyons was choked without provocation pursuant to an unconstitutional city policy. Supra at 119. Given the necessarily preliminary nature of its inquiry, there was no way for the District Court to know the precise contours of the city’s policy or to ascertain the risk that Lyons, who had alleged that the policy was being applied in a discriminatory manner, might again be subjected to a chokehold. But in view of the Court’s conclusion that the unprovoked choking of Lyons was pursuant to a city policy, Lyons has satisfied “the usual basis for injunctive relief, ‘that there exists some cognizable danger of recurrent violation.'” Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 59 (1975), quoting United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953). The risk of serious injuries and deaths to other citizens also supported the decision to grant a preliminary injunction. Courts of equity have much greater latitude in granting injunctive relief “in furtherance of the public interest than … when only private interests are involved.” Virginian R. Co. v. Railway Employees, 300 U.S. 515, 552 (1937). See Wright, Miller, & Kane § 2948; 7 Moore para. 65.04[1]. In this case we know that the District Court would have been amply justified in considering the risk to the public, for after the preliminary injunction was stayed, five additional deaths occurred prior to the adoption of a moratorium. See n.3 supra. Under these circumstances, I do not believe that the District Court abused its discretion.

[51]Indeed, this Court has approved of a decision that directed issuance of a permanent injunction in a similar situation. See Lankford v. Gelston, 364 F.2d 197 (CA4 1966), cited with approval in Allee v. Medrano, 416 U.S. 802, 816, n.9 (1974). See n.15 supra. In Lankford, citizens whose houses had been searched solely on the basis of uncorroborated, anonymous tips sought injunctive relief. The Fourth Circuit, sitting en banc, held that the plaintiffs were entitled to an injunction against enforcement of the police department policy authorizing such searches, even though there was no evidence that their homes would be searched in the future. Lyons is no less entitled to seek injunctive relief. To hold otherwise is to vitiate “one of the most valuable features of equity jurisdiction, to anticipate and prevent a threatened injury, where the damages would be insufficient or irreparable.” Vicksburg Waterworks Co. v. Vicksburg, 185 U.S. 65, 82 (1902).

[52]Here it is unnecessary to consider the propriety of a permanent injunction. The District Court has simply sought to protect Lyons and other citizens of Los Angeles pending a disposition of the merits. It will be time enough to consider the propriety of a permanent injunction when and if the District Court grants such relief.


[53]The Court’s decision removes an entire class of constitutional violations from the equitable powers of a federal court. It immunizes from prospective equitable relief any policy that authorizes persistent deprivations of constitutional rights as long as no individual can establish with substantial certainty that he will be injured, or injured again, in the future. The Chief Justice asked in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 419 (1971) (dissenting opinion), “what would be the judicial response to a police order authorizing ‘shoot to kill’ with respect to every fugitive”? His answer was that it would be “easy to predict our collective wrath and outrage.” Ibid. We now learn that wrath and outrage cannot be translated into an order to cease the unconstitutional practice, but only an award of damages to those who are victimized by the practice and live to sue and to the survivors of those who are not so fortunate. Under the view expressed by the majority today, if the police adopt a policy of “shoot to kill,” or a policy of shooting 1 out of 10 suspects, the federal courts will be powerless to enjoin its continuation. Cf. Linda R.S. v. Richard D., 410 U.S. at 621 (White, J., dissenting). The federal judicial power is now limited to levying a toll for such a systematic constitutional violation.

download arrowCity of Los Angeles v. Lyons – Audio and Transcript of Oral Argument


  1. The police control procedures at issue in this case are referred to as “control holds,” “chokeholds,” “strangleholds,” and “neck restraints.” All these terms refer to two basic control procedures: the “carotid” hold and the “bar arm” hold. In the “carotid” hold, an officer positioned behind a subject places one arm around the subject’s neck and holds the wrist of that arm with his other hand. The officer, by using his lower forearm and bicep muscle, applies pressure concentrating on the carotid arteries located on the sides of the subject’s neck. The “carotid” hold is capable of rendering the subject unconscious by diminishing the flow of oxygenated blood to the brain. The “bar arm” hold, which is administered similarly, applies pressure at the front of the subject’s neck. “Bar arm” pressure causes pain, reduces the flow of oxygen to the lungs, and may render the subject unconscious.


  2. By its terms, the injunction was to continue in force until the court approved the training program to be presented to it. It is fair to assume that such approval would not be given if the program did not confine the use of the strangleholds to those situations in which their use, in the view of the District Court, would be constitutional. Because of successive stays entered by the Court of Appeals and by this Court, the injunction has not gone into effect.


  3. As previously indicated, supra, at 98, Lyons alleged that he feared he would be choked in any future encounter with the police. The reasonableness of Lyons’ fear is dependent upon the likelihood of a recurrence of the allegedly unlawful conduct. It is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff’s subjective apprehensions. The emotional consequences of a prior act simply are not a sufficient basis for an injunction absent a real and immediate threat of future injury by the defendant. Of course, emotional upset is a relevant consideration in a damages action.


  4. The Court’s reliance on Rizzo is misplaced for another reason. In Rizzo the Court concluded that the evidence presented at trial failed to establish an “affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by [defendants].” 423 U.S. at 371. Because the misconduct being challenged was, in the Court’s view, the result of the behavior of unidentified officials not named as defendants rather than any policy of the named defendants—the City Managing Director, and the Police Commissioner, id. at 372—the Court had “serious doubts” whether a case or controversy existed between the plaintiffs and those defendants. Here, by contrast, Lyons has clearly established a case or controversy between himself and the city concerning the constitutionality of the city’s policy. See supra at 120-122. In Rizzo the Court specifically distinguished those cases where a case or controversy was found to exist because of the existence of an official policy responsible for the past or threatened constitutional deprivations. 423 U.S. at 373-374, distinguishing Hague v. CIO, 307 U.S. 496 (1939); Allee v. Medrano, 416 U.S. 802 (1974); Lankford v. Gelston, supra.

Notes on City of Los Angeles v. Lyons

  1. A study of neck compression holds published in the July 1983 FBI LAW ENFORCEMENT BULLETIN yielded the following conclusions:

    Because of the organs involved, neck holds must be considered potentially lethal whenever applied. Officers using this hold should have proper training in its use and effects. Police officers should have continual inservice training and practice in the use of the carotid sleeper. They should not use or be instructed in the use of the choke hold other than to demonstrate its potential lethal effect. Officers should recognize that death can result if the carotid sleeper is incorrectly applied, and there may also be instances where sudden and unexpected deaths occur when the carotid sleeper is properly used.

    Donald T. Reay, M.D. and Richard L. Mathers, Physiological Effects Resulting From Use of Neck Holds, FBI LAW ENFORCEMENT BULLETIN (July 1983) at 15.

  2. How did the Court apply the general standards for injunctive relief to Lyons’ constitutional claim?
  3. Did Lyons satisfy the requisites to an Article III case or controversy set forth in Rizzo v. Goode? Are there any circumstances under which a plaintiff may have standing to enjoin future police misconduct?
    1. In Kolender v. Lawson, 461 U.S. 352 (1983), Edward Lawson brought a civil action seeking a mandatory injunction to restrain enforcement of the California statute that made it a misdemeanor for one “[w]ho loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when request by any police officer to do so, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.” California Penal Code Ann. § 647(e) (West 1970). Finding the statute unconstitutionally vague on its face, the Supreme Court upheld the lower courts’ injunction against enforcement of the act. In a footnote, the Court addressed Lawson’s standing to seek an injunction:

      The appellants have apparently never challenged the propriety of declaratory and injunctive relief in this case. Nor have appellants ever challenged Lawson’s standing to seek such relief. We note that Lawson has been stopped on approximately 15 occasions pursuant to § 647(e), and that these 15 stops occurred in a period of less than two years. Thus, there is a “credible threat” that Lawson might be detained again under § 647(e).

      Kolender, 461 U.S. at 355 n.3 (citations omitted). See also Wooley v. Maynard, 430 U.S. 705, 712 (1977) (three successive criminal prosecutions in five weeks for covering up the state motto “Live Free or Die” on license plates established credible threat of future prosecutions sufficient to justify equitable relief for invasion of First Amendment right to refrain from speaking).

    2. In Nava v. City of Dublin, 121 F. 3d 453 (9th Cir. 1997), California Highway Patrol (CHP) Officer Williams had stopped Randolph Bennett for illegally walking on the shoulder of a state highway. When Bennett resisted attempts to remove him from the shoulder, CHP Officer Whitty arrived at the scene and applied a carotid hold, causing Bennett to lose consciousness and die. Nava, Bennett’s son, sued the CHP, its Commissioner and CHP Officers Williams and Whitty seeking both damages and an injunction.The jury found that Officer Whitty, acting pursuant to the policy promulgated by the CHP Commissioner, had deprived Bennett of his constitutional rights by use of excessive force and awarded $470,000 in compensatory and punitive damages. The district court, concluding that the carotid hold is deadly force and that CHP policy authorized use of the hold when deadly force is not justified, issued a permanent injunction banning the CHP from authorizing its officers to apply the carotid hold unless application of the chokehold is necessary to prevent death or serious bodily harm to an officer or third party. The court of appeals concluded that Nava did have standing to seek injunctive relief. Although Nava could not establish that he was likely to suffer future injury from the CHP’s administration of a chokehold, the Ninth Circuit had created an exception to this requirement where a plaintiff has standing to bring an action for damages and the claim for injunctive relief “involve[s] the same operative facts and legal theory.” Smith v. City of Fontana, 818 F.2d 1411, 1423 (9th Cir. 1987). However, the court further held that because Nava was no more likely to be subjected to deadly force than any other citizen of California, he could not establish the likelihood of substantial and immediate irreparable injury required to procure equitable relief.
    3. In Hodgers-Durgin v. De LaVina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999), two innocent motorists who had been stopped by roving agents of the United States Border Patrol sought injunctive relief to restrain such stops as violative of the Fourth Amendment. The Court of Appeals for the Ninth Circuit overruled Nava and other prior cases that had held that standing to seek damages created standing to seek equitable relief, deeming these decisions inconsistent with Lyons. Id. at 1040 n.1. However, the court reasoned that plaintiffs had satisfied the case or controversy requirement of Article III:

      This case is notably different from Lyons in that plaintiffs did nothing illegal to prompt the stops by the border patrol. Unlike in Lyons, in this case it is uncontested that both plaintiffs engaged in entirely innocent conduct, and there is no tenable argument that plaintiffs should avoid driving near the Mexican border in order to avoid another stop by the Border Police. Further, unlike in Lyons, in this case there is no string of contingencies necessary to produce an injury. In Lyons, further injury would have required another stop by the police, followed by post-stop behavior culminating in a chokehold. In this case, another stop of the sort alleged by plaintiffs would itself constitute further injury.

      Hodgers-Durgin, 199 F.3d at 1041-42. While accepting that plaintiffs had standing under Article III, the court held that because each plaintiff had been stopped only once in ten years, they “have not demonstrated sufficient likelihood of injury to warrant equitable relief.” Id. at 1044. The court noted that other persons not named as plaintiffs—one who was stopped by Border Patrol agents at least four times between 1992 and 1995 and another who had been stopped “on more occasions than he could remember”—might be able to establish the probability of harm essential to obtain equitable relief. Id. at 1045. See also Thomas v. County of Los Angeles, 978 F.2d 504, 508 (9th Cir. 1993) (Article III standing is present where “numerous instances of police misconduct have occurred in a small six by seven block area, some minority residents of the area have been mistreated by deputies more than once, and many victims purportedly did nothing to warrant detention or apprehension prior to the mistreatment.”).

      Finally, the court of appeals held that the inability of the named plaintiffs to prove a likelihood of future injury made the claim for declaratory relief unripe:

      Ripeness doctrine protects against premature adjudication of suits in which declaratory relief is sought. [citation omitted] In suits seeking both declaratory and injunctive relief against a defendant’s continuing practices, the ripeness doctrine serves the same function in limiting declaratory relief as the imminent-harm requirement serves in limiting injunctive relief. As the Supreme Court recently wrote, translating the language of injunctions and imminency into the language of declaratory judgments and ripeness, “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Texas v. United States, 523 U.S. 296, 118 S. Ct. 1257, 1259, 140 L. Ed.2d 406 (1988) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581, 105 S. Ct. 3325, 87 L. Ed.2d 409 (1985) (internal quotations omitted)). Whether the named plaintiffs are likely to be stopped again by the Border Patrol is simply too speculative to warrant an equitable judicial remedy, including declaratory relief, that would require, or provide a basis for requiring, that the Border Patrol change its practices.

      Hodgers-Durgin, 199 F.3d at 1044.

    4. In Curtis v. City of New Haven, 726 F.2d 65 (2d Cir. 1984), the court of appeals held that two citizens, who had obtained damage verdicts against the City arising out of the use of mace, did not have standing to obtain an injunction limiting the use of mace to circumstances approved in the International Association of Chiefs of Police guidelines:

      Tacitly conceding the overwhelming impact of Lyons on the issue of standing, plaintiffs … claim that the purpose of injunctive relief here is to protect them not as prospective arrestees but as inhabitants of a community in which a hazardous substance is being randomly applied to innocent and uninvolved civilians. Plaintiffs contend that when mace is sprayed, it affects not only the target but also innocent third parties in the area and the police themselves….

      The argument is ingenious, but we do not believe that the impact of Lyons can so easily be avoided. While a chokehold and mace obviously have different effects, Lyons is not fairly distinguishable from this case. Plaintiffs concede that, under their theory, any resident of New Haven could bring suit to enjoin the police department’s use of mace. This would appear to be true whether or not the resident had actually been injured or was likely to be injured in the future. Lyons, however, dispels the notion that any resident can seek an injunction to prohibit police activity. [citation omitted] Even under plaintiff’s theory, they would have the burden of showing that they, as distinguished from the general citizenry of New Haven, are likely to suffer injury from mace in the future as opposed to having a “mere interest” in the claim.

      Curtis, 726 F.2d at 68-69.

    5. In Washington v. Vogel, 156 F.R.D. 676 (M.D. Fla. 1994), the Florida State Conference of the NAACP Branches filed a Section 1983 action to enjoin the policy of targeting African Americans and Hispanics for pretextual traffic stops on Interstate 95 in Volusia County, Florida, allegedly for the purpose of seizing cash from persons stopped. The trial court recognized that because individual motorists would be unable to prove a threat of future injury, unless the NAACP had standing to seek an injunction on behalf of its members, “this Court is powerless on the present record to enter an injunction against the alleged police practices at issue.” Id. at 681. Nonetheless, the court held that the NAACP lacked standing to assert a claim for injunctive relief on behalf of its membership because it was not proven that any particular member faced a real and immediate threat of again being subjected to a pretextual stop.
  4. In County of Riverside v. McClaughlin, 500 U.S. 44 (1990), four persons detained in the Riverside County Jail sought injunctive relief requiring the county to provide prompt probable cause hearings to persons arrested without a warrant. The trial court certified a class composed of all present and future prisoners at the jail and all future detainees who have been or may be denied prompt probable cause hearings. The County appealed from the district court’s issuance of a preliminary injunction that ordered a judicial determination of probable cause within 36 hours of any warrantless arrest. The County argued that the named plaintiffs lacked standing because it was too late for them to receive a prompt hearing and they could not establish that they would suffer a future violation of the Constitution by being denied a prompt probable cause hearing following a warrantless arrest. The Court rejected the County’s contention:

    Plaintiffs alleged in their complaint that they were suffering a direct and current injury as a result of this detention, and would continue to suffer that injury until they received the probable cause determination to which they were entitled. Plainly, plaintiffs’ injury was at that moment capable of being redressed through injunctive relief. This case is easily distinguished from Lyons, in which the constitutionally objectionable practice ceased altogether before the plaintiff filed his complaint.

    It is true, of course, that the claims of the named plaintiffs have been rendered moot; eventually, they either received probable cause hearings or were released. Our cases leave no doubt, however, that by obtaining class certification, plaintiffs preserved the merits of the controversy for our review. In factually similar cases we have held that “the termination of a class representative’s claim does not moot the claims of the unnamed members of the class.” [citation omitted] That the class was not certified until after the named plaintiff’s claims had become moot does not deprive us of jurisdiction. We recognized in Gerstein that “[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” [citation omitted] In such cases, the “relation back” doctrine is properly invoked to preserve the merits of the case for judicial resolution.

    County of Riverside, 500 U.S. at 51-52. May victims of government misconduct always establish Article III standing by filing their claim as a class action? See Sosna v. Iowa, 419 U.S. 393, 402-03 (1975) (“[T]he judicial power of Art. III courts extends only to ‘cases and controversies’ specified in that Article. There must . . . be a named plaintiff who has such a case or controversy at the time the complaint is filed.”); Warth v. Seldin, 422 U.S. 490, 502 (1975) (“Unless these petitioners can thus demonstrate the requisite case or controversy between themselves personally and respondents, ‘none may seek relief on behalf of himself or any other members of the class.,’” citing O’Shea v. Littleton, 414 U.S. 488, 494 (1974)); Cf. Lewis v. Casey, 518 U.S. 343, 349 (1996) (Proof of two instances of deprivation of prisoners’ constitutional right of access to court insufficient to sustain systemwide injunction in class action on behalf of all adult prisoners incarcerated in State of Arizona Department of Corrections. “It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of political branches, to shape the institutions of government in such a fashion as to comply with the laws and Constitution.”).

  5. Is equitable relief available whenever the plaintiff proves that the constitutional harm was inflicted pursuant to a governmental policy? Compare Deshawn E. by Charlotte E. v. Safir, 156 F. 3d 340, 344-45 (2nd Cir. 1998) (“[T]his case is distinguishable from Lyons because, in Lyons, there was no proof of a pattern of illegality as the police had discretion to decide if they were going to apply a choke hold and there was no formal policy which sanctioned the application of the choke hold. In contrast, the challenged interrogation methods in this case are officially endorsed policies; there is a likelihood of recurrence because the Squad’s activities are authorized by a written memorandum of understanding between the Corporation Counsel and the Police Commissioner.”) with Nava v. City of Dublin, 121 F.3d 453, 459 (9th Cir. 1997) ([T]he district court assigns unwarranted legal significance to the existence of departmental policy. The Supreme Court recognized in Lyons that even if the LAPD maintained a clearly unconstitutional blanket policy of authorizing its officers to apply a chokehold to any citizen with whom they have an encounter, Lyons would also have to allege that he would have another encounter with police in order to establish a real and immediate threat of future injury.”) and Robinson v. City of Chicago, 868 F. 2d 959, 966 (7th Cir. 1989) (“Richardson does allege that the City had a written policy authorizing officers to detain persons for investigation. . . . Yet, as with the Lyons plaintiffs … Richardson … can[not] allege that it is reasonably likely that [he] will again encounter the police.”).
  6. What alternative did the Court suggest for restraining the unconstitutional use of chokeholds?
  7. The availability of injunctive relief also may be limited by federal statute.
    1. In the Prison Litigation Reform Act (PLRA), Congress provided that in any civil action relating to prison conditions:

      The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.

      18 U.S.C. § 3626(a)(1)(A). The PLRA similarly constrains the issuance of preliminary injunctive relief, 18 U.S.C. § 3626(a)(2); limits the courts’ power to order release of prisoners, 18 U.S.C. § 3626(a)(3); and provides for the termination of prospective relief. 18 U.S.C. § 3626(b). See also Farmer v. Brennan, 511 U.S. 825, 847 (1994) (“When a prison inmate seeks injunctive relief, a court need not ignore the inmate’s failure to take advantage of adequate prison procedures, and an inmate who needlessly bypasses such procedures may properly be compelled to pursue them.”).

    2. The Tax Anti-Injunction Act, 28 U.S.C. § 1341 provides:

      The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.

      The Supreme Court has held that principles of comity likewise bar federal courts from rendering declaratory judgments as well as damages in actions challenging the constitutionality of state tax laws where plain, adequate and complete remedies lie under state law. Fair Assessment in Real Estate Assn. v. McNary, 454 U.S. 100 (1981); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943).

  8. Given that the Chief of Police had issued a blanket prohibition against the use of the bar-arm chokehold, why did the City argue that the claim for injunctive relief was not moot? Why did the Court find that the Chief of Police’s order did not moot the claim for injunctive relief?

    In Friends of Earth v. Laidlaw Environmental Servs., 528 U.S. 167, 188-90 (2000), the Court held that a citizen group’s action for civil penalties payable to the government under the Clean Water Act was not rendered moot by a wastewater treatment plant owner’s post-suit compliance with permit requirements:

    It is well settled that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” [citation omitted] “[I]f it did, the courts would be compelled to leave ‘[t]he defendant … free to return to his old ways.’” [citation omitted] In accordance with this principle, the standard we have announced for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” [citation omitted] The “heavy burden of persua[ding]” the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness…. By contrast … it is the plaintiff’s burden to establish standing by demonstrating that, if unchecked by the litigation, the defendant’s allegedly wrongful behavior will likely occur or continue….


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