Transcript

IN THE SUPREME COURT OF THE UNITED STATES

CITY OF LOS ANGELES, Petitioner v. ADOLPH LYONS

No. 81-1064

November 2, 1982

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:03 a.m.

APPEARANCES:

FREDERICK N. MERKIN, ESQ., Los Angeles, California; on behalf of Petitioner.

MICHAEL R. MITCHELL, ESQ., Woodland Hills, California; on behalf of Respondent.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments next in City of Los Angeles against Lyons.

Mr. Merkin, I think you may proceed whenever you're ready.

ORAL ARGUMENT OF FREDERICK N. MERKIN, ESQ., ON BEHALF OF THE PETITIONER

MR. MERKIN: Mr. Chief Justice and may it please the Court:

This case concerns the important constitutional questions of: Under what circumstances may an individual seek protection from the federal district court against local law enforcement agencies relative to the force techniques that the officers of those agencies may in the future apply against such individual?

The case also concerns the circumstances where, if the court is going to entertain such a plea, the federal judiciary may assume control over the force techniques utilized by local law enforcement agencies.

I think at the outset it's important to acknowledge what is almost obvious, namely that the situations faced by police officers on the streets are often difficult ones, and sometimes situations that most of us are unable easily to relate to. Secondly, from the governmental standpoint the issues are also quite complex and difficult and often deal, when you're speaking of use of force, with the kinds of questions that are often faced, for example, in deciding upon military tactics. These are very difficult of resolution.

Now, there are really two decisions from the Ninth Circuit Court of Appeals that are at issue here, and the city of course submits that they were erroneously reasoned. But before going to the defects, the most important and significant defects in the reasoning of those two opinions, it may be helpful to have some background in this matter, in particular with reference to recent developments which may or may not affect the justiciability of the case. As you probably know, the city believes that the case is not moot and needs to be resolved.

But, beginning with the beginning, about five and a half years ago the Respondent Mr. Lyons filed an action in federal district court seeking both a declaration and an injunction against the Los Angeles police department to limit the use of the unconscious-rendering control holds to situations where an officer is faced with deadly force. We submit that that's the effective prohibition of such holds.

And his primary theory and the theory that developed was that the control holds shock the conscience. And the Respondent's position is that the control holds shock the conscience intrinsically, having little to do, if anything, with the training of the officers, but they're intrinsically of the kind that shock the conscience.

Now, the control holds of which we speak are neck restraints that are really of two different fundamental varieties. The first are techniques that officers apply with their arm on both sides of the neck, to put pressure on the carotid arteries which transmit oxygenated blood to the brain. The second family are techniques known as arm restraints, which rely pressure of the forearm against the front of the neck and the tracheal tube.

The purpose of both of those techniques is to assume control of the individual, and in the vast majority -- and the record demonstrates this -- people submit. They do have the potential, as the record reflects and the district court found, of rendering people unconscious if necessary, whereupon they can be turned onto their belly, which is the typical approach, and handcuffed such that that person is now in control.

Now, these are techniques that officers are trained in, but they're relatively infrequently applied. We're speaking of thousands upon thousands of encounters between police officers and citizens, and in a large city such as Los Angeles we're speaking of a tremendous number of arrests.

QUESTION: You speak of training. Isn't training an issue in the case?

MR. MERKIN: The case need not be decided on training, this case need not. The district court certainly had that issue before it, but the fundamental error here is legal. More specifically, Mr. Justice Blackmun, it has to do with the legal standards that were demanded of the district court upon review in the Lyons II decision, as we call it, the review of the preliminary injunction.

We submit that the Court of Appeals failed to look for the application of the appropriate legal standards, and those legal standards of which I speak and they are really quite related. One is the standard that derives from principles of federalism and equity, which says that the federal courts should only assume control over the activities, let's say, of a police department in the most extraordinary circumstances.

Secondly, to have a constitutional violation here the court had to find that the tactic shocked the conscience. That too requires in effect the most extraordinary type of conducts. Indeed, I believe in a concurring opinion you wrote, Mr. Justice Blackmun, outrageous conduct is what triggers the constitutional violation.

QUESTION: Well, you had a number of deaths here, didn't you?

MR. MERKIN: There are deaths in the record, yes.

QUESTION: A number of them, aren't there?

MR. MERKIN: There are indeed.

QUESTION: 16.

MR. MERKIN: There are at least, yes.

QUESTION: Let me ask another question. There's been a six-month moratorium?

MR. MERKIN: Yes.

QUESTION: It expires in ten days.

MR. MERKIN: That's right.

QUESTION: What's the city going to do then?

MR. MERKIN: I don't know, and I don't know that the city knows.

QUESTION: You're representing them. You don't know?

MR. MERKIN: I don't know, and part of the reason for that is that the city submits that this is the kind of thing that is subject to reasonable debate, indeed there's a debate going on, not just within city government but to some extent nationwide; and that these decisions, especially in this particular situation, are such that there may be tentative decisions such as we have already now from the city of Los Angeles, that are subject to change and modification.

QUESTION: Mr. Merkin, can you tell us at least who will probably make that decision --

MR. MERKIN: Yes.

QUESTION: -- about which Mr. Justice Blackmun inquired?

MR. MERKIN: Yes, and I can tell you a little bit about how and on what basis that decision will be made, I believe. The controlling authority over the Los Angeles police department is a five-member board of police commissioners, who are civilians appointed by the mayor and confirmed by a 15-member city council. That board, if it has all five at the session that takes up the issue, will decide by majority vote what policy to follow.

QUESTION: Is the commission holding off until this Court rules, in effect?

MR. MERKIN: No. I have no indication that that is their desire. My most recent information is as follows. I did recently file a memorandum indicating that they were going to take up the matter one week from today. My most recent information is it will probably be later this month, but I do not have a specific date.

QUESTION: But in any events I gather there'll be no outstanding restraint which would prevent the restoration of the practice if the commission decides to restore it?

MR. MERKIN: That is correct, and the commission and the city government as a whole believes that these tactics. They may or may not be good tactics. Reasonable people, reasonable chiefs of police, reasonable experts, can differs and so long as that's the case we're not in the extreme situation where reasonable people, reasonable people who are informed and have reflected on the subject, are going to concur that these tactics are not civilized, they're barbaric, and they cannot be tolerated in this society.

QUESTION: What is the policy that you would have this Court hold the city is free to adopt if it wants to with regard to the use of these holds?

MR. MERKIN: I think the policy is derived from two different notions. The first is the standard that is referred to, the shock the conscience standard --

QUESTION: No, no. What is the policy that you want this Court to in effect say the city is free to adopt if it wants to? When could the city use the holds and under what circumstances, in your view?

MR. MERKIN: Returning to the description of the control holds themselves, the latitude that I think, Justice O'Connor, that we speak of is to use the holds in circumstances such as they were most recently used before. Now, that is one possibility, but the city government has yet to decide that, if it chooses to use the holds, whether it will want that extent of latitude.

It may, for example, compromise and may prescribe the holds are to be used in some circumstances but perhaps not in others. But I think they want -- the city government wants the full constitutional latitude.

QUESTION: Would it be all right if the rule said that they should only use it unless the application of such force is necessary to prevent serious bodily harm to the opinion? Would that be all right?

MR. MERKIN: That is a reasonable approach, but it's not --

QUESTION: Well, isn't that what the court said?

MR. MERKIN: That is what the court said, but the court --

QUESTION: That's what the court said, didn't it?

MR. MERKIN: The district court did make that determination, yes.

QUESTION: Well, what's wrong with it?

MR. MERKIN: There are two problems.

QUESTION: You just said it was all right.

MR. MERKIN: There are two problems wrong with that, Mr. Justice Marshall. The first is the notion of what is a threat of serious bodily harm is ambiguous. And the policy that was followed by city government up to that point was broader. There were circumstances --

QUESTION: Excuse me, Mr. Merkin. Isn't the answer that you should give Justice O'Connor that what you want is the same latitude that the city had before with respect to the use of these holds?

MR. MERKIN: Yes.

QUESTION: Everything that you used to be able to do, you want still to do.

MR. MERKIN: Constitutionally, yes.

QUESTION: And you want us to say that you're free to do it, isn't that right?

MR. MERKIN: Well, that the policy that was followed, yes.

QUESTION: You want us to say that constitutionally you're completely free to follow the practice you followed before you were enjoined?

MR. MERKIN: That is correct, yes.

QUESTION: Subject to being sued by people who are injured.

MR. MERKIN: Subject to being sued and defending those suits in, for example, a damages action brought under the Monell decision.

QUESTION: Well, what recourse does a man have whom you kill? What recourse does the man that you kill have?

MR. MERKIN: Well, the individual, the deceased him or herself does not have any personal recourse, of course. They are very unfortunate situations when people die.

But when it's a remote consequence -- if we were to -- if the Court were to formulate a rule that a person fearful of a remote consequence can get an injunction, then so many of us who fly airplanes, for example, do all kinds of things, walk just the streets --

QUESTION: Well, isn't the answer to the question that the decedents' representatives would have the same right as though a police car had negligently run them down on the street and killed them in the our suit of someone else?

QUESTION: Do you consider murder and negligence on the same level?

MR. MERKIN: No, we do not.

QUESTION: Thank you.

QUESTION: May I ask you a question about the posture of what we're asked to review. You pointed out that you're interested primarily in the standard of review. What's before us, as I understand it, is a preliminary injunction --

MR. MERKIN: Yes.

QUESTION: -- which has been affirmed by the Court of Appeals. And there were findings made by the district court which were also affirmed.

Do you question any of the findings?

MR. MERKIN: Yes.

QUESTION: You're asking us to say some of the findings are clearly erroneous? For example, the district judge found that the use of the bar arm and the carotid artery holds engender a high risk of irreparable injury or death as presently used. Do we accept that as true or do we have to look at the record and decide it's not true?

You will have an opportunity to prove this at the full trial, as I understand.

MR. MERKIN: That's quite correct. Mr. Justice Stevens, I think you could make two determinations of clearly erroneous findings, but you need not do that. You need not, to support the reversal of the Ninth Circuit, make those determinations or even quibble with the facts.

What you can do is say that the Ninth Circuit Court of Appeals in reviewing the findings of fact and conclusions of law should have been looking for some particular things. For example, one thing it should have looked for was a finding that there was a clearly superior alternative; moreover, that this clearly superior alternative -- and there had to be some gross disparity between the alternative and the technique before the officer -- was --

QUESTION: The thing that puzzles me is, you brought the case up by appeal, rather than taking advantage of the normal opportunity of a trial litigant to adduce additional evidence at the trial court level and straighten out all these factual matters. As we get the case, the standard of review for us, I understand, is whether it was an abuse of discretion for the trial judge, having made these findings, to say we'll have a preliminary injunction subject to further review, and you develop evidence that shows that he went too far.

MR. MERKIN: Mr. Justice Stevens, to that I would say there are really two issues we brought to the Court. The standard is one, but the other is standing. This trial would be of gargantuan proportion, and the review by the Ninth Circuit and then ultimately perhaps by this Court might be years in the coming.

QUESTION: You're saying that no one would have standing to challenge this practice, is that right?

MR. MERKIN: By declaratory or injunctive relief, no. But there are other remedies, not only that the Respondent in this case has --

QUESTION: No one could challenge it. You just have to wait until people get hurt and then they can sue for damage, is that your view?

MR. MERKIN: Because it is remote. If it were not a remote consequence.

QUESTION: Well, there are 16 cases. How many would it have to be before you could have injunctive relief?

MR. MERKIN: I can't give you a mathematical formula, Mr. Justice Stevens. But I think we can distinguish between -- when a person has reason to be anxious walking down the street in some town or city, there you're really fearful of your encounters with the police, and we must apply an external standard: Is a person being reasonable in such fear? There there's a serious problem indeed in that community.

But when you're talking about a remote consequence -- now, there are 16 deaths that have been ascribed to the control holds out of literally thousands of applications of the control holds. Now, the city is --

QUESTION: Does that figure appear in the record, Mr. Merkin? The 16 deaths constitute what proportion of the total number of holds, do we know?

MR. MERKIN: We know by extrapolation. There is in the record the following calculation, that in one 18-month period the control holds were applied 935 times and that the Respondent contends that 3 people died. We calculated that that's, I think, a percentage of 0.31 percent of the individuals die maximum.

QUESTION: Mrs. Merkin, if you're talking about standing, you don't have to get killed to have standing. If you have the hold applied to you and you find it objectionable and if it is an invalid police procedure, don't you have a right to sue about it?

Isn't the proper number to look at the 935 who were subjected to the hold? And all of them claim it was an improper procedure. At least they theoretically might so claim. And you say none of them would have standing unless they get killed?

QUESTION: I thought you said they could sue for damages.

QUESTION: But none of them's going to have a suit for equitable relief?

MR. MERKIN: You cannot sue for equitable relief in circumstances where the threat of injury is so remote.

QUESTION: But there's some injury to everybody who's subjected to it, isn't there? Maybe it's not enough to get all that excited about. But you're talking about standing. Is there any injury whatsoever?

MR. MERKIN: There is a possibility of injury indeed, okay. But --

QUESTION: But only 935 people have been hurt, so we don't think there's a sufficient probability to justify anybody having standing to litigate, to challenge the practice? Are you serious?

MR. MERKIN: We're talking about the Constitution.

QUESTION: Yes.

MR. MERKIN: And the Constitution talks about -- truly, it speaks relatively, I think, in this area, the compared to what.

QUESTION: The Constitution speaks of "individual rights," "individual."

MR. MERKIN: Yes, Mr. Justice Marshall.

QUESTION: So each one of those 900 would have a constitutional right, wouldn't they?

MR. MERKIN: But see, I think standing -- and the Court's decisions seem to suggest this, Mr. Justice Marshall and Mr. Justice Stevens, require that the threat to the individual be quite meaningful. And it's going to be -- the individual's going to be fearful rationally --

QUESTION: Well, when the police puts his arm around my neck, can I object then?

MR. MERKIN: You can object, certainly.

QUESTION: Mr. Merkin, there was a motion in this case to dismiss the writ as improvidently granted or dismiss on the grounds of mootness, and as I read the Respondent's brief they assert not that the case is actually moot in the technical sense, because of course I guess there's an action for damages pending, but that the need for the preliminary injunction has disappeared in view of the department's change of policy, and therefore that we should simply vacate the preliminary injunction and presumably let the case proceed in the district court.

Your response in your reply brief is an argument that the case isn't moot in the technical sense. But I didn't understand the Respondent to contend that it was moot in the technical sense. I thought they were simply saying that the need for injunctive relief had disappeared.

Do you disagree? I take it you disagree with that, but could you say why?

MR. MERKIN: Yes, Mr. Justice Rehnquist. One of the points we did make in response was we're speaking of the question of whether or not there's a case or controversy. And while it's true that the recent city policy conforms to more or less what the Respondent is asking for, that may change and it may change quickly. It could change this month, it may not. It may change in three months, it may change before the matter comes to trial. It may not.

We're speaking of a very fluid situation at this moment. But in any event, one of the fundamental problems is that we're speaking of whether or not there's a case or controversy to begin with, and the sooner that that kind of issue is resolved the better it is for the judicial system to dispose of cases that are advisory in nature.

QUESTION: Mr. Merkin, the policy of using these control holds is based -- is expressed in the regulations or the training manual, isn't it?

MR. MERKIN: Yes.

QUESTION: And they are authorized only in order to overcome resistance?

MR. MERKIN: Yes, generally.

QUESTION: Well, that's the policy. That's the policy.

MR. MERKIN: That's not the full panoply of the policy. It's a little more specific than that.

QUESTION: Well, is an officer free to -- according to the policy, is an officer free to apply a control hold to a person he's arresting for a traffic offense who is entirely peaceful?

MR. MERKIN: Of course not.

QUESTION: Would that violate -- that would violate the regulations?

MR. MERKIN: It would be out of policy indeed, Mr. Justice White, and probably -- it could be unconstitutional.

QUESTION: Would a person to whom the control hold is erroneously applied, erroneously in terms of what he's told to do, would a person who is subjected to that kind of control hold have a cause of action under California law?

MR. MERKIN: Yes. If the amount of force that was applied was not reasonable and necessary, then there is an action under California law. The penal code sets that standard for California peace officers.

QUESTION: Well now, do you think the injunction forbids the use of the control holds at all? Is that what it does?

MR. MERKIN: No, it does not.

QUESTION: What does it do? It says, just please obey the regulation?

MR. MERKIN: No.

QUESTION: What does it say?

MR. MERKIN: It rewrites the regulation. It says that you've allowed too great a latitude in when these holds can be applied and we want to limit it to really serious threats to an officer. The immediate response to that is, when an officer is faced generally with a serious threat -- and that's where the definition of serious bodily harm comes in -- then --

QUESTION: The training bulletin says: "Control holds should be used only when necessary to stop a suspect's resistance." Now, the injunction thought that that was too lenient a standard?

MR. MERKIN: Apparently so. But there are circumstances where an officer has yet to be in a situation where he or she is faced with a very serious threat to his or her well-being, which might require the pulling of a baton if the officer has a baton or the pulling of the revolver where there's a threat to the officer's life, but it may escalate very quickly. And one thing that's very important is for an officer to take control of a situation to prevent the escalation.

We're speaking of a grappling physical encounter between two individuals, and the sooner that the officer has control of the other person's body and his or her weapon, for example the revolver, in a position of safety, the better.

QUESTION: Doesn't the gun sort of get control?

MR. MERKIN: Excuse me, Mr. Justice Marshall?

QUESTION: Doesn't a loaded gun usually get control?

MR. MERKIN: It usually does, when people are acting rationally.

QUESTION: Why do you have to choke him to death?

MR. MERKIN: Well, you don't have to choke people to death. And I think that we do, as I say, take issue with the general conclusion that all of these deaths have been caused by the control hold system. This is an incredibly complex medical phenomenon that does require further study and will be studied. The process of review in the city of Los Angeles is not an episodic thing.

QUESTION: If you're looking at the city policy or what the rules are, the governing rule about the control holds, a person is not going to have a control hold applied to him unless he resists.

MR. MERKIN: Almost always --

QUESTION: Isn't that what the training manual says?

MR. MERKIN: Yes, that's the policy.

QUESTION: And so you have to count -- as far as the city's liability is concerned or as far as the validity of the policy is concerned, the control hold is only applied, supposedly, if there's been resistance to the arrest.

MR. MERKIN: Yes, but there's one additional predicate I would add here, that it's only where the officer has tried lower force techniques and they failed, or at the time it just didn't seem reasonable to try to twist the arm or bend the wrist to cause pain. What they do teach the officers is to escalate and de-escalate the level of force to no higher level than necessary to control somebody.

QUESTION: Well, again -- again, my question still stands. As far as the policy is concerned, control holds are authorized only when there's resistance, when it's necessary to use force.

MR. MERKIN: When it's necessary to use force, that is correct. That is the policy. And it's not to use them at the officer's complete discretion.

QUESTION: Well, if the person to be arrested or confronted is entirely peaceful, there would never be an occasion to use a control hold, as far as the policy is concerned.

MR. MERKIN: That is correct, and that is Respondent's -- Respondent's charge here is that when he had his encounter with the officer department the control hold was put on for no reason whatsoever, that he did nothing to prompt it.

QUESTION: That's a violation of the regulation, or it's a violation of his duty.

MR. MERKIN: Exactly. It's a violation of a number of things. And if the case ever does go to trial, of course we would have to determine if that actually happened.

QUESTION: Well, in terms of standing, in terms of showing some future risk to himself, he would have to show that, not only that he is liable to be stopped for a traffic incident again, but another policeman is likely to disobey his orders.

MR. MERKIN: There are two cases he's bringing, in a sense. There's the primary case and then there's the hidden case. The primary case is, you have to be fearful that the hold would be applied according to policy, and that's his Monell theory.

QUESTION: Well, I know. But if it's applied according to policy, the predicate for that is that he resists.

MR. MERKIN: That's correct.

QUESTION: That he resists, and in short that he is committing an illegal act himself.

MR. MERKIN: Yes. And the other, the hidden case that he is in a sense is that the control hold is applied without provocation. And that is an entirely different case, and whatever the probabilities may be with regard to the policy, they've got to be, hopefully, incredibly remote with regard to out of policy application of the control holds.

So we're speaking of, once again, on both issues, very remote possibilities of injury to the individual.

QUESTION: To the same person.

MR. MERKIN: To the same person.

QUESTION: There was no class certification here?

MR. MERKIN: There was no class certification.

I would like to reserve my time for rebuttal, please.

CHIEF JUSTICE BURGER: Mr. Mitchell.

ORAL ARGUMENT OF MICHAEL R. MITCHELL, ESQ., ON BEHALF OF RESPONDENT

MR. MITCHELL: Mr. Chief Justice and may it please the Court:

This case should be dismissed because my client no longer needs the injunction that was granted. The city has now complied with the terms of that injunction and my client --

QUESTION: But it would like to cease complying.

MR. MITCHELL: Pardon?

QUESTION: It would like to cease complying. I take it if it ceased -- it revoked or suspended the rule only under the force of the injunction.

MR. MITCHELL: No, that's not correct, Justice White. There was another death in April of 1982 and a firestorm of public criticism that, along with this lawsuit -- I believe this lawsuit did have some impact -- resulted in the moratorium.

QUESTION: Well, when did the moratorium occur, before or after the entry of the preliminary injunction?

MR. MITCHELL: After entry of the preliminary, by a year and a half. So for a year and a half --

QUESTION: It had been stayed, hadn't it? The injunction had been stayed?

MR. MITCHELL: The injunction has always been stayed. There has never been a --

QUESTION: So it was a voluntary decision, then?

MR. MITCHELL: Correct.

QUESTION: Mr. Mitchell, from my point of view the threshold question here is the standing to bring this case. Let me give you a hypothetical to see if it will shed any light on it. There is a good deal of debate in police circles and public circles about the hot pursuit by police cars, and sometimes that spills over into the speed of fire engines. But confining our hypothetical to the hot pursuit, where police will pursue a bank robber or whatever, and frequently injure other people, citizens, or kill them, do you think a citizen who is fearful of that has standing to go into the courts and stop the practice of hot pursuit?

MR. MITCHELL: Well, Your Honor, it's a complex question. What you need to know, of course, is whether or not that citizen, I believe, has a justifiable fear of real immediate injury.

QUESTION: Let's assume, then, that on one occasion a police car in hot pursuit collided with his car and did very substantial damage and injured him. Now, with that addition, does he have standing?

MR. MITCHELL: Well, it's certainly not --

QUESTION: Other than for damages? Damages, clearly he has a claim. Does he have standing for equitable, injunctive relief to change the practice of the police or the fire department?

MR. MITCHELL: No, Your Honor, he would not, because that policy would not be that police cars collide broadside with citizens' cars. The policy is that you chase people that you need to chase.

In this instance we have a policy, a direct policy, that you choke people who do not threaten serious bodily harm. That's like saying you take your car and run it into a citizen's car.

QUESTION: But the rule is, as I understand it, the rule is that you are not supposed to apply these control holds, you're not supposed to choke them, unless it's necessary to overcome resistance.

MR. MITCHELL: Your Honor, if you'll look at the record, the city training officer says that, Mr. Speer -- his deposition is at page --

QUESTION: Well, is the policy written or isn't it?

MR. MITCHELL: It's written several different ways, Your Honor. Yes, it is.

QUESTION: Where is it in the record?

MR. MITCHELL: At number 74, page 21, 30, and 91 in the official record, and the training bulletin -- the training bulletin, at the city's petition for cert, 41A in the appendix. It says "subdue any resistance."

QUESTION: You say that 41A, is that policy the city policy or isn't it?

MR. MITCHELL: Well, it's not the city policy today.

QUESTION: Well, I know, but was it? That is the policy? That's an adequate description of the policy?

MR. MITCHELL: To subdue any resistance or if an officer felt a bodily attack was going to be made upon him. That was the city policy as best I understand it.

QUESTION: So if a person -- if an officer simply applies the control hold for no reason whatsoever, he's disobeying his instructions.

MR. MITCHELL: Absolutely. But in the case of Adolph Lyons, of course, presumably the officer felt that something was about to happen. Presumably he felt that there was about to be a bodily attack. We don't really know, since we have nothing from the officers in the case.

But consider the position of Adolph Lyons. As a black male in the city of Los Angeles, if you take the statistics -- and let me point you in the record to the statistics. The only ones that we have are in the city cert petition at page 11. It shows application of a total of 113 -- 1,013 strangle holds, with a total of six deaths in the period. Which means that approximately one out of every 200 times that the strangle holds are applied, a death will result.

Now, I submit to you that that, plus the fact that they are quite obviously having a disparate impact on the black male population of Los Angeles -- you are 12 times more likely to be strangled if you are black, to die of strangulation, if you are a black male than if you are white. And 12 of the 16 deaths have been black males.

There are 200,000, approximately 200,000, black males in the city, and they're killing approximately 2 per year with strangle holds. We've got 12 in 6-1/2 years. If you take those statistics, it's a simple calculation to show that your chances as a black male of being strangled are one in 500 versus one in 6,000 for anybody else in the city.

So Adolph Lyons, who suffered almost death -- he was almost death number 17 in this case. He defecated and urinated, he lost consciousness. He suffered --

QUESTION: It was a traffic violation, wasn't it?

MR. MITCHELL: Yes, it was, for a traffic violation.

He suffered this conduct and is terrified that he'll suffer it again. He has one chance in 500 of being stopped and choked by the LAPD, and if he is one chance in 200, because one out of every 200 times they choke, of dying. It is not reasonable to expect the black population, black male population of Los Angeles, to suffer that continuing threat.

QUESTION: Mr. Mitchell, was it the position of the Respondent for purposes of getting the preliminary injunction that the Los Angeles city police routinely use these choke holds for routine traffic stops?

MR. MITCHELL: No, it was not, Your Honor, not that they did that routinely. And we haven't developed all the facts yet. There's a massive amount of work to be done before we get to the trial. Whether they do it routinely in traffic stops or not, we don't know.

QUESTION: And in any event, Mr. Lyons would continue to have his damages action, would he not?

MR. MITCHELL: If he lives, if he lives. And I submit that the risk that he might die far outweighs the possibility that he might be satisfied with any damage action.

What the LAPD is requiring Mr. Lyons to do every day is to play a game of roulette that's a very unusual one. It's one where the LAPD says, our policy is you've got to choose a number with this roulette wheel with 100,000 places as your chances of dying, and we're going to spin this wheel and if that ball should fall in your slot you die.

Now, that kind of policy is different from one where it says, you put down your money, we'll spin the wheel and if the ball falls in your slot you lose your money, because the next day you can go back into court and say, that policy is a taking without due process and it's unconstitutional. It's not true when they take your life.

QUESTION: Was there any evidence in the record, Mr. Mitchell, about the conduct of these various people that had the fatal consequences? That is, were they intoxicated, under the influence of drugs, or how did they react to the police encounter? What does the record show about that?

MR. MITCHELL: Your Honor, the record shows that apparently several of them were under the influence of various drugs, and that may have well contributed to their deaths, because when you're under the influence of narcotic-type drugs, including alcohol, you're insensitive to paint and so when a police officer puts a choke hold on you and seeks to obtain your compliance by causing you paint like that bar arm control, you don't feel it. And if you don't feel it, he can continue to give pressure before you stop, and you die by virtue of that insensitivity to pain.

So those are especially people who you want to avoid choking. The district court made that finding, in fact, that those people are ones who are very, very delicate.

Now, the cases that the Court seems to rely on in terms of judging whether Mr. Lyons has standing do not involve the threat of death, and that's what distinguishes them. A threat, an immediate threat, is comprised of at least four elements: First of all, you've got to know you're threatened. There's got to be some real probability that you're going to be subject to -- the threat's going to be carried out. And there's a consequence to the threat as well as an immediacy of the threat.

Now, the consequence is what in many cases, it seems to met is implicitly assumed but never expressed. The threat of death as a consequence is much different than the threat that bail will be too high, as in O'Shea, or that you'll be treated discriminatorily by a judge.

The fact that the Philadelphia police department doesn't have a disciplinary process that adequately disciplines police officers, as in Rizzo, doesn't involve a threat of death, a direct threat that we can calculate, as we can in this situation. I don't think anyone in this room would like to trade places with Adolph Lyons and have that chance that they're going to die.

You can avoid deciding the case, however, and you have in the past on many occasions avoided addressing complex and very important constitutional questions, on the grounds that my client no longer needs the injunction, with the assurance that the city cannot return to its former policy.

QUESTION: How can you say that? Excuse me. How can you say that when they've said ten days from now they may return to their policy?

MR. MITCHELL: Because I have seen -- and it's not in the record -- the massive outrage and outcry of that community. I just simply believe it's politically impossible for the city to do that.

QUESTION: You would not object, then, to vacating the injunction? It's been stayed.

MR. MITCHELL: That's correct.

QUESTION: But I don't know when the stay expires. When we get through with this case, I suppose. But you would not object to our vacating the injunction?

MR. MITCHELL: Not in the least.

QUESTION: Well, how would we -- on what basis would we vacate the injunction, that the case is just not ripe? You can't say it's moot, can you?

MR. MITCHELL: I can say it's moot, Your Honor, because my client walks the streets of Los Angeles these days with none of that fear that he had before. He doesn't have the standing to have the injunction any longer.

QUESTION: Well, I don't know how we can do that, how we have all that knowledge of what the reality is in Los Angeles.

MR. MITCHELL: He has no controversy any more. He wants to settle.

QUESTION: Well, I don't quite understand. Would we vacate the injunction and dismiss the proceeding, or direct the district court to dismiss the suit?

MR. MITCHELL: Well, there are several counts down there for damages that remain. The damage claims would remain.

QUESTION: Oh, then as far as you would go would be vacate the injunction, but otherwise let the lawsuit proceed, is that it?

MR. MITCHELL: Yes, Your Honor.

QUESTION: Does your client agree with you?

MR. MITCHELL: Your Honor?

QUESTION: Does your client agree with you?

MR. MITCHELL: That it should be dismissed at this point?

QUESTION: Yes.

MR. MITCHELL: Yes, Your Honor, he does.

QUESTION: When did he tell you that?

MR. MITCHELL: After the moratorium was imposed. I must in all candor --

QUESTION: What's his position right now? I mean, I'm just wondering about you standing up there giving away half of your case.

MR. MITCHELL: I haven't spoken to him this morning, Your Honor, but I don't think that his position has changed.

In all candor, should that moratorium be lifted on November the 12th, we'll be right back in the district court and we'll want that injunction that day.

QUESTION: Well, isn't that itself more or less a confession that the Kamenish doctrine really doesn't apply to you and that there is a real prospect that the moratorium could shift, and if it does you'll be back in district court right away?

MR. MITCHELL: Justice Rehnquist, there's chances that they could do hundreds and hundreds of different things. I can't speculate as to what the police commission is going to do. But I don't think this Court, not this Court, should concern itself with a case like this where it's involving --

QUESTION: Under your suggested disposition, if we vacate it and you go back to trial, I gather all of the issues, constitutional and everything else, would have to be resolved in any event by the district court in the first instance, would they not? Wouldn't you in the damages aspect of the suit raise all these constitutional questions, the validity of the choke holds and the rest of it?

MR. MITCHELL: Your Honor, the way the complaint is drafted, those are not raised with respect to the primary count, count one. We would in fact have to prove, I suppose, that it was a taking of my client's right to liberty without due process.

QUESTION: In this specific instance.

MR. MITCHELL: In this specific instance.

QUESTION: Is this a 1983 suit? What is it?

MR. MITCHELL: Yes, it's a 1983 suit.

QUESTION: I guess it's your position that all that's gone on in the past in this case is just wasted effort?

MR. MITCHELL: No, Your Honor, I don't take that position at all.

QUESTION: I don't see what else you can say. You've gone through all of this for how many years? How many years has this case been pending?

MR. MITCHELL: Since 1977, Your Honor.

QUESTION: And all of that's just going to be washed down the drain?

MR. MITCHELL: Your Honor, I think this case --

QUESTION: You say you'll start again after the moratorium's lifted?

MR. MITCHELL: Your Honor, if it's lifted we will.

QUESTION: Didn't you just say that?

MR. MITCHELL: Yes, we will.

QUESTION: So you wasted your time and you've wasted other people's time all along.

MR. MITCHELL: No, Your Honor. I think this case --

QUESTION: Well, I object to you wasting mine.

QUESTION: More than that, if I understand your speech about the fear that your client suffers as he wanders around Los Angeles, that you're going to let him suffer that fear during the period between the lifting of the moratorium and the time you can get back and get another injunctions which may well take a couple of months.

MR. MITCHELL: Well, Your Honor --

QUESTION: I don't suppose -- you don't know for sure what the judge will do, if you have to prove your case all over again.

MR. MITCHELL: Your Honor, my understanding is that on the 9th of November the police commission must make a decision as to whether the moratorium is lifted or not.

QUESTION: Supposing they say, we're going to lift it. You say, well, we don't care. That's somewhat inconsistent with the argument you made a little while ago.

MR. MITCHELL: No, Your Honor. I misspoke if I said that. I'll be in court on November the 10th, the day after November the 9th, to get a preliminary injunction.

QUESTION: Yes, but you may not get it, and you're saying you don't care if we lift the one that's now protecting your client.

MR. MITCHELL: This one has never been in effect.

QUESTION: Well, because it's been stayed. But you say you don't even ask us to lift the stay. You just say, well, just dismiss the injunction, I'm confident I can get it again if I need it. It's a strange posture for representing a client.

QUESTION: Well, isn't it essential to your posture, the statement that you really don't think the political authorities in Los Angeles will ever reinstitute this procedure?

MR. MITCHELL: Indeed.

QUESTION: So you'll be back in the district court if you have to bet but you think the chances are 99 out of 100 that you won't have to be?

MR. MITCHELL: Precisely.

QUESTION: That also is very relevant to your standing, too, isn't it?

MR. MITCHELL: Standing to be here today?

QUESTION: To ask for an injunction. You say that you don't need any protection, that the threat to you is nonexistent in the future. So you don't need an injunction.

MR. MITCHELL: Because the city has changed its policy.

QUESTION: Yes.

MR. MITCHELL: And now it only chokes when it should.

QUESTION: It not only has changed its policy, but you say you have no fear with respect to its present policy.

MR. MITCHELL: Correct.

QUESTION: So you don't need an injunction.

MR. MITCHELL: Absolutely.

QUESTION: When will you get to trial on your case in the ordinary course of events down there?

MR. MITCHELL: With that calendar, probably not until next summer, late spring.

QUESTION: It's going to be a protracted trial, I gather?

MR. MITCHELL: I'm sorry?

QUESTION: It's going to be a long trial?

MR. MITCHELL: Yes, Your Honor, I expect it will be.

QUESTION: The city indicates it'll go on for a very long time.

QUESTION: Will the only issue that remains be the damages issue if we do as you suggest?

MR. MITCHELL: Yes, Your Honor, assuming the moratorium is not lifted, absolutely.

The question of federalism, it seems to me in this case, that has been raised by the city is not a real question any longer. The city claimed that this injunction, if issued, would completely -- cause them to completely revamp all their training procedures, spend a great deal of money. And now the city on its own in May of '82 has done precisely what the injunction required, did it with great ease.

But I don't think that the way they raised the question addresses the issue of federalism that concerns Adolph Lyons, which is that the Constitution is the principle of federalism that he was seeking to be protected by. He wanted to be protected from deprivation of his life without due process of law. That's the principle of federalism that he was concerned with, and there's no other principle of federalism, it seems to me, that in any way makes a local police department immune from this federal protection for the citizen.

The city would have this Court institute a policy that, no matter what policy the city had, the federal judiciary would be powerless to enjoin the policy. If Adolph Lyons does not have standing to challenge this policy, there's absolutely no one in the city of Los Angeles who did, and he's the man, he's one of the men, who was almost killed by it.

So if you do not dismiss as improvidently granted, vacating the injunction --

QUESTION: Mr. Mitchell, am I right, the only judgment before us is the judgment of the Court of Appeals affirming the preliminary injunction, isn't it?

MR. MITCHELL: Yes.

QUESTION: And there was another judgment, was there not, that's not here at this time?

MR. MITCHELL: Justice Brennan, there was a Lyons I, if you like --

QUESTION: Yes.

MR. MITCHELL: -- where the court did reinstitute the lawsuit. It had been dismissed because of the standing problem. So there are two judgments.

QUESTION: But the only one before us now is the affirmance by the Ninth Circuit of the preliminary injunction, isn't it?

MR. MITCHELL: No, Your Honor, I think they're both before you now. Those were issues presented in the petition for cert.

QUESTION: Well, what do we do with the other one under your submission?

MR. MITCHELL: Well, if you dismiss as improvidently granted and vacate the injunction, you needn't do anything else.

QUESTION: Well, we're not dismissing as improvidently granted if we vacate the injunction.

MR. MITCHELL: I beg your pardon?

QUESTION: We're not dismissing as improvidently granted if we vacate the injunction, are we?

QUESTION: No, you're taking action on the merits then.

MR. MITCHELL: Indeed. You could order it remanded for vacation of the injunction.

QUESTION: Mr. Mitchell, if every policeman on the beat had carried out the instructions in the manual that Justice White read earlier in the argument, would there be any problem, that is, that it's used only when it's necessary to subdue violence?

MR. MITCHELL: That wasn't the words I heard Justice White read.

QUESTION: Well, that's the essence of it, isn't it?

MR. MITCHELL: The essence is to subdue any resistance. That's what the bulletin says. And that means subdue all resistance, Your Honor.

QUESTION: Well, it says "necessary to subdue resistance," "necessary." Not just when it's applied for the purpose of.

MR. MITCHELL: Mr. Justice White, a police officer may subjectively feel that it's necessary for him to choke a black man on the streets of Los Angeles because --

QUESTION: That isn't what the bulletin says. It says "necessary" and it doesn't say if the officer feels it's necessary.

MR. MITCHELL: Well, combined with the --

QUESTION: It may be objectively. It may be an objective test.

MR. MITCHELL: I don't think it is, Your Honor. I think the other statements in the record --

QUESTION: You'll find out in your trial. You'll find out in your damage suit.

MR. MITCHELL: Well, I don't think you should leave people to a damage remedy in a situation like this, not with this overwhelming threat. So if you do not dismiss --

QUESTION: Well, this overwhelming threat that you say you don't need any protection against any more.

MR. MITCHELL: Well, it's gone, and hopefully it'll be gone forever.

Thank you.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Merkin?

QUESTION: Excuse me, Mr. Merkin. Will you tell me what do you think is before us? You brought the case here. What judgment is here?

ORAL ARGUMENT BY FREDERICK N. MERKIN, ESQ. ON BEHALF OF THE PETITIONER -- Rebuttal

MR. MERKIN: The one you stated, Mr. Justice Brennan. The judgment that comes from the court of appeals in affirming a preliminary injunction, but there are decisions of this Court --

QUESTION: Not no. What other judgment is before us?

MR. MERKIN: No other judgments.

QUESTION: That's the only one.

MR. MERKIN: Only judgment, yes.

QUESTION: And that is stayed by the courts.

MR. MERKIN: And that is stayed.

QUESTION: But there's a special standing issue even in that judgment.

MR. MERKIN: That's right. It's inherent in it, and this Court has ruled in the past that decisions, -- the term "early in the proceedings" upon which this Court has a rule, can be raised at a later point. It's inherent and indeed, the court could raise it on its motion if it so desired because it's a case of controversey under Article III which is at issue

There are just two points I would like to address on rebuttal. The first is to clarify a point relative to what the city wants. The city wants flexibility. It's not clear that the city ever will go back to the control holds -- wants the flexibility to do so should it make that determination.

The second issue goes to whether the respondent believes the case is moot. If the respondent believes that the need for a declaration or injunctive relief is moot, respondent would move to dismiss all aspects of the case other than damages. And counsel for the respondent said, apparently, that only the damages issue remains.

I think what the respondent is trying to do, however, is to have the spectra of federal judicial control there overseeing the police department's decisions on this matter. And if they're not satisfactory to the respondent, then the respondent will be in court perhaps --

QUESTION: Respondent could have said that when you filed your petition for certiorari. And we wouldn't be here. We wouldn't have all this problem. Right?

MR. MERKIN: Well, I --

QUESTION: Couldn't respondent have said we don't care about the injunction, and let it go.

MR. MERKIN: Respondent could have said that, yes.

QUESTION: You wouldn't be up here, would you?

MR. MERKIN: That's right.

QUESTION: I think in fairness to respondent, though, the moratorium hadn't taken place at the time you filed your petition, had it?

MR. MERKIN: I don't believe so. I believe, Mr. Justice Rehnquist, we filed our petition in December of 1981. The moratorium followed roughly six months thereafter. And debriefing was well underway at the time on May 12th, that the police commission instituted the moratorium. It was shortly thereafter that respondent moved to have the writ dismissed as having been improvidently granted.

QUESTION: And we didn't take action on that motion.

MR. MERKIN: That's right. And I believe correctly so.

QUESTION: Mr. Merkin, do you think we could safely assume, in view of what's been said in court today, that if we were to dismiss the write as improperly granted, that your opponent means what he says and he would just go in and move to dismiss the injunction before the district court? You don't believe him, I take it.

MR. MERKIN: I don't think that's a fair assumption. For example, --

QUESTION: He's, in effect, represented to the Court that he's prepared to do that, as I understand what he said. And it seems sort of silly to be deciding the kind of a case in which obviously, there's some difference of opinion if no matter what we do he's going to say let's vacate the injunction and then you'd probably be happy, wouldn't you?

MR. MERKIN: Mr. Justice Stevens, I think he's saying vacate -- he's not concerned about the preliminary injunction, but his primary causes for declaratory injunctive relief I think he still wishes to pursue. Because otherwise, he would dismiss all injunctive, all equitable aspect of the case.

QUESTION: It would seem to me that a couple of good lawyers would be able to settle this case and save the damage issue without requiring this Court to do very much about it.

MR. MERKIN: Well, there is a problem that the city faces with respect to the doctrines enunciated by the Ninth Circuit. Whatever control hold policy the city chooses is immediately challengeable in district court, and not just the control hold policy; any use of force policy.

QUESTION: That narrows your complaint down to the standing issue, then, doesn't it?

MR. MERKIN: Well, that --

QUESTION: You'd like an advisory opinion on the standing issue is what I understand.

MR. MERKIN: I don't believe it's advisory.

QUESTION: Maybe you'll get a different panel in the Ninth Circuit next time.

(Laughter.)

MR. MERKIN: Perhaps. But that's basically all I have. Thank you.

CHIEF JUSTICE BURGER: Thank you, gentlemen, the case is submitted.

(Whereupon, at 11:55 a.m., the case was submitted.)