Portland Police Association and Stan Peters, Individuallyand As President of the Portland Policeassociation, Plaintiffs-appellants, v. the City of Portland, by and Through the Bureau of Police;and B. R. Baker, Individually and in His Capacityas Chief of the Bureau of Police,defendants-appellees, 658 F.2d 1272 (9th Cir. 1981)

The Portland Police Association (PPA) and its President brought suit in district court for an injunction against enforcement of an order by the Chief of the Bureau of Police of the City of Portland. In essence, the Chief's order states that after a "major incident," such as the discharge of a firearm or an on-duty automobile collision, the Portland police officer involved must "completely document his/her actions" in official reports before going off duty. It further states that "(o)fficers involved in such incidents do not, at the time of creating such official reports, have the right to consult with an attorney...." The order provides, however, for provision of counsel if the officer's superiors or the police legal advisor believe that the officer may be exposed to criminal liability or employment sanctions. Peters and the PPA challenge the portion of the order which limits the right to consult counsel before writing the report, and they seek relief under 42 U.S.C. § 1983. They allege that the order violates their privilege against self-incrimination, their freedom of association, their sixth amendment right to counsel, and their due process and equal protection rights under the fourteenth amendment. After consolidating the hearing for the preliminary injunction with the trial on the merits, the court below denied the injunctive and declaratory relief requested by the plaintiffs. We hold that the complaint does not present a justiciable controversy and remand the case so that it may be dismissed for lack of jurisdiction.

Before a case is justiciable in federal court, it must be alleged that the plaintiff is threatened by injury that is "both 'real and immediate,' (and) not 'conjectural' or 'hypothetical.' " O'Shea v. Littleton, 414 U.S. 488, 494, 94 S. Ct. 669, 675, 38 L. Ed. 2d 674 (1974), quoting Golden v. Zwickler, 394 U.S. 103, 109-10, 89 S. Ct. 956, 960, 22 L. Ed. 2d 113 (1969). See also Rizzo v. Goode, 423 U.S. 362, 372-73, 96 S. Ct. 598, 604-05, 46 L. Ed. 2d 561 (1976); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231, 238-39 (9th Cir. 1980). Without such immediacy and certainty of injury the dispute is not ripe; it has not "matured sufficiently to warrant judicial intervention." Warth v. Seldin, 422 U.S. 490, 499 n.10, 95 S. Ct. 2197, 2205 n.10, 45 L. Ed. 2d 343 (1975).

O'Shea presented an example of an impermissibly speculative claim. There, nineteen plaintiffs brought a class action challenging allegedly unconstitutional bail setting and post-trial sentencing practices in Cairo, Illinois. None of the plaintiffs, however, alleged any specific injury with regard to these practices. 414 U.S. at 495, 94 S. Ct. at 676. All that counsel for the plaintiffs could allege was that several unspecified plaintiffs had been subject to the illegal practices. Id. In order to allege the necessary injury, the court stated that it was necessary to assume a series of contingencies: "if (plaintiffs) proceed to violate an unchallenged law and if they are charged, held to answer and tried in any proceedings, they will be subjected to discriminatory practices." Id. at 497, 94 S. Ct. at 676 (emphasis in original). This string of contingencies was determined to be too speculative and conjectural for resolution by a federal court.¹  Id. See also Rizzo v. Goode, supra; Golden v. Zwickler, supra; City of South Lake Tahoe, supra; Stewart v. M. M. & P. Pension Plan, 608 F.2d 776, 784-85 (9th Cir. 1979).

Here, the allegations of the appellants are even more speculative. Central to any case in which Portland police officers' rights are even arguably violated is the following series of contingencies: the officer must be in a "major incident"; he or she must be at least partly culpable for its occurrence; he or she must request counsel; that request must be denied or counsel must not otherwise be supplied; and, finally, disciplinary or criminal proceedings must be instigated for either failure to complete reports or because of the utterance of incriminating statements during the report process. The series of contingencies is not only long, but the appellants have failed to demonstrate that each stage necessarily follows its predecessor. In their pretrial statement, for example, both parties agreed not to contest that no Portland police officer had ever been denied counsel when he or she requested one. In O'Shea, at least, there was some allegation of past illegal activity upon which to base a claim of a threat of real and immediate injury. 414 U.S. at 495-96, 94 S. Ct. at 676. Furthermore, the order itself says that counsel may be provided if the officer's command or the independent police advisor believes the officer's statements may be incriminating. Thus, not only is the series of contingencies longer than the one in O'Shea, but the appellants can neither offer any history of alleged deprivations, nor assert with assurance that counsel will not be provided in the future. As such, their claim is abstract at best.²  It is not appropriate for judicial determination at this time.³ 

The judgment is vacated and the case is remanded so that the action may be dismissed for want of a justiciable controversy.

REINHARDT, Circuit Judge, dissenting:

I dissent. The Portland Police Association (PPA) represents all of the members of the Bureau of Police of the rank of policeman, detective, criminalist, and sergeant (collectively referred to in this dissenting opinion as "police officers"). In August 1978 the Chief of Police issued a memorandum-order prohibiting police officers from consulting with private counsel prior to completing and submitting an official report regarding any "major incident" in which they are involved.¹  Major incidents include the discharge of a firearm at a criminal suspect, other use of deadly force, and involvement in a serious on-duty motor vehicle accident. There is an exception for instances in which a commanding officer or the Bureau's legal advisor concludes, on the basis of the information provided to him, that the officer should be allowed to consult private counsel.²  It is not entirely clear whether this memorandum-order reflects a continuation of a preexisting policy, as defendants contend, or whether the memorandum-order constitutes a change in policy in some respects, as the memorandum-order itself suggests and as the Chief of Police apparently admitted.³  It is clear, however, why the Chief of Police issued the memorandum-order.

In July 1978, in an article contained in its regular newspaper, the PPA announced to its members that it had hired an attorney to give advice to its members. The article stressed the attorney's familiarity with firearms incidents and the Bureau's operations. The attorney had just completed five years service with the Bureau as a legal advisor. The article notified the Portland police officers that if they were involved in a firearms incident they could call the attorney at his home or office number, that he would be on 24-hour call and would "immediately" provide whatever legal advice they needed in preparing reports or making statements. The Chief testified that upon reading the PPA's newspaper article he issued the memorandum-order which gives rise to the litigation before us.

The PPA contends that the memorandum-order violates a number of its members' constitutional rights, including their first amendment right to freedom of association.⁴  There is no question that individual officers who consult an attorney in violation of the Chief's memorandum-order are subject to discipline, including discharge. The Chief so testified. There is also no question that the Portland police officers desire to exercise their constitutional right to consult an attorney prior to filing a report (if they in fact have such a right), since they hired an attorney to provide that very service.⁵ 

The majority finds a lack of ripeness and dismisses the litigation for want of a justiciable controversy. I disagree. While the constitutional question is a serious and substantial one, I do not express any view as to its ultimate resolution. That is a matter that will have to be decided when the majority's test of ripeness is met. That the officer who chooses to be a guinea pig to be the first to exercise what Portland's police officers believe to be their constitutional right to consult an attorney may suffer a lawful discharge if another panel of this court subsequently decides he guessed wrong about the meaning of the constitution is, to say the least, an unfortunate consequence of the majority's decision.

The majority bases its conclusion as to ripeness primarily on O'Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974). O'Shea involved an effort by a number of civil rights activists to have the federal courts impose restrictions on a local judge and magistrate who allegedly discriminated against those seeking racial equality. The Court was unwilling to assume that any of the individuals who filed the lawsuit would in the future violate any valid law, be charged before the particular magistrate or judge, and then be treated in a discriminatory manner by one of them. The Court said that it was "important" to its decision that there was no allegation that any statute was unconstitutional on its face or as applied. Id. at 496, 94 S. Ct. at 676. The Court thought the O'Shea lawsuit was speculative.⁶  In the case before us, the facts are precisely the opposite. The suit is brought not by a few individuals who might or might not ever be affected by alleged discriminatory treatment by a particular individual, but by all of the members of a police department who are directly affected by a formal memorandum-order issued by their Chief for the specific purpose of limiting their rights. They contend the order is unconstitutional on its face and as construed by the issuing authority.

In the case before us, all of the police officers, acting collectively through their association, hired an attorney to be available 24 hours a day to provide them with advice at the time they deemed that advice necessary. The Police Chief reacted swiftly by issuing a formal order prohibiting them from obtaining that advice. We can presume that the police officers retained an attorney to provide advice because they desire to take advantage of his services. While it is true that some individual officers may forego their constitutional right (if it exists) to seek such advice, it is far from speculative to recognize that others are certain to utilize the services of the attorney they "hired". It takes little knowledge of the realities of life in a metropolitan police department to realize that the Chief of Police issued his order swiftly for good reason. While, as the Supreme Court said, the 19 O'Shea plaintiffs might never be arrested for violating a valid law, it is inevitable that some of the members of the Portland Bureau of Police will be involved in serious incidents, i. e., they will either use firearms, or deadly force, or will be involved in automobile accidents.⁷  It is equally clear that some of these officers will seek to consult the attorney already retained by them for that very purpose. That we cannot now determine specifically which of the officers before us will do so is of no consequence. In my opinion, there is nothing speculative, therefore, about the fact that the memorandum-order gives rise to the necessary threat of future injury.

Another case relied on heavily by the majority is Rizzo v. Good, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976). In that case, the Court said it "entertain(ed) serious doubts" as to the standing question. 423 U.S. at 371, 96 S. Ct. at 604. In Rizzo, plaintiffs sought to have the federal courts impose supervisory procedures over the conduct of the Philadelphia Police Department. The district court found that "only a small percentage" of policemen violated citizens rights. The Court characterized the suit as "a heated dispute between individual citizens and certain policemen," and said the real issue was not what the "named petitioners (the Mayor, the Chief of Police, and other top officials) might do to them (respondents) in the future ... but upon what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman's perception of departmental disciplinary procedures." 423 U.S. at 371-372, 96 S. Ct. at 604. The Court said there was no official authorization or approval of the isolated wrongful acts; no official police department policy was involved. The Court also said that the district court had found that unless the relief sought were granted, "the incidents were likely to continue to occur, not with respect to (the complaining individuals)," but with respect to other minority citizens. 423 U.S. at 371, 96 S. Ct. at 604.

In the case before us, the suit is aimed at the very party that has committed the alleged wrongful act. It is brought by those who are directly affected. There is no question that the named defendants intended and intend to deprive plaintiffs of the rights they assert. There is no question that an official policy of the Bureau of Police is the source of the controversy. There is nothing speculative about the very real disagreement over constitutional rights that exists between the Portland police officers and the Chief of Police. The Chief issued a narrow, specific, direct order designed expressly to prohibit the officers from doing precisely what they not only seek to do but what they actually have done by hiring an attorney.

The distinctions between O'Shea and Rizzo on the one hand and the type of complaint filed by the Portland police officers on the other are clearly set forth in Lyons v. City of Los Angeles, 615 F.2d 1243 (9th Cir.), cert. denied, 449 U.S. 934, 101 S. Ct. 333, 66 L. Ed. 2d 158 (1980). In Lyons, the court reversed a district court's finding that no case or controversy existed in a suit in which an individual citizen challenged a Los Angeles Police Department policy authorizing the use of "stranglehold controls other than in life threatening situations." This court noted that, in contrast to O'Shea and Rizzo, the challenge involved "an accepted police practice" and a "sanctioned police practice and policy." 615 F.2d at 1246, 1247. The court said:

The use of these strangleholds is accepted police practice, even in non life-threatening situations. It is not farfetched to suggest that especially in a city like Los Angeles, where many motorists drive long distances daily, the chances of being stopped by a policeman for an alleged motor vehicle violation are fairly good. Certainly the odds of having that sort of encounter are much greater than the odds of having the sort of encounters described in O'Shea or in Rizzo, and therefore meet the constitutional requirements of "case" or "controversy." Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691 (703), 7 L. Ed. 2d 663 (1962); Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S. Ct. 597, 601, 67 L. Ed. 1078 (1923).

615 F.2d at 1246-47. We should note, incidentally, that it was not contended in Lyons that the "accepted police practice" was to apply the stranglehold to every motorist stopped for an alleged motor vehicle violation.

In Lyons, this court properly distinguished both O'Shea and Rizzo "on broader and more significant grounds." We looked beyond the specifics of the plaintiffs' complaints to determine the true thrust of the O'Shea and Rizzo decisions. We concluded that the basis for those decisions was the Supreme Court's rejection of plaintiffs' efforts to impose continuing federal supervision over the day-to-day operations of a local court system and local police department. Lyons said:

Because of the broad charges and the sweeping relief sought in both cases, the plaintiffs were asking the federal courts, in effect, to supervise the conduct of state officials and institutions over a long period of time. It was this role and this perceived intrusion into what were considered state matters which were at the heart of the court's reluctance to find that the "case" or "controversy" requirements had been met.

615 F.2d at 1247.

The majority opinion suggests that the Portland police officers here seek to impose federal controls over "the inner workings and control of a local police department." This suggestion, as Lyons makes plain, stems from a misunderstanding of O'Shea and Rizzo. It is also a mischaracterization of the relief sought by Portland's police officers. These officers will undoubtedly be surprised to discover that they are attempting to disturb the delicate balance between our state and federal systems simply by seeking to invoke their constitutional rights. Federal courts still retain jurisdiction to invalidate a police department rule which violates the constitutional rights of citizens, even if they be police officers. In Lyons, Judge Tuttle sought, in a learned discussion, to explain the difference between the type of relief sought here invalidation of an unconstitutional order and the vague but massive type of supervisory relief sought in O'Shea and Rizzo. Judge Tuttle clearly laid out the distinction between a preventative injunction designed to stop a discrete event or act and a structural injunction "entailing a relationship of long duration between the judge and the social institution." While paying lip service to Lyons, the majority opinion ignores every distinction it attempts to draw and every lesson it seeks to teach.⁸ 

Since the Portland police officers have taken concrete action to implement their desire to consult legal counsel when preparing their reports regarding serious incidents, the Chief of Police has ordered them not to exercise their "rights," and the violation of the Chief's memorandum-order would subject Portland police officers to disciplinary action, the effect of the memorandum-order is to place Portland police officers in the position of exercising their constitutional rights (if they exist) only at the risk of jeopardizing their employment. The effect of the majority opinion is to hold that officers must actually take that risk in order to present a justiciable case or controversy. That ruling represents neither common sense nor the law, as I understand it. To require police officers to risk their jobs in order to invoke their constitutional rights is to place them in fear of exercising such rights. When individuals are put in that position the requisite irreparable injury for obtaining an injunction has been shown. As the Supreme Court said in Allee v. Medrano, 416 U.S. 802, 94 S. Ct. 2191, 40 L. Ed. 2d 566 (1974) " '(t) he traditional prerequisite to obtaining an injunction' " is established when individuals are "placed in fear of exercising their constitutionally protected rights to free expression, assembly, and association." 416 U.S. at 814-815, 94 S. Ct. at 2200.⁹ 

Rather than remanding for dismissal for want of a justiciable controversy, I would reach the merits of the dispute, as the district court did, and decide the serious constitutional questions presented in this case, although not necessarily in the same manner as the district court did.