APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 79-2937)
Before: ALDISERT, VAN DUSEN and GARTH, Circuit Judges
ALDISERT, Circuit Judge .
The primary question in this appeal is whether the United States has implied authority to sue a city and its officials for an injunction against violations of the fourteenth amendment rights of individuals. The government argues that both the criminal provisions of the Civil Rights Acts of 1866 and 1870, 18 U.S.C. §§ 242 and 241, and the fourteenth amendment itself give rise to an implied right of action. We also must decide whether the government has stated a claim for relief under the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d, or the State and Local Fiscal Assistance Act of 1972 (the "Revenue Sharing Act"), 31 U.S.C. § 1242. In a pair of published opinions, the district court held that the Attorney General has no standing to advance the civil rights of third persons absent an express statutory grant of the necessary authority, and that the complaint did not allege claims under the two funding statutes with sufficient specificity; and accordingly it dismissed the complaint. United States v. City of Philadelphia, 482 F.Supp. 1248 and 1274 (E.D. Pa. 1979). We affirm.
Because the case comes before this court on appeal from orders of the district court dismissing the complaint, we assume that all well-pleaded allegations of the complaint are true, and we set out the facts alleged in the light most favorable to the appellant.
The government's theory is that the appellees, the City of Philadelphia and numerous high-ranking officials of the City and its Police Department, have engaged in a pattern or practice of depriving persons of rights protected by the due process clause of the fourteenth amendment. The allegations of the complaint can be conveniently divided into two categories. First, it alleges that Philadelphia police officers have engaged in a widespread practice of violating the rights of persons they encounter on the streets and elsewhere in the city. In particular, it charges that officers have stopped automobiles and pedestrians without probable cause and physically abused or illegally arrested those who protested, arbitrarily closed public areas and responded to protests or resistance with physical abuse and unwarranted arrests, conducted illegal searches and seizures, detained persons without probable cause or for excessive periods, denied them access to counsel or to medical care while detained, physically abused arrested persons, extracted information and confessions by means of physical brutality, subjected individuals to verbal abuse (including racial slurs), filed unwarranted criminal charges, and engaged in unnecessary use of deadly force, such as shooting criminal suspects who offer no realistic threat to the safety of police officers or other persons.
Second, the United States alleges that the appellees have deliberately encouraged these illegal practices through the policies and procedures they have established for investigating complaints of illegal police activity. It charges that the appellees discourage victims of abuse from complaining, suppress evidence that inculpates police officers, accept implausible explanations of abusive conduct, harass complainants and witnesses, prematurely terminate investigations, compile reports that justify police officers' conduct regardless of actual circumstances, refuse to discipline police officers for known violations, and protect officers from outside investigations. It also charges various appellees with pursuing inadequate training practices, resulting in a pattern of police abuses, and with engaging in surveillance and harassment of critics of the police department.
The United States also alleges generally that some or all of the appellees have deliberately endeavored to encourage police violations of civil rights. It charges that these practices have been implemented with the intent and the effect of inflicting abuse disproportionately on black and Hispanic persons. And finally, it alleges that the foregoing practices have been implemented by police department personnel whose activities are funded in part by federal grants dispensed for the purpose of improving police procedures.
In its prayer for relief, the government asks for a declaration "that the acts, practices, policies and procedures alleged herein violate the Constitution and laws of the United States." It also asks the court to enjoin "the defendants, their agents, employees, successors in office, and all those acting in concert or participation with them" from engaging in the conduct alleged, "from failing or refusing to correct the effects" of that conduct, "from failing or refusing to ensure" that such conduct will not recur, "and from receiving, expending, or failing to make restitution for previously expended federal funds, unless and until defendants cease such acts, policies, practices, and procedures and correct their effects." Complaint, P50, App. at 34.
We first address the contention that the two criminal statutes, 18 U.S.C. §§ 241 and 242, implicitly grant the United States a right of action for injunctive relief. These statutes provide:
§ 241. Conspiracy against rights of citizens
If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same...
They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life.
§ 242. Deprivation of rights under color of law
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.
The Attorney General relies principally upon Wyandotte Transportation Co. v. United States, 389 U.S. 191 (1967), and Cort v. Ash, 422 U.S. 66 (1975), as authority for inferring a civil cause of action from the two criminal statutes. These and subsequent decisions of the Supreme Court, including Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11 (1979), Touche Ross & Co. v. Redington, 442 U.S. 560 (1979), and Cannon v. University of Chicago, 441 U.S. 677 (1979), establish comprehensive standards for inferring rights of action. Under these decisions the "central inquiry" and the "ultimate question" is congressional intent. Touche Ross, 442 U.S. at 575, 578; see also Transamerica, 444 U.S. at 15-16; Cannon, 441 U.S. at 688; Cort, 422 U.S. at 80-84; Wyandotte, 389 U.S. at 23-04; Glus v. G.C. Murphy Co ., 629 F.2d 248, 255 (3d Cir. 1980), petition for cert. filed, 49 U.S.L.W. 3252 (U.S. Sept. 22, 1980) (No. 80-461); id. at 262-63 (Sloviter, J., dissenting); National Sea Clammers Ass'n v. City of New York, 616 F.2d 1222, 1229 (3d Cir. 1980), cert. granted, 49 U.S.L.W. 3289 (U.S. Oct. 20, 1980) (No. 79-1760).
We begin by rejecting the government's suggestion that the comprehensive analysis developed in the later Supreme Court opinions must be discarded in favor of its 1967 Wyandotte decision. The Attorney General argues that Wyandotte sets forth a different and more liberal test for recognition of implied rights of action in favor of the government, and that Wyandotte requires implication of the broad right to seek injunctions claimed here because there are no "other adequate means by which the United States can carry out its responsibility." Brief for Appellant at 18.
We reject the argument that Wyandotte established a different standard for inferring rights of action in favor of the government than the standard applicable to private litigants.*fn1 Wyandotte relied on "cases involving civil actions of private parties," 389 U.S. at 202, and Cort v. Ash subsequently cited Wyandotte in developing further the test for inferring private rights of action. 422 U.S. at 79. More important, however, we think that Wyandotte represents merely one step in the development of the current standards for inferring rights of action and that the unrefined analysis employed in Wyandotte is no longer an accurate statement of the law. In Wyandotte the Supreme Court seemed to operate on the basis of a presumption that a civil damages remedy ordinarily should be inferred from a penal statute in the absence of "some persuasive indication" that "Congress must have intended the statutory remedies and procedures to be exclusive of all others." 389 U.S. at 200. We would be blind to subsequent developments in a dynamic area of the law, however, if we failed to recognize that in recent years the Court has been far more reluctant to infer rights of action from silent statutes. See Touche Ross, 442 U.S. at 578. Instead of the presumption employed in Wyandotte, that statutory silence indicates congressional intent to create a cause of action by implication, the Court now adheres to the "elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." Transamerica, 444 U.S. at 19.*fn2 See also Touche Ross, 442 U.S. at 574: "[W]e are extremely reluctant to imply a cause of action... that is significantly broader than the remedy that Congress chose to provide." The analysis employed in the later cases is plainly inconsistent with the generous attitude of the Wyandotte opinion.*fn3 Therefore, we must reject the government's argument that Wyandotte would require us to infer a right of action from congressional silence and an absence of "adequate" remedies to redress the wrongs at issue.
Even if we were to accept the suggestion that a lack of adequate remedies requires recognition of an implied right of action, however, we could not find a federal right to sue for an injunction in this case. Congress has created numerous mechanisms for the redress of denials of due process. Persons denied constitutional rights may sue state officials for damages or injunctive relief under 42 U.S.C. §§ 1981, 1982, 1983, and 1985. Those suits may be filed as class actions under Rule 23, Fed. R. Civ. P., and prevailing litigants may recover attorneys' fees under 42 U.S.C. § 1988. A private litigant may obtain damages or an injunction against a city itself in certain situations. See Owen v. City of Independence, 445 U.S. 622 (1980); Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978). Private injunctive actions have been maintained successfully against "widespread" violations committed by local law enforcement officials. See, e.g., Allee v. Medrano, 416 U.S. 802 (1974); Hague v. Committee of Industrial Organization, 307 U.S. 496 (1939); Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) (in banc); see also, Hairston v. Hutzler, 334 F. Supp. 251 (W.D.Pa. 1971) (preliminary injunction), aff'd ., 468 F.2d 621 (3d Cir. 1972) (per curiam). In Wyandotte, by contrast, the United States was forced by an emergency situation to remove a negligently sunken barge loaded with a dangerous cargo from the bottom of the Mississippi River, and it had no mechanism to recover its expenses other than a personal action against those responsible for the sinking.*fn4
In addition, the United States can initiate criminal prosecutions under §§ 241 and 242, and it has successfully prosecuted Philadelphia police officers for unconstitutional conduct. See, e.g., United States v. Ellis, 595 F.2d 154 (3d Cir.), cert. denied, 444 U.S. 838 (1979). The Attorney General argues nonetheless that the criminal process is inadequate, because he would rather rely on a massive "single civil action" than to "continue repeated use of the criminal process." Brief for Appellant at 19. In short, although numerous express remedies exist, the Attorney General, stretching Wyandotte beyond recognition, invites this court to create another. We decline the invitation on this record.*fn5
Nor are we persuaded that a different result is compelled by application of the Cort v. Ash analysis. That decision recognized four factors as relevant in determining whether a statute has implicitly created a private remedy:
First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," -- that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
42 U.S. at 78 (citations omitted).
For the purposes of our analysis we shall assume, without deciding, that the Cort v. Ash test is appropriate in this case, in which no private litigant claims monetary damages for the harm it has suffered from a statutory violation, but instead the United States seeks an injunction against what it perceives to be criminal activity.*fn6 We apply the Cort analysis in this case because the appellant advocates its use and because it clearly is no less generous a test than the appellant is entitled to have applied. This makes it unnecessary to decide whether a stricter standard should be applied to the federal government asserting an implied right to sue for an injunction than to a private litigant seeking damages. However, we apply the Cort test with ...