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December 13, 1974

Edolphus TOWNS et al., Plaintiffs,
Abraham D. BEAME, Individually and as Mayor of the City of New York, et al., Defendants

Cannella, District Judge.

The opinion of the court was delivered by: CANNELLA


CANNELLA, District Judge.

 This action is presently before the Court on plaintiffs' application for a preliminary injunction, Fed.R.Civ.P. 65(a), restraining the defendants, the Mayor and Fire Commissioner of the City of New York and the Governor of the State of New York, from effecting the closing of eight fire companies in the City of New York. Such closings are scheduled to occur at 9:00 A.M. Saturday, December 14, 1974 (tomorrow). The announcement of the scheduled closings was made by Fire Commissioner O'Hagan on November 27, 1974, by means of his promulgation of Department Order No. 221. The instant application, brought by an order to show cause dated December 11, 1974, is presently before the Court for decision after an evidentiary hearing which was held on December 12 and 13, 1974. For the reasons expressed below, the application is hereby denied.

 As is well recognized in this Circuit, on an application for preliminary injunctive relief the moving party has the burden of clearly showing either (1) probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in their favor. See, e.g., Pride v. Community School Board of Brooklyn, 488 F.2d 321, 324 (2 Cir. 1973).

 In this regard, the Court finds that the sole issue upon which plaintiff could prevail on this application is by showing that the equal protection clause of the Fourteenth Amendment is violated by the proposed closings in that the closings have a racially discriminatory impact and effect. (Despite plaintiffs' arguments to the contrary, fire fighting services, although significant to the preservation of life and property, can not be deemed a fundamental constitutional right so as to trigger strict scrutiny. San Antonio School District v. Rodriguez, 411 U.S. 1, 33-34, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) (rejecting education as a fundamental right); Lindsey v. Normet, 405 U.S. 56, 92 S. Ct. 862, 31 L. Ed. 2d 36 (1972) (rejecting housing as a fundamental right).) For that reason, it is not the duty of this Court to make inquiry into the political or socio-economic motives or reasons for the City's determination to close these particular firehouses. Rather, the Court's only obligation is to assure itself that in effecting the proposed cutbacks the City has not trammelled upon the constitutional rights of any racial minority group. Thus, in order for plaintiffs to succeed on this application, they must satisfy the standard for injunctive relief set out above by demonstrating either racially discriminatory intent or motive as a basis for the proposed closings or a racially discriminatory effect resulting therefrom. However, as no "bad faith, ill will or evil motive" is ascribed to the defendants in effecting the alleged racial discrimination which is here at issue, for plaintiffs to prevail hereon they "must show that there [will be] an impingement or a disproportionate effect on nonwhites when the city" eliminates the eight fire companies. Citizens Committee for Faraday Wood v. Lindsay, 507 F.2d 1065 at 1068 (2 Cir. 1974).

 In this case, alleging the unequal distribution of municipal services, the Court is guided by Judge Friendly's decision in Beal v. Lindsay, 468 F.2d 287, 290-291 (2 Cir. 1972). In Beal, following the Fifth Circuit's landmark decision in Hawkins v. Town of Shaw, 461 F.2d 1171 (5 Cir. 1972) (en banc), aff'g, 437 F.2d 1286 (1971), the court formulated the following standard for the evaluation of equal protection claims in the context of municipal service allocations:

In a case like this, the City has satisfied its constitutional obligations by equal input even though, because of conditions for which it is not responsible, it has not achieved the equal results it desires. Cf. Fessler & Haar, Beyond the Wrong Side of the Tracks: Municipal Services in the Interstices of Procedure, 6 Harv.Civ.Rights -- Civ.Lib.L.Rev. 441, 461-63 (1971). How much further [the City must] go beyond equal effort . . . is a matter of municipal policy, not of constitutional command. . . . In determining whether there has been equality of effort, federal courts must not hold municipalities to standards of precision that are unattainable in the process of government.

 See also, Schwartz, Municipal Services Litigation After Rodriguez, 40 Brooklyn L.Rev. 93 (1973). The scrutiny mandated by Beal does not come into play, however, absent a showing of racial discrimination by the City in the allocation of its resources. In the ordinary course of events, it is not the province of federal courts to consider or evaluate the quality, quantity or even the inequality, of municipal services. These are questions of policy which are best determined by the political branches of government and not by the judiciary. Thus, to warrant this Court's intervention in the instant matter, the plaintiffs must establish the existence of serious questions going to the racial inequality of the City's proposed closing of these eight fire companies sufficient to require immediate action.

 Upon the formulation of the issues by the Court at the initial hearing of this matter, it became incumbent upon the plaintiffs to come forward with proof of the racial composition of each of the areas affected by the proposed closings. At the hearing, the sole evidence produced by plaintiffs on this matter was the testimony of former Deputy Fire Chief Laufer, Fire Lieutenant Montgomery and Assemblyman Griffith. None of these witnesses are demographers or claim any expertise in such endeavors. Taken as a whole, this testimony indicated that seven of the eight response areas served by the companies to be eliminated were populated by between 90-99% minority group residents. However, after a cursory examination of the undifferentiated documentary evidence produced at this morning's hearing, and the census material brought to chambers at 2:00 this afternoon, the Court has serious doubts as to whether more than five of the areas served can even arguably be deemed minority group areas.

 Were the record sufficiently developed to permit a finding of fact as to the primarily caucasian populations of the response areas served by Companies E-272, E-13 and E-203, the Court would be disposed to find that the statistics did not establish a prima facie case of racial discrimination due to unequal effect. Otherwise, as the Supreme Court said in the context of welfare payments in Jefferson v. Hackney, 406 U.S. 535, 548-549, 92 S. Ct. 1724, 1732, 32 L. Ed. 2d 285 (1972),

acceptance of appellants' constitutional theory would render suspect each difference in treatment among the grant classes, however lacking in racial motivation and however otherwise rational the treatment might be. Few legislative efforts to deal with the difficult problems posed by current welfare programs could survive such scrutiny and we do not find it required by the Fourteenth Amendment.

 Nonetheless, for the purposes of this opinion, the Court will assume arguendo that seven of the eight areas served by the companies to be eliminated are primarily inhabited by members of racial minority groups. Accepting these figures, the Court, recognizing that "percentages themselves are certainly not conclusive, but at some point a showing that state action has a devastating impact on the lives of minority racial groups must be relevant," (Jefferson v. Hackney, 406 U.S. 535, 575-576, 92 S. Ct. 1724, 1745, 32 L. Ed. 2d 285 (Marshal, J., dissenting)), finds plaintiffs to have made out a prima facie case. See, Mayor v. Educational Equality League, 415 U.S. 605, 620, 94 S. Ct. 1323, 39 L. Ed. 2d 630 (1974).

 However, having done so solely by means of statistical evidence and absent any showing of discriminatory intent, "the burden of proof shifts to the [City] to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result." Alexander v. Louisiana, 405 U.S. 625, 632, 92 S. Ct. 1221, 1226, 31 L. Ed. 2d 536 (1972). Accord, Turner v. Fouche, 396 U.S. 346, 360-361, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970); Coleman v. Alabama, 389 U.S. 22, 23, 88 S. Ct. 2, 19 L. Ed. 2d 22 (1967) (per curiam); Swain v. Alabama, 380 U.S. 202, 208-209, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965); Patton v. Mississippi, 332 U.S. 463, 68 S. Ct. 184, 92 L. Ed. 76 (1947); Labat v. Bennett, 365 F.2d 698, 719 (5 Cir. 1966), cert. denied, 386 U.S. 991, 87 S. Ct. 1303, 18 L. Ed. 2d 334 (1967); Fessler & Haar, supra, 6 Harv.Civ.Rights -- Civ.Lib.L.Rev. at 446-456. Cf., Keyes v. School District, 413 U.S. 189, 208-210, 93 S. Ct. 2686, 37 L. Ed. 2d 548 (opinion of the court), 236-237, 93 S. Ct. 2701 (Powell, J., concurring) (1973).

 Thus, under the cases, the City was obligated to come forward with proof of a nature and quality sufficient to rebut the plaintiffs' prima facie showing. To this end, two forms of rebuttal evidence may be invoked. First, a "defendant may challenge the accuracy or completeness of the plaintiff's statistics in portraying a valid profile of service distribution or enjoyment" and, second, "the defendant may offer proof of a rationale for the [alleged discrimination] which, if credited by the trier, would overcome the established inference of legally forbidden discrimination." Fessler & Haar, supra, at 447-48. Absent such rebuttal, plaintiffs' prima facie case of racial discrimination would be established and defendants would then be required to demonstrate a "compelling interest" which would justify its discriminatory action. In the instant case, however, the Court finds defendants to have satisfactorily ...

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