(concurring in part and dissenting in part):
I agree that this case should be remanded for further proceedings. But, I object to the court’s apparent failure to recognize our obligation to seek the earliest possible resolution of this more than five year old law suit by providing some guidance for the District Court’s consideration. Otherwise, the delay may take its toll in the deprivation of basic constitutional rights, the exacerbation of friction between the police and the ghetto community, and the loss of the courts’ credibility.
I
There is clearly substantial evidence to support the District Court’s finding that “presently vagrancy observations [the police practice originally complained of] result from ‘spot check’ observation forms.”1 The court today does not say otherwise; it accepts the District Court’s findings as “impregnable” because not challenged on appeal. The history of the “spot check” procedure makes it quite clear that it is but the vagrancy observation of old, with name and form number changed, but the same unconstitutional standard.
In response to this court’s Ricks decisions,2 the police department issued the so-called Layton memorandum of February 17, 1969. That document, dealing in part with vagrancy observations, said:
[T]he arrest policies announced herein do not preclude an officer from observing persons engaged in suspicious activity in a public place and from approaching those persons and making inquiry. ... In those circumstances where a person refuses to identify himself or does not give a reasonable explanation of his conduct, the officer should make an accurate and detailed record of the person’s physical description and ottw er significant characteristics, clothing worn and the explanations furnished. (Emphasis added) 3
The “spot check,” in contrast, began its existence as a traffic enforcement device, to be employed with a view towards “detecting persons operating without a valid driving license.” 4 However, after the Supreme Court decided Terry v. Ohio,5 the “spot check” underwent a major transformation in both purpose and scope. The new purpose was described in police department communications as follows:
Effective use of this new PD 725 spot check form in recording suspicious persons ... in our area can be an invaluable aid in assisting in this District’s effort to control crime and identify and apprehend offenders.6
*424Another police communication, certainly reminiscent of the Layton memorandum, further explains the expanded use of spot checks:
The traffic check form currently in use shall also be used for stopping and checking suspicious persons on foot. Members shall take the person’s name, nickname, date of birth, address, location of stop, general physical description and description of clothing worn, (emphasis added) 7
Most importantly, the spot check procedure authorized the stopping of pedestrians under the same vague standard— mere “suspicion” — as the earlier vagrant cy observations. It seems clear that spot cheeks are but another way of implementing the policy of the Layton memorandum.8
II
The District Court correctly determined that spot checks are an unconstitutional police practice, a conclusion the court today characterizes as “impregnable”. The District Judge properly rejected the Government’s assertion that because a person who is stopped has an unspoken right to continue walking and ignore a policeman’s inquiries, he has not been seized. The memoranda describing the practice themselves cast doubt on the accuracy of the government’s suggestion. And the Supreme Court in Terry held that the stop stage of an encounter is coextensive with a seizure, hence within the purview of the 4th Amendment.
It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.9
As the trial judge perceptively observed, when a policeman stops and questions a person, the officer’s “uniform, badge and all other indicia of his power as a law enforcement authority” compel an obedient response. The person is surely “restrained.”
In Terry and related cases10 the Court also carefully defined by what standards a police officer’s intrusion on an ordinary citizen’s privacy would be constitutionally permissible. Those cases held that an officer must “be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” 11 In contrast, *425spot cheek stops are authorized on mere suspicion.
The Supreme Court of Pennsylvania recently struck down that state’s similar vehicle spot check procedure. Although noting that such stops may serve a law enforcement purpose, the court declared them unconstitutional under the Terry test. The court warned that if the police were allowed to stop automobiles without being able to “point to specific and articulable facts”, they could intrude on “basic constitutional rights on the basis of subjective prejudices.”12
The government admitted at oral argument in this ease that the spot check does not meet Terry standards. Accordingly, the District Court properly found that police interferences with the appellant’s late night walks pursuant to a mere “suspicion’ standard were unconstitutional and the court’s injunction restrained the police from stopping Gomez under the guise of either a vagrancy observation or spot check.13
III
I turn now to the question of remedy. We have said that the District Court found Gomez had been the victim of unconstitutional police action. The question that court must face on remand is whether this conduct is sufficiently widespread to sustain class action relief.
It is important to note that we are not here faced with the mere assertion of a solitary isolated incident, as we were in Long v. District of Columbia, where the court observed:
In [Gomez] there was an official, publicly adopted policy . . . under attack. There was no question that the procedures objected to occurred regularly and would occur again in the future.14
The President’s 1967 Crime Commission suggested that the courts recognize “the importance of the administrative policymaking function of [the] police” and “take appropriate steps to make this a process which is . articulate and responsive to external controls appropriate in a democratic society.”15 Likening the police policymaking function to that of an administrative agency, the Commission called on the courts to develop judicial remedies that would “require the law enforcement agency to articulate its policy and to defend it, and if the challenge is successful to change the policy.” 16 The Commission specifically referred to the need for such an articulation and review of police policies about street investigative stops.17
The American Bar Association has also focused on the need for providing positive guidance to the police, “rather than concentrating solely on penalizing *426improper police conduct,” 18 as by application of the exclusionary rule.19 The ABA Report specifically approved of “injunctive actions to terminate a pattern of unlawful conduct,” 20
The class action injunctive suit is one means by which the police can be required to identify, articulate, and defend, as well as be afforded an opportunity to change, their official policies and practices. The class action, by its very nature, focuses on the broad policy rather than the individual incident. Hence, it provides the kind of positive guidance suggested by the ABA and the kind of remedy called for by the Crime Commission. But, it can only be a workable remedy if there is not an intolerable burden on a petitioner to demonstrate the widespread scope of application of an articulated police policy.21 It is illogical, if not irrational, to require a plaintiff to establish that the five thousand men and women of the Metropolitan Police Department are doing what they have been instructed to do. Rather, where a petitioner shows that a police practice, as described in official communications or regulations, is unconstitutional, the burden of going forward should shift to the police on the question of whether the application of the practice is widespread.
IV
The already lengthy history of this litigation indicates that it may yet be far from over. As to the interim period, the record suggests the propriety of a preliminary injunction against spot checks not meeting Terry standards. The appellant has not requested relief pendente lite; but, on remand, the District Court may properly entertain a petition for such relief. The requirements are as follows:
1) the party in whose favor the relief is to run must make a strong showing that he is likely to ultimately prevail on the merits ;
2) there must be a danger of irreparable injury;
3) to be balanced against the extent to which the relief would harm the other party; and
4) the court must determine where lies the public interest.22
As to the likelihood of appellant’s success on the merits, it is already clear that the spot check procedure does not meet the test articulated in Terry. The issue on remand is the proper scope of relief. The official police documents describing spot checks and the affidavits of the appellant and other citizens who have been subjected to unlawful street stops and interrogations,23 if accurate, would support the conclusion that the spot check procedure is sufficiently widespread to justify an injunction in favor of the class suggested by appellant. But those affidavits were not before the District Court nor were they properly before this court.
The District Court should also consider to what extent its limited relief has been effective to protect the appellant. *427Evidence has been proffered to us that the appellant himself has been stopped twice more since the entry of that order.24 Thus the question arises whether the rights of appellant or any individual can be adequately protected without protecting those of the public generally. It is hardly likely that the appellant is the only person being stopped and interrogated pursuant to the unconstitutional spot check procedures. “[O]nce [an unconstitutional practice] is found, . . . the court must order ... it discontinued [and its] decree may not — either expressly or impliedly — authorize [its continuation] against others.” 25
The District Court will also have to determine whether there is a danger of immediate and irreparable injury. It may find that if preliminary relief is not granted, no protection will be afforded the public from these unconstitutional street stops pending this litigation 26 — since whatever permanent injunctive or declaratory relief is ultimately granted will have only prospective effect. The court could thus measure the cost of its delay in terms of the infringements on the constitutional rights of all those citizens who, in the months or years before this case reaches its long overdue conclusion, will be illegally detained by the police. The value of the resultant loss of constitutional rights is neither easily measurable nor, as a practical matter, fully compensable in dollars and cents.27
The court may not ignore what might be lost by the government should a preliminary injunction issue. Courts certainly should not involve themselves unnecessarily in police matters and should consider the degree to which proper activity and discretion may be curtailed by the preliminary relief. But if unconstitutional street stops are widespread, the police would properly be enjoined from undertaking them at all in the future. And if spot checks not meeting Terry standards are not widespread, what is lost by a narrowly drawn order restraining an uncommon practice ?
The final element to be weighed by the District Court is the public interest. In this inquiry, I do not think the court can ignore who the appellant and his lawyer are. The appellant is a poor man and a member of a racial minority. The President’s 1967 Crime Commission observed that police field interrogations are directed predominantly at and often conducted indiscriminately among that very class of citizens. As a result, the Commission warned, street stops are a major source of friction between police and minority groups, creating resentment of the police in the urban ghettos.28 It would surely seem in the public interest to minimize such friction by at *428least insuring that street stops are carried out in a way consonant with Constitutional guarantees 29
V
The guarantees of the Constitution exist for. all men, rich and poor alike. But to say that such rights exist for all men is only meaningful if both rich and poor have the means to secure them. Since appellant is a poor man, he could not himself afford the crippling cost of this extended litigation. He would not be before the courts today were it not for the voluntary representation of the American Civil Liberties Union, whose resources, it now appears, may be insufficient for the burdens imposed by the courts.30 The court has a moral as well as a legal obligation to be mindful of these matters 31 in considering this case.
Nonetheless, the court today - is sending appellant back to the District Court once more without meaningful relief and without any guidelines for that court’s consideration of an appropriate remedy. The court is, in effect, sending appellant back down to the bottom of the hill that he began climbing five long years ago, and instructing him to begin anew. In my view, the District Court should be instructed on remand to consider the affidavits presented to us, as well as other matters,32 in accordance with some guidance from us for the determination of appropriate interim relief.
VI
The complaint in this case has been before the courts for more than five years. The police have been defending on the ground that their spot check procedure is proper. It may then well be that they have been engaging in that practice every day, all day long, while the complaint is unresolved. Since we piously refrain from expediting the solution, we are part of the problem. What credibility do we then have in urging the victims of police misconduct to rely on the courts — not on the streets — to redress their grievances?
. Gomez v. Wilson, 323 F.Supp. 87, 90 (D.D.C.1971).
. Ricks v. District of Columbia, 134 U.S.App.D.C. 201, 414 F.2d 1097 (1968); Ricks v. United States, 134 U.S.App.D.C. 215, 414 F.2d 1111 (1968).
. Memorandum Regarding Vagrancy . . . Observations and Arrests, Metropolitan Police Dept., Feb. 17, 1969, Joint App. at 241-243.
. Memorandum Concerning Traffic Law Enforcement, Metropolitan Police Dept., Nov. 3, 1964, Joint App. at 275; see Second District Memorandum No. 237, Dec. 19, 1969, Joint App. at 277-278.
. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. Second District Memorandum No. 230, June 12, 1970, Joint App. at 280-281. It is clear from the record that the other Districts in the Metropolitan Police Dept. use Form PD 725 in the same way. Joint App. at 264.
. Second District Memorandum No. 14, Jan. 13, 1970, Joint App. at 282.
. While there are distinctions between the arrest procedures following vagrancy observations and spot checks, those differences are irrelevant here, since we are concerned only with the initial stop and interrogation.
The “spot check” does, however, involve a different question than the Police Dept.’s “stop and frisk” policies at issue in Hall v. United States, 148 U.S.App.D.C. 42, 459 F.2d 831 (1972) (en banc); Long v. District of Columbia, 152 U.S.App.D.C. 187, 469 F.2d 927 (1972); or the lengthy guidelines referred to by the court, supra, at 415.
. 392 U.S. at 16, 88 S.Ct. at 1877. But cf. Id. at 19, 88 S.Ct. 1868. If the pedestrian’s right to walk away were clearly articulated, the question of whether there was a seizure would, of course, be more difficult. But that is not the procedure at issue. Nor is the application of the spot check procedure on either a random basis or to vehicle stops involved in this case. For a discussion of vehicle spot checks, see United States v. Robinson, 153 U.S.App.D.C. 114, 141, 471 F.2d 1082 (1972,) (en banc), at 1109 (separate opinion of Chief Judge Bazelon).
. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L. Ed.2d 917 (1968). Adams deals only with whether a Terry stop can be based on the tip- of an informer. It does not liberalize the Terry standard as described herein. See Long v. District of Columbia, 152 U.S.App.D.C. 187, 95, 469 F.2d 927, 935 (1972) (Wright, concurring).
. 392 U.S. at 21, 88 S.Ct. 1868, 1880. The Terry standard was later characterized by Mr. Justice Marshall as follows:
[The] police officers . . . must have specific facts from which they can infer that an individual is engaged in criminal activity. .
*425Adams v. Williams, 407 U.S. 143, 158, 92 S.Ct. 1921, 1929, 32 L.Ed.2d 612 (1972) (Marshall, J., dissenting).
This articulation of the Terry standard provides a marked contrast to the statement of a District police officer as to his understanding of the standard for making a pedestrian spot check :
Anyone that acts in a suspicious manner or draws my attention to them for whatever incident it might be, . well just a person of suspicious nature [may be stopped].
Deposition of Officer John Ferguson, Joint App. at 203, 210-211.
. Commonwealth v. Swanger, 300 A.2d 66 (Sup.Ct., Pa.1973).
. If the court did not find that the spot check was an infringement on the appellant’s constitutional rights it could not have purported to enjoin the police from stopping him in the course of a spot check. Clearly, however, the District Court does enjoin the police from stopping Gomez in the course of either a spot cheek or vagrancy observation as long as he is sober, well behaved, and in conformance with the law.
. Long v. District of Columbia, 152 U.S.App.D.C. 187, 469 F.2d 927, 933 (1972).
. The President’s Commission on Law Enforcement and the Administration of Justice, Task Force Reports: The Police at 18 (1967).
. Id. at 32.
. Id. at 185-186; see note 28, infra, and accompanying text.
. American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to The Urban Police Function (Approved Draft, 1973) at § 5.1, in 12 Crim.L.Rep. 3133 (1973).
. The ABA did, however, vote its disapproval of legislation aimed at curtailing the application of the exclusionary rule. 12 Crim.L.Rep. 1077 (1973). See note 29, infra.
. Standards Relating to The Urban Police Function, note 18, supra, at § 5.3.
. See discussion at 428, infra.
. See, e. g. Quaker Action Group v. Hickel, 137 U.S.App.D.C. 176, 421 F.2d 1111 (1969); District 50, United Mine Workers of America v. International Union, United Mine Workers of America, 134 U.S.App.D.C. 34, 412 F.2d 165 (1969).
. Court’s opinion, supra, at 416 n. 26-28; affidavits submitted in support of a motion for rehearing and suggestion for rehearing en banc in Long v. District of Columbia, No. 71-1072 (D.C.Cir. Dec. 4, 1972); Daugherty v. United States, 272 A.2d 675 (D.C.C.A.1972) (appellant stopped on mere suspicion).
. The affidavits recounting these events are again outside the record on appeal but may be submitted to the District Court in support of the motion for preliminary injunctive relief.
. Potts v. Flax, 313 F.2d 284, 289 (5th Cir. 1963).
. As the Supreme Court observed in Terry, 392 U.S. at 13-14, 88 S.Ct. at 1876, the exclusionary rule may not be effective protection in this context, since it is:
. . . powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forego successful prosecution in the interest of serving some other goal. . . . The wholesale harassment by certain elements of the police community, of which minority groups . . . frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial.
. See, e. g., Lankford v. Gelston, 364 F.2d 197, 202 (4th Cir. 1966) (explaining why money damages are an inadequate remedy for police misconduct).
. The President’s Commission on Law Enforcement and the Administration of Justice, Task Force Reports: The Police 183-185 (1967); see Terry v. Ohio, 392 U.S. 1, 14-15 n. 11, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Lankford v. Gelston, 364 F.2d 197, 204 (4th Cir. 1966); Tiffany, McIntyre & Rotenberg, Detection of Crime: Stopping and Questioning, Search and Seizure, Encouragement and Entrapment 47-48 (1967).
. By decreasing the incidence of police misconduct through . suits like the one before us, we may also alleviate the burden of the oft criticized exclusionary rule. Class action injunction suits against police misconduct thus appear to be one step towards a “workable remedy” suggested by the Chief Justice in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 421, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Burger, Chief Justice, dissenting).
. It is too well known for doubt that the resources of the ACLU do not permit the kind of far flung investigation which the history of this litigation seems to envision. And, according to recent reports, OEO legal assistance for the vindication of guaranteed rights is about to be withdrawn. See, e. g., Washington Post, February 17, 1973, Al col. 1.
. See Boddie v. State of Conn., 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).
. See notes 23 and 24, supra, and accompanying text.