Kenneth W. Martin v. John P. Malhoyt, John Doe(s) Shirley Ann Stevens v. David H. Stover, John Doe

GINSBURG, RUTH BADER Cirсuit Judge: appeals These consolidated arise out of but, legally independent relevant re- episodes. began spects, similar Each with investigating Park Police officers a U.S. incident, minor traffic escalated into a vio- (or encounter, physical) at least and lent in an Plaintiffs in culminated arrest. Shirley two cases—Kenneth Martin and subsequently filed suit in the dis- Stevens — court, alleged seeking damages trict for common law violations their and consti- rights. The defendant federal offi- tutional immunity, by cers asserted reason of their positions, plaintiffs’ from all of the official claims, and moved for dismissal of the ac- to them. The district court tions as denied motions, appeal and this followed. part part. affirm in and reverse in We dispositions, grapple explaining our aspects of the federal with unsettled immunity. governing official Episodes The in Suit I. congeries prompted of facts that lawsuits, judge the district ob- as these disputed. served, set the sharply We case, then summa- in each opening scene side’s account of what separately rize each occurred. Martinez, Michael L. Atty., Asst. U.S. Joseph with whom diGenova, E. Atty., Malhoyt, A. Martin No. 86-5561 Royce C. Craig Lawrence, Lamberth and R. as a Kenneth W. Martin worked Plaintiff Attys., Washington, Asst. U.S. D.C., were oper- a service limousine tour chauffeur ating Washington, on the brief for appellants. July On D.C. Coffin, James L. Joseph whom P. p.m., he was seated at about 12:35 Hart, Washington, D.C., brief, was on the limousine of Cadillac the wheel behind appellees. zone Memorial in a parked near Lincoln point From this for the disabled. reserved diverge.1 on, parties’ accounts WILLIAMS, Cir- Before and GINSBURG McGOWAN, Judges, Senior Cir- and

cuit Judge. account Martin’s cuit Martin, in a United a man According approached uniform Service Park Circuit States filed Opinion for Court why he asked Martin the limousine B. GINSBURG. Judge RUTH Martin, account, here, presented neth in J.A. Mal- is taken W. 72-79. 1. Martin’s as (No. 85-2274) (July affidavit, Complaint, hoyt’s from his Martin from his Octo- account taken 16, 1985) (hereafter reprint- Complaint), Martin Malhoyt, reprint- of John P. ber 1985Affidavit (J.A.) Appendix his in Joint ed ed in J.A. at 66-71. affidavit, of Ken- November 1985 Affidavit disabled-only parked Drive, was area. Mar- Police Station at 1100 Ohio S.W. passengers, replied say arrest, tin that one his why Unable to he had made child, difficulty walking, having Malhoyt where- sign was asked Martin to a document upon departed. man A few pay the uniformed end matter. $10.00 Martin later, Park Police minutes officer, a United States refused fingerprinted then Sergeant later, placed jail later identified as John P. in a cell. Hours as Martin Malhoyt, spot. recalls, car, He again put arrived at too asked he was in a why parked in back, Martin had a restricted area. his hands cuffed behind brought and was explanation. Malhoyt courthouse, repeated Martin his but arrived story hearing he to see if day. said would wait Martin’s there too late obtain Malhoyt Station, was true. then returned his On return to the Park Police Mal- parked hoyt time, police vehicle and it another told Martin that Martin space persons, up overnight. reserved for disabled direct- remain locked would Martin ly attorney; to the rear of Martin’s limousine. then called an advice, attorney’s posted $10.00 collateral later, About ten minutes Martin noticed gain so that he could release. Martin esti- (two passengers family his of four —a he mates that was released at about 5:00 parents) children and their young —de- p.m., approximately four hours after his scending steps the of the Lincoln Memorial. station, leaving arrest. Just as he the was slowly Malhoyt He drove towards them. states, Malhoyt Martin informed him for immediately pursued, emergency lights being charged the first time that he was flashing sounding. and siren Martin disorderly disobeying conduct and the promptly stopped. appeared Malhoyt police order of a officer. the driver’s window the limousine and demanded Martin’s driver’s license ve- and later, Two weeks on the set date for trial registration. hicle get Martin started to disorderly charge, conduct Martin car conveniently out the to from remove attorney spent and his waiting hours in the wallet, pocket his his his contained Superior Court, District of Columbia but registration. license the and vehicle Be- Upon Martin’s name was not called. check- wallet, fore could Martin retrieve his how- ing with Corporation the Office the ever, Malhoyt “brutally grabbed Counsel, attorney [Martin] Martin’s learned that the waist, around threw back charge [the] [him] would be dismissed because no one seat,” into the and slammed [the] driver[’s] the from per” Park had appeared “pa- to leg.2 door on his car Martin handed over charge it. Trial on the of disobeying his registra- driver’s license the and vehicle August officer’s order was set for Malhoyt thereupon tion. returned to 1984; August however, on Martin car, police apparently to check doc- charge learned too would be dis- uments. missed for the same reason. then, passengers Just Martin saw his approaching the limousine. Almost reflex- Malhoyt’s account ively, got he out open vehicle to According to Sergeant Malhoyt, at about Suddenly, door them. without word p.m. 12:30 on July the afternoon of Martin, of instruction or command to Mal- 1984, Park Aide John R. Jones III sum- hoyt limousine, reappeared pushed at the moned him to the Lincoln Memorial Circle vehicle, Martin his and twisted arrival, parking problem. to resolve a On Malhoyt arms his behind back. then hand- he saw parked Martin’s Cadillac limousine po- cuffed Martin forced him into the space in a persons; reserved for disabled car, sit, obliged lice where Martin was to Malhoyt Jones informed that the limousine back, pro- hands cuffed behind his for a leave, driver had twice to refused and had longed period of time. An old shoulder police. dared to call Jones When Mal- injury position severely made awkward hoyt told Martin that the Cadillac was painful Martin, and he felt humiliated parked illegally, responded Martin that one passengers his front of and other onlook- passengers, child, having of his a small was ers. walking. Jones, difficulty earshot, was who within talking After passen- began argue, limousine and Martin Jones gers, Malhoyt drove claiming Martin the Park nothing that Martin had said 17, reprinted 2. Martin Affidavit at in J.A. at 74. f refused, tin's interference. Martin Malhoyt be- passenger.

him a disabled about “increasingly argumentative, came loud[,] sending argument by Jones stopped the uncooperative.”4 “Concerned that would wait Telling Martin he away. situation was getting account, out con- Malhoyt returned th[e] verify Martin’s trol,” Malhoyt arrested Martin it for disor- parked behind police cruiser to his derly conduct. the limousine. warning, later, Station, Malhoyt minutes without A few Park Police At on French south started disorderly the limousine conduct charged Martin with Memorial. the Lincoln away Drive officer. disobeying the order of a approached had passengers no options Because Malhoyt explained Martin’s then apparently (and and the driver post Cadillac collateral ei- him: Martin could Memorial, decided to Malhoyt date) leaving go forfeit or demand court ther parking illegally the driver for Malhoyt pro- ticket he directly claims to court. Malhoyt switched disabled-only zone. quickly possible. He as as cessed the case pursued as he emergency equipment his dispute he arrived at court does limousine, stop to a 75 to which came too late to several minutes with Martin Mal- After yards French Drive. down hearing day, but he Martin a afford for his several times hoyt asked Martin by mid-af- Martin was released asserts that registration, license and ternoon, upon posting driver’s immediately $10.00 As Mar- got out. opened the car door and collateral, Malhoyt p.m. about 3:30 registra- his and Malhoyt license tin handed asked another Park states that he further get in tion, back told Martin to Malhoyt from his sergeant to have an officer Police thought Malhoyt this would car because he case and that squad “paper” Martin’s traffic, oncoming as Martin and safer for sergeant the nec- provided that other with if Martin Malhoyt himself well as and documentation. essary information Malhoyt dangerous. After re- proved Martin, avers, he Malhoyt next heard times, Mar- several this instruction peated filed. instant suit was after the car, leaving in the door tin sat down foot on the street. open keeping his left and it,

Malhoyt, he tells “lifted as [Martin’s] Stover, Stevens v. B. No. 86-5565 car[,] and closed the leg, plac[ed] it in began giving The events rise to this case door.”3 p.m. on at about 11:30 June police cruiser, Back in his Malhoyt Stevens, a Shirley no- Ann then ser- Plaintiff people ticed some approaching Cadillac; geant Depart- Metropolitan in the Police surmising (correctly) that (MPD) off-duty these were and out uni- ment but passengers, limousine form, he left the driving Pennsylvania cruiser to was north on determine anyone Avenue, D.C.; whether group Washington, she en- S.E. difficulty. walking was with tie-up Martin also Sousa countered a traffic near departing from a pas- Bridge by crowds left his vehicle and walked toward the caused Dupont Again, the sengers. Malhoyt then concert in Fort Park. asked Martin to Malhoyt differently for the opposing limousine so account return to the sides ensuing passengers imbroglio.6 Mar- speak could without 90-107, affidavit, reprinted in J.A. at Malhoyt reprinted and her in J.A. at 68. Affidavit f Shirley October 1985 Affidavit of Ann Ste- 10, reprinted J.A. at 69. vens, If reprinted J.A. 170-75. The Stover- Harasek account is taken from Stover’s affida- 5. Id. vit, October Affidavit David H. Sto- ver, here, account, in J.A. at and the notes of presented as is taken 6. Stevens’ Harasek, 85-2035) August (No. an MPD interview with Complaint, Stevens from her Notes, 21, 1985) (June (hereafter Complaint), Interview Attachment B to Plaintiff’s Ex- Stevens windows, rolling up began ter the car he account I. Stevens’ punching in the chest and Stevens abdo- other two and the According to Stevens protect herself, men. She turned over to aunt, Mary car—Stevens’ occupants of he During but continued to her. beat Bush, cousin, Johnny Jr. Stevens, and Ella attack, Stevens, the man said to as she traffic in the stalled patiently sat —Stevens his recalls words: “You are one black bitch only a had imbibed light. She red at a worry anymore, we don’t have to about evening was glass wine small guess going what I am you. to do for horns heard car Stevens not intoxicated. going charge I’m you assaulting with own; she her not sound blaring did but police officer.” apparently convers- officer an MPD noticed car or four in a car three people ing with being placed next Stevens remembers her hers. Stevens lengths ahead the cold metal of what she believes was a officer, whom that this state passengers van; else until she she recalls little McKin- MPD Officer agree was parties pain on the floor of a cell. awoke severe to Stevens. speak stry, did in the Anacostia The cell was Station Police, States Park and the man United green light the traffic turned When her, she who had arrested and battered move, proceeded began to Stevens cars learned, Sergeant David was Park apace the other vehicles towards Sou- with (since lieutenant). promoted to H. Stover siren, Bridge. then heard a sa She Bridge, companion at the the man Stover’s guessed emergency vehicle en she was aid, had not come to Stevens’ was who accident; quickly as route to an was Harasek. Even- Park Police Officer John traffic, pulled possible heavy in the Stevens holding cell tually, Stevens was moved to a right-hand curb. A car swerved to a Superior the District of Court Columbia her, stop in front of and a man dressed in her that she where U.S. Marshals informed shirt, plaid painter’s cap jeans, blue and a charged assaulting police offi- out, car, jumped sprinted to Stevens’ (DWI). driving cer and intoxicated while shouted, up.”7 Reaching “You’re locked purse, identify for her tried to Stevens bond, After her release on Stevens was officer, police man herself as a but the Hospital for renal treated Providence door, opened dragged her her car out of failure, catheterization. which necessitated vehicle, her in He and struck the face. suffered a concussion and She had also her, “brutally grinding then handcuffed multiple her contusions and abrasions on body her and face onto the trunk of her ... eight days in body. spent face and Stevens vehicle,” “hysterically screaming” to while hospital. partial The concussion cаused companion: got gun.”8 a “She’s a Her amnesia, undergoing psychi- and Stevens remembers, companion, assailant’s Stevens incident. atric care as a result of the pocketfs],” stood “with his hands in his doing nothing to intervene.9 Stevens did and, charge dropped The DWI was on gun person not fact have a on her grand April jury after a refused her vehicle. assaulting police to indict Stevens for a officer, charges all dismissed. Ste- were car,

Stevens’ assailant forced her into his discharged from the Metro- vens was later throwing her on the seat her hair Department back of the politan Police because arm, dispersed and and onlookers. Af- all events of June 1984. 28, 30, reprinted Complaint Opposition Stevens 8. October hibit Plaintiffs or, in to Dismiss Defendants' Motion J.A. at 99.

to District Alternative, Summary Judgment, Record 85-2035), (No. (R.E.) Entry Stevens 30, reprinted J.A. at 99. 9. f 211-16. in J.A. at 25, reprinted in J.A. at Affidavit 10. Stevens f 19, reprinted in J.A. at Affidavit at Stevens If 172; reprinted in Complaint at Stevens fff J.A. at 98. stating again account After he who was and Stover-Harasek dis- playing badge, his Stover asked Stevens Harasek, on the According and to Stover she had whether heard MPD officer arrest, Park two evening of Stevens’ request registration. her license and Ste- clothes, officers, were wearing plain responded vens that she was an MPD ser- cruiser; Stover in an unmarked duty geant herself and that Stover could not they p.m., At 11:30 driving. about was arrest her “for failure to exhibit.” She Pennsylvania waiting on were westbound her purse. Stover ordered reached for her Avenue, Minne- at its intersection with S.E. it, ignored him. to touch but Stevens Avenue, S.E., two uniformed sota while weapon, a purse Fearing contained the dense traffic. MPD officers directed it, him on grabbed and bit Stevens Stover officers, as later identified When one of the forearm, drawing At this right blood. his McKinstry, up held the westbound Officer pull struggling and helped a point, Harasek cycle traffic traffic for an entire from the car. officers cursing Stevens lights, began sounding. Stover car horn a car, and brought to the rear Stevens that the driver and Harasek observed ar- that she was under announced Stover right, later identified the car to arms, trying to flailed her rest. Stevens Stevens, doing the plaintiff Shirley from hand- and Harasek Stover prevent honking. scuffle, they her a bent cuffing her. After put and on the the trunk of car over telling McKinstry a command shouted cuffs. paused. Stevens stop, the honker through another placed held the traffic McKinstry resisting Stover the still Stevens began lights, and Stevens in the bаck cycle of the of his cruiser and sat down in time, McKinstry again. This front to use honking the radio. Stevens rocked onto cars, indi- and Harasek began kicking her back walked toward him in the head; next, the source cated that Stevens was she repeatedly attempted to Ste- McKinstry politely escape by lifting informed noise. the rear door lock with non-emergency teeth, using in a a horn her managing open vens that twice the door. fine. punishable by $25.00 situation is the scene and Other officers arrived on honking. McKinstry continued Stevens cruiser, removed from Stevens was for her driver’s license asked Stevens wagon, transported placed then, light registration. Just vehicle Police Anacostia Station. the Park shouted, “Fuck green. Stevens turned There, refused to take breath Stevens hitting away, nearly you,” and drove to use abu- and continued test alcohol lights on his McKinstry.11 turned Stover at the station language; sive two and followed.12 siren washing herself with wa- Stevens observed her cell. At from toilet her ter say Stover and Harasek Stevens moved taken ambulance request, Stevens was right to stop, but did not even when there, how- Hospital. Once D.C. General to brought alongside Stover his car hers and ever, herself or to identify to she refused he gestured pull and Harasek for her to re- treat her. She was doctors to allow over. finally stop Stover forced Stevens to charged and police station turned by cutting in front of her. He then ran officer, DWI, police and on a with assault badge. back to her car and showed her his driving permit. her failure to exhibit screamed, Stevens “Who the fuck are you?”13 Stover eyes noticed that Stevens’ that Stevens’ Stover further recounted watery, Mary were and smelled and passengers, Johnny he alcohol. Bush two 4-7, 4, McKinstry reprinted Christopher 11. Affidavit in J.A. at Affidavit of Stover at fifí fl 184, in J.A. 184-85. f7, McKinstry reprinted in Stover- J.A. 12. Officer corroborates the 13. Stover Affidavit 3, September Harasek version of events. these Proceedings II. The District Court night on the Stevens, interviewed were extremely- to be appeared episode and Martin filed suit in the district court on Stevens, according to Mary intoxicated. July against, alia, inter Malhoyt all three had been Stover, that admitted Lynn and Herring, H. Chief of the United drinking. States Park Police. Stevens commenced her action in court on district June proceedings against 3. Administrative against, alia, Stover, Harasek, inter Stevens Herring. and All were sued in four gave capacities. the MPD individual August and official On Ste- Department proposed vens notice that the and Stevens named numerous other defend- police to remove her from force ants parties appeal.17 be- who are not to this episode. cause of the arrest Stevens re- charged complaints that the defend- quested MPD review an Adverse Action ants had violated Martin’s and Stevens’ panel, Panel. A at hearing three-member including rights, constitutional the fourth days, ran several received documen- right be amendment free of unreason- tary and evidence. testimonial Stevens seizures, right able the fifth amendment represented by May counsel. On deprived liberty not to or property panel recommended Stevens' re- law, process of without due and the sixth moval from the MPD. right amendment to be informed of the nature and cause of criminal accusations. crediting Substantially the Stover-Hara- Stover, Harasek, alleged Stevens also that account, sek panel found that Stevens McKinstry, part conspiracy of a had in horn unnecessarily, fact honked her rights, violate Stevens’ constitutional display failed to her driver’s license and in contravention of 42 U.S.C. had § registration, yield refused to Stover’s made statements calculated to secure Ste- police vehicle, arrest, attempted resisted plaintiffs prosecution. vens’ criminal Both escape, operated car her under the influ- claimed, belief,” information and “[o]n alcohol, marijuana.14 ence of used practice it is a of the United States Park Further, panel any injuries found people Police to assault arrest and who Stevens sustained were the result of her charge have committed no offense and to with, fighting resisting arrest by, the conduct, disobeying disorderly them with May Park Police.15 On the MPD officer, police assaulting police officer. decision,16 adopted panel’s and on June charges, according plaintiffs, These police Stevens was removed usually trial.18 dismissed before force. appealed Stevens the MPD’s deci- Employee alleging sion to the In addition claims Appeals, Office of of constitu- dimension, (1981); complaints tional two D.C. Code Ann. also ap- 1-606.3 § peal allege assault, common law bat- pending. remains claims appeals Findings, high-ranking include: Conclusions and several Recommendation federal States; Metropolitan officials officers, of Adverse Department and the Action Panel United unknown styled (not John Exhibit Federal Defend- and Jane Doe further January ants’ court), 1987 Motion for Reconsidera- alleg- identified before the district edly who Judgment, Summary tion or for R.E. Stevens Martin, Malhoyt arresting assisted (No. 85-2035). Stevens; arresting Stover and Harasek in in complaint only, Stevens’ several District of Co- 15. Id. at 51. lumbia officials officers and and the Dis- Action, 8, 1, 16. trict Final Notice of itself. Adverse Exhibit January Federal Defendants’ Reconsideration or for 1987 Motion for Summary Judgment, 47-48, Complaint reprinted 18. Martin in at TT1Í 84, (No. 85-2035). R.E. Stevens 8, 56-57, 19-20; Complaint J.A. at at Stevens Iff reprinted in J.A. at 103-04. Categories 17. of named in defendants the com- plaints but not involved in these consolidated

245 common tort The mali- claims. district court imprisonment, and arrest tery, false Stover, rejected plea negligent Malhoyt, as to and intentional prosecution, cious distress, ground negligence, and Harasek on the that absolute of emotional infliction immunity included a “discretionary” Martin shelters negligence. gross and Stevens, particular- acts, Featuring in a not “ministerial” conduct. claim. defamation (D.C.Cir. Har- count, charged appellant Carlson, v. Carter F.2d 358 separate ized duty breaching 1971), “affirmative his on grounds rev’d other sub nom. with asek Defendant Stover prevent Carter, and District Columbia v. to intervene 409 U.S. of arresting assaulting and unlawfully 418, 602, (1973), 34 L.Ed.2d 613 S.Ct request- Martin and Stevens by police Plaintiff.”19 court ruled arrests damages as punitive compensatory qualify for purpose ed as ministerial acts relief. declaratory injunctive hand, at and therefore are not well shielded the same assigned immunity.20 court, cases were The The two Barr district how- ever, grounds did judge. dismiss on district Herring Chief pleas Park Police cases, now before appellants In both they allegedly negligent involved insofar as Martin; Herring Sto- in Malhoyt and us— ver, training; deciding in train- what to cover in Harasek, Herring Stevens said, is “discretion- ing, district court 12(b)(6) Rule under dismissal —moved act, indeed, essence of ary” it involves “the relief upon which (failure a claim to state policy formulation.” summary judgment granted) or can of Civil Rules the Federal under Rule torts, alleged toAs constitutional Martin, and 9,1986 in July On Procedure. appellants qualified immunity, claimed cit Stevens, the district in July on 800, 102 ing Fitzgerald, 457 Harlow v. denying opinions orders filed court The part. in substantial these motions district recited the standard: court Harlow government qualified immunity of motions, shields dispositive support In long not citing ficials as as “their conduct does argued, Barr first appellants all four 1335, 3 statutory clearly оr con Matteo, violate established v. they rights per have abso- which a (1959), stitutional reasonable L.Ed.2d appellees’ liability son have known.” at immunity from would Id. lute granting (order order and denying protective reprinted at in J.A. at 106. The H Aug. trial) (hereafter Martin stay of coupling of constitutional and common law reprinted in at supplied), J.A. Order) (emphasis claims, note, regularly occurs in cases of this Stover, (D.D.C.Aug. 49; v. No. 85-2035 Stevens See, genre. e.g., Metropolitan Martin D.C. (order 1986) denying protective order (D.C.Cir.1987). Dep’t, 812 F.2d 1425 Aug. trial) (hereafter granting stay Stevens 5-6, Opinion reprinted Order) supplied), reprinted (emphasis at in J.A. 20. Martin at 34-35; Opinion reprinted addition, shortly Stevens in J.A. at after J.A. at 139. in orders, filing district court issued these finality disposition implying of the district court’s case in each "Notice to Counsel” Stover, Malhoyt, and Harasek absolute question yet be could the absolute finally immunity pleas respect to the common law the facts on which because determined entirely stated claims is not clear. The court . dispute. Martin immunity turned were in that, Stevens acts, because "arrests are ministerial 28, 1986) (D.D.C. Aug. Malhoyt, No. 85-2274 eligible the defendants are not for absolute distinguishing (Notice D.C. Circuit to Counsel immunity for common law torts committed Counsel), reprinted cases) (Martin Notice making Opinion at when arrests." Stevens Stover, (D.D. 53; No. 85-2035 Stevens v. J.A. at 122; Opinion reprinted in accord J.A. 28, 1986) (Notice distinguish Aug. Counsel C. ing case, reprinted in J.A. at 35. In each at however, cases) (Stevens to Coun Notice D.C. Circuit orders, subsequent, nearly identical sel), reprinted J.A. court described its earlier decision the district denied, preju- Court without as follows: "the 10-12, J.A. Opinion at 21. Martin dice, motion to dismiss based on defendants’ 39-41; reprinted in Opinion at Stevens immunity.” claims Martin v. of absolute ... J.A. at 126-27. 26, 1986) (D.D.C. Malhoyt, Aug. No. 85-2274 clear, The at 2738. law was the dis- of all proceedings. district court The court observed, necessity refused judge postpone discovery, on the stayed trict but arrest, impermis- pending appeal.25 trial probable for an cause making in sibility of excessive force 8, January 1987, On appellants Malhoyt arrest, the elements of the offenses for Herring Stover, Martin and Hara had made. Because which the arrests been sek, Herring in Stevens moved for probable ‍‌​​​​‌‌​​‌‌​‌​‌​​​​‌​‌​‌‌‌‌​‌​​​​‌​​​‌‌‌​‌‌​​‌​‌‍the facts relevant to cause reconsideration in the district light court sharply disputed, determination were how- of several cases by decided this court in ever, judge stated he the district could dealing December 1986 qualified im Stover, Malhoyt, not detеrmine whether munity and specificity pleading nec clearly and Harasek had violated estab- essary to withstand a motion to dismiss. legal concerning lished rules arrests until Mitchell, Ellsberg (D.C. 807 F.2d 204 discovery place. further had taken Similar- Cir.1986); Nixon, Smith v. 807 F.2d 197 ly, discovery the court stated that further (D.C.Cir.1986);Halperin v. Kissinger, 807 inwas order before it could resolve the (D.C.Cir.1986). F.2d 180 ap Stevens question Herring’s of Park Police Chief pellants, citing University Tennessee v. charge immunity from suit on the of main- — Elliott, -, 3220, U.S. 106 S.Ct. taining policy arresting proba- absent (1986), L.Ed.2d 635 argued also in their cause, dropping charges.22 ble and later motion for reconsideration that Stevens respect With to the constitutional tort precluded from relitigating issues of claims, the court therefore denied without fact resolved the Adverse Action Pane 12(b)(6) prejudice appellants’ Rule and Rule l.26 The district court denied the motion 56 motions.23 17, to reconsider on March 1987 in Martin Stover, Harasek, Herring Malhoyt, 7, April and on 1987 in Stevens.27 appeals from the district court’s deni- filed immunity-based dismissal mo- als of their Immunity III. Official appeals

tions.24 The were consolidated. To determine Pending appeal, appellants moved in the whether the district court court, 26(c) refusing erred in summary judg- district under Rule of the Fed- to enter Procedure, protec- pleas eral Rules of ment on the Civil defendants’ of official halting discovery, stays immunity and for tive orders from the claims asserted Mar- 14-16, Opinion 22. Martin reprinted 26, at Order, Aug. in J.A. at 25. Martin reprinted in J.A. 43-45; 13-14, Opinion reprinted 49; Stevens at 26, Aug. Order, at Stevens reprinted J.A. at 128-29. J.A. at 139. July 26. When the court issued its 6-9, district Opinion 23. Martin reprinted at in J.A. at Stevens, decision both the 35-38; court and 8-9, Opinion Stevens reprinted at in J.A. apparently counsel for defendants were un- at 123-24. May aware of the Adverse Action Panel’s As to conspiracy the 42 U.S.C.§ 1985 count in 2-6, Opinion Stevens, 1986 decision. See Stevens re- the court allowed the claim to remain 117-21; printed in Harasek, J.A. at Federal in the case dismissed Defendants’ Stover and but January support regarding Sup- it as bereft 1987 Memorandum of Law in Her- ring. 14-15, Opinion Stevens port of Their in J.A. Motion for Reconsideration or for 129-30. Summary Judgment at 3 & n. R.E. Stevens (No. 85-2035). 24. Denial of a claim of absolute immediately appealable under the "collateral or- (D.D.C. Malhoyt, 27. Martin v. No. 85-2274 Mar. der" doctrine of Cohen v. Industrial Beneficial 17, 1987) (opinion denying and order motion Corp., Loan 337 U.S. 69 S.Ct. reconsideration); Stover, (1949). Stevens No. 85- L.Ed. 1528 See Nixon v. Fitz- gerald, (D.D.C. 1987) (order Apr. denying 457 U.S. mo- 102 S.Ct. (1982). reconsideration). quali- L.Ed.2d 349 Denial of tion for fied similarly appealable claim is 511, 524-30, Forsyth, once. Mitchell v. 2806, 2815-17, 247 Lyons, Stevens, pursue 1341; see also Howard v. must first a we tin and 593, 597, 1331, 1333, are the contours 3 inquiry: What 360 U.S. 79 S.Ct. threshold immunity (1959) (scope the immunity defendants L.Ed.2d 1454 of af- alleged employees As the constitu of forded federal is a matter are entitled? violations, parties agree the by the federal law “to be formulated the courts tional “qualified legislative immuni by can assert a in the of action Con- defendants absence suit; disagreement reach of the Barr gress”). precise their centers ty” from application holding that standard to the less on the as to other tortious acts and allegations, question ad plaintiffs’ employees a federal not settled elevated Malhoyt, decision; sustaining by Officers Sto the dress Section IV. Court’s that, claim, Black, additionally contend ver and Harasek Barr’s Justice immunity” necessary rule major- to form a by virtue “absolute whose vote was Matteo, 564, in Barr v. importance 360 U.S. “informed ity, the established stressed 1335, (1959), they 3 1434 the public opinion” L.Ed.2d “effective function- 79 S.Ct. government.” Barr, ing suit on the com totally immune from of a 360 U.S. free reject J., facing 577, (Black, the claims them. We at 1342 concur- mon law 79 S.Ct. ("[I]f see also id. pleas immunity, ring); employees and hold that these of total federal have, instead, “qualified a immuni in re- subjected are to be restraint liability the common law run porting from views about how to the ty” better, alleged government Martin and Stevens will have claims restraint expressly Congress law this area is complaints. imposed Because the to be evolving variously in unsettled —still general libel laws reasoning in spell out our terpreted States[.]”).28 —we guidance from We detail. note some bounds, Uncertainty as to the and even Authority may be available Higher soon endurance, of Barr developed in courts, Supreme for the and our sister us deci- years following announcement of the ques undertaken to address the has Court recently sion. As we observed: Erwin reach. v. West Barr’s tion decisions, In a of mid series 1970’s Cir.1986), cert. (11th fall, 785 F.2d 1551 generally rejected state Supreme Court — 1346, U.S.-, granted, 107 S.Ct. 94 pleas of officials’ absolute (1987); for the Brief Petition L.Ed.2d 517 liability for torts committed civil (No. 86-714) Erwin 8, v. ers at Westfall constitu alleged plaintiff’s violation of (Solicitor argues that “federal em General Pachtman, v. tional See Imbler rights. scope acting of their ployees wiihin 424 L.Ed.2d 128 96 S.Ct. U.S. clearly those exer employment most —and Strickland, 420 U.S. v. (1976); Wood discretion —are enti cising a modicum of (1975); 992, 43 95 S.Ct. L.Ed.2d immunity from state law tled to [absolute] Rhоdes, 94 S.Ct. Scheuer v. suits.”). tort (1974). series L.Ed.2d 90 This gener fueled earlier of decisions debate “Absolute and the Doctrine A. Barr soundness, commentary ated in over Immunity” Federal Officials Barr. breadth, vitality continued Court, See, Aquat Expeditions e.g., Unlimited Barr, Supreme held In Enterprises, Inc. ic Smithsonian Acting of the Office of Director (D.C.Cir. stitution, Stabilization, agency, was federal Rent 1977) banc) J., concurring), (en (Wilkey, arising out of suit from libel immune denied, cert. 438 U.S. 98 S.Ct. perimeter the outer “within taken actions (1978). 57 L.Ed.2d 360 U.S. duty.” line of of [his] States, concurring opinion provides holding. See Marks United 28. Justice Black’s grounds” disposi- for the Court’s 51 L.Ed.2d the “narrowest tion of the case and thus constitutes the Court’s corollary” that all actions related 766, as a 768 McKinney Whitfield, v. 736 F.2d immune). legislative process It (D.C.Cir.1984).29 Supreme by determined remains to be continuing vitality, Barr’s Doubts about (1) of claims —all both the character Court dispelled in Butz Econo v. however, were law torts —within only some common or 2894, 478, mou, 57 L.Ed. 98 S.Ct. 438 U.S. Barr, (2) universe of federal em- (1978). Butz was an action for dam 2d 895 immunity by the absolute ployees covered Agriculture Department offi ages against shield. plaintiff’s violated alleged to have cials rights; the Court assumed constitutional Lacking from further instruction the Su- holding sway, Barr’s continuing while Court, some lower federal preme courts 489, this case.” Id. at it “does not control adoption of this dichot- have moved toward at 2902. The Butz Court distin 98 S.Ct. under Butz immunity” omy: “qualified Barr ground that “did guished Barr on charged federal is when a official with.a has purport protect an official who not tort; immunity” constitutional “absolute wrong under local not committed charge Barr under when the is a common law, those fundamental also violated but See, e.g., Martin v. D.C. Metro- law tort. fairness embodied the Con principles of Dep’t, 1425, politan Police 812 F.2d 1428 see 495, 2905; stitution.” 98 S.Ct. (D.C.Cir.1987) (courts 11 “extended n. have (“The liability of officials who have id. also immunity defense to ‘execu- the absolute limits was not constitutional exceeded all levels’ of the federal tive officials at [.]”) (emphasis add in ... Barr confronted range hierarchy to a full of common [and] ed). delicts”), quoting McKinney, 736 F.2d generally 5 Davis, at 769. See Administra- Barr, assuming the endurance of While (2d 1984) 112-21 ed. tive Law Treatise attempt the Butz rejected Court position (commenting critically on the claims,” Barr beyond extend “state tort of Butz that “abso- emerging in the wake id., into realm of “constitutional torts.” law tort immunity” goes common with lute confined, Butz thus precisely but did not claims, immunity” constitu- “qualified define, Barr’s scope, for the Court left claims).30 unresolved the extent to which Barr -style tional tort immunity adheres to all non -constitutional acceptance bipartite But of this scheme See id. against employees. claims federal universal, diversity among is not feder (“Whatever protection level state from marked, particularly al courts remains appropriate for federal offi- interference categories employees sheltered executing their duties under federal cials Barr. While law, appeals two courts of have it cannot be doubted that these offi- indicated that Barr’s subject im- cials ... are to the restraints absolute Constitution.”) (em- from posed by liability the Federal common law tort extends to v. Brew- added); United States phasis employees, regardless all federal of their cf. ster, 501, 513-15, 408 92 U.S. place hierarchy, duties or in the federal (1972) (statement 507 States, 33 L.Ed.2d General Electric Co. v. United 813 prior Speech or case that under (4th Cir.1987); Pool F.2d 1276-77 Debate Clause does not attach to actions Nelson, man v. (8th 307 functioning “in no wise related to the due Cir.1986), other courts have limited Barr legislative process” “imply does not employees policymaking planning FBI, Agents 91 S.Ct. 29 403 uncertainty Much of the stemmed from at- L.Ed.2d 619 tempts integrate or reconcile Barr’s official immunity concept expansive with more notions elsewhere, bipartite scheme we noted As jurisdiction of the federal courts’ to entertain "not been opinion has from Butz inferred claims local federal officials based D.C. v. See universally well-received." alleged constitutional violations. See Mon- n. Dep’t, F.2d Metropolitan Police Pape, roe v. 5 L.Ed.2d therein. cited (D.C.Cir.1987),and authorities (1961); Bivens v. Six Unknown Named (1967) (observing in dictim employees distinguished level, as granted has common law never func- level who operational “[t]he working unqualified officers an absolute proce- established day under day to tion taking resist immunity”).31 We therefore v. Heathcoat guidelines. dures and (as Butz approach at- either a mechanistic Cir.1986); (11th Potts, F.2d so Barr tends constitutional tort claims (3d 802, 804 Welch, F.2d Araujo claims), or one attends common law tort Kelly, F.2d Cir.1984); Jackson (hold- Supreme suggested Court see also banc); Cir.1977) (en (10th 737-38 immune) absolutely ing police officers 807-808, at Fitzgerald, 457 U.S. v. Harlow liability of the officers before us the tort (Barr applies to 2732-33 102 S.Ct. Instead, actions. we these consolidated officials). other Still government “high” freshly closely examined the have between, apрly- someplace courts stand Barr and Butz opinions; based on that limited exercising even Barr ing examination, we decline to extend “abso- Marek, 583 v. Granger See discretion. immunity” to the Park Police miscon- lute James, v. Cir.1978); Green (6th F.2d 781 judice in these cases. duct claims sub Cir.1973). (9th 660 473 F.2d be to the claims particular relevance Of interlocking Three mutually reinforc- held has never us, Supreme Court fore ing goals figured prominently in Barr. enforce law federal hinted that or even implicated The first is whenever courts con- immunity for enjoy absolute ment officers damage against government front actions characterized wrongful conduct —however officials: government of should “[Officials tort) law common (constitutional or —en be free to exercise their duties unembar- Doe v. during an arrest. See gaged by damage rassed the fear of suits in re- 2018, 306, 319, 93 S.Ct. McMillan, 412 U.S. spect to acts done in the course of those (“Barr ... (1973) 2028, 912 36 L.Ed.2d duties —suits which would consume time immunity conferred it clear that made energies which would otherwise de- all officials for for the same might not be governmental voted to service and the of Judges, like executive purposes____ all threat of might appreciably which inhibit functions, have discretionary fearless, vigorous, ficers with and effective admin- Barr, po absolutely government.” immune— But policies of held istration been 571, apparently enjoy licemen and like officials at 1339. Second 360 U.S. at 79 S.Ct. privilege.”); Pierson v. a more limited exempt govern- perceived need to was a cf. Ray, 547, 555, 386 U.S. 87 S.Ct. explain- officials from the burden ment liability detention with- for malicious arrest and Prior to the differentiation of constitutional cause). Economou, probable out and common law torts in Butz 478, 2894, Butz, argue, implicitly 438 U.S. (1978), 98 here the defendants not, holding. lower federal courts were divided over We have our Dellums overturned immunity of federal law enforcement offi today, question, until revisited this and other cers from common law tort claims. Dellums See, e.g., courts have divided on its resolution. Powell, (D.C.Cir.1977), F.2d 175-76 566 States, (2d Wyler v. United 725 F.2d 159 denied, cert. 98 S.Ct. 57 discussion, Cir.1983) (holding, without that fed- (1978), granted the Chief of the L.Ed.2d 1161 Drug agents eral Enforcement Administration Capitol a "reasonableness” United States defense, absolutely immune from common law tort immunity, qualified akin to to common arising arrest); liability out of search and Sand- claims, imprisonment rely law false arrest (N.D.Ga.1985) Nunley, F.Supp. ers v. 634 474 ing upon Columbia law. But see District of (Navy Exchange absolutely detective immune Onassis, (2d F.2d 993-94 Galella v. liability imprisonment for false arrest and Cir.1973) (United agents States Secret Service suspected shoplifter); based on detention of statutory carrying special duty shielded out Police, Capitol F.Supp. Kroll v. United States ar absolute from common false (D.D.C.1983)(United Capi- 1293-95 States liability, though “[o]rdinarily enforcement rest good tol Police officer entitled to faith and rea- charged duty agents are not so with the arrest liability sonableness defense to McShane, immune"); Norton v. imprisonment; false arrest and common law (5th Cir.1964) (Deputy United States 857-62 separate- and constitutional claims not treated absolutely from common law Marshal immune ly)- motives subjective ing justifying (1896), their 40 L.Ed. 780 case of action. choosing course Barr particular heavily upon purported relied ] (“The fact id. liability 79 S.Ct. at abolish the federal officers for manifestly the outer beyond here was within line of the action action [.]”) (emphasis added); Barr, duty duty line of petitioner’s perimeter applicable, privilege (“It enough S.Ct. at 1340-41 is ... to render malice in the despite allegations particular the duties which the officer added); id. complaint [.]”) (emphasis is enstrusted —the relation act committed again complained of to ‘matters (“Again and 79 S.Ct. at 1339 law supervision' his control or may interest calls for action public —which mistake, provide guide delineating must on the out to be founded on a turn scope of the rule which may later clothes the official an official find of which face act of executive officer jury with immuni- satisfy a of his put hard himself quoting Spalding, ty[.]”), faith”; U.S. at public have been good officials who (emphasis added). S.Ct. at exposed “honestly should not be mistaken” Biddle, suit.), quoting Gregoire v. 177 to rule” to which the Butz “general 579, (2d Cir.1949); Spalding v. 581 F.2d Court can be the referred harmonized with Vilas, 631, 637, 161 U.S. 16 S.Ct. Barr granted recog- blanket by (1896) (federal should L.Ed. 780 officers 40 nizing key point: state law normally this apprehension be “under an the not scope does not the establish of a federal conduct motives that control official [their] duty” “line of officer’s or the matters time, subject may, any at the of become super- law to “committed his control or inquiry damages”). in a civil suit for light, vision.” Viewed su- federal premacy appear stress, concerns central to the concerns, These two the we vitality of Barr continuing -style Barr, absolute fully incorpo- years since have been in the Butz immunity; words of the Court qualified immunity into rated the federal again, “immunity third, the of However, perhaps federal executive doctrine.32 obvious, Barr began less concern the protecting animated officials as a means of Court, stat- particular signifi- one which is of them in execution of the their federal where, here, utory duties cance from state law claims are criminal or civil actions Butz, state against law." asserted As federal officers. the based on 438 U.S. at Butz, 489, “Barr did added), (emphasis Court commented in 98 at 2902 not S.Ct. purport v. Bank depart general citing ... the Osborn the United from of rule, States, (9 Wheat.) 865-66, which long prevailed, 738, that a 22 U.S. 6 federal may (1824) impunity ignore official (exempting with the L.Ed. 204 “the of trade controlling bank, limitations the law has the necessary ... [federal] Butz, placed on powers.” his operations govern- 438 fiscal of the U.S. at [federal] 489, added); ment, states”). 98 (emphasis S.Ct. at 2902 the from control of the 495, also id. at sum, official, (“[N]either 98 “con- S.Ct. at 2905 for the federal the law Butz, Vilas, nor Spalding v. 483, trolling powers,” his 161 U.S. ... 438 U.S. at [Barr protect As to the need to federal officials’ competing best attainable accommodation of damage 341, values”); 335, freedom of action "fear of Malley Briggs, from the v. 475 U.S. 106 suits,” see, Harlow, e.g., at 102 (1986) ("As S.Ct. S.Ct. (the evolved, at 2736 "social costs” minimized qualified immunity provides has it am- qualified immunity expenses rule "the include ple protection plainly incompetent to all but the litigation, energy of the diversion official law.”). knowingly or those who violate the issues, pressing public the deterrence Similarly, qualified the reformulated immuni- acceptance public of able citizens from office ty protects against wide-rang- doctrine officials [, danger being and] that fear of sued will ing potentially disruptive inquiries into 'dampen resolute',” the ardor of all but most Harlow, subjective their motives. U.S. quoting Biddle, Gregoire (2d 102 S.Ct. at 2736-38. Cir.1949); qualified immunity represents "the able. Park Police officers are 2902, generally statutorily is 98 S.Ct. federal “make constitutional, authorized to arrests without war- (whether statutory or com- against any rant for offense otherwise, United character); were it mon law presence,” States committed “capable arresting [their] the states would be la-6(a)(l); U.S.C. see also id. at § govern- all the measures [federal] la-6(c) (authorizing Park Police officers § ment, it prostrating at the foot investigations to “conduct of offenses Maryland, the states.” McCulloch States”); authority United Wheat.) (4 law, however, express- to enforce federal ly augmented by Secretary doctrine thus en- Inte- The official authority “cooperate, rior’s within the acts that “if federal sures officer’s] [the System, any Park National State ... by controlling were authorized federal supervision the enforcement or Butz, law,” 98 S.Ct. at 438 U.S. at laws ordinances of State.” added), (emphasis the officer “[will la-6(b)(2). latter Pursuant au- § under for action tortious protected be] thority, may Park Police officers enforce hand, other where On the state law.” Id. of Columbia District law within all National “failed observe obvious [fed- official Parks in the District of Columbia. C.F. limitations statutory or constitutional eral] 50.3(a) (1986).34 Additionally R. § powers,” id. at his uniquely, the District of Columbia autho- imposed. “protection This liability could be operating rizes Park Police any- interference,” Butz, 438 U.S. at from state “perform where in the District conclude, is a powers Metropoli- same and duties as the immunity” mainstay of Barr “absolute police of tan the District.” D.C. Code Ann. doctrine, as in Butz.33 revisited (1981).35 4-201 § background short, of for concern permit- Park are Against Police officers officers, acting act, under respects, ted to in federal all as District of protecting, diverse, police law, officers both on and off from even Columbia of federal color hostile, rules, territory, the National Parks and it in possibly state law Park their pleas immunity in District of law enforcement ca- Police officers’ absolute Columbia particularly us are vulner- pacity the cases before Stover, Malhoyt, Officers and Congress, punishable by any enactment of supremacy 33. The federal concerns stressed in punishable be if committed or omitted would be the the text should not confused with “func- jurisdiction in within the of the State ... which analysis” required by another use of the tional situated, by [property] is the laws thereof such immunity” "the es- "absolute doctrine wherein guilty time shall be of like in force the pecially sensitive duties of certain officials—no- subject punishment.”). and to a like offense tably judges prosecutors required and — recognition immunity.” of absolute continued authority to en- of Park Police officers Fitzgerald, v. Nixon 457 Virginia Maryland local in and is force law 2699, (1982); L.Ed.2d see Imbler v. 73 349 Code Art. restricted. See Md.Ann 27 more Pachtman, S.Ct. 47 424 U.S. 96 L.Ed.2d 594B(h)(l) (Supp.1986) (granting federal § law (absolute (1976) immunity prosecutors); power make arrests enforcement officers the Ray, v. S.Ct. Pierson “rendering only assistance to a [local] when (1967) (judicial immunity). absolute L.Ed.2d ..., police request the [local] officer of press instant case no The defendants in the emergency"); or in officer Va.Code judicial they are entitled to such or claim (1981) (permitting counties to 15.1-131.4 § Ann. immunity. "quasi-judicial” agreement States agree- "enter into an government... with the United under terms of which addition, pursuant §§ to 36 C.F.R. 50.1 34. In employed by law-enforcement officers ment Virginia 50.3(b), Maryland of and and the laws government, including such but not limited by Park Police and enforced” "shall be invoked Police, may of United members States Park park Na- in areas administered officers “all county [Virginia] enforce law such Parks, Capital Service" National Park tional federally properties within such coun- on ty, owned § also U.S.C. within those states. places highways public other (Persons committing, property, on United States abutting properties”). such which, although not made “any act omission (1987); Section complained of the actions took Harasek infra III.B. cannot maintained therefore It here.36 “controlling” in no sense law was might that local symmetry Doctrinal seem to re duty” officers, Park quire “line of defining according acting in these as law, they were to enforce local episodes in suit. Lo what in the officers Police might provide ever local law sim implementation with cal “interference” ilarly per situated local law enforcement is over policy not the law and federal resolution, however, sonnel. Such a would powers federal riding concern where other, ignore plainly federal interests at augmented, have been here, stake interests distinct from the inter state of both federal and express approval in the est unfettered enforcement of feder authorities, power to include the legislative al law referred to above. See Howard v. law, local law where to enforce local Lyons, 360 U.S. at 79 S.Ct. at 1333 in This issue the case. is at enforcement (immunity afforded federal officials telling the local point more where is all the presents question; governing a federal is that of the District question “designed promote rules are the effec in another As we have observed Columbia. functioning tive of the Federal Govern context, District of Co “[v]iolations ment”). officers, no Park less than and violations of the United lumbia Code generally, federal executive officers must single crimes Code are States swiftly often “act and on the basis of factu sovereign, namely, the United States.” others, supplied by al information [occa (D.C. Markley, sionally confusion, Goode ‘atmosphere аn] ambiguity, moving events’,” Cir.1979). swiftly Butz, 438 U.S. at 98 S.Ct. at Barr principle of that the hold thusWe quoting Scheuer, 416 U.S. at Econo Butz v. Matteo, described carry may often them cases, and mou, to these inapplicable political across local boundaries the exer not “abso defendants the officer purpose cise ‍‌​​​​‌‌​​‌‌​‌​‌​​​​‌​‌​‌‌‌‌​‌​​​​‌​​​‌‌‌​‌‌​​‌​‌‍of their If the duties.38 of an al liability lutely immune” “provide government is to rule effecting the conduct legedly tortious ability officials ‘reasonably with the [to] further, how holdWe plaintiffs’ anticipate arrests. may give when their conduct rise ” to damages,’ Anderson,—U.S. are entitled ever, liability the defendants that , 3042, plea, at - immunity” quoting 107 S.Ct. at “qualified the federal raise Scherer, Davis v. 104 in Harlow progeny,37 developed as 3012, 3019, (1984), S.Ct. 82 L.Ed.2d 139 that from civil they are wherein “shield[ed] purpose “utterly would defeated be if offi long as actions liability as their damages cials were unable to determine thought con whether reasonably have been could they they alleged protected by were rights [immunity] the rule with the sistent Creighton, without Anderson v. entangling themselves in the va have violated.” — U.S.-,-, garies 3037- 107 S.Ct. of the ... American common law.” See, Scherer, e.g., vicinity U.S. place Davis v. the Martin’s arrest took (1984); Malley Memorial; S.Ct. L.Ed.2d 139 v. it is not settled whether Lincoln Briggs, not, U.S. 106 S.Ct. L.Ed.2d was, Ser- was on National Park or — (1986); U.S.-, Creighton, Anderson v. property of his Stevens’ at the time arrest. vice arrest, 107 S.Ct. hand, unquestionably did on the other stat- place federal land. Under the not take note, example, We Lincoln Me- however, text, regulations cited utes morial, encounter, Martin-Malhoyt site of the is supra the distinction see text at notes a stone’s the Potomac River from throw across property does federal and non-federal between Virginia, Bridge, while the Sousa which Stevens scope of the officers’ not limit the authority Park Police approaching, few miles is from the act the District of Columbia. within Maryland state line. Metropolitan Depart- of the D.C. Officers ment, clear, have made it is critical and could both cases. the arrests at issue in — apply judicial lespot endeavors at-, at Anderson, 107 S.Ct. U.S. formulation: at-, 3040-41 Harlow at 3042; 107 S.Ct. id. cf many variants as (“An immunity that has operation standard, Harlow ] [the action modes of official there are as however, depends substantially upon the give consci rights would not types of of generality level at which the relevant protection the assurance of officials entious “legal is For rule” to be identified. ex- object the doctrine is the it right process of ample, the to due law is provide.”). quite clearly by the Due established Pro- Clause, and there a sense in cess thus is immunity qualified federal A uniform any action that violates that at “Balkaniz[ation],” id. avoid will standard (no may it Clause matter how unclear -, 107 S.Ct. violation) particular action is a that the police offi doctrine, providing federal while right. clearly established violates “they protection adequate cers any Much the same could be said of long as personally held liable not be will statutory other constitutional viola- light cur are reasonable actions if “clearly tion. But the test of estab- at-, 107 S.Ct. law.” American rent applied lished law” were to be U.S. 3042; Briggs, 475 Malley also generality, it no level would bear rela- 89 L.Ed.2d tionship “objective legal reason- “all immunity protects (1986)(qualified that is ableness” the touchstone of Har- those who plainly incompetent or but low____ law”).39 In the fol knowingly violate [Ojur right cases establish that the section, charac we examine salient lowing alleged official is to have violated must immuni “qualified federal teristics in a “clearly have been established” more applica turning to its before ty” standard relevant, particularized, more and hence us. the cases before tion to right sense: The contours of the must be sufficiently clear that a reasonable offi- Qualified Scope B. The he cial would understand that what is of Defendants’ Immunity doing right. violates that — Anderson, at-, leading of Harlow case In the 3038; (in see also id. alleging case Supreme defined unlaw Court Fitzgerald, search, ful question” “relevant in these standard qualified whether a performing reasonable officer would officials have terms: “[Government functions, believed discretionary generally are warrantless search to be law [the] ful, light damages liability clearly for civil established law and shielded the information searching pos their conduct does not violate insofar as sessed”). rights of which a A clearly summary judgment established ... motion for person have known.” on the issue of qualified would reasonable defendant’s More immunity where, at 2738. thus must be denied view potential troub- recently, ing the Court noted a facts the record and all reason- (under principles, arresting common law offi- supports our dis An additional consideration immunity cers have "no prevailing law from suit for torts issue. com- position of this Under states, police making are not accorded mitted in the coursе of an arrest" in the al- arrest, available). though "good for false from suit absolute a faith” defense is We battery com imprisonment, or and assault false are reluctant to extend to the officers before us during Pier an arrest. See course of mitted jurisprudence a shield that common law has not Ray, son v. necessary proper provide; found it and as (1967) (“The common law L.Ed.2d 288 observed, supra p. we earlier see Su- granted police officers an absolute has never put together preme Court has never Barr and immunity[.]“); v. Carl unqualified Carter police officer misconduct. (D.C.Cir.1971) son, 362-63 & n. 9 447 F.2d light by Herring therefrom in a tional violations either inferences derived or Hara- able sek, plaintiff, a reason- we therefore order the most favorable district that the unlawful- court to dismiss these jury could conclude claims. Stevens’ able “appar- against Harasek, so common law tort of defendant’s action was claim ness ent,” id., cognizable officer could while on its that no reasonable face under District law, ac- in the lawfulness of his of Columbia cannot have believed survive Harasek’s responding grounds motion tions. to dismiss on qualified immunity. Creigh- the Anderson v. Consistent with “particular- emphasis on the ton Court’s Herring, Nos. 86-5561 & 86-5565 in- ized” manner undertaken, quiry “subject is to dam- Martin and essentially Stevens asserted age against government officials actions against Herring: identical claims Chief standard,” heightened pleading a Smith v. belief, persons On information and oth- Nixon, (D.C.Cir.1986),40 807 F.2d er by than Plaintiff have been arrested must, least,41 plaintiffs very wherein at the by and assaulted U.S. Park Police offi- specify “clearly rights established” cers, they when had violated no law and allege they to have been violated with “suf- charged are afterward with the offense precispon] put defendants on ficient[] Disorderly Disobeying Conduct and notice of the nature of the claim and enable Most, the Order of a Police officer. if and, prepare response them to where all, charges of these are dismissed appropriate, summary judgment motion trial____ being brought before qualified immunity grounds.” Hobson belief, On information and ... Defend- Wilson, (D.C.Cir.1984). affirmatively permitted ants have either mind, background principles With these practice persons this of arrest of without quali- we turn to the defendants’ claims of probable cause or have failed to establish immunity in fied these cases. systems procedures adequate pro- persons vide reasonable assurances that IV. Discussion of Plaintiffs’ Claims improperly are not ed____42 arrested and assault- Herring A. and Harasek

We turn first to the claims asserted Herring judg- Chief moved for immediate against plaintiffs Herring, both Chief dismissing ment these claims in ac- both Stevens Officer Harasek. tions; plaintiffs he asserted that had not present fail to Plaintiffs even the barest specific showing “set forth facts that there support for their claims factual of constitu- genuine regarding is a issue for trial”43 "plaintiffs complaint alleges termine whether argue "heightened plead- Plaintiffs that this applicable only casting ing ing allegations objective concrete facts ... standard” is to claims involv- doubt on the "improper actions). of "malice” or mo- reasonableness” of the defendants’ Appellees See Brief for at 45-46. We tive.” heightened disagree. It is true that the standard below, 41. As described Section IV.A. infra in the context of concern was first announced that heightened pleading standard also bears on "allegations of unconstitutional motive ... degree specificity required factual litigants possible means to circum- offer[ ] plaintiffs complaint. rule, simply by pleading that vent the [Harlow] any performed with an intent to violate act was 47-48, Complaint reprinted 42. Martin in J.A. ff rights clearly established constitutional 19-20; Complaint ([([ Stevens surmounting thereby the threshold test set out in J.A. at 103-04. Wilson, 1, in Harlow." Hobson v. 737 F.2d 43. Defendants’ Motion to Dismiss or for Sum however, (D.C.Cir.1984). Subsequently, ap-we 15, mary Judgment quoting First Nat'l Bank the plied pleading standard in a case where 253, Co., Cities Service 391 U.S. v. Arizona of 289-90, question turned of the defendant’s 1575, 1592-93, S.Ct. exclusively objective Smith v. factors. See (1968). Nixon, (D.C.Cir.1986) (ap- 200-04 807 F.2d heightened pleading to de- plying standard the alleged personal encounters, unconstitution- yond of the these plaintiffs existence the denied district court policy. “conclusory The allegations” arrest tender al The prejudice. Herring’s without motions which the district court referred.46 allega- plaintiffs’ acknowledged that court opinion Our in v. Carter District Co- of “concluso- “unsupported” and tions lumbia, (D.C.Cir.1986),high- 795 F.2d 116 Herring’s summary judg- ry,”44 but found lights plaintiffs’ the deficiencies in presen- Fed.R. premature: “Under motions ment Carter, plaintiffs alleged tations. a sim- for motion faced with a 56 when Civ.P. “policy ilar or established custom of delib- party entitled to summary judgment a is police misconduct,” erate indifference to id. op- him to discovery to enable sufficient part on the of the D.C. Metropolitan Plaintiffs, district pose the motion.”45 Departmеnt Police and the Chief of Police. ruled, opportunity an not had had court upheld the entry We of directed in verdicts discovery, and Her- pursue “sufficient” favor;47 plaintiffs defendants’ both while therefore denied. ring’s motions were came forward with evidence of “assorted procedural Application pre-trial of rules misconduct,”48 actual instances of id. at damages against public to actions for offi- “catalog disquieting of events perplexing, of developing cers is a still area per- not sufficient demonstrate a [was] our under- pattern police indulgence the law. We set forth below vasive of officer force, standing govern- of state persisting the current in the use of in excessive explain ing precedent, why hold and we the District because MPD’s tacit judgment approval.” that immediate must entered Id. at 123. The cited incidents “scattered,” Herring’s plaintiffs were in Chief favor. the Carter id., not “support and did inference presents Herring’s appeal two dis not the instances would [have] occurred] First, questions. did crete the evidence municipal practice for of but tolerance issue,” “genuine indicate a within question.” at 124. meaning Herring’s respon of Rule for, sibility in, alleged participation or inferring general prac- a As the basis for “practice persons prob of arrest of without cases, urge tice in their Martin and Stevens question readily cause”? This re able police of alleged “instances” misconduct solved, for support we find no factual for merely wholly not but isolated. “scattered” pattern plaintiffs’ claims that a of arrests instance, egregious, One however does pervades without cause U.S. Park Police practice pattern make. As the Su- points practices. plaintiff single Each to a observed, preme recently par- “a Court has instance—his or her own illus arrest —as ty showing fails to who make sufficient alleged pattern; trative unlawful be- to establish the existence an element 14-15, (2) Opinion reprinted taking custody; 44. Martin in J.A. at into the death after him 43-44; custody Opinion police prisoner Stevens Darrell Rhones J.A. at and the D.C. Medical Exam- 128-29. December that the death was caused iner’s conclusion at 45. reprinted in J.A. Opinion at by police offi- administered a “choke-hold” cers; (3) persons, of seven acknowl- death note supra, text at 46. Turner, edged by Chief in incidents involving period police D.C. in a two-month resolving sum- for 1984; (4) motiоns imposed for early standard 1983 and fine late a di- striking the standard judgment mary "mirrors Vanderbloemen for officer 50(a).” cause, persons improperly [Fed.R.Civ.P.] two without verdict under rected them; (5) Inc., arresting reprimand of one Lobby, Liberty Anderson looping a belt around officer Markovich L.Ed.2d 202 him; taunting prisoner of a the neck to which of misconduct 48. The instances (6) police that officer chiefs admission included; pointed plaintiffs in Carter suspect. a handcuffed had kicked Anderson Craig (1) testimony witness Scott Columbia, District Carter re- May beat him in peatedly (citations omitted). (D.C.Cir.1986) scene of his arrest at the both 256 case, upon justify to party’s that which

essential to establish ‘insufficient basis summary judgment] party will bear burden denial on which that [defendant’s motion,'” Martin, (em- apt description of Martin and 1430 F.2d at trial” —an oppo- Contemporary Mis- withstand an added), Stevens here —cannot quoting phasis Service, Cel- sions, summary judgment. nent’s motion for Postal Inc. v. United States Catrett, Corp. otex 477 U.S. Cir.1981), (2d a district F.2d 2548, 2553, ruling on that may a final judge defer motion, discovery, where pending further question first can answer We thus for that “he cannot nonmovant avers plaintiffs indicate (did cited the evidence facts present by affidavit stated reasons issue”) straightforward ap “genuine, justify opposition.” essential to his Fed.R. governing principles familiar plication of 56(f). Indeed, opportu- a reasonable Civ.P. under Fed.R.Civ.P. motions resolution of nity complete discovery grappling before cognizance special 56(c); take no we need summary judgment with a motion is the immunity claims of the defendant’s Celotex, norm. See 106 S.Ct. at 2554-55 Halperin v. See reaching our conclusion. (“any potential problem premature with ... (D.C.Cir. Kissinger, 807 F.2d 188-89 [summary judgment] motions can be ade- quali 1986) (Harlow’s reformulation of the quately 56(f), dealt under Rule alter “did not ... immunity defense fied summary judgment allows [deferral of] 56(c) Federal of the that rule the burden nonmoving motion if party has not mov places on the Procedure Rules of Civil opportunity an had to make full dis- demonstrate, of sum a condition ant covery”); see also Committee Nuclear for inquiry objective mary judgment, Responsibility, Seaborg, Inc. v. 463 F.2d any material as to genuine issue ‘no raises (D.C.Cir.1971) (“Rule 56[(f)] 787-88 fact____’ Goodwin, Briggs v. also ”);49 clearly contemplates parties that the shall (the (D.C.Cir.) “rules 489 n. F.2d opportunity deposition have for in order to in in cases summary judgment governing establish the existence of a material is- immu claiming qualified volving officials Cable, sue”); Sames v. 732 F.2d 51-52 applicable in those differ from nity do not (3d Cir.1984) (revеrsing district court’s en- other on contexts”), vacated other try summary judgment for defendants (D.C.Cir.1983). grounds, discovery “pertinent requests where were outstanding”). generally See 10A C. brings ques This us to the second Wright, Kane, A. Miller M. & Federal Herring’s appeal tion raises: did the dis 2741 at 541-48 § Practice Procedure deferring disposition trict court err in final (2d 1983) (“One ed. of the most common Herring’s give plain motions order to 56(f) being reasons offered under Rule uncover, opportunity through tiffs an present specific opposi- unable to facts in discovery, “specific showing facts in- summary judgment tion to a motion is genuine there is a issue for trial”? opportunity engage sufficient time or 56(e). hold, light Fed.R.Civ.P. We discovery.”). special defense, nature of the public Where official defendants invok- dispositive rulings Herring’s mo involved, ing from suit are tions should not have been deferred. however, longer “ordinary” a case is no plaintiff’s hope While that further regard, “[discovery “[a] is itself one of may develop prior evidence to trial is an the burdens from which defendants are proof Le., 49. The dispositive movant's burden at trial referred to in the text on a issue”— quotation alleged existence policy "inform[] district court of arrest is the —it Corp. responsibility basis for its motion." Celotex nonmovant’s showing v. Ca- to "make a trett, sufficient to establish the existence of an ele- (1986). Where, L.Ed.2d case, ment essential to as in the [the instant case.” non-movant’s] nonmoving party "the will bear the burden not illegal conduct will or otherwise Mar tional doctrine.” by the sheltered pre- dispositive Anderson, public official’s 1430; withstand see also tin, 812 F.2d — plaintiffs cannot motion, and because n. 6 trial at-, at 3042 U.S. obtaining assistance the court’s the Harlow quali expect (“One purposes of plaintiffs support, public necessary factual protect is to immunity standard fied gener- public officials discovery’ against ‘broad-ranging bringing suit from officials forward, complaints in their disruptive ally put of effec ‘peculiarly must can be that Harlow, materials, greater fac- quoting supporting 457 or other government’.”), tive is Mitchell 2737-38; “particularity” than specificity 102 S.Ct. at tual 511, 525, 105 S.Ct. Forsyth, usually required. (1986) (the “es 86 L.Ed.2d emphasize heightened We that this stan- posses “its of official sence” restricts, eliminate, dard but does not to stand not to have sor’s entitlement 56(f) discretion. trial court’s Rule litiga burdens the other trial face Martin, (a 812 F.2d at 1436-38 “blanket Smith, ”) added); (emphasis tion restriction on all discovery prior to the (Harlow against directed at 200-201 qualifiеd immunity resolution issue” “ ‘broad-ranging dis “primary evil” of unfairly penal- could in some circumstances per covery deposing of numerous “ plaintiffs seeking ize ‘crucial facts ... ”), sons’ quoting Harlow, 457 U.S. at 815- opposing ”), party’ quot- the control of the 17, 102 S.Ct. at 2736-37. Smith, Party Black Panther ing Difficult (D.C.Cir.1981). authority opposed, Two lines of are thus F.2d fine calling for tending ruling one towards deferral of a arise doubt no cases will plain- Herring’s motions, sufficiencyof summary judgment judgments disposition. other towards immediate final Stevens, showing. Martin and how- tiff’s precedent attempts Our to reconcile this ever, We have such a case. do not tender by applying conflict the above-mentioned officials subject Park Police to no warrant “heightened standard,” supra pleading government wa- “fishing expedition to a damage against govern actions p. to Mitchell, F.2d Ellsberg v. ters,” officials, requiring plaintiffs ment nor wholly (D.C.Cir.1986), on the basis mally to come with “nonconclu forward The broadsides charges. unsubstantiated sory allegations they of evidence and Ste- Herring [if against are] levelled proceed discovery on the claim.” Hob case prima out a fail to make vens facie son, 737 F.2d at 29. This standard would re- “affirmatively permitted” Herring not serve its protecting part intended of his activity on the illegal peated function — public becoming ‍‌​​​​‌‌​​‌‌​‌​‌​​​​‌​‌​‌‌‌‌​‌​​​​‌​​​‌‌‌​‌‌​​‌​‌‍indeed, allegations officials from do “unduly subordinates; en “protracted infer- Hob discovery,” the most tenuous support mesh[ed]” even son, routinely 737 F.2d at 30—unless took activity it were read to such ences por- restrict applicable otherwise remand this authority Accordingly, we place. judge permit of a trial with instructions discovery pro proceedings tion of the Herring’s fa- plaintiffs ceed so that entered in judgment can uncover “facts justify against him. opposition” essential claims to a vor on all [their] summary motion for judgment. Fed.R.Civ. 56(f). P. Harasek, No. 86-5565 heightened pleading brought Offi two claims standard Stevens will operate, practice, Harasek, “conspiring] thus to vio one for much cer like Rule 9(b)’s requirement rights violation that “the her constitutional late [in circumstances “neg 1985,”50 constituting other for fraud or mistake 42 U.S.C. shall be stat- of] § duty ed complaint] breachpng] affirmative with particularity.” ligently [in [his] Stover 9(b) Defendant (emphasis prevent Fed.R.Civ.P. added). to intervene Be- assaulting arresting conclusory unlawfully cause allegations of unconstitu- 50. Stevens in J.A. at Complaint 1f ants fore officer her constitu Stover and support Harasek conferred be Plaintiff.”51 claim, alleged McKinistry that Harasek testified before Stevens tional made untrue those that Stevens “was in [McKinstry] her ments obtain an indictment grand the tory the bitch.” motion to jury. requisite to statements discrimina “[s]imilar”52 McKinstry i.e., animus is found in the reference by made Officer to — plaintiff honking her horn while one officer as a “black away adequate This is she drove to and that survive a traffic attempted to obtain dismiss.56 he when registration”53 —state license and disagree. “[U]nsupported We factual al in an effort to “subsequently used legations specify which fail to in detail the against Plaintiff.”54 necessary factual basis to enable [defend claim, Stevens as As her common to intelligently prepare defense, to ants] there his “Harasek with serted that [stood] gov will not suffice to sustain a claim of being pocket” while she “was hands in his conspiracy deprive ernmental [plaintiff] to brutally handcuffed and forcibly rights.” Hobson, constitutional [her] against the rear of her veh pressed 30, quoting 737 F.2d at Ostrer v. Aron icle[.]”55 wald, (2d Cir.1977); F.2d see (citing requiring also id. at 30 n. 87 cases a. The constitutional claim “particularity pleading rights civil com observed, As the district court to plaints”). again, measuring Here Stevens’ state a claim under 42 U.S.C. Ste § claim heightened indicated allege: vens must pleading standard must result in its dismis (1) (2) conspiracy; purpose a for the sal. The only record shows Harasek depriving, directly either indirectly, or prior “conferred” with Officer Stover to any person or persons class of McKinstry’s grand Officer jury testimony, equal protection laws, (3) ... and and that Harasek’s allegedly false state an act in conspiracy; furtherance of the helped ments Even to secure Stevens’ indictment. (4) whereby person injured is either accepting allega these two factual person her any or property deprived or true, tions as ap the inference Stevens is right privilege or of a citizen of the parently asking us to draw—that the three United States. agreed testify falsely to and there

Hobson, 14; 737 F.2d at v. by Griffin obtain Stevens’ indictment—is a most Breckenridge, The torial (1971). 403 U.S. 102-103 one, tenuous tion on kind.57 hardly adequate an founda apply statute “does not conspira- to all complaint which to base a of this rights tortious interferences with the others, of some but those motivated class-based, invidiously discriminato- ry Hobson, animus.” b. The common law claim 737 F.2d at 14. The district court denied Harasek’s mo- next maintains that Hara Stevens claim, tion for dismissal of this or in sek’s failure to intеrvene on her behalf summary judgment, alternative for assaulting while Officer Stover was her this observation: of Hara constitutes an actionable breach sek’s To tiff her This prima duty protect make out her to from harm. plain- facie case met, first, by assertion Metropolitan relies on claim is Harasek’s Depart- Police duty ment documents that he owed Stevens no such showing that defend- 68, reprinted agreement among in J.A. at 106. claim rests on an the officers 1f perjure complaint themselves—her is less 50, reprinted 52. Id. in J.A. at 102. than ty" on this fl lucid score—the "absolute immuni Briggs announced in would bar her action. 53. Id. Depart Metropolitan See Martin v. D.C. ment, (finding 812 F.2d at 1429 & n. 15 “no 54. Id. logical treating differently justification for agreement perform acts to which absolute 30, reprinted in J.A. at 99. Id. If immunity attaches ... and the individual acts O'Connor, themselves”); Opinion Cooper 56. Stevens v. 99 F.2d in J.A. at (D.C.Cir.) ("Accusing joint [the defendants] gives ly, by way conspiracy, or of a count in note, grand additionally, that witnesses at 57. We [plaintiff’s] he had case no more virtue than if liability jury proceedings civil are immune from proceeded against singly.’’), each [defendant] arising allegedly of their false on claims testimony. Briggs out denied, 83 L.Ed. cert. Goodwin, (D.C.Cir.1983). conspiracy If Stevens’ 1448-49 ual,” specific duty id. before negligence result, cognizable that, no as a recognized avoids con- plaintiff will be stated.58 has been claim primary policy supporting the flict with the determine, precise can as we As far “practical realization “no-duty” rule: offi- a law enforcement question —whether individuals, and courts are ill- juries standing damages cer is answerable legislative- equipped judge ‘considered protect member of the failing to by and particular as to how executive decision[s]’ allegedly perpetrat- an assault public from community should be should resources been officer —has never by a fellow ed protect individual have been allocated District of Co- by the squarely addressed 1311, quot- public.” Id. members of the satisfied, none- courts. We lumbia theless, York, 22 N.Y.2d City New Riss ing complaint, that Stevens’ 293 N.Y.S.2d N.E.2d threshold, cognizable claim under stated a (1968). “exercised police the have Once governing in principles reflected case act,” impos- chosen to discretion and [their] ing against law enforcement negligence actions proceed with reasonable care “duty a to of officers in the District Columbia. they particu- have people whom protect to ” cases, the of In two recent D.C. Court placed peril “interpose larly in does not banc, sitting has considered a Appeals, en judgment of a for the discretion of jury the bearing upon presented the one question police.” Morgan, 468 A.2d at 1313 the police in circumstances is a here: what added). (emphasis public general duty protect to the officers’ “affirmative Stover’s think Officer We sufficient on which to from harm a base removing undertakings” forcibly Stevens — protect premise liability for a failure to an car, handcuffing placing her and from her by a third individual from harm caused to estab- custody police in her —sufficient Columbia, party? Morgan v. District of relationship” Ste- between “special a lish (en banc); War (D.C.1983) A.2d 1306 was police. Once Stevens the vens and Columbia, ren v. District of 444 A.2d actions, denied, the most basic by Stover’s (D.C.1981) (en banc). As these cases make of “quotient the self-protection, means clear, only police “the and the indi where signif- exposed rose she risk” to which was special relationship different vidual are a incurred an obli- icantly; officers thus existing police and citi from that between steps to insure gation take reasonable to Warren, generally,” zens A.2d at Stevens harm to which physical that “duty sufficiently particularized can a to not materialize. did was vulnerable rendering poten protect” arise the officer tially liable for a failure to act. See also express opinion no as to the extent We Morgan, 468 A.2d at 1312-15.59 Absent steps obligation or the a reasonable that any “special relationship,” the offi such position take in officer in Harasek’s must neglect duty public duty, cer’s is “a for satisfy hold order to it. We pub which the officer is answerable to the cognizable allegations set forth a Stevens’ Id. punishable by only.” lic and indictment which, proved, negligence claim if and not Maryland, 1311, quoting South defense, dispositive subject could met a (18 How.) 396, 15 L.Ed. 433 liability. Harasek to determining necessary whether inquiry, how not end our This does “special relationship” given exists in a situ- that, ever, even has asserted for Harasek ation, the District of courts Columbia look validity of Stevens’ assuming the threshold “beg[un] police to see whether the have claim, against entire case negligence her particular act in behalf of a citizen such on the basis of be dismissed him must significantly quotient way as to raise qualified immunity from suit. Under risk over and the risks assumed appli above declared immunity standard we have by every community.” other supra pp. claim, member cable to this Requiring some “affirmative “objec showing of the find Harasek’s particular undertaking protect individ- suffi- of his actions reasonableness” tive 58. Brief for gent Failure to Prevent require case law of which we are aware that would failing Stover.’’). generally that Harasek to intervene and Appellants Note, be held at 37-38 Crime, Liability individually ‘protect’ ("[Tjhere Harv.L.Rev. Stevens Negli- liable is no tween the doctrine that "a law enforcement officer’s duty protect public when a (1981) (all jurisdictions as a plaintiff citizenry whole,” ‘special relationship’ and the is a while also general duty police”). "recogniz[ing] adhere to the exists be- owed to duty entry judgment his threat he could reasonably thought cient to warrant favor. have posed she safety. the officers’ When began Stover allegedly his brutal and un- action, failing to intervene Harasek’s provoked attack on a handcuffed and de- behalf, placed in the must be on Stevens’ context of information ing suspect, fenseless he and Stevens were in- and the transpiring events police side a cruiser some 500 away feet Accord- possessed. Harasek from Harasek. We find no basis for infer- account, shortly after own to Stevens’ ring, even assuming the truth of Stevens’ vehicle, her Sto- approached Stover Officer allegations, that Harasek could have seen screaming to “hysterically began [Offi- ver clearly attack enough to render his gun’.”60 got a At ‘She’s cer] Harasek[:] this failure to come to Stevens’ aid unreason- encounter, again accord- stage able. Our view on this matter is reinforced Stevens, “forcibly Stover was ing to while by gers apparent failure passen- of Stevens’ pressing] handcuffpng] and brutally surely must have been at least —who vehicle,” rear of her [Stevens] Harasek his as concerned with Stevens’ treatment in- there his hands “[stood] side the cruiser as was Harasek —to see the pockets.”61 alleged beating.68 thereafter, more in Stevens’ once Shortly reasons, these we hold Harasek For “drag[ged] to words, [Stover’s] she negligence is immune from suit on Stevens’ 500 feet some cruiser ... unmarked charge, and we direct the district court Once she car.”62 [away Stevens’] remaining against that last claim dismiss him. in- cruiser, allegedly Stover the inside was tensified does Stevens on her.63 his attack in, or involved was that Harasek not claim could even inside see, alleged attack the Against B. Mal- Constitutional Claims un- According to Harasek’s cruiser.64 hoyt, the No. 86-5561 account,65 took Stover after contradicted Stevens 244, above, supra p. As recounted see cruiser, radioed a Harasek the to Malhoyt alleged that violat- Martin ed his “Fourth from unreasonable ment Officer ra- portable his on assistance request for right Amendment to be free retrieved dio; and then “went back [Ste- he seizure, Amend- Fifth in lying the pocketbook[,] which vens’] liberty right deprived of not to be looking recalls Harasek street.”66 law, process of property with due [out] weapon to for the pocketbook through the right to advised Amendment be Sixth [and] referred, finding and had which Stover nothing charges brought against him.”69 Mal- badge ID police Stevens’ but hoyt countered that “none [Martin’s] non-incriminating material.67 other allegations of a constitu- to the level rise[s] tort,”70 i.e., constitutional tional that no facts, these we are satisfied that Given rights, “clearly con- let alone established” alleged the ure to intervene unlawfulness of Harasek’s fail by rights, violated Mal- stitutional were behalf would Stevens’ Except Mar- hoyt’s alleged conduct. as to — Anderson, “apparent,” not have been tin’s claim of a fourth amendment viola- tion, U.S.-, 107 S.Ct. at to a reasonable agree Malhoyt’s contention. we in shoes. Harasek had a officer Harasek’s anticipating fully rational basis for 1. The sixth amendment claim gun, possibly person, on her Stevens had a pulled her from her approximately at the time Stover vehicle. Stover’s handcuff Stevens been viewed Martin asserts that attempts passed to subdue and four hours the time of his between being could therefore have arrest and his charges against of the informed justified by (disorderly Harasek as the him conduct Bush, Jr., reprinted reprinted J.A. Complaint in J.A. Affidavit of Johnnie 60. Stevens 176-79; Mary October 1985 Affidavit of 99. Stevens, reprinted Ella in J.A. at 180-83. 61. Id. 4, reprinted 65. See Harasek Interview Notes at 32, reprinted 62. Id. in J.A. at 99. U in J.A. at 214. 99-100; 63. See id. 66. Id. J.A. Iff supra, also text at notes 9-10. 67. 64. passengers, Neither of Stevens’ both of whom supra 68. See note 64. remained in or near her car after Stevens was cruiser, police taken to the referred in their reprinted in J.A. at 20. Complaint f any affidavits to of Stevens' or Officer Stover’s actions Appellants cruiser. See at 38. October Brief officer’s to an decision extends offi- disobeying police the order of a (the particular must make a arrest decision hold, cer).71 This, does to a not amount cause”); supported by “probable right of the sixth amendment violation how the ar protection extends as well nature “to be informed of the an accused is carried out. While Garner specifi rest cause of the accusation.”72 Whatever deadly force, cally addresses the use of may by impli- temporal limitations be read opinion language logic indicate clause,73 we cation into that cannot rank police effecting of force in that all use delay four-hour arrest and notice between objective must arrests meet an standard of as more than a de minimis charges Garner, See reasonableness. 471 U.S. at abridgment right of Martin’s “to be ad- 7-9, 105 S.Ct. at 1699-1700. to every respect vised as element it is necessary prepare for him to Gamer’s reasonableness is formulation Lattimore, United States defense.” typically one used in court review (D.C.Cir.1954) (en banc). F.2d fourth amendment seizures: reasonable- by balancing is to be determined ness infringement of the individual’s interest remaining constitutional action caused claims governmental served by interest that ac- claim a. The excessive force id. tion. 1699, quot- S.Ct. Place, United States v. heading ing under Martin’s claim Malhoyt used allegation upon his rests (1983). balancing This objec- test Martin’s ar both force to effect unreasonable fact-sensitive; tive and it looks under to the “to- this claim appraising rest. amendment,74 tality of the circumstances” known the fifth rather than fourth challenged at the deci officer time of con- Supreme Court’s guided by the arewe duct, Garner, it respect accords a measure of Tennessee sion Gar judgment quantum the officer’s about 85 L.Ed.2d quickly protec developing of force called for in a fourth amendment ner clarifies that situation.76 seizures”75 from “unreasonable tion (3) injury, severe is intended and to inflict reprinted in J.A. Complaint Martin 71. IHf Morrissette, Compare F.2d harm. 772 Gumz 18. (7th Cir.1985), City 1395 with Gilmere v. At- VI. amend. U.S. 72. Const, lanta, (11th Cir.1985) (en F.2d 774 1502 banc). appraised We force have excessive 5(a) (accused be entitled to Fed.R.Crim.P. 73. Cf. process claim under a amendment fifth due unnecessary magistrate "without a before taken pretrial when it in a detention rubric occurred arrest). delay” after context, where fourth amendment concerns explicitly complaint link does not Martin’s Columbia, prominent. District less Norris v. particular ato consti- excessive force claim his (D.C.Cir.1984), ap- adopting F.2d 1148 however, ap- prоvision. appeal, he On tutional Glick, proach in taken Johnson v. 481 F.2d 1028 analysis. pears rely amendment to on a fourth (2d Cir.1973). Gamer constrains us to conclude ("Plaintiffs Appellees initial Brief See process analysis appropriately is not that due battery a violation for assault and and for claim claims, Martin’s, to force extended excessive like right to be free of his Fourth Amendment Moreover, that arise in the context of an arrest. searches seizures occurred unreasonable Norris, precise analysis process due in al- any Officer Mal- prior to in the mind of notion case, may though in not the result reached that Martin.’’). hoyt to arrest Mr. that he intended recasting light bear in of Gamer and well-rea- emphasize again, supra p. We that commentary that See Com- soned decision. degree specificity require greater in a we complaints ment, Removing the Excessive Force Claims: damages against public official Standard, (1986). Double U.Chi.L.Rev. ordinary case. The dis- defendants than in Furthermore, Gamer, Supreme since court, note, ample authority, under has trict Fed.R.Civ.P. 12(e), process analy- has the due Court indicated that require, on defendant’s mo- superfluous employed sis in Johnson is when a tion, "vague a "more definite statement” where specific protects more constitutional command ambiguous” pleadings are submitted. Albers, Whitley In the affected interest. 15(a) (leave pleadings "shall id. to amend also 1078, 1088, 89 U.S. (1986), 106 S.Ct. L.Ed.2d given justice requires”). freely so be when observed: “It would indeed Court surprising if ‘conduct that shocks the con- ... U.S. amend. IV. Const, law,’ brutality science’ or the cloak of ‘affords process], not also and so violates ... were [due objective inquiry The con- fourth amendment punishment and Eighth in violation ... [cruel of the unusual] process sometimes trasts the due standard It would be more [Amendment].” police used to use of force in arrests. evaluate surprising not also still if such conduct were (1) dispropor- That standard checks force fourth amendment. unreasonable under the (2) presented, tionate to the causes need test, maliciousness is Martin, irrelevant. We the most severe must According to Malhoyt’s conduct, focus on whether upon in- total Malhoyt Martin's infringement by objectively appraised, up added in an exces- to a reason- from arrest in freedom terest mode of Malhoyt’s “brutally able arrest. We conclude that it manner was sive waist, slamming, given did. Even the door ... about grabb[ing] [the] [Martin] apparent action, need for instant driver seat does not throwing] back into [his] [him] appear extraordinary response. to be an slamm[ing] door on one of [the] [and] sum, alleged viewing “totality In of the circum- legs.”77 Martin further [Martin’s] stances,” Malhoyt we cannot conclude that “grabbed Malhoyt later [Martin’s] used taking unreasonable force in them immedi- arms[,] pulled behind [Martin’s] steps ate first placed in confine Martin to his immediately back[,] and [Martin] vehicle, then to effect his pushing up arrest. handcuffs while [him] limousine,”78 Malhoyt, as Martin re- [the] counts, in pain- Martin to sit then forced probable b. cause claim car, police Malhoyt’s position ful objecting addition to to the man previous in- aggravated Martin’s shoulder arrested, ner which he was Martin as jury- rights serts that his fourth amendment particulars disputing the Malhoyt, while proba were violated because there was no account, by way asserted of Martin’s ble cause to arrest and detain him for disor justification that he wanted Martin derly disobeying police conduct and offi public’s safety, “for safe- car cer’s orders. It is well settled that an [Martin’s] safety. By open- ty, [Malhoyt’s] own probable arrest without cause violates the ing his door into traffic Mr. Martin caused Pugh, amendment. Gerstein v. fourth danger 103, 111, traffic hazard which was a 43 L.Ed.2d traffic____ oncoming Fi- and the himself Under Martin’s version of the presented] nally, facts, event that probable cause to arrest [Martin] was indis danger [Malhoyt], would any putably absent. Martin [Martin be] asserted easily “[ajfter controlled inside his car.”79 Malhoyt more my threw me into car and dispute Martin does not the reasonableness my permit registration, obtained he concerns, Malhoyt if in fact of such had police returned to his saying without car them, upon place at the time and anything to and acted “got me.”80 When Martin According of the incident. to Martin’s own out car ... and went behind [his] [it]” moreover, story, Malhoyt Martin knew that open passengers, the door for Malhoyt, his waiting words, was to see whether one of Martin’s “suddenly got Martin’s out of his passengers really having difficulty appearing car and while to be ex walking; yet began to move the tremely angry upset, say without passengérs his ing one word to me” handcuffed Martin limousine before had re- by turned to the vehicle. This action Mar- put police him in the car.81 given Malhoyt tin could well have cause to Since Martin claims Malhoyt that said faith, good doubt Martin’s which turn nothing at all to him at the time, relevant Malhoyt’s would have increased concern on let alone something that could be construed part safety oncoming traffic, for the of order, as an under the facts as we must Martin, addition, and himself. Martin’s take them stage at this case, of the there supplied movement of his car would have probable was no cause for an arrest for support any Malhoyt’s for fear of that Mar- disobeying officer’s order. As to might tin flee. the charge of disorderly conduct, the only Tested the standard confirmed in elements of the offense possibly relevant Gamer, we are unable to “(1) characterize the here are: Act[ing] in such a manner as manner Malhoyt arrested annoy, disturb, Martin with, obstruct, interfere objectively light unreasonable in of or others; offensive (4) inter- [or] rapidly unfolding sequence of fering] events. with any person in any place by Slamming the car door on leg jostling against Martin’s person such or unnecessar- pause, causes us to for that appears ily action crowding him” with the pro- “intent to malicious. But under Garner’s objective voke a breach peace, of the or under cir- 77. Martin reprinted Affidavit at in J.A. ([ Martin Affidavit at 80. (emphasis added), f 74. reprinted in J.A. at 75. 124, reprinted Id. 81. Id. added), J.A. at 75. reprinted (emphasis 23-25 !f J.A. at 75-76. Malhoyt Affidavit at in J.A. at who mere- believed that an individual peace have of the that a breach such cumstances of committed either ly gets out his car has thereby.” D.C.Code may be occasioned Martin was Gueory of the offenses with which see (1), (4) (1981); 22-1121 Ann. § charged, assuming Malhoyt rea- Columbia, 408 A.2d 967 (D.C. even v. District of attempt- was sonably believed that Martin nothing he did 1979). relates that Martin parking ing to evade a citation for a viola- stand behind it. his car and get out of but True, resolving dispute Without the factual above, tion. Malhoyt might as we observed actually transpired between Martin, as to what wary to be of but had cause have say Malhoyt, cannot Martin and annoy in- doing nothing to was requisite objec- Malhoyt has established anyone at the time of his ar- terfere of his actions. We that, tive reasonableness accepting plain Mar- rest. We think it district court’s denial true, therefore affirm the disputed events as of the tin’s version summary judg- Malhoyt’s motion probable cause arrest was without Martin’s relates to the fourth ment as that motion amendment, the fourth amend- therefore violated probable cause claim. lack of ment. turn, then, Malhoyt’s plea We Against Mal- Law Claims C. Common immunity from suit. The district qualified Stover, hoyt, No. No. that because the relevant court reasoned 86-556584 required cause is to arrest— probable law— was established,” Malhoyt “clearly cannot disposition of the re Our claims threshold;82 observ the Harlow surmount maining against Malhoyt Officers and Sto conflicting versions of the ing that 85requires analysis. ver no extended Mar “genuine as to presented a issue” events tin and Stevens have set forth detailed cause, district probable the existence accounts of their encounters with these judgment summary to enter court refused which, believed, if establish the Malhoyt qualified on his tortious character of the officers’ actions. plea.83 versions, plaintiffs In their acted in a man conclu court’s the district agree with We ner that no reasonable officer could have probable That reasoning. its law; but sion believed violated District of Columbia viewing when absent have been may cause they offered no resistance to the offi itself and of not in post does ex arrest justify cers’ commands that could the stern objec in an acted the officer establish measures taken them. As we have ante. manner ex tively unreasonable emphasized opinion, several in this times re Supreme Court as the inquiry, relevant plaintiffs’ descriptions episodes light “in the clear, is whether cently made directly suit are contradicted the offi the unlawfulness” law preexisting statements, liability cers’ and the officers’ “apparent.” arrest Martin’s ultimately will turn which of ac — at-, Anderson, A counts the factfinder review believes. pivotal (indicating as the id. also 3039; ing court’s role is not to resolve these (albeit fact-specific) objective “the issue disputes; merely verifying factual their ex could officer reasonable whether question sufficient, stage istence is at this lawful to be arrest Martin’s have believed” proceedings, uphold for us to the district and the clearly established light of “in court’s denial of the officers’ motions to possessed”). [Malhoyt] information dismiss these claims. thus Malhoyt’s motion Resolution cause to probable not on whether turns Preclusion, Y. Issue No. 86-5565 existed, but on wheth- in fact Martin arrest Finally, we address Officer Sto of a matter as Malhoyt has established er pre ver’s contention that the rule of issue Malhoyt’s in officer reasonable that a (or estoppel”) clusion “collateral bars Ste have exist- it to have believed would shoes court, relitigating, vens from in the district confident, assuming the agаin We are ed. by Metropolitan issues of fact decided disputed of the version of Martin’s truth Department’s Adverse Action Panel could officer events, reasonable that no arrest, charged with “false 85. Both Opinion reprinted Martin in J.A. assault, battery, imprisonment, malicious false 37-38. prosecution, intentional and defamation .... 83. Id. distress, neg- negligent infliction of emotion[al] ligence!,] gross negligence the laws under observed, Stover, as we earlier has Officer Complaint of the District of Columbia.” appealed of from the court’s denial not district 21; Complaint Stevens in J.A. at constitutionally- f his motion to dismiss Stevens’ 64, reprinted in J.A. at 105. Ü based claims. in Elliott.89 The AAP first con- (AÁP).86 The district court was dards set forth argument trial re- preclusion a full-scale administrative presented with this ducted viewing proposal for reconside ‍‌​​​​‌‌​​‌‌​‌​‌​​​​‌​‌​‌‌‌‌​‌​​​​‌​​​‌‌‌​‌‌​​‌​‌‍ the MPD’s to remove Ste- appellants’ the Stevens motion force, time, appeal conclu- this had from the At that vens ration.87 already argued. decision Consid it issued a written sion of which been briefed fact, any findings ac of conclusions ering inappropriate to take new detailed it with law, during pendency of the case before and recommendations.90 Stevens tion of charges against court, her and the district court denied notified was by The AAP represented counsel. motion.88 adversary hearing, took ex- conducted preclusion, the rule of issue Under evidence, provided Stevens the tensive actually of fact an issue “[w]hen opportunity both to cross-examine witness- by a litigated and determined valid present witnesses on es her and the determination is judgment, final Stevens does not contend her own behalf. party judgment,” essential to opportuni- and fair she lacked a “full oppor “a full and fair proceeding who had present story. her ty” to side tunity litigate the issue the first ac generally precluded relitigat tion” is principal argument Stevens’ why ing subsequent it in a action. Restatement findings the AAP’s given should not be Judgments (1982). (Second) §§ of preclusive effect is that she is currently Elliott, — University Tennessee v. of exercising, under D.C.Code Ann. 1-606.- § -, 92 L.Ed.2d 635 U.S. (1986), 106 S.Ct. 3(a), right appeal her to the District of Supreme Court held that “when Columbia Office Employee Appeals. ‘acting judicial capacity agency a state The findings, AAP’s according Stevens, disputed proper ... resolves issues of fact are therefore “not of a fixed character and parties ly before it have had an cannot form the basis of a ... collatеral litigate,’ adequate opportunity to federal estoppel bar to access to federal court.”91 give agency’s factfinding courts must appeal, note, pendency of an does preclusive the same effect to which it automatically preclusive diminish the would be entitled the State’s courts.” See Hunt prior adjudication. effects 3227, quoting Id. United States v. Utah Inc., Lobby, Liberty Co., 394, 422, Mining Constr. & (D.C.Cir.1983) (noting “well-settled federal (1966); L.Ed.2d 642 “does not diminish the res appeal law” Corp., see Kremer v. Chemical Constr. judicata judgment effects of a rendered 479-85 & n. court”); a federal (Second) Restatement 1896-99 & n. Judgments (any 13 & comment f “suffi- § (1982) (issue preclusion apply does not ciently prior adjudication firm” should be party against where whom earlier decision deemed “final” and accorded conclusive ef- is asserted did not have a “full and fair fect; judgment “better view is that a opportunity,” procedur consistent with the final despite otherwise remains so the tak- requirements process, litigate al of due ing appeal of an appeal unless actual- Judg [the] issue); (Second) Restatement gener- ly novo”). consists of a trial de (on preclusive adjudi effects of § ments ally 18 C. Wright, Cooper, A. Miller & E. cative determinations administrative tri § City Federal Practice and Procedure bunals). Learning See also Wide Center, Co., Inc. v. William C. Smith & (D.C. 1985) 488 A.2d (discussing According preclusive effect judg- to a application “principles of administrative ment from appeal which an taken, has been estoppel” collateral under District of Co however, denying risks relief on the basis law). lumbia judgment of a is subsequently over- convincing no turned. Consequently, Stevens offers reasons care should be tak- why en in proceeding dealing the AAP judgments which she was final, that are but still subject involved does not meet the threshold stan- to direct review. This is supra, assert, 86. See text at cryptically, notes 14-16. 89. Stevens The AAP did that the AAP "persons determination was adverse to Stevens members were on a num- with a vested interest in ber of factual issues asserted in the district court. Appel- relevant to the outcome of her claims she civil case." Brief for elaborate, lees at See id. 37. She did not and we tire therefore possibility unable to evaluate the supra 87. See note 26. systematic tainting findings. bias the AAP’s supra See note 14. supra 88. See note 27. Appellees

91. Brief for at 38. think, so, appeals against Malhoyt and we where both Officer claims particularly in stage are adjudications say, cannot at this оf the Stover —we from administrative Secretary "genuine no Cartier proceedings, that issues” as to progress. Cf. (the (D.C.Cir.1974) State, “objective of the offi- F.2d reasonableness” judicata res Accordingly, cers’ we af- of administrative actions remain. “doctrine system rigid that into a firm district court’s denial of the mo- has not evolved context”); every Malhoyt blindly applied by tions to dismiss be and Stover is to (2d Heckler, these claims. Purter v. ju- res Cir.1985) of doctrine (application part, part, reversed in and Affirmed proceedings under dicata to administrative proceedings remanded con- for further Security “not encrusted Act is the Social opinion. with this sistent finality its rigid that characterizes with judicial proceedings”). purely application WILLIAMS, Judge, concurring Circuit is to potential solution to this dilemma One dissenting: and preclusion ques- of the defer consideration disposition I in the concur court’s appellate proceedings ad- tion until tort constitutional claims and its careful prior judgment are conclud- dressed to ed, explanation of those outcomes. I dissent moving provided they are forward with part opinion holding from that long not dispatch and will be reasonable enjoy only that Park U.S. Police officers Air re In delayed. Traf- Professional qualified immunity for common law tort Organization, F.2d Controllers fic arising suits from acts committed while (D.C.Cir.1983) (court asked to 18n. enforcing District of Columbia law. The “may judgment effect to preclusive accord rule adopted the court seems me to to stay proceedings to its own well advised give inadequate weight to federal interests disposition of the await the ultimate to practical entail to considerable difficul- appeal”), citing Restatement judgment approach, believe, ties. I A better is to op Judgments b. comment (Second) § recognize central functions of law question The was raised too preclusion discretionary; enforcement officers are rule district court to on it. late for the thus, assuming immunity that the absolute uncertainty in the record before Because of us, Mateo, of Barr v. 79 S.Ct. scope to the particularly respect with (1959), is 3 L.Ed.2d 1434 limited to think it pace appeal,92 of Stevens’ we duties, discretionary such officers enti- to air parties to allow the this advisable immunity acting tled to absolute if within fully question more district before perimeter” “the outer of their duties. court, we therefore remand issue proceedings. for further I Conclusion sum, rule on the Federal officers’ we first absolute state tort claims under Barr contrasts officers Park Police from suit of U.S. qualified hold sharply merely in this case. We immuni- defendants named as arising ty to out to claims founded on the Constitution or at least as claims court, rightly of District of Columbia a federal statute. The I their enforcement think, explanation law, quali- finds the su- officers are entitled federal these claims, concerns. See Maj. premacy com- immunity from all such fied at 249-50 Economou, constitutional, Butz v. (citing asserted mon law and 489, 490, 495, specific against respect With them. against (1978)). individual de- pro- each It then claims asserted fendant, develop court to dis- ceeds a special direct the district treatment Herring wielding both federal and local against miss all claims Chief Harasek, sixth authority. as well as Martin’s Even where such Officer officers would unconstitutionally enjoy immunity, they exces- amendment and otherwise absolute against Malhoyt. may if they attempting do so force claims Officer were sive remaining fourth law claims —the enforce District Columbia As all probable Maj. cause claim times. 251-52. In such critical cases, amendment/no Malhoyt, quali- common law court limit them to a various would record and under regulations example, that she is "enti- such such other For Stevens claims rules and appeal hearing" may on her the office to a de novo issue.” D.C. tled l-606.3(a). Appeals. Employee Brief Code Ann. § Office defendants con- before the tend, moreover, granting agreed her an Appellees statute Stevens herself at 38. The has for appeal "upon compiled by review on the right speaks only record of review the AAP. protect them immunity, which will fied if current American law.” Id. the Park Police assume The duties that light reasonable in working arrangement actions are “their are clear- under ly at 252. in the interests of undertaken increasing^ efficiency carry they the their immunity with which out the court’s solution overlooks or I think the Restriction of mandate. federal slights the federal interests at least at stake the cost of use of raises federal Park Police officer en- a U.S. law; when working relationships. such Such a cost difficult as local raises issues forces impact tify extending necessarily jus- of course would not intrusion of non-federal just how much federal to a non- or other interests is sufficient to offenses enforcing federal officer federal under law rule; trigger divert cоurts into will agreement. recognition such an But baffling unnecessary efforts to define supports purely cost use of a federal rule homogenized version of the law of some indisputably ap- federal when officer states. the various pears enforcing only on the surface to be A federal law enforcement officer will be non-federal law. advancing federal interests even when he is Moreover, I fear that court’s rule will nominally enforcing only non-federal law. complex line-drawing, unjustified by entail example, although charges For for real returns in the form of a more nuanced accommodation of federal and non-federal Malhoyt arrested Martin were local (disorderly der of a Malhoyt morial in order to ests—the disobeying conduct and the or- Any jurisdiction1 interests. case dual is officer), police it seems clear that pose metaphysical sure to almost issues of assigned to the Lincoln Me- characterization. protect inter- federal if, example, appears to be the For amenity symbolic value of case,2 Martin was on National Park Service Preventing disorderly the Memorial. con- arrest, property his local at the time his helps goals. duct at that site realize federal also a federal law viola- law infraction was tion. Even in the rare situation where a Park (1982) (persons on U.S.C. § property Police officer is on non-federal enforcing engage property who in an act or federal omission in the law, purely District as was Offi- offend state law with- would Stover, cer federal interests are involved. jurisdiction guilty are of a state’s Although Park Police officers are autho- subject punish- to a like like offense and rized to enforce District property by law District ment). la-6(a)(l) to 16 Pursuant U.S.C. §§ statute, a local District D.C. l(a)-6(b)(2) (1982),Malhoyt had author- and ity (1981),they actually Code Ann. 4-201 do § federal and state law on to enforce both any so not because of direction from local Thus, property. Park Service National even authorities, part arrangement but as of an Malhoyt if arrested Martin on a facilitating aimed at federal law enforce- terms, designated in charge non-federal agreement force, By Metropoli- ment. tan Police with the appears simultaneously arrest an enforcement of Martin’s to have been attempt in an to avoid (or, under federal coverage double that would waste bоth lo- account, purported enforce- resources, cal and federal enforcement the ment). presence If the non-federal Police, though Park for primarily responsible Malhoyt enough deny is a con- violation ventional lands, patrolling federal also en- share immunity, federal officer’s then Metropolitan forcement duties with the Po- entanglements may all kinds of non-federal also do so. Similarly, Metropolitan police lice. maintain the The help peace in the National Parks. arrangement practicable Suppose, example, Malhoyt because had interspersed throughout federal tracts are the Letter charged solely with a violation of 18 Appellants’ Supplemental District. suppose U.S.C. independent 13? Or he had added § April 6, which, dated at 2. federal offenses all arrangement working majority opinion 1. As Because of the summarized in the Metropolitan U.S. Park between the Park Police and the are authorized fed- Police, supra, see 266 each enforces the other eral law to enforce local law within a National jurisdiction's frequency. Park, Appel- law with some la-6(b)(2), § U.S.C. and to enforce Supplemental 6,1987 lants’ April Letter dated violations of local law as violations of federal 18 U.S.C. § law within National Parks. _________ law, they Pursuant to District of Columbia Appellants’ Supplemental Letter dated powers endowed with the same as the local April Maj. 1987 at 3. But see at 251 n. 36 metropolitan police any- to enforce District law (asserting that the location of the arrest is un- where in the § District. D.C.Code Ann. 4-201 certain).

267 question is one Supreme that neither the know, What may available? have been Court nor this yet addressed, circuit has the federal offense but had added a if he though application the of Barr to inevitably will— officers many claimed —as plaintiff of limited pending discretion is now in sup- to the probable no cause there Supreme Court. Erwin v. Westfall, if the offi- 785 charge? What the federal port (11th Cir.1986), F.2d 1551 granted, cert. charges, the only federal but brought cer — -, U.S. 107 S.Ct. really 94 L.Ed.2d argues that the arrest was plaintiff 517 the answer Does offenses? for non-federal change if the arrest any of the above to notes, As the court the federal courts property? off federal occurs widely have varied in their view as to the scope Barr-type of immunity, some extend to the solution Finally, I think the court’s ing it to regardless all federal officers of problem of law—the issue of “balkanized” function, only some plan those at the legal being of distinc unaware officers’ level, ning policy and some to into among jurisdictions the tions exercising limited Maj. discretion. prove may carry them —will their work 248. This court has found that the Barr proposed solution is that troublesome. immunity is available for federal officials protected if their be federal officers will performing “discretionary duties,” Sami v. of current light are “reasonable actions States, United (D.C.Cir. 617 F.2d quoting law." Maj. at American Anderson — 1979), implying U.S.-, that it would not be avail Creighton, performing able to those (1987) (em non-discretionary 97 L.Ed.2d S.Ct. Barr itself functions. appears in dictum added). was enunciat The standard phasis require that performed the functions in the context of federal by the Court ed discretionary. 573-74, 360 U.S. at readily not fit constitutional law will 1340-41; accord, Fitzgerald, Harlow v. I multiple jurisdictions. problem the 800, 816, 457 U.S. 102 S.Ct. that courts can discover have no doubt (1982) (dictum). L.Ed.2d 396 any body of law outside “transcendental State,” see Erie R.R. Co. v. particular speci- the Court Barr Although did not 64, 79, Tompkins, 58 S.Ct. employees categories of federal fy the (1938) Holmes, (quoting 82 L.Ed. 1188 apply, immunity would the which absolute Taxicab Black & White J., dissenting, the plurality opinion clearly stated that Co., v. Brown & Yellow Taxicab Co. depend availability did not on 404, 408, 72 L.Ed. U.S. 48 S.Ct. 79 S.Ct. at rank or title. (1927)), like the but the task —much acknowledged that heads of de- It line-drawing problems prove awk —will to invoke immuni- partments would be able ward. frequently lower-echelon em- ty more than solution, quite while Thus the court’s explained that was true ployees, but aiming of fed- properly a nuanced balance higher post, the “because interests, appears unneces- eral and state range responsibilities and broader parsimonious protection in its of fed- sarily scope duties, of discre- and the wider officers, generate and threatens to ser- eral tion, 79 S.Ct. 360 U.S. at it entails.” sifting implica- out its process ious costs is, explained, “the It the Court at 1340. lawyers and courts and tions —the time complained of to ‘mat- of the act relation subject uncertainty for all who are his control or ters committed law rule. provide the supervision’ which must delineating scope” of the im- guide at 1341. munity. II least susceptible of at “guide” is This special My employ rule reluctance if might mean that readings. It two entangle- on the District of Columbia based discre- relatively modest enjoys a officer tion, forces me to consider whether ments enjoys, even immunity that he Barr’s absolute immunity to state tort acts, On must be diminished. discretionary encompasses conduct of federal claims police officers ex- view, assuming that enforcement officers “on the beat.” high- than markedly discretion less ercise the Barr argue that Plaintiffs enjoy non- officials, ranking they would discretionary applies only to functions performing when Alternatively, immunity even patrol absolute do the activities of officers discretionary functions. notes, qualify. majority As the Moreover, ancillary advantage of though federal only that might mean Court is that concept tort of discretion immunity to state claims Davis’s broad officers’ absolute, multiple lower-ranking officials will levels it avoids the drawbacks affording less than to invoke it. discretion. A rule frequent occasion of absolute acts of limited discretion courts to degree have less reading. performing immunity to officers to me the better The latter seems require would Supreme closely related context In a classify functions terms link recently considered the be- Court has discretion, an elusive task. of discretionary functions and immuni- tween meantime, federal officers would face the uncertainty, (1) immunity suggesting that ty, in terms quite inconsistent with degrees modest of discre- applies even immunity: free them from purpose of degree vary (2) is not tion and performance on of their undue inhibitions duties. Scherer, 468 In Davis v. of discretion. 104 S.Ct. U.S. making con- “constitutional Extension of Davis to the state tort (1984), plaintiff a however, text, self-evidently 42 against state officers under is not correct. tort” claims of (1982) consequences asserted that the de- The of a broad definition U.S.C. § (absolute stronger a “ministerial” rather performing discretion fendants were sug- regulations prescribed qualified immunity), arguably than duty because state (with gesting restrictively. the officers line should drawn more procedures that the certain had responded: flows, complied). strong result allegedly not The Court But the indicated, majority from the as the has protecting its United States’s interest specify precise A law that fails action that each instance multiplicity legal of claims officers from a must take in the official to) (and independent federal law. occasionally of hostile only discretionary creates authority remains authority; and that discretionary egregiously however though hardly Accordingly, the issue is abused. clear, appropriate employ it seems to me identifying at 3020 n. 14 standard in discre- at 196-97 n. S.Ct. thе Davis added). (emphasis tionary functions in the context of common against law tort claims At least one court federal officers. appears concept This of discretion to fit appeals has done so. in the context of absolute as well to state tort claims qualified (Butz). Maine, Inc., Key Ricci v. Bancshares (Barr) as in that of (1st Cir.1985) (as a fall- 768 F.2d back to the court’s view immunity to constitutional claims that no discretion Indeed, concept a of dis- narrower application Sarr-type at all is needed for defining immunity to state cretion for claims than for tort immunity).3 _ to constitutional ranking torts would reverse the the chosen standard, Under the Davis law enforce- Butz, Supreme exposing Court offi- evidently ment officers “on the beat” exer- enjoy cials to state law claims for acts that They cise discretion. will often have nei- immunity from constitutional ones. The ther the time nor resources to arrest for Court in observed that confi- Butz “we are offense; they every apparent confine themselves to the most must then purport protect dent that an official who has not did not Barr egregious. a committed available, plenty of time is Even when law, wrong under local but also violated everyday experience suggests that officers principles those fundamental of fairness (and should) do limit themselves to warn- embodied the Constitution.” 438 U.S. at ing many cal violations.4 relatively instances of techni- 495, 98 S.Ct. at 2905. discretionary exception of function employee’s mark on the escutcheon. No such Act, 2680(a) 28 U.S.C. § Federal Torts Claims possible mediation is where the officer himself (1982), liability negating construed as has been is liability faced with and—what will often be planning negligence only than “at the rather point more to the expenses of exoner- —with level," States, operational Dalehite v. United ation. 15, 42, 956, 971, L.Ed. 1427 U.S. Appellees contend that (1953), because District law supply appropriate line. and does not an makes it a liable, criminal offense for a officer government as under Where the itself witnessing to fail to FTCA, make an arrest after high can mediate between officials crime, D.C.Code § arrest Park operational liability, not treat- workers property Police officer on District is therefore a ing every liability incurs as a black act that seemingly sweeping up all instanc- in a decisions are dicta number There cretion — es non-trivial discretion —militates and this circuit Supreme Court approach. such an So does sound enjoy do not abso enforcement policy. example, immunity against, for com lute claims. Doe v. law false arrest mon plaintiffs’ allegations, Even the de McMillan, carrying here were out duties fendants (1973) (in finding no 2028, 36 L.Ed.2d 912 “specifying] precise without directions sole discretion immunity for officers whose [they] action must in each in take “estimating partic demand for consisted Davis, 196-97 n. stance.” supply adjusting the documents and ular Accordingly, I 3020 n. 14. S.Ct. at accordingly,” a irrelevant discretion enjoy they should immuni believe absolute claim, “policemen and like Court observes ty to tort claims.5 the common law apparently enjoy a more limited officials of “executive officers privilege” than that functions”); Pierson v. discretionary with 1213, Ray, 386 U.S. ORDER (1967) (in 1217-18, 18 exonerat L.Ed.2d police Upon on basis of their ing state officers consideration of appellants’ petition good to claim under rehearing, claim of faith defense for ORDERED, it is by the Court, that the “common law petition Court states that the is § denied. granted police officers an abso has never v. immunity”); Sami unqualified lute and B., GINSBURG, Judge, Ruth Circuit States, (D.C.Cir. F.2d United WILLIAMS, Judge with whom Circuit (though 1979) finding that the defendant Judge McGOWAN, Senior join: Circuit The immunity on may absolute invoke officer petition rehearing panel, invites the particular the circumstances grounds misconduct, banc, deter the court en little need to to extend the presented Matteo, v. of Barr immunity officers are tradi rule police notes that court absolute granted “only restrictive immuni L.Ed.2d tionally 360 U.S. (1959), lower-ranking arrest and im federal officers against claims for false ty to all discretion, fed prisonment”); see also Bivens Six Un of limited particularly to all the Bu the Agents Named Federal “on known reau enforcement officers eral law Narcotics, (2d Barr federal all reaches beat.” Whether pre-Butz assump Cir.1972) (on remand) (on acting scope of employees within the exercising a least immunity employment, would be absolute or at those tion claim, discretion, currently need is tort court finds an issue constitutional modicum of Court. West Supreme of federal officers’ pending for deterrence the before great (No. 86-714) (argued Nov. v. Erwin illegal acts so that their duties should fall nondiscretionary). 1987). opinion the case panel classified as be “guidance need for the hand stressed suggestions appear depend All these pendency Authority,” and the Higher noted multiple degrees of on а readiness to create v. Mal See Martin v. Erwin. Westfall immunity fitting different levels of discre- Dissent F.2d 246-47. hoyt, supra, 830 Though Davis directly did not ad- tion. 268.1 ing Opinion, supra at point, its definition of dis- dress the broad determination, ‍‌​​​​‌‌​​‌‌​‌​‌​​​​‌​‌​‌‌‌‌​‌​​​​‌​​​‌‌‌​‌‌​​‌​‌‍remand activity. for that Appellees’ ministerial Brief at 26. if it should prove necessary light possible Even if District the preclu- of Columbia controlled the sion claim. exercise discretion, federal law enforcement officers’ not, naive, which it does it would be Contrary portrait to the distorted of this cir- provision proof in the absence enforced, that the is precedent cuit’s rehearing petition, in the no suppose that the District of Colum- prior decision Barr-style of this court holds that judgment in fact bia has nullified the of officers immunity covers the "officer on the beat.” In on the beat. Metropolitan Martin v. Dep't, D.C. (D.C.Cir.1987), F.2d 1428 n. 11 we noted avail- course the would 5. Of because, question we did not confront the they acting beyond pe- if were "outer able Barr, regard without absolute is No such claim of their official duties. rimeter” prevailing common law rule where mali- Malhoyt; against on Stevens’s con- be made can prosecution alleged. cious true, tentions, accept as Stover we must perimeter. may have exceeded that I would extend Supreme Court Should NATIONAL ASSOCIATION FOR employees torts, federal to all Barr’s shelter BROADCASTING, BETTER it is common law respect to all with Appellant, district court would entirely that the clear law claims the common to dismiss be bound Malhoyt officers against Park Police Furthermore, it is at least Stover. FEDERAL COMMUNICATIONS opinion that majority implicit COMMISSION, Appellee, two offi- law claims common Supreme should could not survive cers Television, Inc., KCOP to all lower- hold Barr Intervenor. applicable Court entrusted ranking fact federal No. 85-1318. modest, some, discretion. On albeit hand, claims the common law other Appeals, United States Court of Supreme should remain viable would District of Columbia Circuit. poli- employees at the Court limit Barr “to level, distin- planning cymaking or Argued May operational employees at guished from Sept. Decided day day under estab- level who function guidelines.” procedures lished Malhoyt, Maj. at 248. Martin v. “hardly clear” current In view of precedent Supreme Court state of area, id., supra Dis. soon, (1) guidance forthcoming prospect of the district court will anticipate that Supreme Court’s decision await v. Erwin before adjudicating the Westfall case, remaining in this law claims common (2) airing of the matter and we find further Accordingly, unwarranted. this court rehearing is petition

Denied.

Case Details

Case Name: Kenneth W. Martin v. John P. Malhoyt, John Doe(s) Shirley Ann Stevens v. David H. Stover, John Doe

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 24, 1987

Citation: 830 F.2d 237

Docket Number: 86-5561, 86-5565

Court Abbreviation: D.C. Cir.