830 F.2d 237 | D.C. Cir. | 1987
Lead Opinion
Opinion for the Court filed by Circuit Judge RUTH B. GINSBURG.
Opinion concurring in part and dissenting in part filed by Circuit Judge WILLIAMS.
These consolidated appeals arise out of independent but, in legally relevant respects, similar episodes. Each began with U.S. Park Police officers investigating a minor traffic incident, escalated into a violent (or at least physical) encounter, and culminated in an arrest. Plaintiffs in the two cases — Kenneth Martin and Shirley Stevens — subsequently filed suit in the district court, seeking damages for alleged violations of their common law and constitutional rights. The defendant federal officers asserted immunity, by reason of their official positions, from all of the plaintiffs’ claims, and moved for dismissal of the actions as to them. The district court denied their motions, and this appeal followed. We affirm in part and reverse in part. In explaining our dispositions, we grapple with unsettled aspects of the federal law governing official immunity.
I. The Episodes in Suit
The congeries of facts that prompted these lawsuits, as the district judge observed, are sharply disputed. We set the opening scene in each case, then summarize separately each side’s account of what occurred.
A. Martin v. Malhoyt, No. 86-5561
Plaintiff Kenneth W. Martin worked as a chauffeur for a limousine tour service operating in Washington, D.C. On July 17, 1984, at about 12:35 p.m., he was seated behind the wheel of a Cadillac limousine parked near the Lincoln Memorial in a zone reserved for the disabled. From this point on, the parties’ accounts diverge.
1. Martin’s account
According to Martin, a man in a United States Park Service uniform approached the limousine and asked Martin why he
About ten minutes later, Martin noticed his passengers — a family of four (two young children and their parents) — descending the steps of the Lincoln Memorial. He drove slowly towards them. Malhoyt immediately pursued, emergency lights flashing and siren sounding. Martin promptly stopped. Malhoyt appeared at the driver’s window of the limousine and demanded Martin’s driver’s license and vehicle registration. Martin started to get out of the car to conveniently remove from his pocket his wallet, which contained his license and the vehicle registration. Before Martin could retrieve his wallet, however, Malhoyt “brutally grabbed [Martin] around [the] waist, ... threw [him] back into [the] driver[’s] seat,” and slammed the car door on his leg.
Just then, Martin saw his passengers approaching the limousine. Almost reflexively, he got out of the vehicle to open the door for them. Suddenly, without a word of instruction or command to Martin, Malhoyt reappeared at the limousine, pushed Martin against the vehicle, and twisted his arms behind his back. Malhoyt then handcuffed Martin and forced him into the police car, where Martin was obliged to sit, hands cuffed behind his back, for a prolonged period of time. An old shoulder injury made the awkward position severely painful for Martin, and he felt humiliated in front of his passengers and other onlookers.
After talking to the limousine passengers, Malhoyt drove Martin to the Park Police Station at 1100 Ohio Drive, S.W. Unable to say why he had made the arrest, Malhoyt asked Martin to sign a document and pay $10.00 to end the matter. Martin refused and was then fingerprinted and placed in a jail cell. Hours later, as Martin recalls, he was again put in a police car, hands cuffed behind his back, and was brought to the courthouse, but arrived there too late to obtain a hearing that day. On return to the Park Police Station, Malhoyt told Martin that this time, Martin would remain locked up overnight. Martin then called an attorney; on the attorney’s advice, Martin posted $10.00 as collateral so that he could gain release. Martin estimates that he was released at about 5:00 p.m., approximately four hours after his arrest. Just as he was leaving the station, Martin states, Malhoyt informed him for the first time that he was being charged with disorderly conduct and disobeying the order of a police officer.
Two weeks later, on the date set for trial of the disorderly conduct charge, Martin and his attorney spent hours waiting in the District of Columbia Superior Court, but Martin’s name was not called. Upon checking with the Office of the Corporation Counsel, Martin’s attorney learned that the charge would be dismissed because no one from the Park Police had appeared to “paper” it. Trial on the charge of disobeying an officer’s order was set for August 29, 1984; on August 28, however, Martin learned that this charge too would be dismissed for the same reason.
2. Malhoyt’s account
According to Sergeant Malhoyt, at about 12:30 p.m. on the afternoon of July 17, 1984, Park Aide John R. Jones III summoned him to the Lincoln Memorial Circle to resolve a parking problem. On arrival, he saw Martin’s Cadillac limousine parked in a space reserved for disabled persons; Jones informed Malhoyt that the limousine driver had twice refused to leave, and had dared Jones to call the police. When Malhoyt told Martin that the Cadillac was parked illegally, Martin responded that one of his passengers, a small child, was having difficulty walking. Jones, who was within earshot, and Martin began to argue, Jones claiming that Martin had said nothing to
A few minutes later, without warning, the limousine started south on French Drive away from the Lincoln Memorial. Because no passengers had approached the Cadillac and the driver was apparently leaving the Memorial, Malhoyt decided to ticket the driver for illegally parking in a disabled-only zone. Malhoyt switched on his emergency equipment as he pursued the limousine, which came to a stop 75 to 100 yards down French Drive. After Malhoyt asked Martin several times for his driver’s license and registration, Martin opened the car door and got out. As Martin handed Malhoyt his license and registration, Malhoyt told Martin to get back in the car because Malhoyt thought this would be safer for Martin and oncoming traffic, as well as for Malhoyt himself if Martin proved dangerous. After Malhoyt repeated this instruction several times, Martin sat down in the car, leaving the door open and keeping his left foot on the street. Malhoyt, as he tells it, “lifted [Martin’s] leg, plac[ed] it in the car[,] and closed the door.”
Back in his police cruiser, Malhoyt noticed some people approaching the Cadillac; surmising (correctly) that these were the limousine passengers, he left the cruiser to determine whether anyone in the group was walking with difficulty. Martin also left his vehicle and walked toward the passengers. Malhoyt then asked Martin to return to the limousine so that Malhoyt could speak to the passengers without Martin's interference. Martin refused, and became “increasingly argumentative, loud[,] and uncooperative.”
At the Park Police Station, Malhoyt charged Martin with disorderly conduct and disobeying the order of a police officer. Malhoyt then explained Martin’s options to him: Martin could post collateral (and either forfeit or demand a court date) or go directly to court. Malhoyt claims he processed the case as quickly as possible. He does not dispute that he arrived at court with Martin several minutes too late to afford Martin a hearing that day, but he asserts that Martin was released by mid-afternoon, immediately upon posting $10.00 as collateral, at about 3:30 p.m. Malhoyt further states that he asked another Park Police sergeant to have an officer from his squad “paper” Martin’s case and that he provided that other sergeant with the necessary information and documentation. Malhoyt next heard of Martin, he avers, after the instant suit was filed.
B. Stevens v. Stover, No. 86-5565
The events giving rise to this case began at about 11:30 p.m. on June 22, 1984. Plaintiff Shirley Ann Stevens, then a sergeant in the Metropolitan Police Department (MPD) but off-duty and out of uniform, was driving north on Pennsylvania Avenue, S.E. in Washington, D.C.; she encountered a traffic tie-up near Sousa Bridge caused by crowds departing from a concert in Fort Dupont Park. Again, the opposing sides account differently for the ensuing imbroglio.
According to Stevens and the other two occupants of the car — Stevens’ aunt, Mary Ella Stevens, and cousin, Johnny Bush, Jr. —Stevens sat patiently in the stalled traffic at a red light. She had imbibed only a small glass of wine that evening and was not intoxicated. Stevens heard car horns blaring but did not sound her own; she noticed an MPD officer apparently conversing with people in a car three or four car lengths ahead of hers. Stevens and her passengers state that this officer, whom the parties agree was MPD Officer McKinstry, did not speak to Stevens.
When the traffic light turned green and cars began to move, Stevens proceeded apace with the other vehicles towards Sousa Bridge. She then heard a siren, which she guessed was an emergency vehicle en route to an accident; as quickly as was possible in the heavy traffic, Stevens pulled to the right-hand curb. A car swerved to a stop in front of her, and a man dressed in blue jeans, a plaid shirt, and a painter’s cap jumped out, sprinted to Stevens’ car, and shouted, “You’re locked up.”
Stevens’ assailant forced her into his car, throwing her on the back seat by her hair and arm, and dispersed all onlookers. After rolling up the car windows, he began punching Stevens in the chest and abdomen. She turned over to protect herself, but he continued to beat her. During this attack, the man said to Stevens, as she recalls his words: “You are one black bitch we don’t have to worry about anymore, and ... guess what I am going to do for you. I’m going to charge you with assaulting a police officer.”
Stevens next remembers being placed on the cold metal of what she believes was a police van; she recalls little else until she awoke in severe pain on the floor of a cell. The cell was in the Anacostia Station of the United States Park Police, and the man who had arrested and battered her, she learned, was Park Police Sergeant David H. Stover (since promoted to lieutenant). Stover’s companion at the Bridge, the man who had not come to Stevens’ aid, was Park Police Officer John Harasek. Eventually, Stevens was moved to a holding cell at the District of Columbia Superior Court where U.S. Marshals informed her that she was charged with assaulting a police officer and driving while intoxicated (DWI).
After her release on bond, Stevens was treated at Providence Hospital for renal failure, which necessitated catheterization. She had also suffered a concussion and multiple contusions and abrasions on her face and body. Stevens spent eight days in the hospital. The concussion caused partial amnesia, and Stevens is undergoing psychiatric care as a result of the incident.
The DWI charge was dropped and, on April 10, 1985, after a grand jury refused to indict Stevens for assaulting a police officer, all charges were dismissed. Stevens was later discharged from the Metropolitan Police Department because of the events of June 22, 1984.
According to Stover and Harasek, on the evening of Stevens’ arrest, the two Park Police officers, wearing plain clothes, were on duty in an unmarked cruiser; Stover was driving. At about 11:30 p.m., they were waiting on westbound Pennsylvania Avenue, S.E. at its intersection with Minnesota Avenue, S.E., while two uniformed MPD officers directed the dense traffic. When one of the officers, later identified as Officer McKinstry, held up the westbound traffic for an entire cycle of the traffic lights, a car horn began sounding. Stover and Harasek observed that the driver of the car to their right, later identified as plaintiff Shirley Stevens, was doing the honking.
McKinstry shouted a command telling the honker to stop, and Stevens paused. McKinstry held the traffic through another cycle of the lights, and Stevens began honking again. This time, McKinstry walked toward the cars, and Harasek indicated that Stevens was the source of the noise. McKinstry politely informed Stevens that using a horn in a non-emergency situation is punishable by a $25.00 fine. Stevens continued honking. McKinstry asked Stevens for her driver’s license and vehicle registration. Just then, the light turned green. Stevens shouted, “Fuck you,” and drove away, nearly hitting McKinstry.
Stover and Harasek say Stevens moved to the right but did not stop, even when Stover brought his car alongside hers and he and Harasek gestured for her to pull over. Stover finally forced Stevens to stop by cutting in front of her. He then ran back to her car and showed her his badge. Stevens screamed, “Who the fuck are you?”
After stating who he was and again displaying his badge, Stover asked Stevens whether she had heard the MPD officer request her license and registration. Stevens responded that she was an MPD sergeant herself and that Stover could not arrest her “for failure to exhibit.” She reached for her purse. Stover ordered her not to touch it, but Stevens ignored him. Fearing that the purse contained a weapon, Stover grabbed it, and Stevens bit him on his right forearm, drawing blood. At this point, Harasek helped pull a struggling and cursing Stevens from the car. The officers brought Stevens to the rear of the car, and Stover announced that she was under arrest. Stevens flailed her arms, trying to prevent Stover and Harasek from handcuffing her. After a scuffle, they bent her over the trunk of the car and put on the cuffs.
Stover placed the still resisting Stevens in the back of his cruiser and sat down in front to use the radio. Stevens rocked onto her back and began kicking him in the head; next, she repeatedly attempted to escape by lifting the rear door lock with her teeth, twice managing to open the door.
Other officers arrived on the scene and Stevens was removed from the cruiser, placed in a police wagon, and transported to the Park Police Anacostia Station. There, Stevens refused to take a breath test for alcohol and continued to use abusive language; two officers at the station observed Stevens washing herself with water from the toilet in her cell. At her request, Stevens was taken by ambulance to D.C. General Hospital. Once there, however, she refused to identify herself or to allow doctors to treat her. She was returned to the police station and charged with assault on a police officer, DWI, and failure to exhibit her driving permit.
Stover further recounted that Stevens’ two passengers, Johnny Bush and Mary
3. Administrative proceedings against Stevens
On August 25, 1985, the MPD gave Stevens notice that the Department proposed to remove her from the police force because of the arrest episode. Stevens requested review by an MPD Adverse Action Panel. A three-member panel, at a hearing which ran several days, received documentary and testimonial evidence. Stevens was represented by counsel. On May 22, 1986, the panel recommended Stevens' removal from the MPD.
Substantially crediting the Stover-Harasek account, the panel found that Stevens had in fact honked her horn unnecessarily, failed to display her driver’s license and registration, refused to yield to Stover’s police vehicle, resisted arrest, attempted escape, operated her car under the influence of alcohol, and used marijuana.
II. The District Court Proceedings
Martin filed suit in the district court on July 16, 1985 against, inter alia, Malhoyt and Lynn H. Herring, Chief of the United States Park Police. Stevens commenced her action in the district court on June 21, 1985 against, inter alia, Stover, Harasek, and Herring. All four were sued in their individual and official capacities. Martin and Stevens named numerous other defendants who are not parties to this appeal.
The complaints charged that the defendants had violated Martin’s and Stevens’ constitutional rights, including the fourth amendment right to be free of unreasonable seizures, the fifth amendment right not to be deprived of liberty or property without due process of law, and the sixth amendment right to be informed of the nature and cause of criminal accusations. Stevens also alleged that Stover, Harasek, and McKinstry, as part of a conspiracy to violate Stevens’ constitutional rights, and in contravention of 42 U.S.C. § 1985, had made statements calculated to secure Stevens’ criminal prosecution. Both plaintiffs claimed, “[o]n information and belief,” that it is a practice of the United States Park Police to arrest and assault people who have committed no offense and to charge them with disorderly conduct, disobeying a police officer, or assaulting a police officer. These charges, according to plaintiffs, are usually dismissed before trial.
In addition to alleging claims of constitutional dimension, the two complaints also allege common law claims for assault, bat
In both cases, the appellants now before us — Malhoyt and Herring in Martin; Stover, Harasek, and Herring in Stevens —moved for dismissal under Rule 12(b)(6) (failure to state a claim upon which relief can be granted) or for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. On July 9,1986 in Martin, and on July 15, 1986 in Stevens, the district court filed opinions and orders denying these motions in substantial part.
In support of their dispositive motions, all four appellants first argued, citing Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), that they have absolute immunity from liability on appellees’ common law tort claims. The district court rejected this plea as to Malhoyt, Stover, and Harasek on the ground that absolute immunity shelters only “discretionary” acts, not “ministerial” conduct. Featuring Carter v. Carlson, 447 F.2d 358 (D.C.Cir. 1971), rev’d on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct 602, 34 L.Ed.2d 613 (1973), the court ruled that arrests by police officers qualify as ministerial acts for the purpose at hand, and therefore are not shielded by Barr immunity.
As to the alleged constitutional torts, appellants claimed qualified immunity, citing Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The district court recited the Harlow standard: qualified immunity shields government officials as long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102
Malhoyt, Stover, Harasek, and Herring filed appeals from the district court’s denials of their immunity-based dismissal motions.
On January 8, 1987, appellants Malhoyt and Herring in Martin and Stover, Harasek, and Herring in Stevens moved for reconsideration in the district court in light of several cases decided by this court in December 1986 dealing with qualified immunity and the specificity of pleading necessary to withstand a motion to dismiss. See Ellsberg v. Mitchell, 807 F.2d 204 (D.C.Cir.1986); Smith v. Nixon, 807 F.2d 197 (D.C.Cir.1986); Halperin v. Kissinger, 807 F.2d 180 (D.C.Cir.1986). The Stevens appellants, citing University of Tennessee v. Elliott,—U.S.-, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), also argued in their motion for reconsideration that Stevens was precluded from relitigating issues of fact resolved by the Adverse Action Panel.
III. Official Immunity
To determine whether the district court erred in refusing to enter summary judgment on the defendants’ pleas of official immunity from the claims asserted by Mar
A. Barr and the Doctrine of “Absolute Immunity” for Federal Officials
In Barr, the Supreme Court, held that the Acting Director of the Office of Rent Stabilization, a federal agency, was immune from a libel suit arising out of actions taken “within the outer perimeter of [his] line of duty.” 360 U.S. at 575, 79 S.Ct. at 1341; see also Howard v. Lyons, 360 U.S. 593, 597, 79 S.Ct. 1331, 1333, 3 L.Ed.2d 1454 (1959) (scope of immunity afforded federal employees is a matter of federal law “to be formulated by the courts in the absence of legislative action by Congress”). The precise reach of the Barr holding as to other tortious acts and less elevated federal employees was not settled by the Court’s decision; in sustaining Barr’s immunity claim, Justice Black, whose vote was necessary to form a majority, stressed the importance of “informed public opinion” to the “effective functioning of a free government.” Barr, 360 U.S. at 577, 79 S.Ct. at 1342 (Black, J., concurring); see also id. ("[I]f federal employees are to be subjected to ... restraint in reporting their views about how to run the government better, the restraint will have to be imposed expressly by Congress and not by the general libel laws of the States[.]”).
Uncertainty as to the bounds, and even the endurance, of Barr developed in the years following announcement of the decision. As we recently observed:
In a series of mid 1970’s decisions, the Supreme Court generally rejected state officials’ pleas of absolute immunity from civil liability for torts committed in alleged violation of a plaintiff’s constitutional rights. See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). This series of decisions fueled debate earlier generated in commentary over the soundness, breadth, and continued vitality of Barr. See, e.g., Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 566 F.2d 289, 303 (D.C.Cir.1977) (en banc) (Wilkey, J., concurring), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978).
Doubts about Barr’s continuing vitality, however, were dispelled in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Butz was an action for damages against Agriculture Department officials alleged to have violated plaintiff’s constitutional rights; the Court assumed Barr’s continuing sway, while holding that it “does not control this case.” Id. at 489, 98 S.Ct. at 2902. The Butz Court distinguished Barr on the ground that Barr “did not purport to protect an official who has not only committed a wrong under local law, but also violated those fundamental principles of fairness embodied in the Constitution.” Id. at 495, 98 S.Ct. at 2905; see also id. (“The liability of officials who have exceeded constitutional limits was not confronted in ... Barr [.]”) (emphasis added).
While assuming the endurance of Barr, the Butz Court rejected the attempt to extend Barr beyond “state tort claims,” id., into the realm of “constitutional torts.” Butz thus confined, but did not precisely define, Barr’s scope, for the Court left unresolved the extent to which Barr -style immunity adheres to all non -constitutional claims against federal employees. See id. (“Whatever level of protection from state interference is appropriate for federal officials executing their duties under federal law, it cannot be doubted that these officials ... are subject to the restraints imposed by the Federal Constitution.”) (emphasis added); cf. United States v. Brewster, 408 U.S. 501, 513-15, 92 S.Ct. 2531, 2537, 33 L.Ed.2d 507 (1972) (statement in prior case that immunity under Speech or Debate Clause does not attach to actions “in no wise related to the due functioning of the legislative process” does not “imply as a corollary” that all actions related to the legislative process are immune). It remains to be determined by the Supreme Court both (1) the character of claims — all or only some common law torts — within Barr, and (2) the universe of federal employees covered by the absolute immunity shield.
Lacking further instruction from the Supreme Court, some lower federal courts have moved toward adoption of this dichotomy: “qualified immunity” under Butz when a federal official is charged with.a constitutional tort; “absolute immunity” under Barr when the charge is a common law tort. See, e.g., Martin v. D.C. Metropolitan Police Dep’t, 812 F.2d 1425, 1428 n. 11 (D.C.Cir.1987) (courts have “extended the absolute immunity defense to ‘executive officials at all levels’ of the federal hierarchy [and] to a full range of common law delicts”), quoting McKinney, 736 F.2d at 769. See generally 5 Davis, Administrative Law Treatise 112-21 (2d ed. 1984) (commenting critically on the position emerging in the wake of Butz that “absolute immunity” goes with common law tort claims, “qualified immunity” with constitutional tort claims).
But acceptance of this bipartite scheme is not universal, and diversity among federal courts remains marked, particularly as to the categories of employees sheltered by Barr. While two courts of appeals have indicated that Barr’s absolute immunity from common law tort liability extends to all federal employees, regardless of their duties or place in the federal hierarchy, see General Electric Co. v. United States, 813 F.2d 1273, 1276-77 (4th Cir.1987); Poolman v. Nelson, 802 F.2d 304, 307 (8th Cir.1986), other courts have limited Barr to employees at the policymaking or planning
Of particular relevance to the claims before us, the Supreme Court has never held or even hinted that federal law enforcement officers enjoy absolute immunity for wrongful conduct — however characterized (constitutional or common law tort) — engaged in during an arrest. See Doe v. McMillan, 412 U.S. 306, 319, 93 S.Ct. 2018, 2028, 36 L.Ed.2d 912 (1973) (“Barr ... made it clear that the immunity conferred might not be the same for all officials for all purposes____ Judges, like executive officers with discretionary functions, have been held absolutely immune— But policemen and like officials apparently enjoy a more limited privilege.”); cf. Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967) (observing in dictim that “[t]he common law has never granted police officers an absolute and unqualified immunity”).
Three interlocking and mutually reinforcing goals figured prominently in Barr. The first is implicated whenever courts confront damage actions against government officials: “[Officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect to acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” Barr, 360 U.S. at 571, 79 S.Ct. at 1339. Second was a perceived need to exempt government officials from the burden of explain
These two concerns, we stress, in the years since Barr, have been fully incorporated into the federal qualified immunity doctrine.
The “general rule” to which the Butz Court referred can be harmonized with the blanket immunity Barr granted by recognizing this key point: state law normally does not establish the scope of a federal officer’s “line of duty” or the matters “committed by law to his control or supervision.” Viewed in this light, federal supremacy concerns appear central to the continuing vitality of Barr -style absolute immunity; in the words of the Butz Court again, the “immunity of federal executive officials began as a means of protecting them in the execution of their federal statutory duties from criminal or civil actions based on state law." Butz, 438 U.S. at 489, 98 S.Ct. at 2902 (emphasis added), citing Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 865-66, 6 L.Ed. 204 (1824) (exempting “the trade of the [federal] bank, ... necessary to the fiscal operations of the [federal] government, from the control of the states”). In sum, for the federal official, the law “controlling ... his powers,” Butz, 438 U.S. at
The official immunity doctrine thus ensures that “if [the federal officer’s] acts were authorized by controlling federal law,” Butz, 438 U.S. at 490, 98 S.Ct. at 2902 (emphasis added), the officer “[will be] protected for action tortious under state law.” Id. On the other hand, where the official “failed to observe obvious [federal] statutory or constitutional limitations on his powers,” id. at 494, 98 S.Ct. at 2904, liability could be imposed. This “protection from state interference,” Butz, 438 U.S. at 495, 98 S.Ct. at 2905, we conclude, is a mainstay of the Barr “absolute immunity” doctrine, as revisited in Butz.
Against this background of concern for protecting, federal officers, acting under color of federal law, from diverse, even possibly hostile, state law rules, the Park Police officers’ absolute immunity pleas in the cases before us are particularly vulnerable. Park Police officers are statutorily authorized to “make arrests without warrant for any offense against the United States committed in [their] presence,” 16 U.S.C. § la-6(a)(l); see also id. at § la-6(c) (authorizing Park Police officers to “conduct investigations of offenses against the United States”); their authority to enforce federal law, however, is expressly augmented by the Secretary of the Interior’s authority to “cooperate, within the National Park System, with any State ... in the enforcement or supervision of the laws or ordinances of that State.” Id. § la-6(b)(2). Pursuant to that latter authority, Park Police officers may enforce District of Columbia law within all National Parks in the District of Columbia. 36 C.F. R. § 50.3(a) (1986).
In short, Park Police officers are permitted to act, in all respects, as District of Columbia police officers both on and off National Parks territory, and it was in their District of Columbia law enforcement capacity that Officers Malhoyt, Stover, and
We thus hold that the principle of Barr v. Matteo, as described in Butz v. Economou, is inapplicable to these cases, and that the officer defendants are not “absolutely immune” from liability for their allegedly tortious conduct in effecting the plaintiffs’ arrests. We hold further, however, that the defendants are entitled to raise the federal “qualified immunity” plea, as developed in Harlow and progeny,
Doctrinal symmetry might seem to require according these officers, acting as they were to enforce local law, only whatever immunity local law might provide similarly situated local law enforcement personnel. Such a resolution, however, would ignore other, plainly federal interests at stake here, interests distinct from the interest in the unfettered enforcement of federal law referred to above. See Howard v. Lyons, 360 U.S. at 597, 79 S.Ct. at 1333 (immunity afforded federal officials presents a federal question; governing rules are “designed to promote the effective functioning of the Federal Government”). Park Police officers, no less than federal executive officers generally, must often “act swiftly and on the basis of factual information supplied by others, [occasionally in an] ‘atmosphere of confusion, ambiguity, and swiftly moving events’,” Butz, 438 U.S. at 497, 98 S.Ct. at 2906, quoting Scheuer, 416 U.S. at 246-47, 94 S.Ct. at 1691, which may often carry them across local political boundaries in the exercise of their duties.
A uniform federal qualified immunity standard will avoid “Balkaniz[ation],” id. at-, 107 S.Ct. at 3042, of the immunity doctrine, while providing federal police officers with adequate protection that “they will not be held personally liable as long as their actions are reasonable in light of current American law.” Id. at-, 107 S.Ct. at 3042; see also Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986) (qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”).
B. The Scope of Defendants’ Qualified Immunity
In the leading case of Harlow v. Fitzgerald, the Supreme Court defined the qualified immunity standard in these terms: “[Government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established ... rights of which a reasonable person would have known.” 457 U.S. at 818, 102 S.Ct. at 2738. More recently, the Court noted a potential troublespot in judicial endeavors to apply the Harlow formulation:
The operation of [the Harlow ] standard, however, depends substantially upon the level of generality at which the relevant “legal rule” is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstone of Harlow____
[Ojur cases establish that the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.
Anderson,—U.S. at-, 107 S.Ct. at 3038; see also id. (in case alleging unlawful search, the “relevant question” is whether a reasonable officer would have believed [the] warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed”). A motion for summary judgment on the issue of the defendant’s qualified immunity thus must be denied where, viewing the facts in the record and all reason
Consistent with the Anderson v. Creighton Court’s emphasis on the “particularized” manner in which the immunity inquiry is to be undertaken, we “subject damage actions against government officials to a heightened pleading standard,” Smith v. Nixon, 807 F.2d 197, 200 (D.C.Cir.1986),
IV. Discussion of Plaintiffs’ Claims
A. Herring and Harasek
We turn first to the claims asserted by both plaintiffs against Chief Herring, and by Stevens against Officer Harasek. Plaintiffs fail to present even the barest factual support for their claims of constitutional violations by either Herring or Harasek, and we therefore order the district court to dismiss these claims. Stevens’ common law tort claim against Harasek, while cognizable on its face under District of Columbia law, cannot survive Harasek’s responding motion to dismiss on grounds of qualified immunity.
1. Herring, Nos. 86-5561 & 86-5565
Martin and Stevens asserted essentially identical claims against Chief Herring:
On information and belief, persons other than Plaintiff have been arrested by and assaulted by U.S. Park Police officers, when they had violated no law and are afterward charged with the offense of Disorderly Conduct and Disobeying the Order of a Police officer. Most, if not all, of these charges are dismissed before being brought to trial____
On information and belief, ... Defendants have either affirmatively permitted this practice of arrest of persons without probable cause or have failed to establish systems and procedures adequate to provide reasonable assurances that persons are not improperly arrested and assaulted____42
Chief Herring moved for immediate judgment dismissing these claims in both actions; he asserted that plaintiffs had not “set forth specific facts showing that there is a genuine issue for trial”
Application of pre-trial procedural rules to actions for damages against public officers is a perplexing, still developing area of the law. We set forth below our understanding of the current state of the governing precedent, and we explain why we hold that immediate judgment must be entered in Chief Herring’s favor.
Herring’s appeal presents two discrete questions. First, did the evidence indicate a “genuine issue,” within the meaning of Rule 56, as to Herring’s responsibility for, or participation in, the alleged “practice of arrest of persons without probable cause”? This question is readily resolved, for we find no factual support for plaintiffs’ claims that a pattern of arrests without cause pervades U.S. Park Police practices. Each plaintiff points to a single instance — his or her own arrest — as illustrative of the alleged unlawful pattern; beyond these personal encounters, plaintiffs tender only the “conclusory allegations” to which the district court referred.
Our opinion in Carter v. District of Columbia, 795 F.2d 116 (D.C.Cir.1986), highlights the deficiencies in plaintiffs’ presentations. In Carter, plaintiffs alleged a similar “policy or established custom of deliberate indifference to police misconduct,” id. at 122, on the part of the D.C. Metropolitan Police Department and the Chief of Police. We upheld the entry of directed verdicts in both defendants’ favor;
As the basis for inferring a general practice in their cases, Martin and Stevens urge “instances” of alleged police misconduct not merely “scattered” but wholly isolated. One instance, however egregious, does not a pattern or practice make. As the Supreme Court has recently observed, “a party who fails to make a showing sufficient to establish the existence of an element
We thus can answer the first question (did the evidence cited by plaintiffs indicate a “genuine, issue”) by straightforward application of familiar principles governing resolution of motions under Fed.R.Civ.P. 56(c); we need take no special cognizance of the defendant’s immunity claims in reaching our conclusion. See Halperin v. Kissinger, 807 F.2d 180, 188-89 (D.C.Cir.1986) (Harlow’s reformulation of the qualified immunity defense “did not ... alter the burden that rule 56(c) of the Federal Rules of Civil Procedure places on the movant to demonstrate, as a condition of summary judgment, that the objective inquiry raises ‘no genuine issue as to any material fact____’ ”);
This brings us to the second question Herring’s appeal raises: did the district court err in deferring final disposition of Herring’s motions in order to give plaintiffs an opportunity to uncover, through discovery, “specific facts showing that there is a genuine issue for trial”? See Fed.R.Civ.P. 56(e). We hold, in light of the special nature of the immunity defense, that dispositive rulings on Herring’s motions should not have been deferred.
While “[a] plaintiff’s hope that further evidence may develop prior to trial is an ‘insufficient basis upon which to justify the denial of [defendant’s summary judgment] motion,'” Martin, 812 F.2d at 1430 (emphasis added), quoting Contemporary Missions, Inc. v. United States Postal Service, 648 F.2d 97, 107 (2d Cir.1981), a district judge may defer a final ruling on that motion, pending further discovery, where the nonmovant avers that “he cannot for reasons stated present by affidavit facts essential to justify his opposition.” Fed.R. Civ.P. 56(f). Indeed, a reasonable opportunity to complete discovery before grappling with a summary judgment motion is the norm. See Celotex, 106 S.Ct. at 2554-55 (“any potential problem with ... premature [summary judgment] motions can be adequately dealt with under Rule 56(f), which allows [deferral of] a summary judgment motion ... if the nonmoving party has not had an opportunity to make full discovery”); see also Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 787-88 (D.C.Cir.1971) (“Rule 56[(f)] clearly contemplates that the parties shall have opportunity for deposition in order to establish the existence of a material issue”); Sames v. Cable, 732 F.2d 49, 51-52 (3d Cir.1984) (reversing district court’s entry of summary judgment for defendants where “pertinent discovery requests were outstanding”). See generally 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2741 at 541-48 (2d ed. 1983) (“One of the most common reasons offered under Rule 56(f) for being unable to present specific facts in opposition to a summary judgment motion is insufficient time or opportunity to engage in discovery.”).
Where public official defendants invoking an immunity from suit are involved, however, a case is no longer “ordinary” in this regard, for “[discovery is itself one of the burdens from which defendants are
Two lines of authority are thus opposed, one tending towards deferral of a ruling on Herring’s summary judgment motions, the other towards immediate final disposition. Our precedent attempts to reconcile this conflict by applying the above-mentioned “heightened pleading standard,” see supra p. 253, to damage actions against government officials, requiring plaintiffs normally to come forward with “nonconclusory allegations of evidence [if they are] to proceed to discovery on the claim.” Hobson, 737 F.2d at 29. This standard would not serve its intended function — protecting public officials from becoming “unduly enmesh[ed]” in “protracted discovery,” Hobson, 737 F.2d at 30 — unless it were read to restrict the otherwise applicable authority of a trial judge to permit discovery to proceed so that plaintiffs can uncover “facts essential to justify [their] opposition” to a motion for summary judgment. Fed.R.Civ. P. 56(f).
The heightened pleading standard will thus operate, in practice, much like Rule 9(b)’s requirement that “the circumstances constituting fraud or mistake shall be stated [in the complaint] with particularity.” Fed.R.Civ.P. 9(b) (emphasis added). Because conclusory allegations of unconstitutional or otherwise illegal conduct will not withstand a public official’s dispositive pretrial motion, and because plaintiffs cannot expect the court’s assistance in obtaining the necessary factual support, plaintiffs bringing suit against public officials generally must put forward, in their complaints or other supporting materials, greater factual specificity and “particularity” than is usually required.
We emphasize that this heightened standard restricts, but does not eliminate, the trial court’s Rule 56(f) discretion. See Martin, 812 F.2d at 1436-38 (a “blanket restriction on all discovery prior to the resolution of the qualified immunity issue” could in some circumstances unfairly penalize plaintiffs seeking “ ‘crucial facts ... in the control of the opposing party’ ”), quoting Black Panther Party v. Smith, 661 F.2d 1243, 1278 (D.C.Cir.1981). Difficult cases will no doubt arise calling for fine judgments as to the sufficiencyof a plaintiff’s showing. Martin and Stevens, however, do not tender such a case. We have no warrant to subject Park Police officials to a “fishing expedition in government waters,” Ellsberg v. Mitchell, 807 F.2d 204, 208 (D.C.Cir.1986), on the basis of wholly unsubstantiated charges. The broadsides against Herring levelled by Martin and Stevens fail to make out a prima facie case that Herring “affirmatively permitted” repeated illegal activity on the part of his subordinates; indeed, the allegations do not support even the most tenuous of inferences that such activity routinely took place. Accordingly, we remand this portion of the proceedings with instructions that judgment be entered in Herring’s favor on all claims against him.
2. Harasek, No. 86-5565
Stevens brought two claims against Officer Harasek, one for “conspiring] to violate her constitutional rights [in violation of] 42 U.S.C. § 1985,”
a. The constitutional claim
As the district court observed, to state a claim under 42 U.S.C. § 1985, Stevens must allege:
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, ... and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in her person or property or deprived of any right or privilege of a citizen of the United States.
Hobson, 737 F.2d at 14; see Griffin v. Breckenridge, 403 U.S. 88, 102-103 (1971). The statute “does not apply to all conspiratorial tortious interferences with the rights of others, but only those motivated by some class-based, invidiously discriminatory animus.” Hobson, 737 F.2d at 14.
The district court denied Harasek’s motion for dismissal of this claim, or in the alternative for summary judgment, with this observation:
To make out her prima facie case plaintiff relies on Metropolitan Police Department documents showing that defendants Stover and Harasek conferred before officer McKinistry testified before the grand jury. The requisite discriminatory animus is found in the reference to the plaintiff by one officer as a “black bitch.” This is adequate to survive a motion to dismiss.56
We disagree. “[U]nsupported factual allegations which fail to specify in detail the factual basis necessary to enable [defendants] to intelligently prepare their defense, will not suffice to sustain a claim of governmental conspiracy to deprive [plaintiff] of [her] constitutional rights.” Hobson, 737 F.2d at 30, quoting Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977); see also id. at 30 n. 87 (citing cases requiring “particularity in pleading civil rights complaints”). Here again, measuring Stevens’ claim against the indicated heightened pleading standard must result in its dismissal. The record shows only that Harasek “conferred” with Officer Stover prior to Officer McKinstry’s grand jury testimony, and that Harasek’s allegedly false statements helped to secure Stevens’ indictment. Even accepting these two factual allegations as true, the inference Stevens is apparently asking us to draw — that the three officers agreed to testify falsely and thereby obtain Stevens’ indictment — is a most tenuous one, hardly an adequate foundation on which to base a complaint of this kind.
b. The common law claim
Stevens next maintains that Harasek’s failure to intervene on her behalf while Officer Stover was assaulting her constitutes an actionable breach of Harasek’s duty to protect her from harm. This claim is met, first, by Harasek’s assertion that he owed Stevens no such duty and
As far as we can determine, this precise question — whether a law enforcement officer is answerable in damages for standing by and failing to protect a member of the public from an assault allegedly perpetrated by a fellow officer — has never been squarely addressed by the District of Columbia courts. We are satisfied, nonetheless, that Stevens’ complaint, at the threshold, stated a cognizable claim under principles reflected in case law governing negligence actions against law enforcement officers in the District of Columbia.
In two recent cases, the D.C. Court of Appeals, sitting en banc, has considered a question bearing upon the one presented here: in what circumstances is a police officers’ general duty to protect the public from harm a sufficient base on which to premise liability for a failure to protect an individual from harm caused by a third party? Morgan v. District of Columbia, 468 A.2d 1306 (D.C.1983) (en banc); Warren v. District of Columbia, 444 A.2d 1 (D.C.1981) (en banc). As these cases make clear, only where “the police and the individual are in a special relationship different from that existing between police and citizens generally,” Warren, 444 A.2d at 5, can a sufficiently particularized “duty to protect” arise rendering the officer potentially liable for a failure to act. See also Morgan, 468 A.2d at 1312-15.
In determining whether the necessary “special relationship” exists in a given situation, the District of Columbia courts look to see whether the police have “beg[un] to act in behalf of a particular citizen in such a way as to raise significantly the quotient of risk over and above the risks assumed by every other member of the community.” Id. at 1312. Requiring some “affirmative undertaking to protect a particular individual,” id. at 1314, before a specific duty to the plaintiff will be recognized avoids conflict with the primary policy supporting the “no-duty” rule: the “practical realization that individuals, juries and courts are ill-equipped to judge ‘considered legislative-executive decision[s]’ as to how particular community resources should be or should have been allocated to protect individual members of the public.” Id. at 1311, quoting Riss v. City of New York, 22 N.Y.2d 579, 579, 293 N.Y.S.2d 897, 240 N.E.2d 860 (1968). Once the police have “exercised [their] discretion and chosen to act,” imposing a “duty to proceed with reasonable care to protect people whom they have particularly placed in peril ” does not “interpose the judgment of a jury for the discretion of the police.” Morgan, 468 A.2d at 1313 (emphasis added).
We think Officer Stover’s “affirmative undertakings” — forcibly removing Stevens from her car, handcuffing her and placing her in police custody — sufficient to establish a “special relationship” between Stevens and the police. Once Stevens was denied, by Stover’s actions, the most basic means of self-protection, the “quotient of risk” to which she was exposed rose significantly; the officers thus incurred an obligation to take reasonable steps to insure that the physical harm to which Stevens was vulnerable did not materialize.
We express no opinion as to the extent of that obligation or the steps a reasonable officer in Harasek’s position must take in order to satisfy it. We hold only that Stevens’ allegations set forth a cognizable negligence claim which, if proved, and not met by a dispositive defense, could subject Harasek to liability.
This does not end our inquiry, however, for Harasek has asserted that, even assuming the threshold validity of Stevens’ negligence claim, her entire case against him must be dismissed on the basis of an immunity from suit. Under the qualified immunity standard we have declared applicable to this claim, see supra pp. 251-254, we find Harasek’s showing of the “objective reasonableness” of his actions suffi
Harasek’s action, in failing to intervene on Stevens’ behalf, must be placed in the context of the transpiring events and the information Harasek possessed. According to Stevens’ own account, shortly after Officer Stover approached her vehicle, Stover began “hysterically screaming to [Officer] Harasek[:] ‘She’s got a gun’.”
Shortly thereafter, once more in Stevens’ words, she was “drag[ged] to [Stover’s] unmarked police cruiser ... some 500 feet [away from Stevens’] car.”
Given these facts, we are satisfied that the alleged unlawfulness of Harasek’s failure to intervene on Stevens’ behalf would not have been “apparent,” Anderson,—U.S.-, 107 S.Ct. at 3039, to a reasonable officer in Harasek’s shoes. Harasek had a fully rational basis for anticipating that Stevens had a gun, possibly on her person, at the time Stover pulled her from her vehicle. Stover’s attempts to subdue and handcuff Stevens could therefore have been viewed by Harasek as justified by the threat he could reasonably have thought she posed to the officers’ safety. When Stover began his allegedly brutal and unprovoked attack on a handcuffed and defenseless suspect, he and Stevens were inside a police cruiser some 500 feet away from Harasek. We find no basis for inferring, even assuming the truth of Stevens’ allegations, that Harasek could have seen that attack clearly enough to render his failure to come to Stevens’ aid unreasonable. Our view on this matter is reinforced by the apparent failure of Stevens’ passengers — who surely must have been at least as concerned with Stevens’ treatment inside the cruiser as was Harasek — to see the alleged beating.
For these reasons, we hold that Harasek is immune from suit on Stevens’ negligence charge, and we direct the district court to dismiss that last remaining claim against him.
B. Constitutional Claims Against Malhoyt, No. 86-5561
As recounted above, see supra p. 244, Martin alleged that Officer Malhoyt violated his “Fourth Amendment right to be free from unreasonable seizure, Fifth Amendment right not to be deprived of liberty or property with [out] due process of law, [and] Sixth Amendment right to be advised of charges brought against him.”
1. The sixth amendment claim
Martin asserts that approximately four hours passed between the time of his arrest and his being informed of the charges against him (disorderly conduct
2. The remaining constitutional claims
a. The excessive force claim
Martin’s claim under this heading rests upon his allegation that Malhoyt used unreasonable force to effect Martin’s arrest. In appraising this claim under the fourth rather than the fifth amendment,
Gamer’s reasonableness formulation is the one typically used in court review of fourth amendment seizures: reasonableness is to be determined by balancing the infringement of the individual’s interest caused by the police action against the governmental interest served by that action. See id. at 8, 105 S.Ct. at 1699, quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983). This balancing test is both objective and fact-sensitive; it looks to the “totality of the circumstances” known to the officer at the time of the challenged conduct, and it accords a measure of respect to the officer’s judgment about the quantum of force called for in a quickly developing situation.
Malhoyt, while disputing the particulars of Martin’s account, asserted by way of justification that he wanted Martin in the car “for [Martin’s] safety, the public’s safety, and [Malhoyt’s] own safety. By opening his door into traffic Mr. Martin caused a traffic hazard which was a danger to himself and the oncoming traffic____ Finally, in the event that [Martin] presented] any danger to [Malhoyt], [Martin would be] more easily controlled inside his car.”
Tested by the standard confirmed in Gamer, we are unable to characterize the manner in which Malhoyt arrested Martin as objectively unreasonable in light of the rapidly unfolding sequence of events. Slamming the car door on Martin’s leg causes us to pause, for that action appears malicious. But under Garner’s objective test, maliciousness is irrelevant. We must focus on whether Malhoyt’s total conduct, objectively appraised, added up to a reasonable mode of arrest. We conclude that it did. Even the door slamming, given the apparent need for instant action, does not appear to be an extraordinary response. In sum, viewing the “totality of the circumstances,” we cannot conclude that Malhoyt used unreasonable force in taking immediate steps first to confine Martin to his vehicle, then to effect his arrest.
b. The probable cause claim
In addition to objecting to the manner in which he was arrested, Martin asserts that his fourth amendment rights were violated because there was no probable cause to arrest and detain him for disorderly conduct and disobeying a police officer’s orders. It is well settled that an arrest without probable cause violates the fourth amendment. Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975). Under Martin’s version of the facts, probable cause to arrest was indisputably absent. Martin asserted that “[ajfter Malhoyt threw me into my car and obtained my permit and registration, he returned to his police car without saying anything to me.”
Since Martin claims that Malhoyt said nothing at all to him at the relevant time, let alone something that could be construed as an order, under the facts as we must take them at this stage of the case, there was no probable cause for an arrest for disobeying a police officer’s order. As to the charge of disorderly conduct, the only elements of the offense possibly relevant here are: “(1) Act[ing] in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; ... [or] (4) interfering] with any person in any place by jostling against such person or unnecessarily crowding him” with the “intent to provoke a breach of the peace, or under cir
We turn, then, to Malhoyt’s plea of qualified immunity from suit. The district court reasoned that because the relevant law — probable cause is required to arrest— was “clearly established,” Malhoyt cannot surmount the Harlow threshold;
We agree with the district court’s conclusion but not its reasoning. That probable cause may have been absent when viewing the arrest ex post does not in and of itself establish that the officer acted in an objectively unreasonable manner ex ante. The relevant inquiry, as the Supreme Court recently made clear, is whether “in the light of preexisting law the unlawfulness” of Martin’s arrest was “apparent.” Anderson,—U.S. at-, 107 S.Ct. at 3039; see also id. (indicating as the pivotal issue “the objective (albeit fact-specific) question whether a reasonable officer could have believed” Martin’s arrest to be lawful “in light of clearly established law and the information [Malhoyt] possessed”).
Resolution of Malhoyt’s motion thus turns not on whether probable cause to arrest Martin in fact existed, but on whether Malhoyt has established as a matter of law that a reasonable officer in Malhoyt’s shoes would have believed it to have existed. We are confident, again assuming the truth of Martin’s version of the disputed events, that no reasonable officer could have believed that an individual who merely gets out of his car has committed either of the offenses with which Martin was charged, even assuming that Malhoyt reasonably believed that Martin was attempting to evade a citation for a parking violation. Without resolving the factual dispute as to what actually transpired between Martin and Malhoyt, we cannot say that Malhoyt has established the requisite objective reasonableness of his actions. We therefore affirm the district court’s denial of Malhoyt’s motion for summary judgment as that motion relates to the fourth amendment, lack of probable cause claim.
C. Common Law Claims Against Malhoyt, No. 86-5561, and Stover, No. 86-5565
Our disposition of the claims remaining against Officers Malhoyt and Stover
Y. Issue Preclusion, No. 86-5565
Finally, we address Officer Stover’s contention that the rule of issue preclusion (or “collateral estoppel”) bars Stevens from relitigating, in the district court, issues of fact decided by the Metropolitan Police Department’s Adverse Action Panel
Under the rule of issue preclusion, “[w]hen an issue of fact ... is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment,” a party to the proceeding who had “a full and fair opportunity to litigate the issue in the first action” is generally precluded from relitigating it in a subsequent action. Restatement (Second) of Judgments §§ 27, 29 (1982). In University of Tennessee v. Elliott,—U.S.-, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), the Supreme Court held that “when a state agency ‘acting in a judicial capacity ... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,’ federal courts must give the agency’s factfinding the same preclusive effect to which it would be entitled in the State’s courts.” Id. at 3227, quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966); see Kremer v. Chemical Constr. Corp., 456 U.S. 461, 479-85 & n. 24, 102 S.Ct. 1883, 1896-99 & n. 24, 72 L.Ed.2d 262 (1982) (issue preclusion does not apply where party against whom earlier decision is asserted did not have a “full and fair opportunity,” consistent with the procedural requirements of due process, to litigate the issue); Restatement (Second) of Judgments § 83 (on preclusive effects of adjudicative determinations by administrative tribunals). See also City Wide Learning Center, Inc. v. William C. Smith & Co., 488 A.2d 1310, 1313 (D.C. 1985) (discussing application of “principles of administrative collateral estoppel” under District of Columbia law).
Stevens offers no convincing reasons why the AAP proceeding in which she was involved does not meet the threshold standards set forth in Elliott.
Stevens’ principal argument as to why the AAP’s findings should not be given preclusive effect is that she is currently exercising, under D.C.Code Ann. § 1-606.-3(a), her right of appeal to the District of Columbia Office of Employee Appeals. The AAP’s findings, according to Stevens, are therefore “not of a fixed character and cannot form the basis of a ... collateral estoppel bar to access to federal court.”
The pendency of an appeal, we note, does not automatically diminish the preclusive effects of a prior adjudication. See Hunt v. Liberty Lobby, Inc., 707 F.2d 1493, 1497 (D.C.Cir.1983) (noting “well-settled federal law” that appeal “does not diminish the res judicata effects of a judgment rendered by a federal court”); Restatement (Second) of Judgments § 13 & comment f (any “sufficiently firm” prior adjudication should be deemed “final” and accorded conclusive effect; the “better view is that a judgment otherwise final remains so despite the taking of an appeal unless [the] appeal actually consists of a trial de novo”). See generally 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4433 (1981).
According preclusive effect to a judgment from which an appeal has been taken, however, risks denying relief on the basis of a judgment that is subsequently overturned. Consequently, care should be taken in dealing with judgments that are final, but still subject to direct review. This is
The preclusion question was raised too late for the district court to rule on it. Because of uncertainty in the record before us, particularly with respect to the scope and pace of Stevens’ appeal,
Conclusion
In sum, we rule first on the immunity from suit of the U.S. Park Police officers named as defendants in this case. We hold that at least as to claims arising out of their enforcement of District of Columbia law, these officers are entitled to a qualified immunity from all such claims, common law and constitutional, asserted against them. With respect to the specific claims asserted against each individual defendant, we direct the district court to dismiss all claims against Chief Herring and Officer Harasek, as well as Martin’s sixth amendment and unconstitutionally excessive force claims against Officer Malhoyt. As to all remaining claims — the fourth amendment/no probable cause claim against Malhoyt, and various common law claims against both Malhoyt and Officer Stover — we cannot say, at this stage of the proceedings, that no "genuine issues” as to the “objective reasonableness” of the officers’ actions remain. Accordingly, we affirm the district court’s denial of the motions by Malhoyt and Stover to dismiss these claims.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
. Martin’s account, as presented here, is taken from his Complaint, Martin (No. 85-2274) (July 16, 1985) (hereafter Martin Complaint), reprinted in Joint Appendix (J.A.) at 8-22, and his affidavit, November 7, 1985 Affidavit of Kenneth W. Martin, reprinted in J.A. at 72-79. Malhoyt’s account is taken from his affidavit, October 9, 1985 Affidavit of John P. Malhoyt, reprinted in J.A. at 66-71.
. Martin Affidavit at f 17, reprinted in J.A. at 74.
. Malhoyt Affidavit at f 8, reprinted in J.A. at 68.
. Id. at If 10, reprinted in J.A. at 69.
. Id.
. Stevens’ account, as presented here, is taken from her Complaint, Stevens (No. 85-2035) (June 21, 1985) (hereafter Stevens Complaint), reprinted in J.A. at 90-107, and her affidavit, October 16, 1985 Affidavit of Shirley Ann Stevens, reprinted in J.A. at 170-75. The Stover-Harasek account is taken from Stover’s affidavit, October 15, 1985 Affidavit of David H. Stover, reprinted in J.A. at 163-69, and the notes of an MPD interview with Harasek, August 8, 1984 Interview Notes, Attachment B to Plaintiff’s Ex
. Stevens Affidavit at If 19, reprinted in J.A. at 172; Stevens Complaint at fff 25-26, reprinted in J. A. at 98.
. Stevens Complaint at 28, 30, reprinted in J.A. at 99.
. Id. at f 30, reprinted in J.A. at 99.
. Stevens Affidavit at f 25, reprinted in J.A. at 173.
. Stover Affidavit at fl 4, reprinted in J.A. at 164.
. Officer McKinstry corroborates the Stover-Harasek version of these events. September 3, 1985 Affidavit of Christopher McKinstry fifí 4-7, reprinted in J.A. at 184, 184-85.
. Stover Affidavit at f7, reprinted in J.A. at 165.
. Findings, Conclusions and Recommendation of Adverse Action Panel of Metropolitan Police Department at 69-72, Exhibit 1, Federal Defendants’ January 8, 1987 Motion for Reconsideration or for Summary Judgment, R.E. 84, Stevens (No. 85-2035).
. Id. at 51.
. Final Notice of Adverse Action, Exhibit 1, Federal Defendants’ January 8, 1987 Motion for Reconsideration or for Summary Judgment, R.E. 84, Stevens (No. 85-2035).
. Categories of defendants named in the complaints but not involved in these consolidated appeals include: several high-ranking federal officials and the United States; unknown police officers, styled John and Jane Doe (not further identified before the district court), who allegedly assisted Malhoyt in arresting Martin, and Stover and Harasek in arresting Stevens; in Stevens’ complaint only, several District of Columbia officials and police officers and the District itself.
. Martin Complaint at TT1Í 47-48, reprinted in J.A. at 8, 19-20; Stevens Complaint at Iff 56-57, reprinted in J.A. at 103-04.
. Id. at H 68, reprinted in J.A. at 106. The coupling of constitutional and common law claims, we note, occurs regularly in cases of this genre. See, e.g., Martin v. D.C. Metropolitan Police Dep’t, 812 F.2d 1425 (D.C.Cir.1987).
. Martin Opinion at 5-6, reprinted in J.A. at 34-35; Stevens Opinion at 7, reprinted in J.A. at 122.
The finality of the district court’s disposition of the Malhoyt, Stover, and Harasek absolute immunity pleas with respect to the common law . claims is not entirely clear. The court stated in Stevens that, because "arrests are ministerial acts, the defendants are not eligible for absolute immunity for common law torts committed when making arrests." Stevens Opinion at 7, reprinted in J.A. at 122; accord Martin Opinion at 6, reprinted in J.A. at 35. In each case, however, in subsequent, nearly identical orders, the district court described its earlier decision as follows: "the Court denied, without prejudice, defendants’ motion to dismiss based on claims of absolute ... immunity.” Martin v. Malhoyt, No. 85-2274 (D.D.C. Aug. 26, 1986) (order denying protective order and granting stay of trial) (hereafter Martin Aug. 26, 1986 Order) (emphasis supplied), reprinted in J.A. at 49; Stevens v. Stover, No. 85-2035 (D.D.C. Aug. 26, 1986) (order denying protective order and granting stay of trial) (hereafter Stevens Aug. 26, 1986 Order) (emphasis supplied), reprinted in J.A. at 139. In addition, shortly after the filing of these orders, the district court issued a "Notice to Counsel” in each case implying that the absolute immunity question could not yet be finally determined because the facts on which immunity turned were in dispute. Martin v. Malhoyt, No. 85-2274 (D.D.C. Aug. 28, 1986) (Notice to Counsel distinguishing D.C. Circuit cases) (Martin Notice to Counsel), reprinted in J.A. at 53; Stevens v. Stover, No. 85-2035 (D.D.C. Aug. 28, 1986) (Notice to Counsel distinguishing D.C. Circuit cases) (Stevens Notice to Counsel), reprinted in J.A. at 143.
. Martin Opinion at 10-12, reprinted in J.A. at 39-41; Stevens Opinion at 11-12, reprinted in J.A. at 126-27.
. Martin Opinion at 14-16, reprinted in J.A. at 43-45; Stevens Opinion at 13-14, reprinted in J.A. at 128-29.
. Martin Opinion at 6-9, reprinted in J.A. at 35-38; Stevens Opinion at 8-9, reprinted in J.A. at 123-24.
As to the 42 U.S.C. § 1985 conspiracy count in Stevens, the court allowed the claim to remain in the case against Stover and Harasek, but dismissed it as bereft of support regarding Herring. Stevens Opinion at 14-15, reprinted in J.A. at 129-30.
. Denial of a claim of absolute immunity is immediately appealable under the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). See Nixon v. Fitzgerald, 457 U.S. 731, 742-43, 102 S.Ct. 2690, 2697, 73 L.Ed.2d 349 (1982). Denial of a qualified immunity claim is similarly appealable at once. Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2815-17, 86 L.Ed.2d 411 (1985).
. Martin Aug. 26, 1987 Order, reprinted in J.A. at 49; Stevens Aug. 26, 1986 Order, reprinted in J.A. at 139.
. When the district court issued its July 15, 1986 decision in Stevens, both the court and counsel for defendants were apparently unaware of the Adverse Action Panel’s May 22, 1986 decision. See Stevens Opinion at 2-6, reprinted in J.A. at 117-21; Federal Defendants’ January 8, 1987 Memorandum of Law in Support of Their Motion for Reconsideration or for Summary Judgment at 3 & n. 2, R.E. 84, Stevens (No. 85-2035).
. Martin v. Malhoyt, No. 85-2274 (D.D.C. Mar. 17, 1987) (opinion and order denying motion for reconsideration); Stevens v. Stover, No. 85-2035 (D.D.C. Apr. 7, 1987) (order denying motion for reconsideration).
. Justice Black’s concurring opinion provides the “narrowest grounds” for the Court’s disposition of the case and thus constitutes the Court’s holding. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977).
. Much of the uncertainty stemmed from attempts to integrate or reconcile Barr’s official immunity concept with more expansive notions of the federal courts’ jurisdiction to entertain claims against local and federal officials based on alleged constitutional violations. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Bivens v. Six Unknown Named Agents of the FBI, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
. As we noted elsewhere, this bipartite scheme inferred from the Butz opinion has "not been universally well-received." See Martin v. D.C. Metropolitan Police Dep’t, 812 F.2d 1425, 1428 n. 11 (D.C.Cir.1987), and authorities cited therein.
. Prior to the differentiation of constitutional and common law torts in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), lower federal courts were divided over the immunity of federal law enforcement officers from common law tort claims. In Dellums v. Powell, 566 F.2d 167, 175-76 (D.C.Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978), we granted the Chief of the United States Capitol Police a "reasonableness” defense, akin to qualified immunity, to common law false arrest and imprisonment claims, relying upon District of Columbia law. But see Galella v. Onassis, 487 F.2d 986, 993-94 (2d Cir.1973) (United States Secret Service agents carrying out special statutory duty shielded by absolute immunity from common law false arrest liability, though “[o]rdinarily enforcement agents charged with the duty of arrest are not so immune"); Norton v. McShane, 332 F.2d 855, 857-62 (5th Cir.1964) (Deputy United States Marshal absolutely immune from common law liability for malicious arrest and detention without probable cause).
Butz, the defendants here argue, implicitly overturned our Dellums holding. We have not, until today, revisited this question, and other courts have divided on its resolution. See, e.g., Wyler v. United States, 725 F.2d 156, 159 (2d Cir.1983) (holding, without discussion, that federal Drug Enforcement Administration agents are absolutely immune from common law tort liability arising out of search and arrest); Sanders v. Nunley, 634 F.Supp. 474 (N.D.Ga.1985) (Navy Exchange detective absolutely immune from liability for false arrest and imprisonment based on detention of suspected shoplifter); Kroll v. United States Capitol Police, 590 F.Supp. 1282, 1293-95 (D.D.C.1983) (United States Capitol Police officer entitled to good faith and reasonableness immunity defense to liability for false arrest and imprisonment; common law and constitutional claims not treated separately)-
. As to the need to protect federal officials’ freedom of action from the "fear of damage suits,” see, e.g., Harlow, 457 U.S. at 814, 102 S.Ct. at 2736 (the "social costs” minimized by the qualified immunity rule include "the expenses of litigation, the diversion of official energy from pressing public issues, ... the deterrence of able citizens from acceptance of public office [, and] the danger that fear of being sued will 'dampen the ardor of all but the most resolute',” quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949); qualified immunity represents "the best attainable accommodation of competing values”); Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986) ("As the qualified immunity has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”).
Similarly, the reformulated qualified immunity doctrine protects officials against wide-ranging and potentially disruptive inquiries into their subjective motives. See Harlow, 457 U.S. at 815-19, 102 S.Ct. at 2736-38.
. The federal supremacy concerns stressed in the text should not be confused with the “functional analysis” required by another use of the "absolute immunity” doctrine wherein "the especially sensitive duties of certain officials — notably judges and prosecutors — required the continued recognition of absolute immunity.” Nixon v. Fitzgerald, 457 U.S. 731, 746, 102 S.Ct. 2690, 2699, 73 L.Ed.2d 349 (1982); see Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (absolute immunity for prosecutors); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (judicial absolute immunity). The defendants in the instant case press no claim that they are entitled to such judicial or "quasi-judicial” immunity.
. In addition, pursuant to 36 C.F.R. §§ 50.1 and 50.3(b), the laws of Maryland and Virginia "shall be invoked and enforced” by Park Police officers in “all park areas administered by National Capital Parks, National Park Service" within those states. See also 18 U.S.C. § 13 (Persons committing, on United States property, “any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State ... in which such [property] is situated, by the laws thereof in force at the time ... shall be guilty of a like offense and subject to a like punishment.”).
. The authority of Park Police officers to enforce local law in Maryland and Virginia is more restricted. See Md.Ann Code Art. 27 § 594B(h)(l) (Supp.1986) (granting federal law enforcement officers the power to make arrests only when “rendering assistance to a [local] police officer ..., at the request of the [local] police officer or in an emergency"); Va.Code Ann. § 15.1-131.4 (1981) (permitting counties to "enter into an agreement with the United States government... under the terms of which agreement law-enforcement officers employed by such government, including but not limited to members of the United States Park Police, may enforce the law of such county and [Virginia] on federally owned properties within such county, and on the highways and other public places abutting such properties”).
. Martin’s arrest took place in the vicinity of the Lincoln Memorial; it is not settled whether Martin was, or was not, on National Park Service property at the time of his arrest. Stevens’ arrest, on the other hand, unquestionably did not take place on federal land. Under the statutes and regulations cited in the text, however, see supra text at notes 34-35, the distinction between federal and non-federal property does not limit the scope of the Park Police officers’ authority to act within the District of Columbia. Officers of the D.C. Metropolitan Police Department, it is critical and clear, could have made the arrests at issue in both cases.
. See, e.g., Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Anderson v. Creighton,—U.S.-, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
. We note, for example, that the Lincoln Memorial, site of the Martin-Malhoyt encounter, is a stone’s throw across the Potomac River from Virginia, while the Sousa Bridge, which Stevens was approaching, is only a few miles from the Maryland state line.
. An additional consideration supports our disposition of this issue. Under the prevailing law in the states, police officers are not accorded absolute immunity from suit for false arrest, false imprisonment, or assault and battery committed during the course of an arrest. See Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967) (“The common law has never granted police officers an absolute and unqualified immunity[.]“); Carter v. Carlson, 447 F.2d 358, 362-63 & n. 9 (D.C.Cir.1971) (under common law principles, arresting officers have "no immunity from suit for torts committed in the course of making an arrest" although a "good faith” defense is available). We are reluctant to extend to the officers before us a shield that common law jurisprudence has not found it necessary or proper to provide; and as we earlier observed, see supra p. 248, the Supreme Court has never put together Barr and police officer misconduct.
. Plaintiffs argue that this "heightened pleading standard” is applicable only to claims involving allegations of "malice” or "improper motive.” See Brief for Appellees at 45-46. We disagree. It is true that the heightened standard was first announced in the context of concern that "allegations of unconstitutional motive ... offer[ ] ... litigants a possible means to circumvent the [Harlow] rule, simply by pleading that any act was performed with an intent to violate clearly established constitutional rights and thereby surmounting the threshold test set out in Harlow." Hobson v. Wilson, 737 F.2d 1, 29 (D.C.Cir.1984). Subsequently, however, we applied this pleading standard in a case where the question of the defendant’s immunity turned exclusively on objective factors. See Smith v. Nixon, 807 F.2d 197, 200-04 (D.C.Cir.1986) (applying the heightened pleading standard to determine whether "plaintiffs complaint alleges concrete facts ... casting doubt on the objective reasonableness” of the defendants’ actions).
. As described below, see infra Section IV.A. 1, this heightened pleading standard also bears on the degree of factual specificity required in plaintiffs complaint.
. Martin Complaint ff 47-48, reprinted in J.A. at 19-20; Stevens Complaint ([([ 56-57, reprinted in J.A. at 103-04.
. Defendants’ Motion to Dismiss or for Summary Judgment at 15, quoting First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289-90, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968).
. Martin Opinion at 14-15, reprinted in J.A. at 43-44; Stevens Opinion at 13-14, reprinted in J.A. at 128-29.
. Martin Opinion at 16, reprinted in J.A. at 45.
. See supra, text at note 44.
. The standard for resolving motions for summary judgment "mirrors the standard for a directed verdict under [Fed.R.Civ.P.] 50(a).” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
. The instances of misconduct to which the plaintiffs in Carter pointed included;
(1) the testimony of witness Craig Scott that in May 1982, police officers beat him repeatedly both at the scene of his arrest and after taking him into custody; (2) the death of prisoner Darrell Rhones in police custody in December 1983, and the D.C. Medical Examiner’s conclusion that the death was caused by a “choke-hold” administered by police officers; (3) the death of seven persons, acknowledged by Police Chief Turner, in incidents involving D.C. police in a two-month period in late 1983 and early 1984; (4) a fine imposed against officer Vanderbloemen for striking two persons without cause, and improperly arresting one of them; (5) the reprimand of officer Markovich for looping a belt around the neck of a prisoner and taunting him; and (6) the police chiefs admission that officer Anderson had kicked a handcuffed suspect.
Carter v. District of Columbia, 795 F.2d 116, 123 (D.C.Cir.1986) (citations omitted).
. The movant's burden referred to in the text quotation is to "inform[] the district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Where, as in the instant case, "the nonmoving party will bear the burden of proof at trial on a dispositive issue” — Le., the existence of the alleged arrest policy — it is the nonmovant’s responsibility to "make a showing sufficient to establish the existence of an element essential to [the non-movant’s] case.” Id.
. Stevens Complaint 1f 62, reprinted in J.A. at 105.
. Id. 1f 68, reprinted in J.A. at 106.
. Id. fl 50, reprinted in J.A. at 102.
. Id.
. Id.
. Id. If 30, reprinted in J.A. at 99.
. Stevens Opinion at 14, reprinted in J.A. at 129.
. We note, additionally, that witnesses at grand jury proceedings are immune from civil liability on claims arising out of their allegedly false testimony. Briggs v. Goodwin, 712 F.2d 1444, 1448-49 (D.C.Cir.1983). If Stevens’ conspiracy claim rests on an agreement among the officers to perjure themselves — her complaint is less than lucid on this score — the "absolute immunity" announced in Briggs would bar her action. See Martin v. D.C. Metropolitan Police Department, 812 F.2d at 1429 & n. 15 (finding “no logical justification for treating differently an agreement to perform acts to which absolute immunity attaches ... and the individual acts themselves”); Cooper v. O'Connor, 99 F.2d 135, 142 (D.C.Cir.) ("Accusing [the defendants] jointly, or by way of a count in conspiracy, gives [plaintiff’s] case no more virtue than if he had proceeded against each [defendant] singly.’’), cert. denied, 305 U.S. 643, 59 S.Ct. 146, 83 L.Ed. 414 (1938).
. Brief for Appellants at 37-38 ("[Tjhere is no case law of which we are aware that would require that Harasek be held individually liable for failing to intervene and ‘protect’ Stevens from Stover.’’).
. See generally Note, Police Liability for Negligent Failure to Prevent Crime, 94 Harv.L.Rev. 821, 824 (1981) (all jurisdictions adhere to the doctrine that "a law enforcement officer’s duty to protect the citizenry is a general duty owed to the public as a whole,” while also "recogniz[ing] a duty when a ‘special relationship’ exists between the plaintiff and the police”).
. Stevens Complaint 30, reprinted in J.A. at 99.
. Id.
. Id. U 32, reprinted in J.A. at 99.
. See id. Iff 33-38, reprinted in J.A. 99-100; see also supra, text at notes 9-10.
. Neither of Stevens’ passengers, both of whom remained in or near her car after Stevens was taken to the police cruiser, referred in their affidavits to any of Stevens' or Officer Stover’s actions in the cruiser. See October 16, 1985 Affidavit of Johnnie Bush, Jr., reprinted in J.A. at 176-79; October 16, 1985 Affidavit of Mary Ella Stevens, reprinted in J.A. at 180-83.
. See Harasek Interview Notes at 4, reprinted in J.A. at 214.
. Id.
. Id.
. See supra note 64.
. Martin Complaint f 51, reprinted in J.A. at 20.
. Brief for Appellants at 38.
. Martin Complaint IHf 19, 43, reprinted in J.A. at 13, 18.
. U.S. Const, amend. VI.
. Cf. Fed.R.Crim.P. 5(a) (accused entitled to be taken before a magistrate "without unnecessary delay” after arrest).
. Martin’s complaint does not explicitly link his excessive force claim to a particular constitutional provision. On appeal, however, he appears to rely on a fourth amendment analysis. See Brief for Appellees at 40 ("Plaintiffs initial claim for assault and battery and for a violation of his Fourth Amendment right to be free of unreasonable searches and seizures occurred prior to any notion in the mind of Officer Malhoyt that he intended to arrest Mr. Martin.’’). We emphasize again, see supra p. 253, that we require a greater degree of specificity in complaints for damages against public official defendants than in the ordinary case. The district court, we note, has ample authority, under Fed.R.Civ.P. 12(e), to require, on defendant’s motion, a "more definite statement” where "vague or ambiguous” pleadings are submitted. See also id. 15(a) (leave to amend pleadings "shall be freely given when justice so requires”).
. U.S. Const, amend. IV.
. The objective fourth amendment inquiry contrasts with the due process standard sometimes used to evaluate police use of force in arrests. That standard checks only force (1) disproportionate to the need presented, (2) that causes severe injury, and (3) is intended to inflict harm. Compare Gumz v. Morrissette, 772 F.2d 1395 (7th Cir.1985), with Gilmere v. City of Atlanta, 774 F.2d 1495, 1502 (11th Cir.1985) (en banc). We have appraised an excessive force claim under a fifth amendment due process rubric when it occurred in a pretrial detention context, where fourth amendment concerns are less prominent. Norris v. District of Columbia, 737 F.2d 1148 (D.C.Cir.1984), adopting the approach taken in Johnson v. Glick, 481 F.2d 1028 (2d Cir.1973). Gamer constrains us to conclude that due process analysis is not appropriately extended to excessive force claims, like Martin’s, that arise in the context of an arrest. Moreover, the precise due process analysis in Norris, although not the result reached in that case, may bear recasting in light of Gamer and well-reasoned commentary on that decision. See Comment, Excessive Force Claims: Removing the Double Standard, 53 U.Chi.L.Rev. 1369 (1986).
Furthermore, since Gamer, the Supreme Court has indicated that the due process analysis employed in Johnson is superfluous when a more specific constitutional command protects the affected interest. In Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986), the Court observed: “It would indeed be surprising if ... ‘conduct that shocks the conscience’ or ‘affords brutality the cloak of law,’ and so violates [due process], ... were not also [cruel and unusual] punishment ... in violation of the Eighth [Amendment].” It would be more surprising still if such conduct were not also unreasonable under the fourth amendment.
. Martin Affidavit at f 17, reprinted in J.A. at 74.
. Id. at 124, reprinted in J.A. at 75.
. Malhoyt Affidavit at 7, reprinted in J.A. at 68.
. Martin Affidavit at ([ 21 (emphasis added), reprinted in J.A. at 75.
. Id. at !f 23-25 (emphasis added), reprinted in J.A. at 75-76.
. Martin Opinion at 8-9, reprinted in J.A. at 37-38.
. Id.
. Officer Stover, as we earlier observed, has not appealed from the district court’s denial of his motion to dismiss Stevens’ constitutionally-based claims.
. Both officers are charged with “false arrest, false imprisonment, assault, battery, malicious prosecution, defamation .... intentional and negligent infliction of emotion[al] distress, negligence!,] and gross negligence under the laws of the District of Columbia.” Martin Complaint f 53, reprinted in J.A. at 21; Stevens Complaint Ü 64, reprinted in J.A. at 105.
. See supra, text at notes 14-16. The AAP determination was adverse to Stevens on a number of factual issues relevant to the claims she asserted in the district court. See id.
. See supra note 26.
. See supra note 27.
. Stevens did assert, cryptically, that the AAP members were "persons with a vested interest in the outcome of her civil case." Brief for Appellees at 37. She did not elaborate, and we tire therefore unable to evaluate the possibility of systematic bias tainting the AAP’s findings.
. See supra note 14.
. Brief for Appellees at 38.
. For example, Stevens claims that she is "entitled by law to a de novo hearing" on her appeal before the Office of Employee Appeals. Brief for Appellees at 38. The statute granting her an appeal right speaks only of review "upon the record and under such such other rules and regulations which the office may issue.” D.C. Code Ann. § l-606.3(a). The defendants contend, moreover, that Stevens herself has agreed to review on the record compiled by the AAP.
Concurrence in Part
concurring and dissenting:
I concur in the court’s disposition of the constitutional tort claims and in its careful explanation of those outcomes. I dissent only from that part of the opinion holding that U.S. Park Police officers enjoy only a qualified immunity for common law tort suits arising from acts committed while enforcing District of Columbia law. The rule adopted by the court seems to me to give inadequate weight to federal interests and to entail considerable practical difficulties. A better approach, I believe, is to recognize that the central functions of law enforcement officers are discretionary; thus, assuming that the absolute immunity of Barr v. Mateo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), is limited to discretionary duties, such officers are entitled to absolute immunity if acting within “the outer perimeter” of their duties. Id. at 575, 79 S.Ct. at 1341.
I
Federal officers’ absolute immunity from state tort claims under Barr contrasts sharply with their merely qualified immunity to claims founded on the Constitution or a federal statute. The court, rightly I think, finds the explanation in federal supremacy concerns. See Maj. at 249-50 (citing Butz v. Economou, 438 U.S. 478, 489, 490, 495, 98 S.Ct. 2894, 2902, 2902, 2905, 57 L.Ed.2d 895 (1978)). It then proceeds to develop a special treatment for officers wielding both federal and local authority. Even where such officers would otherwise enjoy absolute immunity, they may not do so if they were attempting to enforce District of Columbia law at the critical times. Maj. at 251-52. In such cases, the court would limit them to a quali
I think the court’s solution overlooks or at least slights the federal interests at stake when a U.S. Park Police officer enforces local law; raises difficult issues as to just how much intrusion of non-federal offenses or other interests is sufficient to trigger the rule; and will divert courts into baffling and unnecessary efforts to define some homogenized version of the law of the various states.
A federal law enforcement officer will be advancing federal interests even when he is nominally enforcing only non-federal law. For example, although the charges for which Malhoyt arrested Martin were local (disorderly conduct and disobeying the order of a police officer), it seems clear that Malhoyt was assigned to the Lincoln Memorial in order to protect federal interests — the amenity and symbolic value of the Memorial. Preventing disorderly conduct at that site helps realize federal goals.
Even in the rare situation where a Park Police officer is on non-federal property enforcing purely District law, as was Officer Stover, federal interests are involved. Although Park Police officers are authorized to enforce District law on District property by a local District statute, D.C. Code Ann. § 4-201 (1981), they actually do so not because of any direction from local authorities, but as part of an arrangement aimed at facilitating federal law enforcement. By agreement with the Metropolitan Police force, in an attempt to avoid double coverage that would waste both local and federal enforcement resources, the Park Police, though primarily responsible for patrolling federal lands, also share enforcement duties with the Metropolitan Police. Similarly, Metropolitan police help maintain the peace in the National Parks. The arrangement is practicable because federal tracts are interspersed throughout the District. Appellants’ Supplemental Letter dated April 6, 1987 at 2.
The duties that the Park Police assume under this working arrangement are clearly undertaken in the interests of increasing^ the efficiency with which they carry out their federal mandate. Restriction of the immunity raises the cost of federal use of such working relationships. Such a cost impact of course would not necessarily justify extending federal immunity to a non-federal officer enforcing federal law under such an agreement. But recognition of the cost supports use of a purely federal rule when an indisputably federal officer appears on the surface to be enforcing only non-federal law.
Moreover, I fear that the court’s rule will entail complex line-drawing, unjustified by real returns in the form of a more nuanced accommodation of federal and non-federal interests. Any case of dual jurisdiction
For example, if, as appears to be the case,
Suppose, for example, that Malhoyt had charged Martin solely with a violation of 18 U.S.C. § 13? Or suppose he had added independent federal offenses which, for all
Finally, I think the court’s solution to the issue of “balkanized” law — the problem of officers’ being unaware of legal distinctions among the jurisdictions into which their work may carry them — will prove troublesome. The proposed solution is that federal officers will be protected if their actions are “reasonable in light of current American law." Maj. at 252, quoting Anderson v. Creighton,—U.S.-, 107 S.Ct. 3034, 3042, 97 L.Ed.2d 523 (1987) (emphasis added). The standard was enunciated by the Court in the context of federal constitutional law and will not readily fit the problem of multiple jurisdictions. I have no doubt that courts can discover a “transcendental body of law outside of any particular State,” see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79, 58 S.Ct. 817, 823, 82 L.Ed. 1188 (1938) (quoting Holmes, J., dissenting, in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 533, 48 S.Ct. 404, 408, 72 L.Ed. 681 (1927)), but the task — much like the line-drawing problems — will prove awkward.
Thus the court’s solution, while quite properly aiming a nuanced balance of federal and state interests, appears unnecessarily parsimonious in its protection of federal officers, and threatens to generate serious process costs in sifting out its implications — the time of lawyers and courts and uncertainty for all who are subject to the rule.
II
My reluctance to employ a special rule based on the District of Columbia entanglements forces me to consider whether Barr’s absolute immunity to state tort claims encompasses the conduct of federal law enforcement officers “on the beat.” Plaintiffs argue that the Barr immunity applies only to discretionary functions and that the activities of officers on patrol do not qualify. As the majority notes, the question is one that neither the Supreme Court nor this circuit has yet addressed, though the application of Barr to officers of limited discretion is now pending in the Supreme Court. Erwin v. Westfall, 785 F.2d 1551 (11th Cir.1986), cert. granted,—U.S.-, 107 S.Ct. 1346, 94 L.Ed.2d 517 (1987).
As the court notes, the federal courts have varied widely in their view as to the scope of Barr-type immunity, some extending it to all federal officers regardless of function, some only to those at the planning or policy level, and some to officers exercising limited discretion. See Maj. at 248. This court has found that the Barr immunity is available for federal officials performing “discretionary duties,” Sami v. United States, 617 F.2d 755, 771 (D.C.Cir.1979), implying that it would not be available to those performing non-discretionary functions. Barr itself appears in dictum to require that the functions performed be discretionary. 360 U.S. at 573-74, 79 S.Ct. at 1340-41; accord, Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982) (dictum).
Although the Court in Barr did not specify the categories of federal employees to which absolute immunity would apply, the plurality opinion clearly stated that the availability of immunity did not depend on rank or title. 360 U.S. at 573, 79 S.Ct. at 1340. It acknowledged that heads of departments would be able to invoke immunity more frequently than lower-echelon employees, but explained that that was true only “because the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion, it entails.” 360 U.S. at 573, 79 S.Ct. at 1340. It is, the Court explained, “the relation of the act complained of to ‘matters committed by law to his control or supervision’ ... which must provide the guide in delineating the scope” of the immunity. Id. at 573-74, 79 S.Ct. at 1341.
This “guide” is susceptible of at least two readings. It might mean that if the officer enjoys a relatively modest discretion, the immunity that he enjoys, even for discretionary acts, must be diminished. On this view, assuming that police officers exercise markedly less discretion than high-ranking officials, they would enjoy a non-absolute immunity even when performing discretionary functions. Alternatively, the
In a closely related context the Supreme Court has recently considered the link between discretionary functions and immunity, in terms suggesting that immunity (1) applies even for modest degrees of discretion and (2) is not to vary with the degree of discretion. In Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984), a plaintiff making “constitutional tort” claims against state officers under 42 U.S.C. § 1983 (1982) asserted that the defendants were performing a “ministerial” duty because state regulations prescribed certain procedures (with which the officers had allegedly not complied). The Court responded:
A law that fails to specify the precise action that the official must take in each instance creates only discretionary authority; and that authority remains discretionary however egregiously abused.
Id. at 196-97 n. 14, 104 S.Ct. at 3020 n. 14 (emphasis added).
This concept of discretion appears to fit as well in the context of absolute immunity to state tort claims (Barr) as in that of qualified immunity to constitutional claims (Butz). Indeed, a narrower concept of discretion for defining immunity to state tort claims than for immunity to constitutional torts would reverse the ranking chosen by the Supreme Court in Butz, exposing officials to state law claims for acts that enjoy immunity from constitutional ones. The Court in Butz observed that “we are confident that Barr did not purport to protect an official who has not only committed a wrong under local law, but also violated those fundamental principles of fairness embodied in the Constitution.” 438 U.S. at 495, 98 S.Ct. at 2905.
Moreover, an ancillary advantage of Davis’s broad concept of discretion is that it avoids the drawbacks of multiple levels of discretion. A rule affording less than absolute immunity to officers performing acts of limited discretion would require courts to classify functions in terms of the degree of discretion, an elusive task. In the meantime, federal officers would face uncertainty, quite inconsistent with the purpose of immunity: to free them from undue inhibitions on performance of their duties.
Extension of Davis to the state tort context, however, is not self-evidently correct. The consequences of a broad definition of discretion are stronger (absolute rather than qualified immunity), arguably suggesting that the line should be drawn more restrictively. But the strong result flows, as the majority has indicated, from the United States’s interest in protecting its officers from a multiplicity of legal claims independent of (and occasionally hostile to) federal law.
Accordingly, though the issue is hardly clear, it seems to me appropriate to employ the Davis standard in identifying discretionary functions in the context of common law tort claims against federal officers. At least one court of appeals has done so. Ricci v. Key Bancshares of Maine, Inc., 768 F.2d 456, 464 (1st Cir.1985) (as a fallback to the court’s view that no discretion at all is needed for application of Sarr-type immunity).
Under the Davis standard, law enforcement officers “on the beat” evidently exercise discretion. They will often have neither the time nor resources to arrest for every apparent offense; they must then confine themselves to the most egregious. Even when plenty of time is available, everyday experience suggests that officers do (and should) limit themselves to a warning in many instances of relatively technical violations.
All these suggestions appear to depend on a readiness to create multiple degrees of immunity fitting different levels of discretion. Though Davis did not directly address the point, its broad definition of discretion — seemingly sweeping up all instances of non-trivial discretion — militates against such an approach. So does sound policy.
Even on plaintiffs’ allegations, the defendants here were carrying out duties without directions “specifying] the precise action that [they] must take in each instance.” Davis, 468 U.S. at 196-97 n. 14, 104 S.Ct. at 3020 n. 14. Accordingly, I believe they should enjoy absolute immunity to the common law tort claims.
ORDER
Upon consideration of appellants’ petition for rehearing, it is ORDERED, by the Court, that the petition is denied.
. As summarized in the majority opinion at 250-51, U.S. Park police are authorized by federal law to enforce local law within a National Park, 16 U.S.C. § la-6(b)(2), and to enforce violations of local law as violations of federal law within National Parks. 18 U.S.C. § 13. Pursuant to District of Columbia law, they are endowed with the same powers as the local metropolitan police to enforce District law anywhere in the District. D.C.Code Ann. § 4-201 (1981). Because of the working arrangement between the Park Police and the Metropolitan Police, see 266 supra, each enforces the other jurisdiction's law with some frequency. Appellants’ Supplemental Letter dated April 6,1987 at 2. _________
. See Appellants’ Supplemental Letter dated April 6, 1987 at 3. But see Maj. at 251 n. 36 (asserting that the location of the arrest is uncertain).
. The discretionary function exception of the Federal Torts Claims Act, 28 U.S.C. § 2680(a) (1982), has been construed as negating liability for negligence only “at the planning rather than operational level," Dalehite v. United States, 346 U.S. 15, 42, 73 S.Ct. 956, 971, 97 L.Ed. 1427 (1953), and does not supply an appropriate line. Where the government itself is liable, as under the FTCA, high officials can mediate between the operational workers and liability, not treating every act that incurs liability as a black mark on the employee’s escutcheon. No such mediation is possible where the officer himself is faced with liability and — what will often be more to the point — with the expenses of exoneration.
. Appellees contend that because District law makes it a criminal offense for a police officer to fail to make an arrest after witnessing a crime, D.C.Code § 4-142, an arrest by a Park Police officer on District property is therefore a
. Of course the immunity would not be available if they were acting beyond the "outer perimeter” of their official duties. No such claim can be made against Malhoyt; on Stevens’s contentions, which we must accept as true, Stover may have exceeded that perimeter. I would remand for that determination, if it should prove necessary in light of the possible preclusion claim.
Rehearing
with whom Circuit Judge WILLIAMS, and Senior Circuit Judge McGOWAN, join: The petition for rehearing invites the panel, or the court en banc, to extend the absolute immunity rule of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), to all lower-ranking federal officers of limited discretion, particularly to all federal law enforcement officers “on the beat.” Whether Barr reaches all federal employees acting within the scope of their employment, or at least those exercising a modicum of discretion, is an issue currently pending before the Supreme Court. Westfall v. Erwin (No. 86-714) (argued Nov. 2, 1987). The panel opinion in the case at hand stressed the need for “guidance from Higher Authority,” and noted the pendency of Westfall v. Erwin. See Martin v. Malhoyt, supra, 830 F.2d 237, 246-47. Dissenting Opinion, supra at 268.
In view of the “hardly clear” current state of Supreme Court precedent in this area, see id., Dis. supra at 269, and the prospect of guidance forthcoming soon, (1) we anticipate that the district court will await the Supreme Court’s decision in Westfall v. Erwin before adjudicating the common law claims remaining in this case, and (2) we find further airing of the matter in this court unwarranted. Accordingly, the petition for rehearing is
Denied.
. Contrary to the distorted portrait of this circuit’s precedent in the rehearing petition, no prior decision of this court holds that Barr-style immunity covers the "officer on the beat.” In Martin v. D.C. Metropolitan Police Dep't, 812 F.2d 1425, 1428 n. 11 (D.C.Cir.1987), we noted that we did not confront the question because, without regard to Barr, absolute immunity is the prevailing common law rule where malicious prosecution is alleged.