Melvin CARTER, Appellant v. John R. CARLSON et al.
No. 23225.
United States Court of Appeals, District of Columbia Circuit.
Argued June 12, 1970. Decided July 23, 1971.
Because of the inadequacy of the Board‘s findings, its Order 70-7-113 must be vacated and the case remanded to the Board for further proceedings. The Board may, at its discretion, continue Wien in operation pending its final decision as to certification. We have been advised that this decision will be forthcoming in a matter of months, and the Board should proceed “with all deliberate speed” to surpass this timetable if at all possible. See, e. g., Greensboro-High Point Airport Authority v. CAB, 97 U.S.App.D.C. 358, 363, 231 F.2d 517, 522 (1956).
At first glance it might appear that we are undermining the principles enunciated in our decision by allowing the Board to continue Wien in operation, but we do not believe this to be the case. We are confronted with markedly different circumstances than those existing at the time the Board made its grant of exemption authority. If we do not allow Wien to continue serving the markets in question here, these markets will in all probability be without regularly scheduled air service until the grant of certification authority is made. Western could resume operations, but this does not seem feasible since it is very likely another carrier will be certified for the route a few months hence. Another consideration affecting our decision on this issue is that most of the occurrences incidental to the grant of temporary authority which might influence the later decision as to certification have already transpired. Extending Wien‘s authority to operate the route for a few more months will not add any element of Ashbacker prejudice not already present in the case.
The question might then be asked whether a remand at this time for further findings serves any useful purpose. We feel it does. If the findings made by the Board on remand are satisfactory, the question of prejudice under Ashbacker will be closed and the Board will have set forth sorely needed standards for courts and carriers involved in future cases. If they are not, or if the Board concludes that it erred in temporarily suspending Western and temporarily exempting Wien, we will have further guidelines to aid us in the difficult task of determining whether the grant of exemption authority did in fact affect the decision as to certification, should this later decision be appealed to us. Our remand here may in fact obviate the need to review the decision regarding certification, for it will undoubtedly inspire the Board to be extremely careful in making this decision. There are thus sound practical reasons for remanding this case to the Commission, and we do so.
Reversed and remanded for further proceedings consistent with this opinion.
David P. Sutton, Asst. Corporation Counsel, for appellees. Messrs. Hubert B. Pair, Acting Corporation Counsel, Richard W. Barton and Ted D. Kuemmerling, Asst. Corporation Counsel, entered appearances for appellees.
Before BAZELON, Chief Judge, ROBINSON, Circuit Judge, and NICHOLS*, Judge, United States Court of Claims.
BAZELON, Chief Judge.
This is an appeal from the dismissal of a complaint which raises several important questions concerning the remedies for the torts of a police officer. For the purpose of testing the sufficiency of the complaint, the court must of course accept the allegations as true.1
The complaint alleged that in 1968 one police officer Carlson arrested appellant Carter without probable cause in a bar and, as Carter was being held by two other officers, proceeded to beat him with brass knuckles. The complaint further alleged that Carlson‘s precinct captain, and the Chief of Police, and the District of Columbia each negligently failed to train, instruct, supervise, and control Carlson with regard to the circumstances in which (1) an arrest may be made, and (2) various degrees of force may be used in making an arrest.
*
Officer Carlson was never found for service of process. Captain Prete and Chief Layton moved to dismiss the complaint on the ground that it failed to state a claim for which relief can be granted. Their supporting memorandum argued that no tort on their part had been alleged, and that in any event they were protected by the doctrine of official immunity. The District of Columbia moved to dismiss the complaint for failure to state a claim, and also on the ground of sovereign immunity. The district court dismissed the complaint against all defendants without explanation.
The common law liability of the individual officers and of the District for police misconduct is similar in many respects to their liability under
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
When a police officer makes an arrest without probable cause, or uses excessive force in making an arrest, his action is sufficiently cloaked with official authority to satisfy the limitation of the statute to wrongs performed under color of law.3 Such conduct invades an interest ordinarily protected both by the common law of torts, and by the Constitutional guarantee against unreasonable searches and seizures. The common law, however, may create immunities that do not apply to an action under
I. THE INDIVIDUAL OFFICERS
We start with the premise that a government officer, like any other person, is liable at common law for his torts, even if they are committed within the scope of his employment.4 A government officer, however, is protected by the doctrine of official immunity if the alleged tort was committed in the performance of a “discretionary” rather than a “ministerial” function.5
Under this standard, it is clear that an action could be maintained against Officer Carlson at common law for the conduct alleged in the complaint. An arrest without probable cause constitutes a tort at common law, as does the use of excessive force to make an arrest.8 And the law is clear that an
Officer Carlson would likewise be subject to suit under the federal statute. An arrest without probable cause, or an arrest made with excessive force, constitutes an unreasonable seizure in violation of the Fourth Amendment.10 Thus the complaint alleges that Officer Carlson deprived Mr. Carter of a constitutional right, and it states a cause of action under
The arresting officer, however, is not at present a party to this litigation. Accordingly, we turn to the more difficult question of the possible liability of Carlson‘s superior officers. The claim against Chief Layton and Captain Prete is based on the allegation that they were each negligent in the exercise of duties to train, instruct, supervise, and control Carlson. At this stage, of course, we have no way of knowing the extent, if any, to which such duties may have rested upon them instead of others. Likewise, we cannot now determine whether a breach of such duties occurred, or had any causal relationship to appellant‘s injuries. We are confronted only with the threshold claim that the suit is barred by the doctrine of official immunity.
In our view, even that claim cannot be resolved in this case on the basis of the bare pleadings before us. The functions of training, supervising, and controlling police officers subsume a variety of distinct duties, conceivably incumbent in some degree on a variety of police personnel. No doubt some of these duties should be regarded as discretionary for the purposes of official immunity, but others are clearly ministerial for that purpose.12 The relevant duties
responsibility to another officer, or by means of uncontroverted affidavits in support of a motion for summary judgment.14 Alternatively, Mr. Carter may be able to defeat one or both claims of official immunity after he has had the opportunity through pretrial discovery to ascertain how the relevant responsibilities are allocated within the police department, and how, if at all, they were fulfilled in this case. When the necessary factual information emerges, either officer may of course again invoke his claim of immunity;15
Even if Captain Prete or Chief Layton is protected by official immunity from suit at common law, they are both subject to suit under
In Roberts v. Williams, the Fifth Circuit affirmed a judgment against a prison superintendent for injuries resulting from the careless use of a shotgun by a prisoner-guard, or “trusty.”
The superintendent‘s liability was based on the finding that he had negligently failed to train or supervise the guard in the safe use of the weapon. (No. 28,829, Apr. 1, 1971) (slip opinion at 6-20). Similarly in this case appellant will be entitled to prevail if he can show that Captain Prete or Chief Layton was negligent in performing his own duty to supervise or train Officer Carlson, and that the negligence caused appellant to be deprived by Carlson of his constitutional rights. The showing may well be difficult, but if it succeeds then no local rule of immunity can bar recovery under the federal statute.
II. THE DISTRICT OF COLUMBIA
We turn now to appellant‘s claim against the government of the District of Columbia. That claim may rest on a theory of vicarious liability for the torts of the individual police officers, or on the theory that the District itself was negligent in the performance of its own duty to supervise and control police officers. In either case, the first question is whether the District is protected from suit by the doctrine of sovereign or governmental immunity.
Sovereign immunity serves essentially the same function as the dis-
A. Vicarious liability at common law for Carlson‘s conduct. The alleged tort of arresting officer Carlson is one possible basis for imposing vicarious liability on the District. We have already noted that the discretionary character of the decision to make an arrest without a warrant or to use force in doing so, does not shield the arresting officer from liability for assault, or for false arrest.21 If the arresting officer himself is subject to suit for his tort, it is hard to conceive of any substantial additional threat to the efficiency of government that would result from subjecting the District to suit as well. Accordingly, we hold that the act of making an arrest is ministerial for the purposes of the Spencer doctrine of sovereign immunity.
The District urges us to limit the rule of Spencer to cases involving negligence, and to hold the municipal government completely immune from suit for the intentional torts of its employees.
In Spencer we indicated that we were influenced by the provisions of the Federal Tort Claims Act,
The provision of the Act asserting the immunity of the United States with respect to certain intentional torts has been subject to severe and persuasive criticism. See, e. g.,
At one time the intentional character of Officer Carlson‘s alleged tort might have been a barrier to suit, not because of any quirk in the doctrine of immunity, but because many courts would not impose vicarious liability for an intentional tort.23 Today, however, it is widely recognized that a master may be held liable for the intentional torts of his servants in appropriate circumstances. In particular, a servant authorized to make arrests ordinarily subjects his master to liability for using excessive
B. Vicarious liability at common law for the conduct of supervisory officers. The alleged negligence of Captain Prete and Chief Layton is another possible basis for imposing vicarious liability on the District. As we have previously noted, the present record does not disclose the precise character of either officer‘s supervisory functions. Thus at this stage it is impossible to determine whether the District is immune to suit with respect to their conduct, even as it is impossible to determine whether the officers themselves are immune at common law.
If it develops that either officer is subject to individual liability, then his negligence should subject the District to liability as well. That is, functions which are ministerial for the purpose of imposing liability on individual officers are also ministerial for the purpose of imposing liability on the government. For if the threat of individual liability does not impair the performance of a particular government function, then it is unlikely that the additional threat of government liability will have that effect.
If, on the other hand, it develops that the officers themselves are immune, we think that should not necessarily foreclose the question of the District‘s vicarious liability for their conduct.26 With respect to some government functions, the threat of individual liability would have a devastating effect, while the threat of government liability would not significantly impair performance. If the trial court determines that this is such a case, then the officers, but not the District, will be entitled to immunity at common law.27
C. Direct liability of the District for negligence at common law. Appellant also claims that the District may be liable for its own negligence in
Here the threshold question is whether the common law imposes on the District such a duty of supervision, with potential liability in tort for its breach.28 We think this question was correctly answered by the District Court in Thomas v. Johnson, 295 F.Supp. 1025, 1030-1033 (D.D.C.1968). In a carefully reasoned opinion, the court held that the District of Columbia as a corporate entity has a duty to supervise, train, and control its police officers.29
A breach of that duty might involve either ministerial or discretionary aspects of supervising police officers. Accordingly, a claim of negligence based on a breach of that duty cannot be dismissed at this stage on the ground of sovereign immunity.
D. Applicability of
Monroe is regularly cited for the proposition that no suit against a municipality is authorized by
Several federal courts have concluded that suits for injunctive relief fall outside Monroe‘s prohibition on
First, the reasoning of Monroe is inapplicable to the extent that local common law recognizes municipal liability. Monroe is based on the evidence in the legislative history that Congress intended to avoid interfering with the liability of municipal governments.33 Municipal liability and immunity were to be left to the exclusive control of the states. The intent of Congress was not to create municipal immunity, but to defer to the immunity that existed under local common law. Where local law has abolished or narrowed the scope of municipal immunity, the scope of immunity under
That construction of
[I]n all cases where [the laws of the United States] are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies the common law of the State wherein the court having jurisdiction is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause
The Supreme Court has construed
A second reason for holding the District subject to suit under the federal
Accordingly, we hold that the District of Columbia may be sued under
III. CONCLUSION
We have concluded that the complaint in this case states facts sufficient to sustain a number of distinct causes of action against a motion to dismiss. Of these, perhaps the most promising is the claim against the District for the tort of the arresting officer. The theoretical profusion of remedies may of course be largely illusory. The obstacles to recovering in tort from an individual police officer are notorious, and the obstacles to recovering from the government are almost as great.40 Nevertheless, until the legislature provides a substitute scheme for compensating the victims of police torts, common law principles and the federal Civil Rights Acts guarantee to people like appellant at least a day in court.
The judgment of the District Court dismissing the complaint is reversed, and the case is remanded for further proceedings on all counts.
So ordered.
NICHOLS, Judge (concurring):
I join in the decision of the court in this case and in its reasoning except where it is inconsistent with the observations that follow.
The problems posed appear to be of the highest importance and not only to my colleagues on the panel, who as regular judges of the D.C. Circuit will have to live with what we say herein, but also
First of all, as to officers Prete and Layton. The trial court apparently held they were immune from suit because of their official status, regardless of their share, if any, in the alleged wrong, and also because they were not alleged to have had a direct share in it. It seems to me we had to reverse and remand because the imputed rationale of the decision below would if followed go far to render useless and futile a major provision of the Civil Rights Act of 1871,
I deem it therefore a sterile exercise to consider whether outside of
I do not think that a Federal officer not subject to
Thus the necessity as we hold here, that plaintiff have his day in court, I would apply to a Constitutional claim of a similar kind against a police of-
David v. Cohen, 132 U.S.App.D.C. 333, 407 F.2d 1268 (1969) is the leading case in this circuit on the immunity of Government officials, and properly has received careful attention in the instant case, but it confronts us with complications not easily made simple. The plaintiffs, Mr. and Mrs. David, had been delinquent Federal taxpayers. He paid the deficiencies, but a few days later the Internal Revenue Service levied on his bank account, causing their outstanding checks to be dishonored, with adverse consequences to them. Revenue agent Lynch, a defendant, issued the levies because of a mistake of fact. Both parties moved for summary judgment, and the trial court dismissed the complaint. This court affirmed. Defendant Sheldon Cohen, then Commissioner of Internal Revenue, was shown to have had no operating responsibilities in the issuance of levies, delegations of authority being outstanding, that vested this duty in subordinates. The court reasoned from this that Mr. Cohen could not have been personally negligent except in the exercise of supervisory duties and any failure in that capacity would be “within the scope of his authority and in the discharge of his official duties.” I read this as meaning that a person at Mr. Cohen‘s level could not be liable for negligence in generally managing and directing the policies and procedures of the agency, in the absence of malice towards plaintiffs, or any act specifically directed at them. A breach of duty respecting plaintiffs specifically was not possible, and any deficiency in the discretionary general management of the agency was not the proper subject of a lawsuit. It is hard to tell, however, to what extent Mr. Cohen‘s immunity resulted from his general status as an official of his high level, and to what extent from an analysis of the breaches of duty possible to him in that particular case. The opinion recites the need that he should do his duty unembarrassed by fear of damage suits which would consume time and energies needed for public service. This suggests that the real foundation of the immunity is status. However, agent Lynch, an official of no particular status, was held immune also, though he actually issued the offending levies. He acted under a mistake of fact, but there was no consideration whether it might have been his duty to know the facts. This issue was apparently dismissed as not relevant. It was held “he made the type of mistake of fact that is insulated by the privilege given to nonministerial acts.” “The test of whether a challenged action is ministerial or nonministerial is not the office per se or its height, but whether the function itself was of such discretionary nature that the threat of litigation would impede the official to whom it was assigned.”
The immunities of these two defendants thus appear to be of different kinds. That of Mr. Cohen results from the insulation afforded to him by delegations of authority, from responsibility for the actual operative decision that led to the injury. That of Mr. Lynch is the official‘s qualified immunity when he has to make a difficult discretionary decision and acts under a mistake of fact. If either had been a municipal official sued under
While the final adjudication of this case will require findings as to the duties of defendants Layton and Prete, as the majority hold, it may be premature to deal with them as a threshold question. I do not for myself consider I need that knowledge to assure me that they do not have the status immunity apparently allowed to Mr. Cohen, supra, absolute in the absence of malice. Their duties must be known for a determination whether they breached them. I think it is at least useful and roughly accurate to describe the position of police and other municipal officials not having absolute immunity as being one of qualified immunity, under
* * *. But I think it deserves to be emphasized how unlikely it is that the plaintiffs will be able to recover judgment, upon trial of the case against the individual defendants, in view of what plaintiffs will have to prove [under the qualified immunity standard] in order to make out a cause of action in tort.
It appears to me to be a rare situation where one exercising a supervisory or managerial responsibility in Government has committed such a clear cut breach of duty that he is personally liable in spite of this qualified immunity. Roberts v. Williams, supra, offers an example of the failure of mere mistakes to reach that level. If plaintiff has nothing more specific against defendants Prete and Layton than he divulged at the oral argument, the ethics and propriety of subjecting busy and harassed officials, defendants and others, to a long course of discovery depositions should be carefully considered. Modern summary judgment procedures, however, afford good means of promptly eliminating from a case parties who should not be in it, as was done in David v. Cohen, supra, and in Joyce v. Ferrazzi, 323 F.2d 931 (1st Cir. 1963). There is really no limit to the nature of information that may be put before a court on a motion for summary judgment, and I am therefore not at all certain that treating as a threshold question the issue of immunities, as distinguished from the merits, really helps to protect busy officials from harassment by unmeritorious suits.
By P.L. 91-358, approved July 29, 1970, Title V, §§ 501 and 502, Layton and Prete would have had the right to be defended by the D.C. Corporation Counsel if this suit had been brought after the date of enactment. As it is, such defense is apparently a matter of grace. The Corporation Counsel did represent them before us. While the trial judge will have authority to allow amendment
I turn now to the liability of the municipality. In view of the holding that it is liable for either a negligent injury or an intentional assault inflicted by Carlson upon Carter, if proved, I find it difficult to imagine how the alleged negligence of Layton and Prete, or anyone else, or their non-negligence, would either enhance or diminish the municipality‘s liability as it would otherwise be. If it did make a difference, I find it hard to understand how they could be negligent enough to expose the municipality to liability for their negligence, without being negligent enough to lose their immunity to personal liability qualified as it is. This notion may be valid in other contexts, but not here. The opinion of the court thus starts some hares that lack bodily substance, I believe.
In general, it appears to me that the law being left, as it has been in this area, to be made by judges, judges should make it as this second part does. In the existing state of our society, we have to have policemen, and policemen who are combative when that quality is needed. Training and discipline do wonders, but at best, a combative person is not always able to turn his combativeness on and off as lawyers and judges deem proper. Therefore, despite the best efforts of those in authority, policemen will at times use excessive force or attack people without lawful cause. Those wronged are not wronged by the policeman alone or even chiefly, and not by the supervisor merely because he has failed to give the very best training and instruction. It is the municipality which employs the policeman, because it knows of no other way to hold the forces of evil in check, and has failed to diminish them or remove the causes that bring them into being, with any real effectiveness. Thus it appears very unjust for a citizen, injured in such an encounter, to have to look for redress only to a patrolman who maybe cannot even be served with process, like Carlson here, or is judgment proof. It is not much more satisfactory if he can sue supervisory officials who most likely were doing everything possible according to their lights to avert the evil that occurred. The municipality which arms and uniforms an untrained person and puts him on the streets without need, in anything short of a desperate emergency, has committed a grievous wrong.
On the other hand, one must consider that many suits will be groundless. Sufficient exposure to these, and the effort required to defeat them—even if counsel fees are not a factor—might lead policemen to refuse to take decisive action that would be lawful and needs to be taken. Here, it seems that a sharing of the exposure, by the municipality, would be conducive to the disinterested and fearless police action we all desire. The Congress has recognized the possibly chilling effect of groundless suits upon police initiative in the new legislation above mentioned, and I think today‘s decision conforms to the same considerations and policy. The policeman no longer stands in court alone and undefended.
PHILIP NICHOLS, JR.
JUDGE