Griggs v. Washington Metropolitan Area Transit Authority

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 23, 2000 Decided December 1, 2000

No. 00-7108

Hullon Griggs,

Appellee

v.

Washington Metropolitan Area Transit Authority and

District of Columbia Metropolitan Police,

Appellees

Douglas S. Haymans,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 99cv01552)

Gerard J. Stief, Associate General Counsel, Washington

Metropolitan Area Transit Authority, argued the cause for

appellant. With him on the briefs were Cheryl C. Burke,

General Counsel, and Robert J. Kniaz, Deputy General Coun-

sel.

Kim M. DiGiovanni argued the cause and filed the brief

for appellee Hullon Griggs.

Before: Edwards, Chief Judge, Rogers and Garland,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: In this interlocutory appeal, the

court addresses whether an employee of the Washington

Metropolitan Area Transit Authority ("WMATA") is absolute-

ly immune from suit for negligent conduct arising during the

course of making an arrest. As a result of his arrest, Hullon

Griggs sued WMATA and Metro Transit Police Officer Doug-

las Haymans, as well as the D.C. Metropolitan Police Depart-

ment, alleging in part that Officer Haymans negligently failed

to control his police dog in the course of arresting Griggs.

The district court denied Officer Haymans' motion to dismiss

the complaint on the ground of absolute immunity, and,

alternatively, for summary judgment on the ground that the

complaint was barred by the one-year statute of limitations

for assault and battery. Because the WMATA Compact, D.C.

Code s 1-2431 et seq. (1981), provides that Officer Haymans'

conduct in arresting Griggs was subject to the laws applicable

to a member of the D.C. Metropolitan Police Department, and

because Officer Haymans' statute of limitations defense is

meritless, we affirm.

I.

According to the complaint,1 the D.C. Metropolitan Police

Department contacted the WMATA Transit Police in the

early morning hours of May 26, 1996, for the assistance of a

canine unit in responding to a "burglary two in progress" at

__________

1 In reviewing the denial of a motion to dismiss on the ground

of immunity, the court must treat the allegations of the complaint as

true. See United States v. Gaubert, 499 U.S. 315, 327 (1991) (citing

Berkovitz v. United States, 486 U.S. 531, 540 (1988)); Schuler v.

United States, 617 F.2d 605, 608 (D.C. Cir. 1979).

the Madison Grocery store in Northwest, Washington, D.C.

Metro Transit Police Officer Douglas Haymans and a police

dog named "Buddy" responded to the scene. Upon their

arrival, Officer Haymans released the dog into the Madison

Grocery to search for the suspect. The dog located Hullon

Griggs, who was asleep. When Griggs awoke, the dog's paws

were on his head. As Griggs attempted to push the dog

away, the dog began biting Griggs' right arm.

At this point, Officer Haymans entered the grocery store

and ordered Griggs to stand and place his hands on his head.

Griggs explained to Officer Haymans that the dog was biting

him while he was on the ground, and that his efforts to push

the dog away had failed. Officer Haymans pulled the dog

away from Griggs and again ordered him to stand and place

his hands over his head. Griggs complied immediately. Offi-

cer Haymans then released the dog and commanded him to

attack Griggs. Griggs again made attempts to push the dog

away, but the dog continued to attack him, inflicting multiple,

serious wounds on Griggs' arms, legs, and torso. Instead of

commanding the dog to stop, Officer Haymans ordered

Griggs to stay still and allowed the dog to continue to attack

him. Then, Officer Haymans ordered Griggs to drop to his

knees and place his hands on his head. Griggs complied, and

Officer Haymans handcuffed him and pushed his head to the

ground, during which time the dog continued to attack

Griggs. Officer Haymans finally commanded the dog to stop

his attacks. As Officer Haymans picked up Griggs, Griggs

complained that the dog had injured him.

Officer Haymans then took Griggs outside of the grocery

store, at which point a D.C. Metropolitan Police officer asked

what had occurred inside. Officer Haymans responded that

the dog "had not worked out in a while" and "he needed it."

Griggs was transported to the Fourth District Headquarters

by D.C. Metropolitan Police where Officer Haymans photo-

graphed Griggs' injuries and commented that the dog "got a

good workout." Griggs was thereafter taken to D.C. General

Hospital for treatment of the dog bites and then to the D.C.

Jail for processing for unlawful entry, attempted theft, and

burglary. Later, on two separate occasions while on his way

to court, Griggs fainted and was transported to D.C. General

Hospital. After his arraignment and release, Griggs contin-

ued to suffer from the injuries inflicted by the dog. On May

31, 1996, he called "911" and was transported to Howard

County General Hospital where he was admitted for "infected

hematoma secondary to dog bite" and where he remained

hospitalized until June 5, 1996.

On May 24, 1999, almost three years later, Griggs filed a

complaint in the D.C. Superior Court alleging negligence by

WMATA and Officer Haymans for failure to control the police

dog and by the D.C. Metropolitan Police Department for

improper supervision. On June 15, 1999, the case was re-

moved to the United States district court pursuant to s 81 of

the Compact. See D.C. Code s 1-2431(81) (1981). As rele-

vant here, WMATA and Officer Haymans moved to dismiss

the complaint on the ground of absolute immunity under s 80

of the Compact for claims involving governmental functions,

see id. s 1-2431(80), and alternatively, for summary judgment

on the ground that the complaint was barred by the one-year

statute of limitations for assault and battery. See id.

s 12-301(4). The district court denied the motion. On re-

consideration, the district court granted WMATA's motion on

the ground of absolute immunity, citing Burkhart v. WMA-

TA, 112 F.3d 1207, 1216-17 (D.C. Cir. 1997), but denied

Officer Haymans' motion for reconsideration.

II.

On appeal, Officer Haymans contends that the district

court erred in rejecting his claim of absolute immunity be-

cause he was acting at all times within the scope of his

employment and because his police activity constituted a

"quintessentially governmental" function. He relies on the

statement in Beebe v. WMATA, 129 F.3d 1283 (D.C. Cir.

1997), that WMATA employees "enjoy absolute immunity

from state-law tort actions when the conduct at issue falls

'within the scope of their official duties and the conduct is

discretionary in nature.' " Id. at 1289. Officer Haymans also

contends that the district court erred in ruling that the

complaint was not barred under D.C. Code s 12-301(4),

which provides a one-year statute of limitations for excessive

force claims. Because Officer Haymans' statute of limitations

contention is meritless inasmuch as Griggs' complaint sounds

in negligence for which there is a three-year statute of

limitations, see id. s 12-301(8), as well as in intentional tort

for which there is a one-year statute of limitations, see

McCracken v. Walls-Kaufman, 717 A.2d 346, 350-53 (D.C.

1998); Etheredge v. District of Columbia, 635 A.2d 908, 918

(D.C. 1993),2 we turn to Officer Haymans' immunity claim.

In Beebe, the court addressed whether WMATA employees

have immunity when WMATA itself is immune because the

alleged tort occurred during the exercise of governmental or

discretionary functions. See Beebe, 129 F.3d at 1288. Beebe,

a former WMATA employee, filed suit against his former

supervisors for, among other things, breach of contract and

constructive discharge, fraud, gross negligence, and defama-

tion, in connection with their implementation of an office

reorganization that expanded Beebe's responsibilities. See

id. at 1286. As a result of his unsatisfactory performance in

the new position, his supervisors eliminated that position and

created a new equally-ranked position. See id. Beebe was

not selected for that position, however, but was instead

selected for a lesser position, causing his office ranking to

drop. See id. Because s 80 of the Compact, which provides

immunity to WMATA only where torts are committed in the

course of governmental functions, is silent on the scope of

WMATA employees' immunity when WMATA itself is im-

mune, the court looked to the federal common law. See id. at

1288. Applying the distinction between discretionary and

ministerial functions, as articulated in Westfall v. Erwin, 484

U.S. 292 (1988), the court held that the WMATA supervisors,

whom Beebe did not allege had acted outside the scope of

their duties, were immune from suit insofar as their actions in

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2 The statute of limitations contention is properly before the court

in this interlocutory appeal. See Kiska Constr. Corp.-U.S.A. v.

WMATA, 167 F.3d 608, 611 (D.C. Cir. 1999); Gilda Marx, Inc. v.

Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C. Cir. 1996).

implementing the office reorganization, "lying at the core of

[their] official responsibilities," were discretionary in nature.

Beebe, 129 F.3d at 1289. The court also observed that:

not all intentional or malicious torts committed in the

normal course of employment necessarily fall within the

scope of official duties. Officials "exceed the outer pe-

rimeters of their responsibilities, and act manifestly be-

yond their line of duty," for example, "when they resort

to physical force to compel the obedience of their mana-

gerial subordinates ... or when they use false threats of

criminal charges to coerce an employee into resigning.

Id. (quoting McKinney v. Whitfield, 736 F.2d 766, 771-72

(D.C. Cir. 1984), and citing Bishop v. Tice, 622 F.2d 349, 359

(8th Cir. 1980)).

The district court applied Beebe's instruction to look to

federal common law when it concluded, under Westfall, that

although Griggs conceded that Officer Haymans was acting

within the scope of his employment, an individual transit

officer's conduct in making an arrest is a ministerial function

for which he may be held liable. The district court also

looked to Dellums v. Powell, 566 F.2d 216 (D.C. Cir. 1977).

In Dellums the court observed that Carter v. Carlson, 447

F.2d 358, 366 (D.C. Cir. 1971), rev'd in part on other grounds

sub nom. District of Columbia v. Carter, 409 U.S. 418 (1973),

as well as Wade v. District of Columbia, 310 A.2d 857, 860

(D.C. 1973), "recognized that the arrest function involved

discretion in the ordinary sense but not discretion in the

policymaking sense, which is the interest protected by munici-

pal immunity." Dellums, 566 F.2d at 223 n.25. The court

had explained in Carter, that "the law is clear that an

arresting officer has no immunity from suit for torts commit-

ted in the course of making an arrest", 447 F.2d at 362-63,

even though "a high degree of discretion is clearly involved in

deciding when and how to make an arrest...."3 Id. at 363

__________

3 In Carter, the plaintiff sued a member of the D.C. Metropoli-

tan Police Department for assault and battery when the officer

allegedly beat him after arresting him without probable cause. See

447 F.2d at 360-61.

n.9. Accordingly, the district court reasoned that, absent

federal common law dictating otherwise, "it is inappropriate

to conflate discretionary police activity, from which liability

WMATA is shielded, with ministerial arrest activity, from

which liability individual police officers are not necessarily

shielded." The district court ruled that "[t]he facts as alleged

[in the complaint] support the inference that [Officer Hay-

mans] may have crossed the line from official duty to illicit

brutality or otherwise performed negligently in his supervi-

sion and use of [the dog]," and thus Officer Haymans was not

entitled to absolute immunity.4

The correctness of the district court's legal conclusion is

demonstrated upon consideration of the WMATA Compact

itself. That Compact, executed by Virginia, Maryland, and

the District of Columbia, and approved by Congress in 1966,

originally gave the WMATA transit police very limited police

powers, reserving the vast majority of police work for each

member jurisdictions' own police forces. See D.C. Code

s 1-1431(76) (1967); see also Hall v. WMATA, 468 A.2d 970,

971 (D.C. 1983). However, in 1976 Congress amended s 76,

expanding the police powers of the transit police so that they

supplemented area police forces and supervised bus and rail

service. Section 76(b) provides in relevant part that:

[a] member of the Metro Transit Police shall have the

same powers, including the power of arrest, and shall be

subject to the same limitations, including regulatory limi-

tations, in performance of his or her duties as a member

of the duly constituted police force of the political subdi-

vision in which the Metro Transit Police member is

engaged in the performance of his or her duties.

__________

4 In originally denying the motion to dismiss on the ground of

immunity, the district court noted that "the parties have not prof-

fered evidence of the standard of permissible police action for the

court to determine, as a matter of law, whether Officer Haymans

acted beyond the bounds of his official duties." Assuming the

parties had done so, the district court concluded that the allegations

in the complaint, if true, would "preclude dismissal at this phase [of

the case]."

D.C. Code s 1-2431(76(b)) (1981). Thus, in the District of

Columbia, a Metro Transit Police officer engaged in a crimi-

nal investigation and an arrest has the same powers and

limitations as a member of the District of Columbia Metropol-

itan Police Department, and consequently has only qualified

immunity for his torts.

The court explained in Biscoe v. Arlington County, 738

F.2d 1352, 1362 (D.C. Cir. 1984), that in the District of

Columbia, "both official and governmental immunity depend

on the ministerial-discretionary dichotomy." A ministerial

function is one that "connotes the execution of policy as

distinct from its formulation." Id. (quoting Elgin v. District

of Columbia, 337 F.2d 152, 154-55 (D.C. Cir. 1964)). Thus,

conducting felony stops and felony pursuits are ministerial,

not discretionary, acts because they are day-to-day operation-

al matters, not matters related to planning and policy. See

id. A police officer's conduct in connection with conducting

an investigation with an eye toward making an arrest is

ministerial, even if his on-the-scene decision to act originally,

e.g., to stop a car, is discretionary. See id. In reaching this

conclusion, the court noted that a police officer is constrained

by both regulations and clearly established policies and stan-

dards such that there is no need to be concerned that tort

liability for such actions would "pose threats to the quality

and efficiency of government." Id. (quoting Spencer v. Gen-

eral Hosp. of D.C., 425 F.2d 479, 482 (D.C. Cir. 1969)). In

contrast, a discretionary act is one for which an officer is

immune: "If policy considerations were involved and no stat-

utory or regulatory requirements limited the exercise of

policy discretion, ... immunity would bar suit." Id. at 1362

(quoting Chandler v. District of Columbia, 404 A.2d 964, 966

(D.C. 1979)). Finally, the court explained that:

there are certain decisions made in the exercise of the

discretionary functions of government for which there is

no reason to believe a jury would render a sounder

decision than those officials chosen, qualified, and pre-

pared to make them. It is these that are labeled "discre-

tionary" and which constitute policy decisions deemed

immune from suit because there is no legal standard by

which a judge or jury could gauge their arbitrariness and

capriciousness or lack thereof.

Id. at 1363 (quoting Chandler v. District of Columbia, 404

A.2d at 966).

A member of the D.C. Metropolitan Police Department,

therefore, is not absolutely immune from suit for his tortious

conduct. See McCarthy v. Kliendeinst, 741 F.2d 1406, 1409

(D.C. Cir. 1984) (citing Apton v. Wilson, 506 F.2d 83, 90-95

(D.C. Cir. 1974)). It necessarily follows that while s 80 of the

Compact cloaks WMATA itself with absolute immunity for

torts arising in the exercise of governmental functions, under

s 76(b) of the Compact, WMATA's Metro Transit Police

officers, like members of the D.C. Metropolitan Police De-

partment, are not able to invoke such absolute immunity as a

bar to suit for their torts in the District of Columbia. Officer

Haymans can find no solace in cases allowing a Metro Transit

Police officer to invoke absolute immunity for alleged false

arrest, false imprisonment, and malicious prosecution when

the officer had probable cause to make the arrest and acted

with "a good faith, reasonable belief" that the arrestee had

violated the law. Stebbins v. WMATA, 495 A.2d 741, 743

(D.C. 1985) (quoting Gabrou v. May Dep't Stores Co., 462

A.2d 1102, 1104 (D.C. 1983)); see also Dant v. District of

Columbia, 829 F.2d 69, 75 (D.C. Cir. 1987); McCarthy, 741

F.2d at 1413. Even though an officer in that circumstance is

engaged in governmental functions and is acting within the

scope of his responsibilities, the right to invoke absolute

immunity evaporates when the conduct is "manifestly exces-

sive," using means to accomplish one's responsibilities that

are "beyond the outer perimeter of [one's] authority."

McKinney, 736 F.2d at 770-71 (and cases cited therein).

While Griggs' complaint does not expressly allege in haec

verba that Officer Haymans' conduct exceeded the "outer

perimeters" of his official duties, Beebe, 129 F.3d at 1289, as

the district court noted, the factual allegations in the com-

plaint are to the same effect. Griggs has alleged that Officer

Haymans not only failed properly to train his "vicious" dog,

but he failed to control his dog, instead commanding the dog

to attack Griggs after Griggs had complied with Officer

Haymans' order to stand and place his hands on his head, and

failing to command the dog to cease its attack. The use of a

police dog to locate a suspected burglar is far different from

the use of a police dog to attack a suspected burglar who has

submitted to police authority.

Officer Haymans has two responses, neither of which is

availing. First, he contends that reliance on Dellums and

Carter is misplaced because those cases involved "the discre-

tionary standard associated with both the Federal Tort

Claims Act and District of Columbia law, and not the broader

governmental/proprietary standard mandated by s 80." Offi-

cer Haymans, however, misreads the court's recent decision

in Beebe. Although the Federal Tort Claims Act was not at

issue, the court in Beebe drew upon the precedent established

by the Act in addressing s 80 of the WMATA Compact and

endorsed the discretionary/ministerial dichotomy employed in

Dellums and Carter. See Beebe, 129 F.3d at 1287 (citing

Burkhart, 112 F.3d at 1216). The district court, therefore,

could properly invoke the distinction long-recognized by the

court, see McKinney, 736 F.2d at 769-71, between discretion-

ary activity illustrated in Beebe, that cannot result in tort

liability for WMATA, and ministerial arrest activity illustrat-

ed in Carter, that may result in tort liability for a Metro

Transit Police officer. Moreover, unlike the situation con-

fronting the court in Beebe, where the Compact was silent as

to the immunity of the WMATA employees being sued, the

district court was instructed by Congress in s 76(b) of the

Compact to look to the law applicable to D.C. Metropolitan

Police officers in determining whether Officer Haymans was

cloaked with the same immunity as WMATA.

Second, contrary to Officer Haymans' contention at oral

argument, United States v. Gaubert, 499 U.S. 315 (1991), does

not undermine the propriety of drawing distinctions between

types of discretionary conduct. In Gaubert, the Supreme

Court held that for purposes of the Federal Tort Claims Act,

discretionary activity can include operational activities and is

"not confined to the policy or planning level." 499 U.S. at

325. Thus, a suit against federal bank officials for negligently

advising and overseeing the operations of a thrift institution

was barred by immunity. See id. at 333. This result fol-

lowed, the Court said, because the bank officials were autho-

rized by statute to provide advice and oversight in a manner

that left room for the exercise of political, social, or economic

choice. See id. at 324-26. While the determination of the

nature of an activity under the Compact is a question "of

federal law," Burkhart, 112 F.3d at 1216 (quoting Sanders v.

WMATA, 819 F.2d 1151, 1154 (D.C. Cir. 1987)), under s 76(b)

of the Compact Officer Haymans was vested only with the

powers and limitations of a D.C. Metropolitan Police officer

when he responded to a call for assistance from the D.C.

Metropolitan Police Department, and thus the discretion-

ary/ministerial distinctions noted in Biscoe, 738 F.2d at 1363,

continue to apply.

Accordingly, we affirm the district court's order denying

Officer Haymans' motion to dismiss the complaint on absolute

immunity and statute of limitations grounds.5

__________

5 Because the appeal involves only the issue of Officer Hay-

mans' entitlement to absolute immunity, we do not reach the issue

of any claim that he may have to qualified immunity.