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

WILLIAMS, Circuit Judge,

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 *266 fied immunity, which will protect them only if “their actions are reasonable in light of current American law.” Id. at 252.

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 1 is sure to pose almost metaphysical issues of characterization.

For example, if, as appears to be the case, 2 Martin was on National Park Service property at the time of his arrest, his local law infraction was also a federal law violation. 18 U.S.C. § 13 (1982) (persons on federal property who engage in an act or omission that would offend state law within the state’s jurisdiction are guilty of a like offense and subject to a like punishment). Pursuant to 16 U.S.C. §§ la-6(a)(l) and l(a)-6(b)(2) (1982), Malhoyt had authority to enforce both federal and state law on National Park Service property. Thus, even if Malhoyt arrested Martin on a charge designated in non-federal terms, the arrest appears simultaneously to have been an enforcement of federal law (or, under Martin’s account, a purported enforcement). If the presence of the non-federal violation is enough to deny Malhoyt a conventional federal officer’s immunity, then all kinds of non-federal entanglements may also do so.

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 *267 we know, may have been available? What if he had added a federal offense but the plaintiff claimed — as many inevitably will— that there was no probable cause to support the federal charge? What if the officer brought only federal charges, but the plaintiff argues that the arrest was really for non-federal offenses? Does the answer to any of the above change if the arrest occurs off federal property?

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 *268 Court might mean only that though federal officers’ immunity to state tort claims is absolute, the lower-ranking officials will have less frequent occasion to invoke it. The latter seems to me the better reading.

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). 3 _

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. 4

*269 There are dicta in a number of decisions of the Supreme Court and this circuit that law enforcement officers do not enjoy absolute immunity against, for example, common law false arrest claims. Doe v. McMillan, 412 U.S. 306, 319 , 93 S.Ct. 2018, 2028 , 36 L.Ed.2d 912 (1973) (in finding no immunity for officers whose sole discretion consisted of “estimating demand for particular documents and adjusting the supply accordingly,” a discretion irrelevant to the claim, Court observes “policemen and like officials apparently enjoy a more limited privilege” than that of “executive officers with discretionary functions”); Pierson v. Ray, 386 U.S. 547, 553-55 , 87 S.Ct. 1213, 1217-18 , 18 L.Ed.2d 288 (1967) (in exonerating state police officers on basis of their claim of good faith defense to claim under § 1938, Court states that the “common law has never granted police officers an absolute and unqualified immunity”); Sami v. United States, 617 F.2d 755, 770 (D.C.Cir.1979) (though finding that the defendant officer may invoke absolute immunity on grounds that the particular circumstances presented little need to deter misconduct, court notes that police officers are traditionally granted “only a restrictive immunity against claims for false arrest and imprisonment”); see also Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1346 (2d Cir.1972) (on remand) (on pre-Butz assumption that immunity would be absolute for constitutional tort claim, court finds need for deterrence of federal police officers’ illegal acts so great that their duties should be classified as nondiscretionary).

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. 5

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 *269 ministerial activity. Appellees’ Brief at 26. Even if District of Columbia law controlled the exercise of federal law enforcement officers’ discretion, which it does not, it would be naive, in the absence of proof that the provision is enforced, to suppose that the District of Columbia has in fact nullified the judgment of officers on the beat.

. 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.