# Petition — Powell v. Dellums

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 438 U.S. 916

## Text

Rr Supreme U.S

FILED

JAN % 1978

MICHAEL RODAK, JR., CLERK

No 777955

In the Supreme Gourt of the United States

OcToBER TERM, 1977

JAMES M. POWELL, PETITIONER
V.
RON AID V. DELLUMS, ET AL.

PETIT WN FOR A WRIT UF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

WADE H. McCREE, Jr.,
Soliottor General,
IRVING JAFFE,
Aotinp Assistant Attorney General,
ROBERT E. KOPP,
BARBARA L. HERWIG,
Attorneys,

Department of Justice,
Washington, D.O. 20580.

Page
. 1
r ep ectncititilaictisctiliiaadinpientite 2
r 2
r o x TYR!!! 2
Reasons for granting the petition———— 14
r 20
r niinnsstntnchshiiatlieiiadiahaiieegstna tsseinatitthaniaidichigees la
Fh rr 105a
r . 107a
CITATIONS
Cases:
Apton v. Wilson, 506 F. 2d 838—— 17
Barr v. Matteo, 360 U.S. 564——— 15, 16, 17
Bivens v. Six Unknown Named Agents,
G 17
Bivens v. Sia Unknown Named Agents,
e 12, 20
Doe v. McMillan, 412 U.S. 306 — 15-16, 18
Johnson v. Allredge, 488 F. 2d 820, certio-
rari denied sub nom. Cronrath v. Johnson,
hp RN ERR AE OT SR ae ee 16
Mark v. Groff, 521 F. 2d 1376———- 17
Norton v. McShane, 332 F. 2d 855, certio-
rari denied, 380 U.S. 981— 17
Pierson v. Ray, 386 U.S. 5477 16, 18
Scheuer v. Rhodes, 416 U.S. 232..-------- 16, 19
United States v. Nicholson, D.C. Gen. Sess.,
Nos. 20210-69A, decided June 19, 1969,
afixrmed, 363 A. 3a 56................. 13
Wood v. Strickland, 420 U.S. 308__..----- 16

(1)

ee CN ern re nn enn eee

Constitution and statutes:

United States Constitution: Page
First Amendment_.....-------- 2, 12, 13, 20
Fourth Amendmen 17, 20

ien 3

40 0.80. 24 —.—ç—5r—75729—ç—.—— 3, 4

Ve Oe) —79———7————vk3 16, 18

9 D.O. Code 194........----..------ 8, 11, 12, 13

9 D.O. Code 196...........-...--.----=- 4

93 D.O. Code 3108..........<.-.--2-20--- 11

Ae.

Gu the Supreme Court of the United States

OctTosEeR TERM, 1977

No.

JAMES M. POWELL, PETITIONER
V.
RON AL D V. DELLUMS, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

The Solicitor General, on behalf of James M.
Powell, petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals
for the District of Columbia Circuit in this case
insofar as it affirmed the judgment against petitioner
entered by the district court.

OPINIONS BELOW

The opinion of the court of appeals (App. A,
infra, pp. la-104a) is not yet reported. The district
court rendered no opinion; its judgment (App. C,
infra, pp. 107a-112a) is not reported.

, (1)

2

JURISDICTION

The judgment of the court of appeals (App. B,
infra, pp. 105a-106a) was entered on August 4, 1977.
On October 26, 1977, the Chief Justice extended the
time within which to file a petition for a writ of
certiorari to and including January 1, 1978 (a Sun-
day, with the following day a holiday). The jurisdie-
tion of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether a federal supervisory police official has
an absolute rather than a qualified immunity from
suit for damages arising from his actions in perform-
ance of his official duties.in directing and supervising
the police response to a large demonstration.

2. Whether, if such an official has only a qualified
immunity, petitioner was entitled to a directed ver-
dict in this case.

3. Whether there is a cause of action for damages

based upon violation of a person’s First Amendment.

rights.
STATEMENT

This is a suit against the District of Columbia and
a number of individuals who were, in May 1971, offi-
cials of the District of Columbia, Congress, and the
Department of Justice. Alleging a civil conspiracy to
arrest and detain them with the purpose of frustrat-
ing their First Amendment right to protest the Viet-
nam war, the named respondents seek money dam-
ages on behalf of a class of approximately 1200 peo-

3

ple arrested on the Capitol steps on May 5, 1971,
during the ‘‘Mayday” demonstrations. After trial, a
jury rendered a verdict of more than $12 million
against the District of Columbia, Jerry V. Wilson,
then Chief of the Metropolitan Police Department of
the District of Columbia, and petitioner here, James
M. Powell, Chief of the United States Capitol Police.’
In substantial part, the court of appeals affirmed.’

1. As Chief of the United States Capitol Police, pe-
tioner has responsibility for the day-to-day opera-
tions of the Capitol Police force,’ including provid-

* The other individual defendants were Kenneth L. Hardy, then
Director of the District of Columbia Department of Corrections:
John N. Mitchel], then Attorney General; Richard G. Klein-
dienst, then Deputy Attorney General; and Will Wilson, then an
Assistant Attorney General. A severance was granted as to Mit-
chell, and the action was dismissed as to Hardy and Will Wilson
prior to trial. .\t the close of all the evidence, the district court
granted a directed verdict as to Kleindienst and dismissed him
from the action (App. C, infra, p. 106a).

* The issues with respect to petitioner are treated in the opinion
in No. 75-1974, which is set Torth as Appendix A, infra, pp. la-
104a. The issues with respect to Wilson and the District of Co-
lumbia are treated in a separate opinion and judgment (No. 75
1975), copies of which we are lodging with the Clerk of this
Court. Wilson and the District filed a petition for rehearing with
a suggestion for rehearing en banc in the court of appeals; the
petition was denied on November 14, 1977.

* The Capitol Police operate under the overall supervision and
rules and regulations of the Capitol Police Board. The Board
consists of the Sergeant-at-Arms of each chamber of Congress,
who also are responsible for their respective wings of the Capitol,
and the Architect of the Capitol (40 U.S.C. 193 and 212a; J. App.
1105, 1108-1110, 1414, 1423-1424).

The Chief and other officers and personnel of the Capitol Po-
lice are detailed to the Capitol Police by the Metropolitan Po-

4

ing security and protection for Congress and its vis-
itors (40 U.S.C. 212a; see 9 D.C. Code 126). Peti-
tioner was aware of plans for major antiwar
demonstrations scheduled for May 1971, and of the
demonstrators’ plans to close down the city of Wash-
ington. The “Mayday Coalition“ had published and
circulated a demonstration “tactical manual’’ which
described planned demonstration activities, including
those planned for the Capitol (J. App. 1138, 1595-
1596, 759-763, 2456-2479). The May Day Tactical
Manual” stated in part that activities for May 5,
1971, would include action by the people not ar-
rested on Monday and Tuesday” May 3 and 4 to lay
a “nonviolent siege of the Congress, foreing it to re-
main in session until it ratifies the People’s Peace
Treaty or until we are all arrested” (J. App. 1139-
1141, 2460, 2578).

Prior to May 5, petitioner had received and read
this manual (ibid.) as well as similar newspaper and
intelligence reports other law enforcement agencies
had supplied (J. App. 1138-1142, 2456-2479, 2517-
2536).

In anticipation of the demonstration, petitioner
on the morning of May 5 met with various officials
of Congress, including the Sergeants-at-Arms of the

lice Department on a virtually permanent basis. Although mem-
bers of the Capitol Police force are, for purposes of pay and other

benefits, employees of the Metropolitan Police Department, the

Metropolitan Police Chief has no authority over them (J. App.
1152, 1624, 1640-1641, 1830).
‘J. App.” refers to the joint appendix filed in the court of

appeals.

— ' —

5

House of Representatives and Senate, the Admin-
istrative Assistant to the Speaker of the House, and
Assistant United States Attorney Eric Marcy, who
had been assigned at petitioner’s request to advise the
Capitol Police regarding the legal aspects of the
anticipated demonstration (J. App. 1148-1150, 1430,
1475-1476).° At approximately 1:00 P.M. petitioner
also met with Chief Wilson and Assistant United
States Attorney Marcy to discuss the proposed dem-
onstration. Chief Wilson offered the assistance of
the Metropolitan Police Department if arrests had
to be made, and petitioner accepted the offer (J. App.
1150-1152). |

In the meantime, organizers of the demonstration
that morning had requested several members of Con-
gress to meet with the demonstrators on the east
House steps of the Capitol building so that the dem-
onstrators could present a “People’s Peace Treaty”
and otherwise make known their antiwar protest (J.
App. 317, 649-650, 780, 2071). Many of the demon-
strators prior to going to the Capitol met at the Mall
to discuss tactics for the demonstration. The possibil-
ity of arrests was discussed (J. App. 465-466), and it
appeared that some demonstrators intended to take
action which could cause them to be arrested (J. App.
549-550). They also discussed the tactic of refusing
bail or bond if arrested (J. App. 549-550). Many
participants were familiar with the previous ‘‘May-

That morning, petitioner also spoke briefly with the Speaker

2 ͤvb!n uidlione at aeae.
tions regarding the demonstration.

6

week’’ events, and some apparently already had been
arrested (J. App. 399-401, 439, 546).

Petitioner received reports of these discussions
from police officers present (J. App. 1154-1155, 1717-
1718, 1977). He also received reports of other pro-
posed tactics, including the possibility of a diversion-
ary tactic to oceupy the police (J. App. 1168-1169,
1717-1718, 1979).

At approximately 2:30 p.m., a large group of dem-
onstrators proceeded to the Capitol grounds from the
Mall, at times completely filling the east bound lanes
on Independence Avenue, and causing petitioner to
express concern for the safety of the Capitol (J. App.
1369-1370, 1169-1171, 1385, 1935-1939, 1979-1980).
At approximately 2:40 p.m., Inspector Xander of the
Capitol Police stopped a group of demonstrators
near Independence and New Jersey Avenues, but al-
lowed the group to proceed upon learning from three
members of Congress that the group had been invited
by the Congressmen to meet them on the Capitol
steps (J. App. 1560, 321-322, 652-653, 1170-1173).°
Petitioner learned from Xander that the group was
continuing toward the Capitol and also received a re-
port that another group of demonstrators was scatter-
ing and running toward the House steps (J. App.
1173-1174, 1979-1981, 1371-1372, 1478-1479, 1876-
1877). Petitioner thereupon ordered his officers to

‘Upon checking with the Speaker’s office, however, petitioner
was told that the group had not been granted permission by the
Speaker to use the Capitol steps (J. App. 1172-1173, 1719, 1980-
1982).

— — —

-— ee

7

proceed to the Capitol and “take the necessary pre-
cautions to protect the buildings” (J. App. 1173).

By 2:56 p.m., the demonstrators had almost filled
the House steps (J. App. 1174-1175, 1482-1483). Some
members of the group pounded on Capitol windows
(J. App. 1347, 1872, 1374, 1521, 1544-1545), climbed
on lamp posts (J. App. 1181, 1372, 1374), sprayed
paint on the walls on the Capitol (J. App. 1808, 1810,
2501, 2515), and waived Viet Cong flags (J. App.
2537); one man took off his clothes (J. App. 1181,
1374, 2453-2455). The group also engaged in chanting
and singing, although the evidence at trial was in con-
flict as to how noisy the group was (J. App. 1175,
1551, 1878-1879, 1432, 1525, 1984, 540, 962, 1846).’

Petitioner himself described the situation that
faced him upon reaching the House steps as follows
(J. App. 1174-1175):

Immediately upon my arrival at the House
steps, the steps were just about filled. This
group was—seenred to be completely out of con-
trol and not under the control of any person.
They were shouting and chanting and using a

lot of what I used to think was vulgarity.
But one fellow had what I have learned to be

the Viet Cong flag up there on the top, and they
were chanting, “one, two, three, four, we don’t
want your blank war'' and the other things.
And then some pointed to me and called me a
few names—it was so loud and tumultuous.
And I, knowing that the House was in session,

Some witnesses described the group gs loud and disruptive,
while others characterized it as mild and orderly.

8

their hostility was what frankly concerned me
mostly. I was very concerned about the safety
of the members of the Congress inside.

It is undisputed that the noise could be heard inside
the Capitol in the Speaker’s office, and in a meeting
of the House Ways and Means Committee (J. App.
647, 1347-1348, 1410-1411, 1517-1522, 1525, 1539-1540,
1551-1552). The group had a sound amplification sys-
tem, and speeches were made over it by members of
Congress and others (J. App. 410, 541, 653-654).

After observing the crowd, petitioner discussed with
Assistant United States Attorney Zimmerman, who
was on the scene with petitioner, whether the group
was in violation of Section 9-124 of the Capitol
Grounds. Statute, 9 D.C. Code 124 (1973). Zimmer-
man stated that the demonstration was in flagrant
violation of that provision (J. App. 1175); petitioner
also believed that the group was violating the law
(J. App. 1175-1176, 1187-1188). Petitioner then
used a bull horn to try to tell the group that it
was in violation of the law and must disperse (J. App.
1176-1178, 1182, 1375, 1984-1985, 1988-1989).

Because of the noise of the crowd, many people
failed to hear the announcements; there is evidence
that the crowd increased its noise level to drown out
the announcements (J. App. 1176-1177, 1183-1184,
1377, 1469, 1985°. Some people heard the announce-
ments, and others saw petitioner using a bullhorn (J.
App. 456-457, 513-514, 642, 1349-1350, 1469, 1483).
One plaintiff testified that although he heard the an-

—— ͤ —Gͤ w =

9

nouncement, he did not intend to leave the steps (J.

App. 456-457, 469-473). :
With respect to his attempt to communicate with

the demonstrators, petitioner testified (J. App. 1291):

„„I only got so far as stating that I was
Chief of Police when this terrific roar went up
and several pointed to me and called me a S of
a B, and other things that I don’t like to repeat
here in front of the jury. But they were four-
letter words.

It was my impression from that reaction that
this group did not intend for me to remind
them that they were noisy. I thought they cer-
tainly already knew it. And I did then continue
on and attempt to get them to listen as I an-
nounced three or four times over the bullhorn
that I was Chief of the Capitol Police, and
they were a noisy, loud, disruptive group. And
J asked them to remove themselves from the
steps immediately, at which time they reacted
with loud chants and clinched fists as an indi-
cation to me that they didn’t intend to pay
much attention to what I had to say.

After the initial series of announcements, petitioner
was informed that the Speaker had indicated that the
group could remain on the Capitol steps to meet with
members of Congress if it would do so in an orderly
fashion (J. App. 1220-1224, 1519-1520, 1532-1533,
1561-1563). Petitioner then informed the Sergeant-at-
Arms that the group was noisy and unruly and should
be dispersed (J. App. 1414-1416, 1177-1180, 1522-
1523, 1987-1988). The Sergeant-at-Arms relayed this

10

message to the Speaker, who approved petitioner’s
suggestion and told petitioner, through the Sergeant-
at-Arms, to do whatever was necessary to remove the
demonstrators, including arresting them (J. App.
1179-1180, 1414-1417, 1514-1516, 1522-1523, 1987-
1988).

Chief Powell then gave another series of announce-
ments ordering dispersal (J. App. 1182). He went into
the crowd to make the announcements, and gave peo-
ple time to leave (J. App. 1343, 1178, 1237, 1374-1377,
1484-1485, 1988-1989). Some people did leave, but
most did not. When they did not leave, petitioner, as
he testified (J. App. 1184), ‘‘saw no alternative except
to make arrests.’’ At about 3:30 P.M. those remaining
were arrested by members of tae Metropolitan Police
Department Special Operations Division (J. App.
1185-1186, 1636, 1786-1787, 1913).

Congressman Dellums was speaking to the crowd
when the arrest processing began. He was not ar-
rested, interfered with, or otherwise prevented from
addressing the crowd (J. App. 342-344). Only 15-25
people had been arrested and removed from the steps
before he concluded his speech (J. App. 330).

Arrest teams from the Metropolitan Police De-

partment took the demonstrators into custody (J.
App. 1185-1186, 1636, 1817-1821). After those on the
steps had been arrested, a second group of demonstra-
tors across the street shouted and demanded to be ar-
rested. They were arrested after they failed to obey
a dispersal order (J. App. 849-851, 1191-1192, 1311,
1471, 1886-1887, 1931-1932, 2001-2002).

11

The United States Attorney's office recommended
that the demonstrators be charged with violating both
the Capitol Grounds Statute (9 D.C, Code 124) and
the District of Columbia Unlawful Entry Statute (22
D.C. Code 3102) (J. App. 1999-2001). Eight test
cases were selected for prosecution. After trial of
these cases the jury acquitted the defendants; the
United States Attorney then eleeted not to proceed in
any of the retnaining cases (J. App. 681-682, 751-755,
2116, 2402-2405).

2. Respondents thereafter instituted this lawsuit in
the United States District Court of the District of
Columbia on behalf of themselves and others similarly
situated, asserting liability, inter alia, under the
“First, Fourth, Sixth, and Eighth Amendments * * *
and the law of the District of Columbia” (J. App. 29).
At trial petitioner moved for a directed verdict at the
close of respondents’ case (J. App. 971-991) and at
the close of all the evidence (J. App. 94-99; see J.
App. 2167-2252), contending, inter alia, that the evi-
dence showed that he had acted in the reasonable good
faith belief that his actions were lawful and therefore
that he was entitled to qualified immunity from the
suit.“ The district court denied the motions (J. App.
1089, 2254). The district court instructed the jury that
“Til]f [petitioner] has established that he acted on the
basis of a reasonable good faith belief in the light of
all of the circumstances, * * * then he is not liable

* In his answer to the complaint, petitioner also asserted that he
was entitled to absolute immunity (J. App. 39).

12

for false arrest. Otherwise he is“ (J. App. 2302; see
App. A, infra, pp. 32a-33a n. 50).

The jury returned verdicts against petitioner, Chief
Wilson, and the District of Columbia for false arrest,
malicious prosecution, and violation of the First
Amendment rights of Dellums and the class (App. C,
infra, pp. 108a-112a).“ It awarded total damages ex-
ceeding $12 million. The district court subsequently
denied petitioner’s motions for a judgment notwith-
standing the verdict, or for a new trial (App. C,
infra, pp. 114a—115a).

The court of appeals affirmed in part and reversed
in part (see note 2, supra). Rejecting without discus-
sion petitioner’s argument that he has absolute im-
munity, the court held that petitioner has only a
qualified immunity and that the district court’s in-
structions on qualified immunity were ‘impeccable’’
(App. A, infra, pp. 8a, 32a—33a n. 50). The court also
held that under Bivens v. Six Unknown Named
Agents, 403 U.S. 388, a cause of action for damages
may be implied directly from the First Amendment
(App. A, infra, pp. 49a—52a).

On the false arrest claim, the court of appeals found
a conflict in the evidence at trial on (1) whether the
crowd was sufficiently unruly to constitute a violation
of 9 D.C. Code 124 (App. A, infra, pp. 25a-26a) ;
(2) whether petitioner had made “a bona fide effort”
to make sure the crowd heard his dispersal order

»The jury also returned verdicts against Chief Wilson and the
District of Columbia for false imprisonment, and against the
District for cruel and unusual punishment (App. C, infra, pp.
109a—112a).

13

(App. A, infra, pp. 26a-27a); and (3) whether peti-
tioner acted in good faith (App. A, infra, p. 28a).“

The court of appeals also (1) affirmed the finding of
liability on the First Amendment claims but vacated
the damage award on those claims and ordered a new
trial on the issue of damages (App. A, infra, p. 53a);
(2) vacated the award for cruel and wnusual punish-
ment (see note 9, supra) (App. A, infra, p. 55a n. 89);

* Before analyzing the evidence, the court of appeals first set
forth the prerequisites to a lawful arrest under Section 124 of the
D.C. Code, which the court derived primarily from an earlier de-
cision of the District of Columbia Court of General Sessions in
United States v. Nicholson, Nos. 20210-69A (June 19, 1969), af-
firmed, 263 A. 2d 56 (D.C. App.) (unpublished opinion reprinted
at App. A, infra, pp. 564 73a). In Nicholson, the court had stated
(App. A, infra, pp. 72a-73a) : “It is appropriate, therefore, under
the statute to bar or to order from the Capitol Grounds, any group
which is noisy, violent, armed, or disorderly in behavior, any
group which has a purpose to interfere with the processes of the
Congress, any Member of Congress, congressional employee, visi-
tor, or tourist, any group which has the effect, by its presence, of
interfering with the processes of the Congress, any Member of
Congress, congressional employee, visitor, or tourist; and any
group which damages any part of the building, shrubbery, or
plant life. * * * In each category, the conduct would have to be
more disruptive or more substantial (in degree or number) than
that normally engaged in by tourists and others routinely per-
mitted on the Grounds.”

Principally on the basis of this language, the court of
appeals concluded (App. A, infra, p. 24a) that it was “well
settled law” that “[respondents] could not constitutionally
have been arrested as a group under * * * 9 D.C. Code § 124 * * *
unless [petitioner] had reason to believe: (1) that [respondents]
comprised one of the growps that could be banned or ordered from
the Capitol under Nicholson; (2) that orders to disperse had been
given which apprised the crowd as a whole that it was under an
obligation to leave; and (3) that a reasonable opportunity had
been given [respondents] to leave the Capitol.”

14

and (3) vacated the award for malicious prosecution
and on that claim ordered a new trial as to petitioner
only (App. A, infra, pp. 48a-48a)."

Judge Tamm dissented (App. A, infra, pp. 88a-
104a). He pointed out that the events of May 5, 1971,
were part of an unprecedented, sophisticated and
calculated effort to shut down the capitol city of the
United States“ * *” and “to reduce the federal gov-
ernment to a shambles” (App. A, infra, p. 92a). Judge
Tamm argued “against this background“ (ibid.) that
petitioner’s actions were reasonable and that petitioner
was entitled to “immunity from civil damages * * *
as a matter of law” (App. A, infra, p. 95a).

REASONS FOR GRANTING THE PETITION

1. This case presents important questions concern-
ing the scope of immunity from suit for damages that
supervisory federal law enforcement officials have for
alleged torts committed in the performance of their
official duties. Under the court of appeals decision, pe-
titioner, the chief law enforcement official for Con-
gress, will be subject to substantial persona. liability
for his official actions taken to protect the legislature
from what appeared to him to be a serious and im-
minent threat to its proper functioning and to
its safety. The situation that gave rise to this lawsuit,

In addition to the separate opinion and judgment in No. 75-
1975 (see note 2, supra), the court of appeals in companion
appeals affirmed the directed verdict in favor of Kleindienst (No.
75-2117), and partially affirmed the district court’s post-trial or-
der allowing three class members, who had previously been dis-

missed for failure to respond to discovery requests, back into the
action (Nos. 76-1418 and 76-1419).

15

although unique in its particulars, is similar to that
commonly encountered by supervisory police officials:
the threat posed by a substantiai group of demonstra-
tors who have assembled to confront, harass and in-
timidate the organs of government.

The circumstances petitioner faced on May 5, 1971,
required him to act quickly and decisively, yet he was
operating with respect to a law whose applicability
was open to reasonable differences of opinion. Impo-
sition of possibly multi-million dollar personal lia-
bility for the supervisory law enforgement decisions
made in response to such a difficult and delicate situa-
tion would be likely to deter such officials from taking
the kind of vigorous and forthright action that effee-
tive law enforcement frequently requires. Those of-
ficials should have absolute immunity from damage
suits based upon those acts.

If, contrary to our submission, supervisory law en-
forcement officials have only a qualified immunity (as
the court of appeals held), then we submit that pe-
titioner was entitled to such immunity. Instead of
submitting the case to the jury to determine whether
petitioner acted in good faith, the district court should
have directed a verdict in his favor. On this record,
petitioner has established his entitlement to qualified
immunity.

a. As we urged in our opening brief in Butz v.
Economou, No. 76-709, argued November 7, 1977 (pp.
11, 2425), Barr v. Matteo, 360 U.S. 564, and Doe v.

Wo are furnishing a copy of our briefs in Zconomou to coun-
sel for respondents.

252-664 O- 76-2

16

McMillan, 412 U.S. 306, “together * * establish
that federal government officials have absolute im-
munity for acts done in the performance of their of-
ficial duties * * * if the duties involve a significant
element of discretion * * *.” The requirement that
the officials be performing a discretionary function
„reflects the purpose for which immunity is granted
[:] * * * to ensure that important decisions are made
free from fear of personal liability or harassing suits”
(Johnson v. Allredge, 488 F.2d 820, 824 (C. A. 3), cer-
tiorari denied sub nom. Cronrath v. Johnson, 419 U.S.
882). The rationale of the immunity is that it is im-
portant that officials of government should be free to
exercise their duties unembarrased by the fear of
damage suits in respect of acts done in the course of
those duties—suits which would consume time and en-
ergies which would otherwise be devoted to govern-
mental service and the threat of which might appre-
ciably inhibit the fearless, vigorous, and effective ad-
ministration of policies of government” (Barr v. Mat-
teo, supra, 360 U.S. at 571).

The principle fully applies in this case.” Petitioner’s
responsibility to provide protection for Congress and

„As we argued in our brief in Economou (pp. 12-13, 35-41),
recent decisions of this Court holding that certain state officials
sued for damages under 42 U.S.C. 1983 have only a qualified im-
munity (Wood v. Strickland, 420 U.S. 308; Scheuer v. Rhodes, 416
U.S. 232; Pierson v. Ray, 386 U.S. 547), do not undermine the rea-
soning of Barr v. Matteo and do not warrant curtailment of the
absolute immunity of federal officials.

As we also argued in our Economou brief (pp. 57-58), the fact

that a plaintiff claims recovery under the Constitution does not
require that the immunity of a federal official be only a qualified

— Fnm—

a

17

the Capitol buildings is an important function, the dis-
charge of which is likely to be influenced detrimen-
tally by the threat of substantial personal liability
if a jury subsequently should conclude (as it did
here) that he had made a mistake. The choice peti-
tioner faced on May 5, 1971, was a difficult one, re-
quiring the exercise of significant discretion. His
action in ending the demonstration by arresting the
demonstrators after they refused to disperse is pre-
cisely the kind of official action that the absolute
immunity doctrine was designed to cover.

Several courts of appeals have held that federal
police officials or those engaged in law enforcement
activities have only a qualified immunity. See, e. g.,
Bivens v. Six Unknown Named Agents, 456 F. 2d 1339
(C.A. 2), on remand from 403 U.S. 388; Apton v.
Wilson, 506 F. 2d 83 (C. A. D. C.); Mark v. Groff, 521
F. 2d 1376 (C. A. 9). The Fifth Circuit apparently is
in disagreement on this point. See Norton v. McShane,
332 F. 2d 855 (C. A. 5), certiorari denied, 380 U.S. 981
(holding that high Department of Justice officials and
a deputy United States marshal were absolutely im-
mune from a suit charging false and malicious arrest).
In Bivens, the court of appeals stated that the acts
for which policemen normally are sued—conducting
searches or making arrests—are not deemed to
one. The conflicting considerations the Court weighed in Barr
should not be differently evaluated because the complaint is cast
in constitutional terms. In this case, for example, respondents

pleaded their false arrest claim alternatively under the Fourth
Amendment and the common law (J. App. 36-37).

18

be * * * discretionary function[s]” (456 F. 2d at
1346).“ The court explained that although those acts
involve some element of discretion, ‘‘the belief [is]
that the benefit to society [of allowing suits] * * * out-
weighs the detriment of perhaps deterring vigorous
police action’’ (ibid.).

Whatever the validity of such reasoning with re-
spect to the nonsupervisory police officers involved in
Bivens, it should not be extended to supervisory police
officials such as petitioner, who regularly are required
to make major policy decisions and to exercise sub-
stantial diseretion involving important issues. The
scope of the immunity of these officials cannot be de-
fined simply by determining that they are “police
officers.” This Court has eschewed such “fixed, invari-
able rule[s],” and instead has advised a discerning
inquiry into whether the contributions of immunity
to effective government in particular contexts out-
weigh the pernaps recurring harm to individual citi-
zens’’ (Doe v. McMillan, supra, 412 U.S. at 320).
Under that test police officials such as petitioner
should have absolute immunity.

Although in Pierson v. Ray, supra, 386 U.S. at 555, the Court
stated that “[t]he common law has never granted police officers an
absolute and unqualified immunity * * *,” that case did not defini-
tively determine the immunity of top-level police officials. The
police officials in Pierson claimed only qualified and not absolute
immunity (386 U.S. at 555). The question in the case was whether
state police officers could assert even qualified immunity in an
action under 42 U.S.C. 1983 (see 386 U.S. at 551-552). The Court
held only that “the defense of good faith and probable cause” is
available to state officials in these circumstances (386 U.S. at 557) ;
it did not decide anything with respect to the immunity of federal
police officials. See note 13, supra.

19

b. If, contrary to our submission, petitioner has
only qualified immunity, the district court should
have directed a verdict in his favor and should not
have submitted the case to the jury.

When petitioner decided to disburse the demon-
strators on May 5, 1971—a decision he implemented
by ordering their arrest when they refused to leave
the House steps—he acted on the basis of his per-
sonal observation and evaluation of the demonstra-
tion. He was aware that the demonstration was part
of a plan to close down the City of Washington, and
that one element of that plan was a “nonviolent siege
of the Congress’’ (see the statement, supra, p. 4).
Some of the demonstrators were disorderly (supra, p.
7). The demonstration appeared to petitioner—an
experienced top level police official, who was responsi-
ble for the protection of the capitol— to be com-
pletely out of control;” the demonstration was ‘‘so
loud and tumultuous” that petitioner “was very con-
cerned about the safety of the members of the Con-
gress inside“ (supra, pp. 7-8).

In light of these facts, petitioner “acted on the
basis of a reasonable good faith belief in light of all
the circumstances” (App. A, infra, pp. 32a-33a, n.
50). The scope of qualified immunity must be deter-
mined in light of the necessity of permitting officials
to perform their official functions free from the threat
of suits for personal liability” (Scheuer v. Rhodes,
supra, 416 U.S. at 239). To per ait a jury to subject
petitioner to substantial personal liability on the

basis of its after-the-fact evaluation of the reason-
ableness of his judgment regarding the action neces-
sary to deal with the critical situation that faced
him would be inconsistent with the basic rationale
of the qualified immunity doctrine.

2. This case also presents the question whether there
is an implied cause of action for damages based upon
violation of the First Amendment. In Bivens v. Siz
Unknown Agents, 403 U.S. 388, the Court held that
such a cause of action exists under the Fourth Amend-
ment. The court of appeals’ extension of Bivens to
the First Amendment presents an important issue that
this Court should decide.

CONCLUSION

The petition for a writ of certiorari should be
granted.
Respectfully submitted.
Wape H. McCnez, Jr.,
Solicitor General.
IRVING JAFFE,
Acting Assistant Attorney General.

Rosert E. Kopp,
BARBARA L. HERwic,
Attorneys.

JANUARY 1978.

APPENDIX A

United States Court uf Appeals

POR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-1974
Honorable RoNALD V. DELLUMS, et al.
v.

JAMES M. POWELL, Chief,
United States Capitol Police, APPELLANT

JERRY V. WILSON, Chief,
Metropolitan Police Department, et al.

Appeal from the United States District Court
for the District of Columbia

(D.C. Civil Action No, 2271-71)

Argued January 14, 1977 aunt
si Judgment entered

Decided August 4, 1977 a... 17

— ew Ao

la -

2a

Opinion for the court filed by Circuit Judge WRIGHT.
Concurring opinion filed by Circuit Judge LEVENTHAL.
Dissenting opinion filed by Circuit Judge TAMM.
WRIGHT, Circuit Judge: On November 11, 1971 this
suit was brought in the United States District Court by
Congressman Dellums individually and by nine persons
seeking to represent a class of all persons arrested on the
steps of the United States Capitol on May 5, 1971 while
engaged in a protest against the war in Vietnam. Per-
sons named as defendants included various officials of
the United States and of the District of Columbia and
the District itself. Suit was predicated on an allega-

1 As filed, the complaint named the following defendants:
James M. Powell, Chief of the United States Capitol Police;
Jerry V. Wilson, Chief of the District of Columbia Metropoli-
tan Police Department; Kenneth L. Hardy, Director of the
District of Columbia Department of Corrections; the District
of Columbia; John N. Mitchell, Attorney General of the United
States; Richard Kleindienst, Deputy Attorney General of the
United States; Will Wilson, Assistant Attorney General of the
United States in charge of the Criminal Division. Claims
against Kenneth Hardy and Will Wilson were dismissed dur-
ing pretrial. The claim against John Mitchell was severed
when former President Nixon interposed a claim of privilege
against certain discovery aimed at elucidating Mitchell’s in-
volvement in the events challenged in this suit. See generally
Dellums v. Powell, —— F.2d —— (D.C. Cir. No. 76-1336,
decided Jan. 28, 1977), modified by order of April 27, 1977.

3a

tion that the defendant officials had engaged in a civil
conspiracy to arrest and detain the class members with
the purpose of frustrating their First Amendment right
to protest against the war. Liability was asserted under
the “First, Fourth, Fifth, Sixth, and Eighth Amend-
ments to the Constitution of the United States; the Civil
Rights Act, 42 U.S.C. §§ 1981, et seg.; and the law of
the District of Columbia,” and damages were alleged
to be in excess of $10,000 for each plaintiff and class
member.’

The complaint stated that the class plaintiffs had met
with some 2,000 persons on the Mall near the United
States Capitoi on the early afternoon of May 5, 1971.
At that meeting plans were made to protest against the
war in Vietnam by staging a public meeting at the
Capitol, with Congressman Dellums and other Members
of Congress to be in attendance and to address the as-
sembled protestors. Pursuant to an agreement with police
Officials, those assembled on the Mall walked three abreast
in groups of 21 from their meeting place on the Mall
to the Capitol Grounds, obeying traffic signals and the
directions of police officers along the way. At the Capitol
the leaders were stopped by an officer of the Capitol
Police, but were allowed to enter the Grounds when
Congressman Dellums appeared and explained the ar-
rangements for a meeting on the Capitol steps.

The group subsequently assembled on the East steps
of the Capitol on the House side and “began to make
and to listen to speeches concerning the People’s Peace
Treaty and related matters.“ While Congresswoman Ab-
zug was addressing the crowd, at about 3:30 P.M., the

* Complaint J 2, JA 29. The complaint also prayed for decla-
ratory relief and expungement of arrest records. These claims
were mooted by the relief granted in Sullivan v. Murphy, 380
F.Supp. 867 (D. D.C. 1974).

* Complaint J 18, JA 33.

4a

police cordoned off the bottom of the steps, preventing
anyone from leaving, and began arresting members of
the assemblage. Arrests continued over the protests of
Congressman Dellums and other Members of Congress,
and the police refused Dellums’ offer to persuade the
crowd to disperse.

The complaint further alleged that those arrested were
held for periods of from several hours to several days
without being afforded due process of law. In addition,
conditions of detention were said to have been inhumane
in that there was severe overcrowding, inadequate sanita-
tion, inadequate or filthy bedding, insufficient food, and
no medical care. Access to attorneys and telephones was
said to have been denied or severely restricted.

In answer the defendants generally denied that the
demonstration at the Capitol had been peaceful and in
accord with applicable law. They asserted probable cause
for the arrests made at the Capitol and official immunity
from prosecution. The District of Columbia raised its
municipal immunity as a defense and further claimed
that the individual defendants were at all times the ser-
vants of the United States. All defendants denied that
conditions of detention had been inhumane.

After a period of pretrial motion practice and dis-
covery, the trial court certified this suit as a class ac-
tion in May 1973 and defined the class as “all persons
who were arrested while assembled on the Capitol steps
on May 5, 1971.”* This action came on for trial before

Order of May 25, 1973, JA 85. The court also ordered de-
fendants to provide “whatever information they have on the
identity of class members,” id., so that notice could be afforded
the class. See Rule 23(c), FD. R. CW. P. Defendants were
ordered to pay the cost of notice, a practice which has since
been ruled inappropriate by the Supreme Court, see Eisen v.
Carlisle & Jacquelin, 417 U.S. 156 (1974), but which consti-
tutes harmless error in the context of this suit.

5a

a jury in December 1974. The evidence adduced at trial,
as shall appear more fully below, was in conflict and
provided support for the contentions in both the com-
plaint and the answer. At the close of plaintiffs’ case
and again at the close of all the evidence, the defend-
ants remaining in the case — Deputy Attorney General
Klein enst, United States Capitol Police Chief James
M. Powell, District of Columbia Police Chief Jerry V.
Wilson, and the District of Columbia—each moved for a
directed verdict. Deputy Attorney General Kleindienst’s
motion was granted; all others were denied. The case
was submitted to the jury and substantial verdicts were
returned, as indicated in the margin.“

Chiefs Powell and Wilson and the District of Columbia
each prosecuted appeals from the judgment entered be-

* See note 1 supra.

* The damages awarded by the jury are as follows:

A. For False Arrest and False Imprisonment:
(1) for 12 hours or less of detention, $120;
(2) for 12 to 24 hours of detention, $360;
(3) for 24 to 48 hours of detention, $960;
(4) for 48 to 72 hours of detention, $1,800.

B. For Violation of First Amendment Rights:
$7,500 for each class member and $7,500 for Con-
gressman Dellums.

C. For Cruel and Unusual Punishment:
$500 for each member of the plaintiff class.

D. For Malicious Prosecution:

(1) $8,000 for each of eight persons who were de-
fendants in a 1971 criminal trial;
(2) $50 for all other class members.

The judgment for cruel and unusual punishment was rendered
against the District of Columbia alone. Al! other awards run
jointly and severally against defendants Powell, Wilson, and
the District of Columbia. For a summary of the results of this
appeal, see note 89 infra.

6a

low on the jury verdicts. The plaintiffs below have also
appealed the directed verdict in favor of Deputy At-
torney General Kleindienst. Finally, Chief Powell and the
District have appealed from an order reinstating to this
action three named plaintiffs who were dismissed before
trial for failing to comply with discovery requests. These
appeals were consolidated for argument; however, we
have found it convenient to write separately in each.
Accordingly, we will take up Chief Powell’s appeal from
the judgment below in this opinion; the points raised by
Chief Wilson and the District of Columbia will be the
subject of an opinion in No. 75-1975; the plaintiffs’
appeal is treated by order in No. 75-2117; and objections
to the reinstatement of certain named plaintiffs will be
discussed in an opinion in Nos. 76-1418 & 76-1419.

Chief Powell was held liable to the class plaintiffs for
common law false arrest, false imprisonment, and ma-
licious prosecution and for a Bivens’ claim based on vio-
lations of the First and Fourth Amendments. In ad-
dition, he was held liable to Congressman Dellums on
a Bivens claim based on the First Amendment. We be-
gin by discussing a cluster of issues surrounding the
false arrest-false imprisonment-Fourth Amendment claim
(which shall hereafter be referred to simply as false
arrest), and then consider points raised concerning li-
ability for malicious prosecution of the class and First
Amendment liability to both the class and Congressman
Dellums.

I. FALSE ARREST, FALSE IMPRISONMENT,
FOURTH AMENDMENT VIOLATION

The tort action of false arrest in both its common
law and constitutional variants protects and vindicates
the interest in freedom from unwarranted interference

* Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971).

7a

with personal liberty. The focal point of the action is
the question whether the arresting officer was justified
in ordering the arrest of the plaintiff; if so, the conduct
of the arresting officer is privileged and the action fails.
While the central issue of the actiofi is simply stated, the
parties have somewhat divergent views on the mechanics
of pleading, the allocation of the burden of proof, and the
scope and elements of defenses available in a false arrest
action. For this reason, and to aid later analysis, we now
sketch the salient features of both the common law and
constitutional action.

A plaintiff suing at common law must show that he has
suffered an imprisonment and that the imprisonment
was unlawful. The former issue is one of fact, potentially
for the jury. Under the law of the District of Columbia,
the unlawfulness of a detention is presumed once “an
allegation is made that a plaintiff was arrested and im-
prisoned without process.” Clarke v. District of Colum-
bia, 311 A.2d 508, 511 (D.C. App. 1973). The burden
then shifts to the defendant to justify the arrest. Id.;
accord, e. g., Pierson v. Ray, 386 U.S. 547, 556-557
(1967) ; Director General of Railroads v. Kastenbawm,
263 U.S. 25, 27 (1923); see, e.g., RESTATEMENT (SEC-
OND) OF TorTs §§ 10 (especially comment c), 121 (1965).
Justification can be established by showing that there
was probable cause for arrest of the plaintiff on the
grounds charged. E. g., Shaw v. May Department Stores
Co., 268 A.2d 607, 609 (D.C. App. 1970). A lesser show-
ing can also be made, namely that the arresting officer
had reasonable grounds to believe a crime had been
committed and that plaintiff’s arrest was made for the
purpose of securing the administration of the law (i. e.,
that the officer acted in good faith). See Wade v. Dis-
trict of Columbia, 310 A.2d 857, 862-863 (D.C. App.
1973) (en banc), citing Pierson v. Ray, supra; Bivens
v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 456 F.2d 1339, 1347-1848 (2d Cir. 1972);

8a

Hill v. Rowland, 474 F.2d 1374, 1877 (4th Cir. 1978).
See also RESTATEMENT, supra, §§ 121, 127.

The mechanics of pleading and proof in a Bivens ac-
tion for false arrest are in our judgment identical to
those sketched above. Although we know of no case
delineating the parameters of a prima facie case under
a Bivens false arrest theory, Pierson v. Ray, supra, in-
dicates that the details of constitutional tort actions should
be shaped by reference to the parallel common law.
See 386 U.S. at 556-557. The rule recognized in the Dis-
trict that an allegation of arrest and imprisonment with-
out warrant shifts to the defendant the burden of justi-
fying the arrest is the majority rule in this country’
and we see no identifiable purpose that would be served
by adopting a different or more stringent definition of a
prima facie case in constitutional litigation.’ On a dif-
ferent point, there can be no doubt that state and federal
police officers sued under Section 1983 and Bivens, re-
spectively, have available to them a qualified immunity
defense, a privilege based on good faith and reasonable
ness, but that the burden is on the defendant officers to
prove it.“ See Pierson v. Ray, supra, 386 U.S. at 555-
557; Bivens v. Six Unknown Named Agents of the Fed-

* See, e. g., Muller v. Reagh, 215 Cal.App.2d 831, 30 Cal.Rptr.
633, 637 (1963), and cases cited therein; Wehrman v. Liberty
Petroleum Co., 382 S.W.2d 56, 63 (Mo. App. 1964), and cases
cited therein; Broughton v. New York, 37 N.Y.2d 451, 458, 373
N.Y.S.2d 87, 94-95, 335 N.E.2d 310, 315, cert. denied, 423 U.S.
929 (1975), and cases cited therein; 32 Am.Jur.2d False Im-
prisonment § 95 at 147 (1967) and cases cited therein; 35
C.J.S. False Imprisonment § 55 at 734 (1960) and cases cited
therein.

* Moreover, since plaintiffs can be expected to plead common
law false arrest as a pendent claim in constitutional! suits, dif-
ferent rules would merely lead to confusion.

1 Of course, a showing of probable cause would also defeat
a Bivens action for false arrest. See U.S. Const. Amend. IV.

9a

eral Bureau of Narcotics, supra, 456 F.2d at 1347-1348;
Hill v. Rowland, supra, 474 F.2d at 1377-1878; Jones v.
Perrigan, 459 F.2d 81, 83 (6th Cir. 1972); Shifrin v.
Wilson, 412 F.Supp. 1282, 1294-1295 (D. D.C. 1976);
cf. Scheuer v. Rhodes, 416 U.S. 232 (1974); McSurely
v. McClellan, 553 F.2d 1277, 1291 n.50 (1976) (en banc) ;
Zweibon v. Mitchell, 516 F.2d 594, 670-671 (D.C. Cir.
1975) (en bane), cert. denied, 425 U.S. 944 (1976);
Apton v. Wilson, 506 F.2d 83, 90-94 (D.C. Cir. 1974).

In the instant case it is undisputed that members of
the plaintiff class were arrested without a warrant. Thus
the unlawfulness of the plaintiffs’ subsequent and ad-
mitted imprisonment is presumed as a matter of law and,
contrary to the assertion of Chief Powell, plaintiffs were
not required to demonstrate that Chief Powell acted with-
out probable cause. For the reasons set out above, the
trial judge also correctly determined that the burden of
proof was on Chief Powell to show that the May 5
arrests were privileged.

Thus the only issue for trial was whether Chief Powell
acted in good faith in arresting plaintiffs and whether
his actions were reasonable in light of all the circum-
stances. The Supreme Court has deliucated the con-
siderations which must be made in resolving this issue:

It is the existence of reasonable grounds for the
belief [that cause for action existed] formed at the
time and in light of all the circumstances, coupled
with good-faith belief, that affords a basis for quali-
fied immunity. * * *

Scheuer v. Rhodes, supra, 416 U.S. at 247-248. To es-
tablish good faith an official must show that he was
“acting sincerely and with a belief that he is doing
right * .“ Wood v. Strickland, 420 U.S. 308, 321
(1975). In establishing the reasonableness of an arrest
policemen are entitled te show reliance “on traditional

10a

sources for the factual information on which they decide
and act,” Scheuer v. Rhodes, supra, 416 U.S. at 246,
although this proposition must be tempered by an under-
standing that warrantless arrests for misdemeanors (as
here) are authorized by statute only where a violation
takes place in the presence of the arresting officer. See
23 D.C. Code § 581 (a) (1) (B) (1973)." Finally, police-
men are not “charged with predicting the future course
of constitutional law,” Pierson v. Ray, supra, 386 U.S.
at 557, but at the same time an arrest may not be
“justified by ignorance or disregard of settled, indis-
putable law * * *.” Wood v. Strickland, supra, 420 U.S.
at 321. Particularizing these standards to the present
case, Chief Powell must show that he had an honest
belief that the plaintiffs as a group were violating the
law by assembling at the Capitol and, further, that this
belief was reasonable in light of the facts available to
him at the scene of the arrests and of the law as it then
existed.

A. Directed Verdict

Notwithstanding the fact that Chief Powell has the
burden of persuasion on the issue of qualified official
immunity, he argues that a verdict should have been
directed in his favor because the evidence overwhelmingly
shows that the plaintiffs were in violation of the Capitol
Grounds statute, 9 D.C. Code §124 (1973), at the

For this reason we have some difficulty understanding why
the dissent places so much emphasis on events that did not
take place in the presence of Chief Powell.

* It is forbidden to parade, stand, or move in processions
or assemblages in [the] United States Capitol Grounds,
or to display therein any flag, banner, or device designed
or adapted to bring into public notice any party, organiza-
tion, or movement, except as hereinafter provided in sec-
tions 9-128 and 9-129.

(continued)

lla

time of their arrests. Plaintiffs answer this argument
by contending that the evidence taken in the light most
favorable to them would support a finding that Chief
Powell could not reasonably have believed that 9 D.C.

9 D.C. Code § 128 provides:

In order to admit of the due observance within the
United States Capitol Grounds of occasions of national
interest becoming the cognizance and entertainment of
Congress, the President of the Senate and the Speaker of
the House of Representatives, acting concurrently, are
hereby authorized to suspend for such proper occasions so
much of the prohibitions contained in sections 9-119 to
9-124, as would prevent the use of the roads and walks of
the said grounds by processions or assemblages, and the
use upon them of suitable decorations, music, addresses,
and ceremonies: Provided [that arrangements are made
for ensuring order and decorum].

9 D.C. Code § 129 provides:

In the absence from Washington of either of the officers
designated in section 9-128, the authority therein given to
suspend certain prohibitions of sections 9-118, 9-119 to
9-126, 9-127 to 9-132 shall devolve upon the other, and in
the absence from Washington of both it shall devolve upon
the Capital [sic] Police Board * * *.

* Chief Powell also argues that he is entitled to a directed
verdict because the plaintiffs are collateraily estopped from
relitigating the issue of probable cause for me May 5 arrests.
His theory is that eight class members brought to trial on
criminal charges twice moved for a directed verdict of acquit-
tal and twice were refused. Since such a motion puts in issue
the sufficiency of the evidence adduced by the Government to
sustain a conviction, it is argued, the trial judge must Have
found probable cause for arrest to exist since otherwise a
refusal to direct a verdict of acquittal would have been
improper.

Chief Powell’s theory is clearly incorrect since a motion for
directed verdict of acquittal tests the sufficiency of the Gov-
ernment’s evidence at trial to sustain a conviction, whereas the
question raised by a qualified immunity defense is whether the

252-664 O- 1-3

12a

Code § 124 as definitively construed in United States v.
Nicholson, Nos. 20210-69A et al. (D.C. Ct. of Gen. Sess.
June 19, 1969), affd, 263 A.2d 56 (D.C. App. 1970)—
which all parties agree controls this case —was vio
lated by the activities of May 5. They further urge

facts available to Chief Powell at the scene on May 5, 1971
would support a conclusion that there were reasonable grounds
for supposing probable cause for arrest existed. See Scheuer
v. Rhodes, 416 U.S. 232, 247-248 (1974); Broughton v. New
York, supra note 8, 37 N.Y.2d at 455-458, 373 N.Y.S.2d at
92-95, 335 N.E.2d at 313-315. Moreover, because the record
of the criminal! trial was never introduced into evidence, al-
though it was available in the courtroom and the trial judge
expressly offered to accept it into evidence, Tr. 4141, JA 2147,
it is impossible to determine whether the evidence introduced
at trial was in fact material that would have been available to
Chief Powell at the scene.

There are a number of other difficulties with this theory,
most importantly that Chief Powell took no steps to preserve
it below. Rule 8 (e), FED. R. Crv. P., is explicit: “In pleading to
a preceding pleading, a party shall set forth affirmatively * * *
estoppel * * * [and] res-judicata * * *.” Estoppel was never
mentioned in either the federal or District of Columbia an-
swers. Nor was estoppel asserted by an amended answer.
Nor indeed was evidence introduced (to which the pleadings
might be conformed, see Rule 15 (b), FED. R. Crv. P.) of the
record in the criminal trial. In these circumstances, the de-
fense of collateral estoppel is waived. See Camalier & Buckley-
Madison, Inc. v. Madison Hotel, Inc., 513 F.2d 407, 419-420
n.92 (D.C. Cir. 1975).

*The dissent would apparently have us apply some other
law. See dissent at 7 n.21. What the law might be is a
mystery. Were we to decide the issue of the constitutionality
of an arrest under 9 D.C. Code § 124 de novo—in violation of
the teaching of Pierson v. Ray that policemen are not “charged
with predicting the future course of constitutional law,” 386
U.S. 547, 557 (1967)—we would have to conclude that § 124
was unconstitutional on its face and arrests pursuant to that
section unconstitutional per se. See Jeannette Rankin Brigade
v. Chief of Capitol Police, 342 F.Supp. 575 (D. D.C.) (three
judge court) (McGowan, J.), aff d, 409 U.S. 972 (1972).

13a

that, because plaintiffs were charged at the scene of the
arrests solely with violating the District of Columbia
unlawful entry statute, 22 D.C. Code 3 3102 (1973),”
Chief Powell cannot now defend by showing merely that
there were reasonable grounds for believing that 9 D.C.
Code § 124 had been violated, but must show that there
were reasonable grounds for believing that 22 D.C. Code
$ 3102 had been violated as well. Before turning to the
evidence we must resolve this dispute about the ap-
plicable law, because Chief Powell asserts that the facts
making out a Section 124 violation are materially dif-
ferent from those making out a Section 3102 violation in
that the latter requires an order to disperse and an
opportunity to disperse while, in his opinion, the former
does not. In our view, Chief Powell’s position is in-
correct.

1. The Law Applicable to Arrests on May 5, 1971
(a)

At the outset we note that Chief Powell's argument
has a serendipitous quality about it, for the record
shows that Chief Powell unquestionably took some steps
to order the crowd to disperse on May 5 and, moreover,
he testified that standard practice at the Capitol would
be for such orders to be given because it was the ex-
perience of the Capitol Police that many people were
not aware of the statutes governing conduct at the Capi-
tol and would, upon being notified of a potential viola-

„Any person who, without lawful authority, shall enter,
or attempt to enter, any public or private dwelling, build-
ing or other property * * * against the will of the lawful
occupant * * *, or being therein or thereon, without law-
ful authority to remain therein or thereon shall refuse to
quit the same on the demand of the lawful occupant, or
of the person lawfully in charge thereof, shall be deemed
guilty of a misdemeanor * ~ *.

14

tion, bring their conduct into line with the law.“ In
addition, regulations issued by Chief Powell required
that persons be given individual warnings to leave before
they were placed under arrest for participating in a mass
demonstration. According to Chief Powell’s testimony,
however, such individualized orders to leave were not
given on May 5.“ Notwithstanding this administrative
interpretation, Chief Powell urges that orders to dis-
perse are not required by Section 124 and, further, that
a violation of his own regulations in this regard has
no bearing on the falsity of an arrest under that section.
For the reasons set forth below, we find that orders

to disperse were required, and we therefore reject Chief
Powell’s contention.
(b)

As indicated, all parties agree that the principles an-
nounced in Nicholson control this case. We have printed
Chief Judge Greene’s unpublished opinion in Nicholson
as the Appendix to this opinion and, therefore, will only
summarize points which are particularly relevant for
present purposes.

In Nicholson 13 Quakers were arrested while stand-
ing on the steps of the Capitol reading names of Vietnam
War dead from the Congressional Record. They were
charged by information with violating 22 D.C. Code
§ 3102 in that they failed to leave the Capitol when re-
quested by a Capitol policeman to do so. The Quakers
moved to dismiss the information on the ground that
22 D.C. Code § 3102 could not constitutionally be ap-
plied to them because their activities were protected by

Tr. 2096, 2099-2100, JA 1286, 1289-1290.
* See note 44 infra.

None of the arresting officers made the statement and
gave that last opportunity to leave to the people who were be-
ing arrested * * *.” Tr. 2105, JA 1295.

15a

the First Amendment.” Judge Greene agreed, holding
that the Capitol was a public forum and consequently
that Section 3102 was invalid as applied at the Capitol
since it set no standards whatever for its enforcement.”
Notwithstanding the conclusion that Section 3102 was
unconstitutionally vague, Judge Greene consid- d and
accepted in part an argument pressed by the Government
—that the indictments against the Quakers could be
saved if the Government could show that the Quakers
were also violating 9 D.C. Code $124 at the time they
were ordered from the Capitol. It was apparently the
Government’s theory that 9 D.C. Code § 124 either was
not unconstitutionally vague or could be subjected to an
appropriate limiting construction.

Reliance on Section 124 created further difficulties,
however, since that statute, which bans all use of the
Capitol as a public forum except as it is suspended in
the discretion of the Speaker of the House and the Presi-
dent of the Senate, was also found to be unconstitu-
tional as written. Worse, Judge Greene found that the
suspension power, which the police had interpreted to
allow creation of a permit“ system,“ had been used
selectively and that

there are no written rules; permits likewise are
usually not in writing; members of the public have
no way of knowing whether they might be in viola-
tion of the law or how to avoid violations except by

* United S v. Nicholson, Nos. 20210-69A et al. (D.C.
Ct. of Gen. Sess. June 19, 1969), af d, 263 A.2d 56 (D.C. App.
1970), Appendix at [1]-[2}.

7° Id., Appendix at [3].
1 See 9 D.C. Code §§ 128-129 (1973), set forth at note 12
supra.

United States v. Nicholson, supra note 19, Appendix at
[4] n.6. The statutes involved do not themselves authorize any
permit system. See note 12 supra.

16a

prior experience or by inquiries to Members of Con-
gress or members of the Capital Police Force.

The conclusion is inescapable that, as the law is
administered, it is impossible for anyone to know
whether his presence, or the presence of his group,
on Capitol Hill is lawful, or unlawful. There is no
set of regulations, orders, rules, or standards which
he can consult, and the precedents of administration
themselves are contradictory and uncertain.“

Notwithstanding these findings and conclusions, Judge
Greene held that 9 D.C. Code § 124 could be saved from
constitutional infirmity by a limiting construction. The
language of the construction adopted is important and we
quote it in full:

It is appropriate, therefore, under the statute to
bar or to order from the Capitol Grounds, any group
which is noisy, violent, armed, or disorderly in be-
havior, any group which has a purpose to interfere
with the processes of the Congress, any Member of
Congress, congressional employee, visitor, or tourist,
any group which has the effect, by its presence, of
interfering with the processes of the Congress, any
Member of Congress, congressional employee, visitor,
or tourist; and any group which damages any part
of the building, shrubbery, or plant life.“

= In each category, the conduct would have to be more
disruptive or more substantial (in degree or number)
than that normally engaged in by tourists and others
routinely permitted on the Grounds.!**)
Judge Greene then ruled that an indictment charging a
violation of 22 D.C. Code § 3102 was constitutionally
valid as applied to the Capitol if and only if the Gov-
ernment could show a simultaneous violation of 9 D.C.
Code § 124 as limited.

Id., Appendix at [5]-[7].
** Id., Appendix at [17] & n.22 (emphasis added).

17a

(e)

We begin our consideration of the application of
jicholson to the instant case by noting that Judge
Greene’s opinion expressly stated that 9 D.C. Code § 124
is unconstitutional except when it is used as a ground
“to bar or to order from the Capitol Grounds” “ one of
the groups enumerated in the opinion. It is apparently
Chief Powell’s position that such language cannot be
taken literally because the Nicholson opinion involved in-
formations charging only violations of 22 D.C. Code
§ 3102, that orders to quit had in fact been given to the
Nicholson defendants, and that the only issue before
Judge Greene was the propriety of those orders. All this
is true, but such a crabbed reading of Nicholson none-
theless does violence to Judge Greene’s analysis since
the point of Nicholson is that 22 D.C. Code § 3102 is a
legal nullity as applied to demonstrations at the Capitol
and informations charging a violation of that statute
are valid only if the facts show a simultaneous and con-
stitionally permitted violation of 9 D.C. Code § 124,
whether or not 9 D.C. Code § 124 is charged in the in-
formation.

In addition, the central conclusion of Nicholson is that
9 D.C. Code § 124 was unconstitutionally vague as writ-
ten and administered. The vice of such vagueness is
twofold.” First, a vague statute puts too much discre-
tion in the hands of officials, with the result that the
statute may be enforced selectively against those who
hold unpopular points of view. Second, a vague statute
fails to give those subject to it fair notice of the point at
which conduct becomes prohibited. Where some forms
of conduct arguably regulated by the statute are pro-

2 Id., Appendix at [17] (emphasis added).

See, e.g., Note, The Void-for-Vagueness Doctrine in the
Supreme Court, 109 U. PA. L. REV. 67, 67-81 (1960), and cases
cited therein.

18a

tected by the First Amendment, such lack of precision
creates an unconstitutional chilling effect.

Nicholson addresses both vagueness problems, par-
ticularly the latter—“it is impossible for anyone to know
whether his presence, or the presence of his group, on
Capitol Hill is lawful or unlawful.”** Were Nicholson
read as Chief Powell suggests, however, its only effect
would be to cabin executive discretion. There would
still be no fair warning because, faced with “precedents
of administration [which were] themselves contradictory
and uncertain,” * it would be impossible for anyone
to tell when his otherwise constitutionally protected be-
havior (or that of his group) had become “more disrup-
tive or more substantial (in degree or number) than that
normally engaged in by tourists and others routinely per-
mitted on the Grounds.” * Yet only if such a condition ob-
tained would a violation of Section 124 have occurred.”

— States v. Nicholson, supra note 19, Appendix
at .

Id.
Id., Appendix at [17] n. 22. —

At a number of points in brief Chief Powell has intimated
that his arrests of plaintiffs were justified because he had in-
telligence information indicating that some demonstrators
were coming to the Capitol with a purpose to interfere with
the processes of Congress.” United States v. Nicholson, supra
note 19, Appendix at [17]. Particular emphasis is placed on
statements in the May Day Tactical Manual, Federal Ex-
hibit 5, that the purpose of the May 5 demonstration was to
“lay a nonviolent siege demanding that congress ratify the
Peoples Peace Treaty.” Federal Exhibit 5, at 5. Reference is
also made to the fact that at least some demonstrators an-
nounced their intention to attempt to enter Capitol buildings
and disrupt the work of Congress. In our judgment, this infor-
mation was relevant to the jury’s determination of the good
faith and reasonableness of Chief Powell’s actions, but was not
conclusive on this point.

{continued}

19a

Accordingly, the only reading of Nicholson that would
further Judge Greene’s purpose of eliminating an uncon-

We begin by noting that Nicholson does not make specific
intent to interfere with the purposes of Congress a crime.
Footnote 22 of that opinion clearly indicates that there must
be conduct in furtherance of such a purpose, and that conduct
must be “more disruptive or more substantial (in degree or
number) than that normally engaged in by tourists and others
and routinely permitted on the Grounds.” Appendix at [17]
n.22. Far from being an idiosyncratic definition of a crime,
the Nicholson definition completely accords with the governing
construction of the District of Columbia unlawful assembly
statute, 22 D.C. Code § 1107 (1973), announced in Hunter v.
District of Columbia, 47 App.D.C. 406, 409 (D.C. Cir. 1918),
which is that unlawful assembly requires both an unlawful
purpose and an overt act forbidden by the statute. Moreover,
there is another section of the Capitol Grounds statute, 9 D.C.
Code § 123(b) (4) (1973), which covers precisely the crime
of coming to the Capitol “with intent to impede, disrupt, or
disturb the orderly conduct of any session of the Congress or
either House thereof * * *.” The elements of that crime go
well beyond specific intent, however, and include willful or
knowing utterance of “loud, threatening, or abusive language“
or “disorderly or disruptive conduct” “at any place upon the
United States Capitol Grounds.” The vague proscriptions of
§ 124 surely do not override the specific provisions of § 123.

In addition, it strains credulity to the breaking point to
argue that Chief Powell had an honest belief at the time that
the intelligence information before him was enough to make
an arrest. The following colloquy is illustrative of this point:

Q [by plaintiffs’ attorney] Chief, you had all of this
information about some people planning to lay siege to
the Capitol before anyone ever reached the steps that
afternoon, didn’t you?

A [by Chief Powell] Yes, sir.

Q And you knew there were groups coming up from
the mall, because you had seen them congregating on the
mall, and you heard radio reports as they advanced up
Independence Avenue, isn’t that so?

A That is correct.

[continued]

20a
a | And yet you let them come on to the steps, didn’t
A Yes, sir.

Q You made no effort to prevent le from gettii
on the steps, did you? * =
A No, sir.

Tr. 2088, JA 1278. Moreover, Chief Powell in answer to the
question “What is it that these 1200 people were doing which
you felt justified ordering them to leave?” never listed the
intelligence information, but stated the following factors:
(1) radio messages that the Speaker’s office was afraid that
people would break into the Capitol through windows, although
he saw no one breaking windows; (2) some four or five per-
sons were climbing lampposts; (3) some one or two people
were writing on the walls; (4) the protestors’ “hostile atti-
tude” which Chief Powell “heard and saw there”; (5) the
crowd's “chanting and reaction towards police officers and my-
self.” See Tr. 2108-2112, JA 1298-1302. Finally, Chief Powell

testified as to his understanding of the Nicholson opinion in
the following way: |

Q (by plaintiffs’ attorney] * * Was it your under-
standing that in view of the requirement in the footnote
io the Nicholson decision [footnote 22] * * *, that before
you can make any arrests or ask anyone to leave the Capi-
tol grounds, there [sic] conduct must be disruptive of the
business of Congress to a greater degree than is ordinarily
permitted by groups on the Capitol grounds?

A Yes, sir...

Tr. 2149, JA 1339 (emphasis added).

Finally, even if specific intent to disrupt the Con

a crime under Nicholson, we think the — ais te
light most favorable to plaintiffs, would support an inference
that it was unreasonable for Chief Powell to have believed that
all 1,200 arrestees had such a specific intent. For this reason
the arrest of the crowd as a whole could not constitutionally
have been predicated on the specific intent of some, but only
on a refusal to quit. See note 31 infra.

For the reasons stated above, the fact that some crowd mem-
bers may have had a specific intent to disrupt Congress does
not in any way require a modification of the argument in text.

21a

stitutional chilling effect is the literal one that an order
to quit must precede arrests under 9 D.C. Code § 124.”

Even if Nicholson were not conclusive on the need to
give an order and opportunity to disperse before arrest

In addition to the analysis set out in text, points made by
another panel of this court in Washington Mobilization Com-
mittee v. Cullinane, —— F.2d —— (D.C. Cir. No. 75-2010,
decided April 12, 1977), are directly relevant here. There the
court faced the question whether the police were justified in
arresting demonstrators innocent of any violence or obstruc-
tion along with others who were violating the law, or whether
the only constitutionally valid procedure would be to arrest
lawbreakers individually. After ruling that the police may not
be expected or required to single out individuals once a demon-
stration becomes “substantially infected with violence or ob-
struction,” —— F.2d at ——, slip op. at 23, the court qualified
its holding by indicating:

We do not suggest of course that one who has violated
no law may be arrested for the offenses of those who have
been violent or obstructive. As we have seen however the
police may validly order violent or obstructive demonstra-
tors to disperse or clear the streets. If any demonstrator
or bystander refuses to obey such an order after fair
notice and opportunity to comply, his arrest does not
violate the Constitution even though he has not previously
been violent or obstructive.

Id. (emphasis added; footnote omitted). In a footnote the
court indicated that it was given some “pause” by the fact
that some arrestees may not have heard orders to disperse.
See —— F.2d at —— n.4, slip op. at 23 n.4.

The record here indicates that not all of the arrestees were
violent or obstructive or noisy—indeed, plaintiffs introduced
testimony that only a small minority of the demonstrators
were involved in any mischief. Thus not everyone arrested
was violating the Capitol Grounds statute even as that statute
is interpreted by Chief Powell. Accordingly, Cullinane would
require notice and an oportunity to disperse before arrests of
the crowd “as a unit” would be constitutionally permissible.
Moreover, the “fair notice” required by the Cullinane court is
notice reasonably likely to have reached all of the crowd
despite any noise the demonstrators may have been making.
See Washington Mobilization Committee v. Cullinane, supra,
—— F.2d at —— n.4, slip op. at 23 n.4.

22a

under Section 124, facts peculiar to this case would have
required such an order. First, it is undisputed that
Speaker Albert had in fact suspended § 124 prior to the
time any arrests were made.“ Chief Powell testified
that his understanding of Speaker Albert’s instructions
was that the protestors were to be allowed to remain
while Members of Congress were speaking unless the
crowd became disorderly, in which eventuality “we should
ask these people to leave; if they refused to leave, that we
would have to take whatever steps necessary.“ With
the statute suspended, there was no law which the plain-
tiffs could have been violating even if the Nicholson con-
ditions were in fact present and, therefore, there was no
probable cause for arrest—and no reasonable ground
for believing that there was—until the suspension ex-

pired by its terms, one of which was that a di
order be given. —

Second, the protestors were unquestionably granted an
unwritten “permit,” as described in Nicholson, to as-
semble on the Capitol Grounds and steps.** Because “police

See Tr. 2553-2554, 2556-2557, 1996-2000, JA 1561-

* Tr. 1959, JA 1180 (emphasis added). Chief Powell int
duced a stipulation that Speaker Albert would also testify that
he told Powell to disperse the crowd and, only if they would
not leave, to make arrests. Tr. 2505-2506, JA 1514-1515.

“It was generally known that the urpose of
meeting at the Capitol Grounds was to — 1 Aa ta le
bers of Congress and to present to them a petition, the so-
called People’s Peace Treaty. Tr. 440, JA 293. From this fact
alone any plaintiff familiar with precedents of administration
of the Capitol Grounds statute could reasonably have con-
cluded that “permits” had been issued, since the Capitol Police
had in the past allowed persons invited to the Capitol by
Members to come and go freely. See United States v. Nichol-
son, supra note 19, Appendix at [6]-[7] & n.9. In fact, the
events of May 6 offer further proof that both congressmen
and Capitol Police officers thought that individual congressmen
e suspend 9 D.C. Code § 124 (i.e., that they could grant a

23a

officials * in effect told the demonstrators that they
could meet where they did,” “to sustain [plaintiffs’] later
conviction for demonstrating where they told [them they]
could ‘would be to sanction an indefensible sort of en-
trapment by the State—convicting a citizen for exercis-
ing a privilege which the State had clearly told him
was available to him.“ Cox v. Louisiana, 379 U.S. 559,
571 (1965), citing Raley v. Ohio, 360 U.S. 423, 426
(1959).** In these circumstances, no constitutionally

“permit”). Thus, although the line of marchers was initially
stopped at the border of the Capitol Grounds by Inspector
Xander of the Capitol Police, he stepped aside upon being told
by Representatives Dellums, Abzug, and Mitchell that they had
invited the marchers to meet with them. Tr. 2552, JA 1560.
In addition, no efforts were made to keep the protestors from
assembling on the steps. See Tr. 2088, JA 1278, quoted at note
29 supra. See also Tr. 563-564, 763, JA 407-408, 594. There can
be no doubt that these actions constituted police permission to
assemble on the steps and, indeed, defense counsel even con-
ceded that the plaintiffs had been “allowed to go on the steps.”
Tr. 739, JA 570.

The factual and legal situation in Coz is very similar to
that presented here. There Reverend Cox and a group of civil
rights demonstrators had been permitted to congregate on a
sidewalk across from the courthouse in Baton Rouge, Louisi-
ana. See the companion case, Coz v. Louisiana, 379 U.S. 536,
538-544 (1965). Cox was subsequently convicted of picketing
“near” the courthouse.

The Supreme Court refused to strike down the picketing
statute as facially invalid because it recognized that Louisiana
had legitimate interests in protecting courts from undue pres-
sures. Cox v. Louisiana, 379 U.S. 559, 560-564 (1965). The
Court further held that the word “near” was not precise, but
was sufficiently amenable of nondiscriminatory application
that the statute was not unconstitutionally vague. Id. at 568-
569. Nonetheless, the Court indicated that Cox could not be
convicted because due process would be offended were the con-
viction allowed to stand when the “highest police officials of
the City in the presence of the Sheriff and Mayor, in effect told

24a

valid arrest could have been made until an order to dis-
perse had been given which was itself pased on per-
missible considerations. See Cox v. Louisiana, supra,
379 U.S. at 571-573.

For the reasons stated above, plaintiffs could not con-
stitutionally have been arrested as a group under either
9 D.C. Code § 124 or 22 D.C. Code § 3102 unless Chief

Powell had reason to believe: (1) that the plaintiffs com-

prised one of the groups that could be banned or ordered
from the Capitol under Nicholson; (2) that orders to dis-
perse had been given which apprised the crowd as a whole
that it was under an obligation to leave; and (3) that a
reasonable oportunity had been given the plaintiffs to
leave the Capitol. This conclusion, drawn from Nicholson,
Coz, and the language of Section 124—all sources pre-
dating May 5, 1971—in our judgment represents well
settled law which Chief Powell was obliged to know on
pain of losing his qualified immunity. See Wood v. Strick-
land, supra, 420 U.S. at 321-322.

the demonstrators that they could meet where they did * * *.”
Id. at 571.

J udge Greene’s construction of § 124 is strikingly similar.
In Nicholson he recognized that Congress had a legitimate in-
terest in being free to conduct its business without interfer-
ence and to be secure from violence and, further, that the pub-
lic had an interest in being able to visit the Capitol in safety
and free from unreasonable obstruction of roads and path-
ways. See United States v. Nicholson, supra note 19, Appen-
dix at (11}-[16]. What constituted an unreasonable interfer-
ence with Congress or the public was left to the administrative
judgment of the police, subject to the construction set out in
text at note 24 supra. Thus, when Inspector Xander allowed
the plaintiffs to come onto the grounds and when no efforts
were made to block the Capitol steps, see notes 30 & 34 supra,
the plaintiffs, like Reverend Cox, were entitled to rely on the
administrative construction of the statute and to assume that
they were lawfully assembled, until told otherwise.

2. Standard of Review and the Evidence

As we have already indicated, Chief Powell bears the
burden of proof on the issue of his immunity. While this
does not rule out the possibility of directing a verdict
in his favor, it does require Chief Powell to demonstrate
that the facts on each element of the immunity defense,
taken in the light most favorable to appellees, are none-
theless so clearly in Chief Powell’s favor that “reasonable
men could entertain no doubt with regard thereto.” Nor-
folk Southern R. Co. v. Davis Frozen Foods, Inc., 195
F.2d 662, 665 (4th Cir. 1952) ; accord, e.g., Dehydrating
Process Co. v. A. O. Smith Corp., 292 F.2d 653, 656 n.6
(Ist Cir.), cert. denied, 368 U.S. 931 (1961) ; American
Casualty Co. v. Gerald, 369 F.2d 829, 833 (4th Cir.
1966).

With this standard in mind, we now review the evi-
dence tendered by Chief Powell as conclusively establish-
ing his case.

First, under Nicholson Chief Powell was required to
establish that it was reasonable to believe that plain-
tiffs constituted a group that was more noisy and more
disruptive than other groups allowed on the Capitol
Grounds. On this issue Chief Powell relies primarily on
his own testimony to the effect that he was faced with
an unruly, noisy, out-of-control mob from the moment
he arrived at the Capitol steps. Plaintiffs, on the other
hand, introduced evidence that equally noisy, unruly events
had been heid on the Capitol steps with no adverse action
being taken by the police. In addition, officials testifying
on behalf of the defendants stated that the demonstration
was “fairly mild” * and that no violation of the Capitol

See text at note 24 supra.

* Testimony of Capitol Police Captain Ferguson, Tr. 3480,
JA 1846.

26a

Grounds statute had occurred.“ Indeed, even Chief Wil-
son, a co-defendant, stated that “it was a reasonably
orderly crowd,” marred by only “a few particular mis-
behaviors.” » Finally, plaintiffs introduced evidence of an
out-of-court statement by Chief Powell to Congressman
Rangel, made on the evening of May 5, that “[the demon-
stration] was one of the more peaceful crowds that
[Powell] had seen on the Capitol steps.“ Thus not only
was the actual characterization of the events of May 5
contested, but the veracity of Chief Powell in testifying
as he did was directly in issue. Given this state of the
evidence, the issue was indisputably one for the jury.

The evidence is similarly in conflict on the question
whether Chief Powell made a bona fide effort to make
sure the crowd heard his dispersal order. Although there
was certainly evidence that the jury could credit to the
effect that Powell made attempts to inform the crowd and
was each time hooted down and drowned out, there was
also evidence that Chief Powell realized that the crowd
had not heard his warnings and yet took no steps to
correct the situation. For example, a reporter present
at the scene testified that he had overhead Chief Powell
say to Chief Wilson “that he [Powell] wasn’t sure whether
they [the demonstrators] heard him or not, or [that!
he didn’t think a lot of them heard him.“ Regardless of
this, no further warnings were made, although such
warnings were required by Chief Powell’s regulations.
Nor was use made of a powerful police sound truck that
was apparently at the scene, nor was any attempt made
to use the public address system of the demonstration’s

** See testimony of Assistant United States Attorney Lari-
mer, Tr. 709, 735, 741, JA 540, 566, 572.

Tr. 1589, JA 962.
Tr. 4297, JA 2166. See also text at note 75 infra.
“ Tr. 819-820, JA 644-645.

27a

leaders; indeed, an offer from Congressman Dellums to
make anouncements over that system was specifically re-
fused by Chief Powell.“

«Tr. 747, JA 578; Tr. 485, JA 335. Chief Powell urges in
brief that the fact that no one heard his warnings was due to
the loudness of the crowd and, therefore, was not his fault.
We are not impressed with this argument. In any situation in
which an order to disperse can constitutionally be given there
will be substantial noise or disorder, see Washington Mobiliza-
tion Committee v. Cullinane, supra note $1, -—— F.2d at ——,
slip op. at 23. For this reason police will either have to warn
each demonstrator individually or work through the leaders
of a demonstration to the extent they have access to powerful
public address systems. See text at note 44 infra. Alterna-
tively, it appears that a device called a “sound curdler“ is
available which can make the police heard over most tumult:

Q. What is the curdler that you referred to?

A: That is an audio curdler that we had installed on
top of the barricade car, which is a converted Brinks
wagon kept in the yard up at the Tactical Unit. This par-
ticular curdler was bought in 1970 from Applied Elec-
tronics over in Alexandria because of the fact we had
given a lot of instructions on bullhorns, which is the small
audio handler that people claimed they could not hear dis-
tinguished over the roar of the crowd:

The curdler was guaranteed to be heard for at least a
mile * . [I]t works very well as far as getting the
message out to a crowd.

Testimony of Theodore Zanders, Commanding Officer, Metro-
politan Police Department Special Operations Division, Tr.
2349-2350, in Washington Mobilization Committee v. Culli-
nane, 400 F.Supp. 186 (D. D.C. 1975), rev’d, —— F.2d ——
(D.C. Cir. No. 75-2010, decided April 12, 1977). This curdler
unit was apparently at the Capitol. See Tr. 747, JA 578.

Parenthetically, it should be noted that Zanders’ testimony
in Cullinane would tend to indicate that Chief Powell should
have been aware that the hand-held bullhorn he testified he
used to give his orders was not powerful enough to reach
the crowd.

252-664 O- 78-4

Finally, a jury would in our judgment be entitled to
conclude that Chief Powell was not acting in good faith.
As we have already noted, Chief Powell’s out-of-court ad-
mission to Congressman Rangel would belie Powell’s
claim of good faith. So also would Chief Powell’s in-
action after his remark to Chief Wilson which indicates
that Powell was aware that notice to the crowd had been
inadequate. Buttressing the inference of bad faith * is
the further fact that Chief Powell, by relying exclusively
on dispersal orders shouted over a hand-held bullhorn
in attempting to give notice, violated his own “Procedure
for Handling Protest Groups” “—a regulation issued over
Chief Powell’s signature.

“Cf. Hupart v. Board of Higher Education of the Ci
t
New York, 420 F.Supp. 1087, 1108 (S. D. N.Y. r we

Federal Exhibit 11. This regulation states that:

PRELIMINARY TO ARRESTS the rankin i

g Official in
charge at the scene (in this case Chief Powell] shall ap-
proach the demonstration leadership and explain the law
violations which are being committed. He shall request
that any and all violations be corrected immediatly [sic].

If ‘ - g
— byl — is complied with, no further police action

If the leaders do not comply with the
est, the offi-
cial shall publicy [sic] announce to th —
voice amplification the following — 275 prs em e

Jam *. I hereby inform all persons assem

you are in violation of (state the regulation - oe
terms and give stature [sic] number in Code if known)
In the name of the United States Capitol Police Board
I command all of you here assembled to disperse * * 7

The official in charge shall wait a reaso
; nable |
time for compliance. If after this first — he

nothing devel :
[sic] — — ape the Official shall repeat the aforstated

(continued]

29a

Notwithstanding the obvious conflicts in the evidence
set out above, Chief Powell would have us direct a verdict
on the theory that advice of counsel is an absolute defense
and that the facts show conclusively that he relied on
counsel present at the Capitol. This position is untenable
both as a matter of law and as a basis for directing 4
verdict on the facts of this case.

The only point on which advice of counsel is claimed
as a defense is the question whether plaintiffs constituted
a group that could be ordered from the Capitol pursuant
to the Nicholson opinion. It is not claimed that counsel
advised Chief Powell that he could arrest plaintiffs with-
out first giving them an order to disperse; accordingly, the
scope of counsel’s advice was not enough to create a com-
plete defense. Nor would advice of counsel be a defense
unless it was sought in good faith.“ Since a directed ver-

ARRESTING OFFICERS shall accompany the trans-
porting officers to the proximity of the individuals about
to be arrested. The arresting officer shall state to the viola-
tor that you are in violation of (give law violated). When
applicable state “You are requested to please depart this
area immediately and peacable [sic] or you shall subject
yourself to immediate arrest.” * * *

Id. at 4-5. At trial Chief Powell maintained that he could not
ascertain who the leaders of the demonstration were, although
he further admitted that he made no attempt to locate any of
the congressmen who had invited the group onto the steps.
See Tr. 2094-2095, JA 1284-1285. Nor apparently was any
attempt made to use the sound amplification equipment of the
demonstrators to give dispersal orders. Chief Powell admitted
that he never identified the statute alleged to have been vio-
lated. Tr. 2103, JA 1293. Chief Powell admitted that he
knew for a fact that “none of the arresting officers made the
statement [to leave or be arrested] and gave that last oppor-
tunity to leave to the people who were being arrested“ na
Tr. 2105, JA 1295.

F. g., RESTATEMENT (SECOND) or Tors § 666 (1) (a)
(1970).

30a

dict would not have been proper on the good faith issue,
it follows directly that no such verdict could be given
on the strength of advice of counsel.

In any event, this is not a case where advice of
counsel should make Chief Powell’s belief on the Nichol-
son point per se reasonable. The law here was not highly
technical, penetrable if at all only with the help of
counsel. The controlling case was Nicholson, with which
Chief Powell was fully acquainted. In addition, the
central probable cause issue was one of fact: were the
plaintiffs more noisy or disruptive than those routinely
allowed onto the Capitol Grounds? On this issue Chief
Powell, the officer in charge of the Capitol and a man

of long experience, was obviously as expert as any counsel
who might give him advice.

In addition, appellees raised a serious question of
fact concerning whether Chief Powell had fully dis-
closed the House Speaker’s orders to his legal advisor,
Assistant United States Attorney Zimmerman, prior to
asking his advice. Powell’s own testimony shows con-
clusively that the piece of advice primarily relied on by
Chief Powell—Zimmerman’s agreement with Powell upon
arriving at the Capitol steps that “this is a most flagrant
violation of 9-124”—was rendered before Powell was ad-
vised that the Speaker had in fact suspended Section
124.“ Chief Powell could not reasonably have continued
to act on that advice once he became aware of the
Speaker’s wishes. Nor would reliance on counsel offer
any defense unless Chief Powell had disclosed to his

Chief Powell testified that this advice was given to him
between 2:56 and 3:00 P.M. on May 5..Tr. 1951-1952, JA
1175-1176. Immediately after this Chief Powell gave the first
of a series of orders to disperse. Tr. 1952, JA 1176. Chief
Powell later testified that Inspector Xander reached him with
the information that the Speaker had suspended § 124 after
he had given this first set of warnings. Tr. 1999, JA 1223.

3la

attorney all the facts and circumstances surrounding the
Speaker’s orders.“ Yet on the critical question of whether
Attorney Zimmerman was informed of the Speaker’ 8
suspension of Section 124, Attorney Zimmerman testi-
fied: “I have no recollection of that the fact of sus
pension] being told me at the time in question.“ Indeed,
although Chief Powell admits being told of the Speaker's
orders, he did not claim at trial that he conveyed this
information to Attorney Zimmerman. Viewing this evi-
dence in the light most favorable to the plaintiffs, an in-
ference can be drawn that Attorney Zimmerman counsel-
led Chief Powell in ignorance of critical material facts.
Accordingly, the validity of the advice of counsel de-
fense was properly a question for the jury.

B. New Trial—Defective Jury Instructions

As a first alternative to his argument in favor of a
directed verdict, Chief Powell argues that regardless of
the sufficiency of the evidence, a new trial is required on
the false arrest claim because the trial judge erred in
instructing the jury with respect to the qualified official
immunity defense. Our discussion thus far disposes of
most of Chief Powell’s objections and we will not re-
hearse those objections and our responses here. One point
remains, however.

Focusing on selected parts of the jury instructions,
Chief Powell complains that the jury was erroneously in-
structed that immunity could be made out only if there
was probable cause. While we agree that Chief Powell
could defeat liability by showing reasonable grounds to
believe that probable cause existed—plus, of course, sub-

See, ¢.g., RESTATEMENT, supra note 45, §§ 662, 666 (1) (b).
See also Anthony v. White, 376 F.Supp. 567, 573 (D. Del.
1974) (applying Restatement rule to § 1983 action for false
arrest and false imprisonment).

Tr. 3904, JA 2045.

32a

jective good faith—we do not agree with his interpreta-
tion of the jury instructions. As the instructions were
originally given, the trial court did use the terms “prob-
able cause” and “reasonable grounds to believe probable
cause existed” interchangeably. Upon objection, however,
the court further instructed the jury that “[t]here is no
difference between ‘probable cause’ and ‘reasonable
grounds to believe.“ There was no further objection.
The supplemental instruction, obviously incorrect as a
general proposition, had the effect in context of equating
“probable cause” with the trial court’s extended in-
struction on qualified official immunity.“ No mention of

Tr. 70-71, JA 2352-2353.

„% You are instructed that if Chief Powell in good faith
and reasonably believed that the [plaintiffs] could prop-
erly be characterized as one of the groups described in
the Nicholson case, then Chief Powell was justified in
ordering their dispersal.

In determining whether Chief Powell acted reasonably
and orderly [sic] in dispersing them, you are instructed
that Chief Powell is entitled to rely on traditional sources
for the information on which he based his decision to
order the Plaintiffs to disperse.

Your determination as to whether Chief Powell acted
reasonably should not be based on hindsight, but rather
on the facts and circumstances and the information avail-
able to Powell at the time he gave the order.

If you find that Chief Powell acted reasonably in order-
ing the dispersal, then in your determination as to whether
these arrests were lawful, you must also decide whether
Chief Powell acted in good faith.

Good faith in this context simply means that Chief
Powell ordered the Plaintiffs to disperse for the purpose
of enforcing the Capitol grounds statute rather than for

some other reason which cannot be the basis of a lawful .-

order to disperse, or cannot be the basis for a lawful
order to either disperse or arrest somebody.

(continued }

33a

a different or more stringent meaning of “probable cause”
was made at any point in the jury instructions; conse-
quently the jury could not have been confused that the
issue of immunity was to be resolved in accord with the
court’s extended instruction on the subject. Accordingly,
there is no error.

C. New Trial—Erroneous Introduction of Inflamma-
tory Evidence.

As yet another alternative Chief Powell argues that
he should be afforded a new trial because the first trial
was tainted by admission of evidence on the bad faith
and malice issue through the testimony of non-party
class members, which was of the form: “I saw an uniden-
tified policeman beat an unidentified demonstrator while
arresting him.” Prejudice is not only said to rest on the
inflammatory nature of such testimony, but is also said
to be intimately linked to the fact that this suit was
litigated as a class action. Frankly, we find the latter
objection muddled and extremely difficult to understand,
but we will attempt to address it as best we can.

Apparently Chief Powell’s position is that, because
the witnesses through whom this testimony was intro
duced were mostly unnamed class members, he was
caught by surprise since he had not deposed these per-
sons and since even if he had sought discovery the Federal
Rules of Civil Procedure would not have allowed it.
Chief Powell’s reading of the Federal Rules is patently
incorrect. While it is true that discovery against ab-

If Defendant Powell-has established that he acted on
the basis of a reasonable good faith belief in the light of
all of the circumstances, * * * then he is not liable for

' false arrest. Otherwise he is.
Tr. 18-23, JA 2300-2302. These instructions are impeccable.
See pp. 9-10 supra.

34a

sentee class members under Rules 33 and 34 cannot be had
as a matter of course, the overwhelming majority of
courts which have considered the scope of discovery
against absentees have concluded that such discovery
is available, at least when the information requested is
relevant to the decision of common questions, when the
interrogatories or document requests are tendered in
good faith and are not unduly burdensome, and when
the information is not available from the representative
parties. See Clark v. Universal Builders, Inc., 501 F.2d
324, 340-341 (7th Cir.), cert. denied, 419 U.S. 1070
(1974) ; Brennan v. Midwestern United Life Ins. Co., 450
F.2d 999, 1005 (7th Cir. 1971), cert. denied, 405 U.S.
921 (1972); United States v. Trucking Employers, Inc.,
72 F.R.D. 101, 104-105 (D. D.C. 1976) ; Robertson v. Na-
tional Basketball Ass’n, 67 F. R. D. 691, 699-700 (S. D.
N.Y. 1975); Bisgeier v. Fotomat Corp., 62 F. R. D. 118,
119-120 (N. D. Ill. 1973); Gardner v. Awards Marketing
Corp., 55 F. R. D. 460 (D. Utah 1972) ; cf. Wainwright v.
Kraftco Corp., 54 F. R. D. 532, 534-535 (N. D. Ga. 1972)
(although discovery under Rules 33-34 is not proper,
discovery under Rules 30, 31, and 45 is proper and ap-
propriate orders will be entered to ensure that defendant
can adequately prepare its case). But see Fisher v. Wolf-
inbarger, 55 F. R. D. 129 (N. D. Ky. 1971).

That Chief Powell did not get depositions from ab-
sentee class members who would be witnesses, therefore,
only underscores the fact that he made no effort to take
any discovery from such witnesses. Indeed, Chief Wilson
and the District of Columbia took no discovery of anyone.
Yet the names of all class members were in the hands of
the District of Columbia. These names were made
available to plaintiffs’ counsel some time in the summer of
1973—18 months before trial began—in conjunction with
sending notice to class members. Moreover, there is
no indication in the record that Chief Powell or any
other defendant ever asked for a list of prospective wit-

— Oe

35a

nesses. Beca e the defendants in this suit failed to take
even elementary steps to protect themselves from sur-
prise, they cannot now be heard to complain.

Having argued that he was deprived of discovery of
relevant evidence, Chief Powell also argues an opposite
proposition: that testimony regarding assaults and bat-
teries committed by policemen was irrelevant and should
have been excluded as inflammatory. The difficulty with
this argument is that no objection was taken below on the
grounds now asserted and the grounds stated below were
not valid. Appellants asserted surprise; there was none
other than that caused by their own failure to seek
discovery. Reacting to class counsel’s argument that
such information was relevant to determine the level of
damages, appellants properly objected to the relevance of
the evidence on that score, but did not object when the
court ruled that the testimony was relevant to the issue
of the bad faith and malice of Chiefs Powell and Wilson
at the time of the arrests.“ Indeed, appellants’ own
cautionary instruction—which was given virtually ver-
batim by the trial judge "—recognized the relevance of
the challenged evidence for the limited purpose of showing
bad faith.“ Moreover, soon after the trial judge rejected

un See Tr. 932-934, JA 721-723. 8

Compare federal defendants’ Jury Instruction 12, JA 198,
with JA 2309.

The text of the instruction given the jury was:

IIIn considering the liability of the defendants in this
case, you may not take into consideration any of the evi-
dence involving any of those acts [of assault and battery]
by unnamed police officers or other unnamed and uniden-
tified persons, except as you determine that they were
committed under the guidance or supervision of the de-
fendant.

JA 2309 (emphasis added). Since the subjective good faith of

the defendants had been put in issue by assertion of an affirma-

tive defense of good faith immunity, we agree that evidence

that the defendants guided policemen in assaults on demon-
strators was directly relevant.

36a

class counsel's argument concerning relevance on the
damages issue,“ he cut off additional challenged testi-
mony as repetitious and inflammatory.“ In these cir-
cumstances, we see no ground for reversal.

D. New Trial—Failure to Create Appropriate Sub-
classes

As a final alternative Chief Powell argues that trial
of the false arrest claim by class action caused him to
lose defenses he might otherwise have had if plaintiffs had
proceeded against him individually or if appropriate sub-
classes had been formed at the time this case was sub-
mitted to the jury.* This argument raises two questions:

See Tr. 931-934, JA 720-723.
See Tr. 996-999, JA 755-758; Tr. 1047-1048, JA 777-778.

* Chief Powell also makes the argument that this case was
improperly certified at the outset since “questions of law or
fact common to the members of the class [did not] predomi-
nate over any questions affecting only individual members
* * *.” Rule 23 (b) (3), FED. R. Crv. P. The basis for this
proposition is a citation to the Rules Advisory Committee’s
comments to the 1966 amendments of Rule 23: “A ‘mass acci-
dent’ resulting in injuries to numerous persons is ordinarily
not appropriate for a class action because of the likelihood
that significant questions * * * would be present, affecting the
individuals in different ways.” 39 F.R.D. 63, 103 (1966).

We cannot accept Chief Powell’s overly mechanical equating
of false arrest with a “mass accident.” As to liability, the
only question generally to be tried in a false arrest suit is
whether the defendant police officer is entitled to qualified
official immunity. See pp. 6-10 supra. That is the only issue
relating to liability for false arrest which was actually pre-
sented to the jury in this suit. The qualified official immunity
issue would be tried by substantially the same evidence no
matter who brought suit or whether suit was brought indi-
vidually, by joined plaintiffs, or by a class. The commonality
of evidence relevant to a belief that a crime had been commit-
ted in the instant case is further attested by the fact that the

37a

whether Chief Powell presented the theories now pressed
by way of motion, proposed jury instruction, or objection
to jury instructions in a maner likely to have apprised
the trial judge of his contentions before the case was
irretrievably submitted to the jury and whether the

United States Attorney, in trying the crimina! case against
eight class members, told class counsel that any eight indi-
viduals could be used as test case defendants and that defense
counsel could pick the eight. See Tr. 4130-4131, JA 2136-2137.
It is precisely this situation—in “which each class member
would have to present the same case were he to proceed indi-
vidually—to which Rule 23(b) (3) is addressed since a class
action would in such circumstances consolidate otherwise iden-
tical actions into a single efficient unit.

Nor do we think that determination of damages in this case
requires individualization. As the suit was tried, damages
were fixed either for the class as a whole or by subclass. See
note 6 supra. Assignment of plaintiffs to appropriate sub-
classes can apparently be made by a review of police and court
records. Chief Powell has nowhere objected to this mode of
determining damages, and we see no difficulties with it.

Moreover, whatever the merits of Chief Powell’s arguments
might have been had they been directed to the trial judge
during the pretrial stage of this case, which they were not,
those merits are substantially diminished on appeal since the
only issue before an appellate court is whether the trial judge
abused his discretion in granting class status. See Bermudez
v. United States Department of Agriculture, 490 F.2d 718,
725 (D.C. Cir.), cert. denied, 414 U.S. 1104 (1973); accord,
Paton v. LaPrade, 524 F.2d 862, 875 (3d Cir. 1975); Gold
Strike Stamp Co. v. Christensen, 436 F.2d 791, 792-793 (10th
Cir. 1970). Therefore, in the absence of a showing that cer-
tification affected the “substantial rights of the parties,”
Rule 61, FED. R. Civ. P., it is doubtful that reversal of certifica-

tion on appeal would ever be appropriate. Our discussion in

text deals fully with all points which might affect such sub-
stantial rights of Chief Powell.

** Contrary to appellants’ suggestions in brief, plaintiffs’
counsel does not have an obligation under Rule 23 to antici-
pate affirmative defenses which may be raised to a class claim

38a

theories now tendered are in any event correct and sup-
ported by evidence introduced at trial.”

Chief Powell’s argument, in short, is that the record
shows that four to five persons were climbing on Capitol
lampposts, that one or two persons were writing on the
walls of the Capitol, that one named plaintiff—David L.
Preiss—heard warnings to disperse yet did not do so,
and that a group of 100 persons who were originally
across the street from the Capitol steps heard orders to
disperse and yet failed to do so.“ As to the climbers

and to make motions for subclassing should he suspect that
defendants will put in issue a theory requiring decomposition
of the class. If an affirmative defense is not raised by a de-
fendant, it is not tried and no useful purpose would be served
by burdening plaintiff with an obligation of putting the class
suit in a posture to try claims that a defendant would never
assert. In addition, the need for class decomposition may de-
pend on the nature of the proofs to be tendered in support of
an affirmative defense. Since the defendants will control such
proof, it is only sensible to require the defendant to bring to
the attention of the court and the other parties any proof
which will require class decomposition. As we indicated, see
pp. 6-10 supra, all arguments going to immunity or probable
cause for a warrantless arrest are affirmative defenses. Ac-
cordingly, a major issue to be resolved is whether defendants
adequately raised below their substantive defenses and related
procedural needs.

In assessing whether Chief Powell lost any “substantial
rights,” see note 56 supra, we need not consider defenses theo-
retically available to him unless evidence introduced at trial
would warrant submission of the issue to the jury. Thus, even
if trial of a defense would theoretically require subclassing,
there would be no need to subclass unless the defense was sup-
ported bx evidence.

Chief Powell also asserts error in the trial court’s rejec-
tion of his instruction on mitigation of damages and conse-
quent failure to create a subclass for those plaintiffs who
allegedly enhanced their damages by refusing to cooperate
promptly with police “processing” at the Coliseum. The trial

39

and writers, he asserts that there were unquestionably
valid grounds for arrest. As to Preiss, Powell suggests
that the jury instruetions actually given were erroneous
because there was no question that Preiss willfully re-
fused an order to leave. Similarly, probable cause to
arrest the second group of 100 protestors is alleged to
be found in an order by the Capitol Police Board to clear
the Capitol which was communicated to this group and
which they willfully disobeyed.

We begin by considering to what extent these argu-
ments have been waived by failure of appellants to take
appropriate procedural steps below. Chief Wilson and
the District of Columbia (but no federal defendant) filed
an opposition to plaintiffs’ motion for class certification.
This opposition did not suggest a need for subclasses and
did not indicate that a critical element of appellants’
case would be proof that some persons heard warnings
to disperse. Instead, it alleged generally that the claims

court ruled that there was no evidence linking refusal to
cooperate in processing with the duration of detention and,
therefore, there was no factual predicate laid for a mitigation
of damages instruction. We agree. Although appellants now
assert that those who failed to cooperate were held much
longer than those who processed quickly, they have not been
able to draw our attention to any evidence in the record sup-
porting such a claim, and we have found none. Indeed, a num-
ber of plaintiffs testified that they were among the first to
process and yet they were held until late in the day on May 6
or into the early hours of May 7. See Dellums v. Powell [ Dis-
trict of Columbia Appeal], —— F.2d ‘ n.30 (D.C.
Cir. No. 75-1975, decided August 4, 1977) (slip op. at 17 n.30).
If the evidence discloses anything, it is that no effort was
made by appellants to bring processed arrestees promptly
before the judges of the Superior Court, who were sitting in
continuous session, or alternatively that the congestion in the
courts was so great that persons could not be arraigned as
fast as they could be processed. In either case, plaintiffs could
not have reduced their duration of incarceration by moving
through processing lines at a faster pace.

40a

of the class—and particularly assault and battery claims,
which were abandoned before trial—were not suitable for
class action determination. Two days before trial was
to begin, and three years after the complaint was filed
in this suit, the federal defendants moved for recon-
sideration of class certification. This motion again chal-
lenged the overall propriety of class action treatment and
did not request subclassing. It did, however, indicate that
“(ejertain of the plaintiffs admit that they heard warn-
ing [sic] to depart from the Capitol steps; other con-
tends [sic] that they heard no such warning.“ It
was further indicated that “[s]ome members of the class
were arrested at approximately 3:30 p.m., while in the
presence of members [sic] of Congress; other members
of the class were arrested considerably later, after all the
initial arrest [sic] had been compl R
attempt was made in this two-page memorandum to re-
late these alleged facts to any relevant legal theory.
Indeed, throughout this lawsuit Chief Powell has con-
tended that no dispersal order was needed for any arrest
and, had this theory been accepted, it would have been
immaterial that some members of the class heard the
warnings and some did not. In short, these pretrial
pleadings, which requested decertification and not sub-
classing, were insufficient to put anyone on notice that
defendants sought to submit to the jury defenses re-
quiring subclassing.

At the close of all the evidence appellants made a
series of motions for directed verdicts, and in the col-
loquy on those motions it first became clear that the trial
court was going to rule that an order to disperse was
a mandatory element of the offense for which plaintiffs

Memorandum of Points and Authorities in Support of
Motion to Reconsider Class Action Determination, filed De-
cember 2, 1974, Docket Item No. 97.

Id.

41a

had been arrested. Appellants’ counsel pointed out that
one plaintiff—Preiss, who was among the initial group of
arrestees—had testified that he heard warnings to dis-
perse and willfully refused to do so. At this point class
counsel indicated that a subclass for Preiss should be
ereated.“ However, there was no mention of the second
group of arrestees, or the climbers and writers, and no
indication by appellants’ counsel that they wished to try
the claims of these groups as separate subclasses.

For reasons known only to the parties, the agreement
reached as to Preiss was never written into the jury
instructions tendered by either side. Nor was any ob-
jection to the absence of such a subclassing instruction
made by defendants. We can only surmise that defend-
ants made a tactical decision to abandon any attempt to
prove this defense for fear of giving the jury the im-
pression that their case as to the other 1,199 class mem-
bers was weak or to avoid giving the jury an opportunity
to “compromise” by holding for defendants on one claim
while imposing liability for the claims of the other 1,199.
Whatever the reasons, the trial judge never became
aware of defendants’ concern, if any then existed, that
subclassing instructions had been improperly omitted
from his extended and complicated charge. Nor did he
become aware that anyone wanted a charge as to any
other group of arrestees, since no jury instructions were
tendered indicating this and no objections were raised
to the absence of a subclass.

In these circumstances, we do not think Chief Powell
sufficiently apprised the trial court of his position—
which was based on a few shreds of evidence in a com-
plicated six-week trial—before the case was submitted
to the jury. Accordingly, Rule 51, Fep. R. Civ. P., now
bars our consideration of these points.“

Tr. 4382, JA 2239.

Any recognition of a “plain error” under Rule 51, Fen. R.
Ctv. P., which does not by its terms admit of any — plain

42a

Moreover, Chief Powell’s objections are at this point
largely theoretical. No one testified that he could now
identify those class members who were climbing or writ-
ing, and there was no contemporaneous recordation of
any information which could lead to such an identifica-
tion. Similarly, while it is plain that some 100 persons
(out of 1,200) were arrested after the bulk of arrests
had been made, it is also clear that Chief Powell has no
means of identifying the members of this group. Arrest
records made on the scene apparently do not differentiate
between the initial arrestees and the 100, nor do the
informations filed against the plaintiffs. Since defend-
ants have not even tried to take discovery of any absentee
class members, they cannot possess any admissions link-
ing individual absentees to the second group of ar-
restees. Thus creation of subclasses to allow the jury
to consider Chief Powell’s present points would have been
a meaningless gesture, and submission of the case to the
jury on a class-wide basis has not affected the “sub-
stantial rights” of the parties.“

error” rule, should at least be limited to those circumstances
in which plain error would be recognized under the express
provisions of Rule 52, Fep. R. Crim. P. In a criminal case,
however, the Supreme Court has indicated that

{ojJrderly procedure requires that the respective adver-
saries’ views as to how the jury should be instructed be
presented to the trial judge in time to enable him to de-
liver an accurate charge and to minimize the risk of com-
mitting reversible error. Jt is the rare case in which an
improper instruction will justify reversal of a criminal
conviction when no objection has been made in the trial
court.

Henderson v. Kibbe, —— U.S. , 45 U.S. L. WEEK
4457, 4460 (May 16, 1977) (footnotes omitted; emphasis
added). We see no reason why this is such a “rare case.”

See note 56 supra.

43a

II. MALICIOUS PROSECUTION

The jury found against Chief Powell on plaintiffs’
malicious prosecution claim and awarded $3,000 to eight
class members who stood trial on the criminal charges
and $50 to all other class members. On this appeal Chief
Powell challenges the sufficiency of the evidence to show
that his actions caused the filing of criminal charges
against the class. In his view the arrest at the Capitol
does not constitute institution of criminal charges as
that event is defined in the law of malicious prosecu-
tion.“ Rather, filing of formal informations is the event
which triggers tort liability, Chief Powell maintains, and
an Assistant United States Attorney, Luke Moore, al-
legedly exercising his independent judgment, filed the
informations lodged against class members.

The record shows the following. The decision whether
to proceed with filing informations was made in a meet-
ing on the night of May 5, 1971. At the meeting Chief
Powell and Assistant United States Attorney Zimmer-
man, who had been advising Powell and who was an eye-
witness to the events at the Capitol steps, conferred with

Malicious prosecution has four elements: (1) the defen-
dant must be found to have instituted a criminal action against
the plaintiff; (2) that prosecution must have ended in the
plaintiff's favor; (3) there must have been no probable cause
to initiate the criminal proceeding; and (4) the defendant
must have acted maliciously. A defendant is also allowed to
submit to the jury that the plaintiff was guilty of the offense
charged even though he was acquitted, but in this case defend-
ants did not ask for such an instruction.

The second element was not contested. There was ample
evidence introduced to support a verdict that Chief Powell
had ro probable cause to arrest the class plaintiffs. This same
evidence would also be sufficient to suport a jury verdict that
Chief Powell acted maliciously. See 1 F. HARPER & F. JAMES,
THE Law or Torts § 4.6, at 321 (1956).

252-664 O - 78-5

44a

Assistant United States Attorneys Hannon and Moore.”
Powell and Zimmerman recounted the events of the day,
and their story was memorialized in minutes not intro-
duced into evidence. On the basis of this information,
and apparently after some discussion between the three
Assistant United States Attorneys present, Attorneys
Zimmerman and Hannon were directed to draw up in-
formations against the arrestees. These informations
were filed, apparently by Assistant United States Attor-
ney Moore, by some time on May 6 since arraignments

began some time in the late morning or early afternoon
of that date.”

Subsequent to the filing of informations, Attorney
Moore obtained statements from two other eyewitnesses,
Assistant United States Attorneys Larimer and Marcy,
who told somewhat different stories about the events of
May 5. Attorney Larimer’s report indicated some doubt
that Poweli nad given proper dispersal orders and also
called into question the level of noise and confusion at
the Capitol. Attorney Marcy indicated that he did not
think everyone in the crowd had heard warnings to
leave, but that he did think the presence of a police
cordon line at the bottom of the steps gave arvestees
a warning that they might be arrested. Attorney Moore
apparently interviewed Members of Congress and con-
gressional staff personnel some time after the informa-
tions were filed. On the basis of this further investiga-
tion Attorney Moore, in consultation with United States
Attorney Flannery, made the ultimate decision to prose-

Attorney Moore testified that other police officers might
have been at this meeting.

An information or complaint must be filed by the time of
arraignment of a person arrested without a warrant; other-
wise the court must discharge the arrestee. Rule 7(a), Rules
of Criminal Procedure of the Superior Court of the District
of Columbia.

45a

cute a test case with eight defendants picked at random
from among the arrestees. When that case failed it was
also Moore who determined that charges against all other
class members should be dropped.

The issue of causation raised by these factors ap-
pears to be a novel one in this jurisdiction. For this
reason we begin with a sketch of general principles.

It is the “interest in freedom from unjustifiable and
unreasonable litigation that receives direct and primary
protection” from the tort of malicious prosecution.”
Other interests, such as those in reputation, property, or
liberty, are only secondarily protected.” For this reason
courts have held that a private citizen who knowingly
and maliciously presents false information to an official,
but who fails thereby to caus

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0299%3A1. Public record. Not legal advice.