Petition — WILSON v. DELLUMS (Nos. 77-1129, 77-955)

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7~ Supreme Court, U. §,

' FILED

FEB 10 i978

IN THE L_M'cHaeL RODAK, JR., CLERK

Supreme Court of the United States

Octoser Term 1977

No.7 = 1] 129

Jerry V. Wuson, Chief,

Metropolitan Police Department

and District or CoLUMBIA,

Petitioners,

Vv.

HonorasB_Le Ronatp V. Detivas, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Joun R. RisHer, JR.,

Corporation Counsel, D. C.

Ricuarp W. Barron,

Deputy Corporation Counsel, D. C.

Davmw Sutton,

Assistant Corporation Counsel, D. C.

Attorneys for Petitioners,

District Building,

Washington, D. C. 20004

Telephone: 629-3916

INDEX

Sussect Invex Pace

ee mi dunes 2

Jurisdiction ~_- SORE Sy Cane ae ee 2

CD TEE cccenenncintcineiblntinisiniiidnniiiiimntinkcmman 2

Statutes Involved — an 3

ID ~ecctccilenstisteicaleeiicliemnniitinrpennlitidiiaiitiiiais oan 5

ee ae Ge Te TD Secdiciniteneeemnenedenen 16

RITE I scl a ri te En ON 24

Cases CITED

Aldinger v. Howard (1976), 427 U. 8. 1 ~-----------------~-------

Bivens vy. Siz Unknown Fed. Narcotics Agents (1971), 408 U. 8S.

Ee ee ers — wis 2, 16, 17, 21

Bivens v. Siz Unknown Named Agents of Fed. Bur. of Narc.

ee SS OE OF OS ee

Blain v. United States (9th Cir., 1977), 552 F. od I iii eccetiteniannien

City of Charlotte v. Firefighters (1976), 426 U. S. 283 __.....___-

Commonwealth of Pa. v. National Ass’n of Flood Ins. (3rd Cir.,

RR en ee ee

Denton v. Yazoo & M.V.R. Co. (1932), 284 U. 8S. 306 ~----..-.--

District of Columbia vy. Carter (1973), 409 U. S. 418 _.....--_.-____

Farnsworth v. Orem City (D. Utah, 1976), 421 F. Supp. 830 —__---

Gentile v. Wallen (2nd Cir., 1977), 562 F. 2d 193 __--.-_-------__

Harrigan v. United States (E. D. Pa., 1974), 63 F. R. D. 402 .___-

Hill v. District of Columbia (D. C. App., 1975), 345 A. 2d 867 ___-

Jones v. McElroy (E. D. Pa., 1977), 429 F. Supp. 848 _____-__.----

Kostka v. Hogg (1st Cir., 1977), 560 F. 2d 37 -.... ------

Livingood v. Townsend (D. Minn., 1976), 422 F. Supp. 24 —_.._---

Lunsford v. United States, —— F. 2d —— (8th Cir., No. 76-1984,

December 31, 1977) caiiie

po AR ll OY Fe ee

Mt. Healthy City Board of Ed. v. Doyle (1977), 429 U. S. 274 __--

Paton v. La Prade (3rd Cir., 1975), 524 F. 2d 862 _...._____...____

Paul v. Davis (1976), 424 U. 8. 693 tiles

Perry v. Linke (N. D. Ohio, E. D., 1974), 394 F. Supp. 323 _____--

Pitrone v. Mercadante (E. D. Pa., 1976), 420 F. Supp. 1384 ______

ii.

INDEX—Continued Pace

Provancial v. United States (8th Cir., 1972), 454 F. 2d 72 ~.------ 19

Rafferty v. Prince George’s County (D. Md., 1976), 423 F.

I 17

Rizzo v. Goode (1076), 423 U. 8. 362 ....-------------------—----- 21

Sandoval v. Brown (D. N. M., 1977), 432 F. Supp. 1028 ~---—----- 17

United States v. Nicholson decided June 29, 1969, aff'd. (D. C.

App. 1096), 908 A. 34 9 .........--..-.............----.—----- 8, 12

Washington v. Davis (1976), 426 U. S. 229 -.---------------~----- 20

Wood v. Strickland (1975), 420 U. S. 308 ------------------—----- 21

Zahn v. International Paper Company (1973), 414 U. 8. 291 -..---- 22

Unitep States Cope Crirep

Disks GR, GectRt TENNER) ccctncencsienensnnennnenensenennssen 2

Tithe GR, Gast GED nce ceeneetsccnntennnsnasennscenccamesces 22

i —————————— 23

Title 28, Section 2675(a) -~------------~—- ea ee ee ee 22

17, 18

. | | | _ |

OL 4... eee idbiiiainaaasiundens ‘

District or CotumBiA Cope, 1973, CiTep

ne SL 8

ae a ns ae 3, 6, 18, 21

Section 9-126a --.---------- _ _ 4, 19

Restle GOD dnecsnedstosnabennnen _... 2, 4-5, 16, 22, 23

Orner AvuTHOoRITIES CITED

P. L. 91-382, 84 Stat. 816, August 18, 1970, Section 101 ~...-.----- 4, 19, 23

S. Rept. No. 1709, 79th Cong., 2nd Sess., July 12, 1946 ~-.--.----- 19

Inpex To APPENDIX

Opinion of the United States Court of Appeals for the District

of Columbia Circuit, dated August 4, 1977 -~- aiceinn la

Judgment of the United States Court of Appeals for the District

of Columbia Circuit, dated August 4, 1977 ~~~ ali 3la

Order of the United States Court of Appeals for the District of .

Columbia Circuit, dated November 14, 1977, denying the

petitions fer VORGRTIRG 2.cccccccceccennccccccencccecusecussuce= 32a

Order of the United States Court of Appeals for the District of

Columbia Circuit, dated November 14, 1977, denying the

suggestion for rehearing en bane ~-~-.....---------------~----- 33a

IN THE

Supreme Court of the United States

Octoser Term, 1977

No.

Jerry V. Witson, Chief,

Metropolitan Police Department

and District or CoLumBia,

Petitioners,

Honoras.e Ronatp V. Detius, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners, the District of Columbia and Jerry V. Wil-

son, pray that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the

District of Columbia Circuit in this case.)

As, In the related case of Powell, et al. v. Dellums, et al., No. 77-955, a peti-

tion for a writ of certiorari was filed on January 3, 1978, by the Solicitor

— on behalf of James M. Powell, the Chief of the United States Capitol

olice.

OPINIONS BELOW

The opinion of the court of appeals has not yet been |

reported and is set forth in Appendix A, infra, at pages

1a-30a. The opinion of the court of appeals in the related

case of Powell, et al. v. Dellums, et al., is set forth in Ap-

pendix A, at pages la-104a, to the certiorari petition filed

in that case. The District Court rendered no opinion, but

its judgment is set forth in Appendix C, pages 107a-112a,

to the Powell petition.

JURISDICTION

The judgment of the court of appeals (Appendix B at

page 3la) was entered on August 4, 1977. The orders of

the court of appeais denying petitioners’ petition for re-

hearing and suggestion for rehearing en bane (Appendix

C at pages 32a-33a) were entered on November 14, 1977.

The jurisdiction of this Court is invoked under 28 U.S. C.

§ 1254(a).

QUESTIONS PRESENTED

1. Whether the doctrine of Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U. S. 306 (1971), justifies a constitu-

tional tort action against the District of Columbia Govern-

ment (on a respondeat superior theory) and its Metropoli-

tan Police Chief in favor of demonstrators arrested on the

Capitol grounds pursuant to a congressional enactment

delegating required peace keeping functions and related

arrest making decisions to federal officials.

2. Whether the notice to the District given on behalf of

65 named claimants, pursuant to D. C. Code 1973, § 12-309,

constitutes adequate notice on behalf of approximately

1200 individuals for whose benefit respondents’ class action

was brought.

STATUTES INVOLVED

D. C. Code, 1973, § 9-126:

§ 9-126. Policing of Capitol Buildings and

Grounds—Powers of Capitol Police—Arrests by

Metropolitan Police.

The Capitol Police shall police the United States

Capitol Buildings and Grounds under the direction

of the Capitol Police Board, consisting of the Ser-

geant at Arms of the United States Senate, the

Sergeant at Arms of the House of Representatives,

and the Architect of the Capitol, and shall have

the power to enforce the provisions of sections 9-

118, 9-119 to 9-126, 9-17 to 9-132 and regulations

promulgated under section 9-131 and to make ar-

rests within the United States Capitol Buildings

and Grounds for any violations of any law of the

United States or of any State, or any regulation

promulgated pursuant thereto: Provided, That

the Metropolitan Police force of the District of

Columbia are hereby authorized to make arrests

within the United States Capitol Buildings and

Grounds for any violations of any such laws or

regulations, but such authority shall not be con-

strued as authorizing the Metropolitan Police

force, except with the consent or upon the request

of the Capitol Police Board, to enter such build-

ings to make arrests in response to complaints or

to serve warrants or to patrol the United States

Capitol Buildings and Grounds, with the excep-

tion of the streets and roadways shown on the map

referred to in section 9-118 as being under the

jurisdiction and control [of] the Commissioner of

the District of Columbia. For the purpose of this

section, the word ‘‘grounds’’ shall include the

House Office Building parking area. (July 31,

1946, 60 Stat. 719, ch. 707, § 9.)

P. L. 91-382, 4 101, 84 Stat. 816, August 18, 1970 (D. C.

Code, 1973, § 9-126a) :

To enable the Capitol Police Board to provide

additional protection for the Capitol Buildings and

Grounds, including the Senate and House Office

Buildings and the Capitol Power Plant, $880.000.

Such sum shall be expanded only for payment of

salaries and other expenses of personnel detailed

from the Metropolitan Police of the District of

Columbia, and the Commissioner of the District

of Columbia is authorized and directed to make

such details upon the request of the Board. Per-

sonnel so detailed shall, during the period of such

detail, serve under the direction and instructions

of the Board and are authorized to exercise the

same authority as members of such Metropolitan

Police and members of the Capitol Police and to

perform such other duties as may be assigned by

the Board. Reimbursement for salaries and other

expenses of such detail personnel shall be made to

the government of the District of Columbia, and

any sums so reimbursed shall be credited to the

appropriation or appropriations from which such

salaries and expenses are payable and shall be

available for all purposes thereof * * *.

D. C. Code, 1973, § 12-309:

§ 12-309. Actions against the District of Co-

lumbia for unliquidated damages; time for notice.

An action may not be maintained against the

District of Columbia for unliquidated damages to

person or property unless, within six months after

the injury or damage was sustained, the claimant,

his agent, or attorney has given notice in writing

to the Commissioner of the District of Columbia of

the approximate time, place, cause, and circum-

stances of the injury or damage. A report in

writing by the Metropolitan Police Department, in

regular course of duty, is a sufficient notice under

this section. (Dec. 23, 1963, 77 Stat. 511, Pub. L.

88-241, § 1, eff. Jan. 1, 1964; July 29, 1970, Pub.

L. 91-358, title I, § 141(2), 84 Stat. 551.)

STATEMENT

In a civil action filed in the United States District Court

for the District of Columbia on November 11, 1971, ap-

proximately 1200 members of # class represented by ten

named plaintiffs-respondents sought damages against the

District of Columbia, Jerry V. Wilson, then Chief of the

Metropolitan Police of the District of Columbia, and James

M. Powell, the Chief of the United States Capitol Police,

for false arrest, malicious prosecution and violation of

First and Eighth Amendment rights. The action stemmed

from arrests occurring in the course of a ‘‘Mayweek”’

related demonstration at the Capitol on May 5, 1971.

(J. App. 26-38.)

In answering respondents’ complaint allegations, Chief

Powell and the District of Columbia petitioners denied the

unconstitutional conduct attributed to them (J. App. 39-

53), and additionally asserted that the arrests made on the

Capitol steps were: lawfully undertaken in the course of

official governmental duties of Chief Powell (J. App. 39,

49). The District also claimed that it was protected by

the doctrine of governmental immunity and that respond-

ents failed to give advance notice of their claims for dam-

ages as required by D. C. Code, 1973, § 12-309 (J. App. 48-

49). Respondents purported to comply with § 12-309 by

a letter written to the then Commissioner of the District

of Columbia on November 4, 1971, by Monroe H. Freed-

man, Special Counsel, American Civil Liberties Union

- Fund (J. App. 75-81). The letter recited in general terms

that about 1200 claimants were unlawfully arrested on

the Capitol steps on the occasion in question and were

subjected to excessive force and other abusive conduct. It

went on to specifically name 65 claimants who allegedly

sustained injuries of various kinds and degrees and repre-

sented that such injuries were ‘‘typical of those sustained

by the group of claimants as a whole’’ (J. App. 75-81).

Over the objection of petitioners (J. App. 54-83, 89-92),

the case proceeded to trial as a class action, the court

defining the class as ‘‘all persons who were arrested while

assembled on the Capitol steps on May 5, 1971.’’ (J. App.

85-87.)

Under congressional enactment (D. C. Code, 1973, § 9-

126), the preservation of peace and the maintenance of

order at the Capitol buildings and grounds is the responsi-

bility of a Capitol Police Board consisting of the Sergeants-

at-Arms of the respective Houses of Congress and the Ar-

chitect of the Capitol. The Board is the immediate supervi-

sor of the Capitol Police Chief. Each Sergeant-at-Arms is

responsible for the preservation of peace in, and the order-

ly functioning of, his respective wing of the Capitol and the

Capitol Police Chief is charged with the duty of imple-

menting the discharge of these responsibilities (J. App.

1108-110, 1326, 1524). The Metropolitan Police Depart-

ment has no authority to perform general peace keeping

functions at the Capitol or to assume custody of persons

on the Capitol grounds, except when specifically called

upon to do so by the Capitol Police Board or the Capitol

Police Chief as its representative. When such authority

is given, any arrests are considered to be those of the

Capitol Police, with Metropolitan Police officers ‘‘merely

assisting.’’ Although the Metropolitan Police Department

sometimes provides personnel to assist the Capitol Police

Chief in the preservation of peace at the Capitol, the Capi-

tol Police Chief is ‘‘in charge of all police activities within

the Capitol grounds’’ and was in charge on May 5, 1971

(J. App. 1108, 1151-1152, 1430, 1601, 1631-1632, 1703).

Well in advance of the expected demonstration, Chief

Powell and other government officials had read in a tacti-

cal manual published and distributed by the ‘‘Mayday Coa-

lition’’ (J. App. 1140) that:

* * * On May 5th Algonquin Peace City will

shift its camping grounds from Rock Creek Park

to the U. S. Capitol Building. There, it is expected

that we will Jay a nonviolent seige of the Congress,

forcing it to remain in session until it ratifies the

People’s Peace Treaty or until we are all arrested.

On the morning of May 5, 1971, in anticipation of the

demonstration, Chief Powell met with the Sergeants-at-

Arms of the respective Houses, the Administrative Assist-

ant to the Speaker of the House of Representatives, Chief

Wilson, and Eric Marcy, an Assistant United States Attor-

ney assigned to provide advice as to the legal aspects of

dealing with the then expected demonstration. All in at-

tendance at that meeting understood that Chief Wilson and

the Metropolitan Police would have no authority to take

any demonstrators into custody without advance authori-

zation from Chief Powell. But because of the unavailabili-

ty of sufficient Capitol police to deal with the expected

demonstration, Metropolitan Police officers were dispatched

to the Capitol at the request of the Capitol Police Board.

(J. App. 1146-1150, 1403, 1631-1632.)

That same morning, representatives of the ‘‘People’s

Coalition’? made arrangements to meet at 2:45 p.m., with

several members of Congress on the House steps of the

east wing of the Capitol building to present a peoples’

peace treaty and to register a protest against the war

in Southeast Asia (J. App. 293, 317, 649-650, 780, 2071).

Around 1:00 p.m., Chief Powell and Mr. Marcy proceeded

to the west front of the Capitol grounds and subsequently

met with Chief Wilson who stated that there were suffici-

ent Metropolitan Police officers available to provide sup-

port in any emergency that might arise. Gilbert Zimmer-

man, another Assistant United States Attorney, also ar-

rived on the scene (J. App. 1146-1147, 1150-1152, 1975).

As the District Court observed ( J. App. 2067), ‘‘it is con-

ceded by everybody that * * * [Mr. Zimmerman] is the

U. S. Attorney’s expert in * * * [the] field’’ of First

Amendment rights. He was sent to advise Chief Powell

as to the applicability to the expected demonstration of the

Capitol grounds statute, D. C. Code, 1973, § 9-124, as con-

strued in June 1969, by Chief Judge Greene of the then

District of Columbia Court of General Sessions in United

States v. Nicholson (J. App. 2480-2497), aff’d., 263 A. 2d

56 (D. C. App., 1970) (J. App. 1124-1127, 1152-1153). A

third Assistant United States Attorney was sent to the

general scene of the demonstration for observatory and in-

formation gathering purposes in anticipation of criminal

prosecutions by the United States (J. App. 532, 537-538,

544-545, 559).

As the demonstration group was assembling in the mall

area around 2:00 p.m., Chief Powell received intelligence

information that the group had estabilshed alternative

plans calling for acts of civil disobedience and violations

of law at the Capitol (J. App. 546-550). At about 2:30

p.m., the group, consisting of about 1200 demonstrators

carrying placards, banners, and bullhorns, proceeded from

the mail area enroute to the Capitol in an easterly di-

rection on Independence Avenue, completely blocking

its eastbound lanes (J. App. 1171, 1369-1371, 1381,

1385, 1482, 1935A, 1989). At about 2:45 p.m., the group

was stopped at the intersection of Independence Avenue

and New Jersey Avenue by Inspector Xander of the Capi-

tol Police. Congressmen Dellums and Mitchell, and Con-

gresswoman Abzug, who had by then joined the group, in-

formed the Inspector that the group had been invited to

meet with them on the House steps of the Capitol. The

group was permitted to proceed to the House steps where

most of its members were later arrested in the course of

speeches given by members of Congress (J. App. 297, 321-

322, 388, 568, 570, 573, 653-654, 1172, 1486-1487, 1500, 1560).

The basis of these arrests was the behavior of the group

during the approximately 20 minute interval which pre-

ceded those speeches.

Between 2:45 and 3:00 p.m., the group ascended the

House steps and when Chief Powell, who had a bullhorn,

and the two Assistant United States Attorneys assigned

to advise him, arrived at the foot of the steps at 2:56 p.m.,

the steps were almost filled (J. App. 1174-1175, 1223, 1372).

The House was then in session, its Ways and Means Com-

mittee, located behind the windows at the top of the steps,

was conducting a meeting (J. App. 1345-1346, 1543-1544),

and the Speaker’s staff members, whose office windows al-

so front the steps, were attempting to perform their as-

signed work (J. App. 1520-1521). In the course of the 20

minute period which followed their arrival, various of

the demonstrators pounded on windows, wrote on walls,

climbed on poles and balustrades, and constantly engaged

in loud chanting, singing, and shouting (J. App. 1174-

1175, 1298, 1300, 1334, 1345-1348, 1354, 1374, 1404, 1410-

1413, 1462-1463, 1485, 1492, 1521, 1525,, 1543-1544, 1569

1810-1812, 1935B, 1950-1953, 1988, 2501).

Numerous individuals, testifying on respondents’ behalf,

noted that the assembled group was singing, chanting, and

making noise prior to the commencement of the speeches

(J. App. 294-295, 296, 351, 366, 410-411, 449, 494, 513-514,

527, 539, 568, 632, 639, 643, 646-648, 653, 657-658, 686 698).

A television reporter (J. App. 510-511) heard the crowd

repeatedly chant in ‘‘loud tones.’’ Although the reporter

was standing ‘‘quite close’’ to Chief Powell when the Chief

made his first bullhorn annoucement, he was unable to

hear it because of the competing noise of the crowd (J.

App. 513-514, 527). Various other individuals assembled

at dfferent locations in the crowd observed the bullhorn,

but were unable to hear the announcements that it trans-

mitted (J. App. 496, 556, 643, 660, 668, 675-676, 698-699,

736-737, 742-745, 786-787, 793; ef. J. App. 1301). Nancy

Hornick, one of the demonstrators (J. App. 673-674), ob-

served that the group chanted various things before the

speeches began, including ‘‘one, two, three, four, we don’t

want your fucking war’’ (J. App. 686). As she put it,

‘«* * * Tt is fair to say it [the noise] was loud’’ (J. App.

698). A newspaper reporter called by respondents (J.

App. 640-641), testified that there was an ‘‘awful lot of

noise’’ (J. App. 643), that he heard the noise from both

inside and outside the building and that, while inside the

building, he was informed ‘‘that the Speaker [of the

House] was very upset because he felt the noise was inter-

ferring with work’’ (J. App. 646-648).

The Legislative Assistant to the Speaker of the House

(J. App. 1517) testified that the work of his office was dis-

rupted by what transpired on the nearby steps after the

arrival of the demonstrators (J. App. 1522, 1537, 1539-

1540). Explaining the impact of the outside activity upon

such work, he stated (J. App. 1521) that:

* * * [T)his group came up to the stairs, and

there was a lot of activity immediately outside our

windows. The windows sit back at the back of

this porch, and we can only see the porch area and

not down the stairs, but there were a lot of

people—activity back and forth of the crowd mil-

ling around. One or two hundred people actually

up within our line of sight in the windows were

yelling and chanting. Some of them were pound-

ing on our windows, trying to distract and disturb

us.

He went on to state (J. App. 1525) that:

We were trying to conduct our work. There

was a great deal of disturbance on the outside.

As I indicated earlier, people were banging on our

windows, shouting at us through the windows, try-

ing to engage us in debate or conversation. * * *

In a simiiar context, the Chief Counsel of the House

Ways and Means Committee (J. App. 1543), which, at the

time of the outside activity, was working ‘‘on some com-

plex, important matters’’ (J. App. 1547) testified (J. App.

1544-1546) that:

_ They were walking around up on those ledges at

the top of the steps, and on occasion were rapping

very loudly on our Committe windows, and mak-

ing a great deal of noise * * *.

* * * [T]hee noise was quite disruptive of the

Committee and quite disturbing. As I say, we

pulled the blinds on the windows in order to try

to insulate ourselves somewhat. The noise and

the chanting, I would say, from the outside was

quite loud and totally disruptive, almost, of the

Committee meeting.

Complaints regarding the disruptive behavior of the group

were made to a Capitol Police Lieutenant by staff members

of both the Committee and the Speaker (J. App. 1950-

1962).

After Chief Powell had observed the behavior of the as-

sembled group for about five minutes, he requested the

advice of Assistant United States Attorney Zimmerman as

to whether the group was in violation of the Capitol

Grounds statute as contrued in Nicholson and was prompt-

ly advised that a very flagrant violation was taking place.

The Chief then attempted to issue his first series of bull-

horn announcements from the bettom of the steps and to

inform the group tha it was in violation of law and must

disperse (J. App. 1174-1177, 1342-1343, 1391, 1984). As he

tried to convey such a message, the crowd increased the

volume of its noise (J. App. 1176, 1291, 1377, 1985). De-

scribing the reaction of the crowd, Chief Powell stated on

cross-examination (J. App. 1921) that:

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 § 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 certainly

already knew it. And I did then continue on and

attempt to get them to listen as I announced three

or four times over the bullhorn that I was Chief

of the Capitol Police, and they were a noisy, loud,

disruptive group. And I asked them to remove

themselves from the steps immediately, at which

time they reacted with loud chants and clinched

fists as an indication to me that they didn’t intend

to pay much attention to what I had to say.

Chief Powell repeated the message after further discus-

sion with Assistant United States Attorney Zimmerman,

who described the crowd’s resulting response as follows

(J. App. 1985) :

As he did that [i.e., repeated the announcement],

there was a din that seemed to increase as though

the group wanted to drown out the Chief and his

announcement. In other words, the sound—the

loudness of the group increased in volume.

After Chief Powell made the initial series of bullhorn

announcements, he was approached by Inspector Xander

who informed him that the Speaker of the House had

stated that the group should be permitted to meet with

members of Congress on the Capitol steps if its behavior

remained orderly (J. App. 1220-1224, 1519-1520). Con-

vinced that such a criterion had not been met, the Chief

and federal counsel, at about 3:05 p.m., went underneath

the steps at the foot of the Capitol to confer with the House

Sergeant-at-Arms (J. App. 1177-1180, 1224, 1414-1415,

1987-1988). The Chief advised the Sergeant-at-Arms that

he was confronted with a noisy and unruly crowd that

should be dispersed and the Sergeant-at-Arms in turn con-

versed with the Speaker of the House. The Speaker ap-

proved the Chief’s recommendation that the group be re-

moved from the House steps and upon returning from his

meeting with the Speaker, the Sergeant-at-Arms told

Chief Powell to do whatever was necessary to effect such

removal, including the making of any required arrests (J.

App. 1179-1180, 1414-1417, 1514-1516, 1522-1523, 1987-1988).

At about 3:14 p.m., the Chief, accompanied by federal

counsel, went outside and at 3:15 p.m., after proceeding

up the steps about 10 feet into the crowd, issued a second

series of bullhorn announcements and dispersal orders (J.

App. 1237, 1343, 1374-1377, 1469, 1484-1435, 1988-1989).

At that point, the group was more stationary and organ-

ized, most of its members having seated themselves, but

the noise level had not significantly changed (J. App. 1241-

1242, 1374, 1485, 1502; ef. J. App. 1225-1227). Describing

the behavior of the crowd at that time, Captain Abernathy

of the Capitol Police stated (J. App. 1374) that:

* * * [T]hey were extremely loud, and some-

chanting in unison, and on other occasions that

would die off, and they would be shouting their

individual slogans and profanities.

There were some still pounding on the windows.

You could see them separated enough to observe

that. I observed one man that did disrobe. That

brought a loud response.

As the second series of announcements were made, the

crowd again made competing noise and one of its members

turned up a portable amplification system that had been

brought to the House steps (J. App. 1183, 1377, 1469, 1989).

In the iterval that followed the second series of announce-

ments, numerous demonstrators left the area (J. App. 1376-

1377, 1487, 1883, 1989-1990). Thereafter all remaining dem-

onstrators were placed under arrest by Chief Powell (J.

App. 1185, 1884-1885). Arrest teams of the Special Opera-

tions Division of the Metropolitan Police Department then

removed these individuals from the steps and took them

into physical custody (J. App. 1813, 1818-1821). A field

arrest form, with a contemporaneous photograph, was pre-

pared on each individual taken into custody (J. App. 382,

1636-1637, 1991).

Asked on cross-examination to state the justification

for his dispersal orders and his related state of mind (J.

App. 1298-1301, 1340), Chief Powell explained that, from

his vantage point at the bottom of the steps, he had been

informed of the disruptive activity around the windows at

the top of the steps (J. App. 1298, 1340, 1334-1335), that

he saw persons climb on balustrades and lamp posts, and

others that appeared to be writing on walls (J. App. 1298-

1300). In addition, he was quite concerned about the dis-

ruptive impact of the noise volume on those inside the

Capitol building and in that regard stated on cross-

examination (J. App. 1301) that:

* * * They were making so much noise, as has

been said, they couldn’t—if they say they couldn’t

hear my bull horn, and I attempted to get through

to them, and I had thought that they had heard,

but they were making so much noise that they were

sufficiently loud so that there could be some ques-

tion as to whether each and every person did in

fact hear it. The very fact they were making that

much noise and the fact that I knew the House

was in session, and I knew that there was a Com-

mittee Room inside which had a hearing going on,

I was concerned that they certainly were disturb-

ing the orderliness of the Congress.

After the arrests were completed, a second group of

about 100 demonstrators, which had been unable to join

the initial assemblage, ran to the steps, shouted obsceni-

ties and demanded to be arrested. This group was ordered

to disperse and upon its failure to do so also was taken

into custody. In light of what had previously taken place,

Chief Powell, who had been instructed by the Chairman of

the Capitol Police Board to clear the grounds, did so by

arresting this second group (J. App. 1191-1192, 1311-1312,

1886-1887, 1931-1932).

Following their arrests, the demonstrators were taken to

the District of Columbia Coliseum where attempts were

made to process them. Those who submitted to processing

were subsequently taken to the District of Columbia Su-

perior Court and those who did not were transported to

the cellblock of the United States Courthouse (App. A at

16-18). The demonstrators were charged by the United

States with violating the Capitol Grounds statute and with

unlawful entry, following discussions involving Chief

Powell and various Assistant United States Attorneys,

and ultimate personal approval by the United States At-

torney for the District of Columbia. Eight specific cases

were selected for prosecution in the Superior Court, and

following the acquittal of the demonstrators involved in

those cases, the United States Attorney elected not to pro-

ceed in the remaining cases (J. App. 2003-2005, 2100-2103,

2111-2117, 2129-2130, 2135, 2140-2141).

The jury awarded damages against the District of Co-

lumbia, Chief Wilson and Chief Powell for malicious prose-

eution and violation of First and Fourth Amendment

rights. It returned a verdict against the District only

based on Eighth Amendment liability (J. App. 129-132).

It awarded total damages exceeding $12,000,000. Follow-

ing the entry of judgment on the verdicts and the denial

of post-judgment motions, the District, Chief Wilson and

Chief Powell appealed (J. App. 129-136).

The court of appeals affirmed the judgment to the extent

that it related to the liability of the District of Columbia

and Chief Wilson under the First and Fourth Amend-

ments. The court also held that all respondents had satis-

fied the statutory notice requirement contained in D. C.

Code, 1973, § 12-309. However, the court concluded that

the amount of damages awarded for violation of First

Amendment rights was so excessive as to require a new

trial and additionally vacated the Eighth Amendment

based award of damages against the District in its entirety.

On November 14, 1977, the court of appeals denied a peti-

tion for rehearing and suggestion for rehearing en banc

filed by the District and Chief Wilson, and this petition

for a writ of certiorari followed,

REASONS FOR GRANTING THE WRIT

The holding of the court of appeals that the District, as

a governmental entity, may be compelled to respond in

damages for constitutional torts on a respondeat superior

theory raises a question of substantial importance under

the Court’s decision in Bivens v. Six Unknown Fed. Nar-

cotics Agents, 403 U. S. 388 (1971). This Court plainly

recognized in Bivens that the appropriateness of constitu-

tionally based damages remedies logically requires a con-

sideration of any ‘‘special factors counselling nesitation in

the absence of affirmative action by Congress.’’ 403 U. S.

at 390. In particular, this Court noted (403 U. S. at 397)

that:

* * * Finally, we cannot accept respondents’

formulation of the question as whether the availa-

bility of money damages.is necessary to enforce

the Fourth Amendment. For we have here no ex-

plicit congressional declaration that persons in-

jured by a federal officer’s violation of the Fourth

Amendment may not recover money damages

from the agents, but must instead be remitted to

another remedy, equally effective in the view of

Congress. * * * (Emphasis added.)

Various federal courts, in refusing to extend the Bivens

doctrine to municipalities, have concluded that the crea-

tion of a constitutional tort action against these govern-

mental entities would circumvent their explicit congres-

sional exclusion from liability under 42 U. S. C. § 1983.

See Kostka v. Hogg, 560 F. 2d 37 (1st Cir., 1977) ; Sandoval

v. Brown, 432 F. Supp. 1028, 1029-1030 and n. 3 (D. N. M.,

1977) ; Farnsworth v. Orem City, 421 F. Supp. 830, 831 (D.

Utah, 1976); Rafferty v. Prince George’s County, 423 F.

Supp. 1045, 1057-1058 (D. Md., 1976); Livingood v. Town-

send, 422 F. Supp. 24 (D. Minn., 1976); Pitrone v. Merca-

dante, 420 F. Supp. 1384 (E. D. Pa., 1976); Perry v. Linke,

394 F. Supp. 323 (N. D. Ohio E. D. 1974). However, the

matter has given rise to a rapidly expanding decisional

split in the lower federal courts. See, e.g., Gentile v. Wal-

len, 562 F. 2d 193, 195-197 (2nd Cir., 1977); Jones v. Mc-

Elroy, 429 F. Supp. 848, 856 (E. D. Pa., 1977).

In Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274,

278 (1977), this Court recently recognized the extreme im-

portance of the question whether, by analogy to Bivens, it

shouid imply a remedy from the Constitution against a

governmental entity not otherwise subject to liability under

42 U. S. C. § 1983. But, because the question was not

properly presented in that case, the Court declined to re-

solve it (429 U. S. at 278). See also City of Charlotte v.

Firefighters, 426 U. S. 283, 284, n. 1 (1976); Aldinger v.

Howard, 427 U.S. 1, 4 n. 3 (1976). It is, however, squarely

presented here. The District’s exclusion from liability

under § 1983 is, of course, based on a different rationale

than that generally governing the non-liability of other

municipalities under that enactment. Compare District of

Columbia v. Carter, 409 U. S. 418 (1973) with Monroe v.

Pape, 365 U. S. 167 (1961). But its status as a congres-

sionally created municipal corporation can hardly single

it out in a manner which distinguishes it from all other

municipalities in terms of its amenability to respondeat

superior based constitutional tort liability in ‘‘a Bivens-

type cause of action [which] is the federal counterpart to

claims under 42 U. S. C. § 1983 * * *.’? See Paton v. La

Prade, 524 F. 2d 862, 871 (3rd Cir., 1975); Bivens v. Six

Unknown Named Agents of Fed. Bur. of Narc., 456 F. 2d

1339, 1346 (2nd Cir., 1972).

In addition, there are other explicit congressional decla-

rations which cast serious doubt on the extension of Bivens

to municipal liability like that endorsed by the court of ap-

peals.

First, the Capitol Grounds statute plainly negates that

kind of liability. D. C. Code, 1973 § 9126, and its legisla-

tive history, make it abundantly clear that when, as here,

Metropolitan Police officers ‘‘patrol’’ and perform general

peace keeping functions at the Capitol at the request of the

Capitol Police Board, they function in a federal capacity

as agents of the United States. As such, unlike the Capitol

Police Chief and his federal subordinates, they have no in-

dependent decision-making power concerning the arrest

function. In the language of the Senate Report on § 9-126,

any other construction of that enactment would have the

unmistakable effect of ‘‘nullifying the prime jurisdiction

of the Capitol Police over the Capitol Buildings and

Grounds.’’ See S. Rept. No. 1709, 79th Cong.,-2nd Sess.,

July 12, 1946, at 5.

Consistent with that legislative policy, the record incon-

trovertibly establishes that (1) Metropolitan Police Officers

were dispatched to the Capitol grounds on May 5, 1971,

‘fat the request of the Capitol Police Board,’’ (2) such a

request was necessary because of the unavailability of

sufficient Capitol Police officers to perform necessary peace

keeping functions in connection with the expected mass

demonstration (J. App. 1146-1148), (3) Chief Powell, not

“Chief Wilson, was in charge of ‘‘all police activities,’’ in-

cluding the making of necessary demonstration-related ar-

rests, and (4) Chief Wilson and his police subordinates

were totally powerless to assume custody of any demon-

strator without Chief Powell’s specific advance authoriza-

tion, which followed the advice of federal counsel (J. App.

1152, 1185, 1616-1617, 1631, 1703, 1714, 1985). In Denton v.

Yazoo &€ M. V. R. Co., 284 JU. S. 305, 308-309 (1932), this

Court held that when, as here, individuals perform work

for the benefit of the United States under an enactment

which places key elements of control in a federal officer,

they become borowed federal servants. This Court also

made plain that there is simply no basis for imposing lia-

bility on the lending employer under such circumstances.

See also Provancial v. United States, 454 F. 2d 72 (8th Cir.,

1972). The decision of the court of appeals appears to be

in direct conflict with that rationale.

Second, under P. L. 91-382, § 101, 84 Stat. 816 (August

18, 1970) (see also D. C. Code, 1973 § 9-126a), Metropoli-

tan Police officers assigned to a ‘‘detail’’ at the Capitol

are totally subject to federal authority and simply do not

act for the District’s benefit (J. App. 1639-1640). It is

equally clear that, when Metropolitan Police officers were

dispatched to the Capitol on May 5, 1971, at the special

request of the Capitol Police Board (J. App. 1146), such a

‘*detail’’ existed, notwithstanding its brief duration.

While such a temporary assignment may not have called

for the reimbursement which occurs in cases involving as-

signments of longer duration, that circumstances does not

defeat the conclusion that under any reasonable construc-

tion of P. L. 91-382, § 101, what occurred on May 5, 1971,

was the equivalent of a ‘‘detail.’’

Third, under 28 U. S. C. § 2680(h), as it existed at the

time of the mass demonstration involved, the United States

was incontrovertibly exempt from the kind of liability im-

posed here.* Yet, in spite of the undisputed need to call

upon the District Government in order to insuie the Fed-

eral Government’s capability of maintaining the security

of its own grounds, the court of appeals (App. A at 10-13)

perfunctorily allows the liability of one government entity

to be substituted for that of another. But, since the Dis-

trict, in acting for the benefit of the United States under

Federal direction and on federal grounds, was engaged in

the precise type of activities at which § 2680(h) government

liability exemptions are aimed, this case surely presents a

substantial question as to whether that enactment serves

2 As an integral component of the Federal Tort Claims Act, 28 U. 8S. C.

§ 2680(h), then conferred federal immunity in connection with “la]ny claim

arising out of assault, battery, false imprisonment, false arrest,* * ** abuse

of process, libel, slander, misrepreseniation, deceit, or interference with con-

tract rights” (emphasis added). The ruling of the court of appeals (App. A

at 15-16) that recent amendments to § 2680(h), altering the federal govern-

ment’s liability, provides a special factor justifying a Bivens-type action

against the District plainly discounts the circumstance that those amend-

ments were enacted after the occurrence of the mass demonstration involved.

Cf. Washington v. Davis, 426 U. S. 229, 238 n. 10 (1976).

as an explicit congressional declaration foreclosing ~

Bivens type action against it.®

The holding of the court of appeals that a constitutional-

ly based award of damages was justified against Chief Wil-

son likewise raises a question of extreme importance under

Bivens. It must be remembered that the allegations in that

case were that federal agents entered Bivens’ apartment in

the early morning without either probable cause for a search

or an arrest warrant. Turned out of bed, he was arrested,

manacled, and searched ‘‘from stem to stern.’’ He was then

taken to the station house, strip searched, and released

without charges ever being filed. Given such a direct and

outrageous intrusion by police officers, the considerations

which influence judicial discretion in the creation of a con-

stitutionally implied damages remedy are quite compelling.

Here, in contrast, Chief Wilson has engaged in no direct

invasion of a constitutionally protected interest. The con-

clusion that he must still respond in damages on a constitu-

tional tort theory is necessarily based on the premise that

he was constantly required to remain at Chief Powell’s

side and monitor his every action between the arrival and

the mass arrests of the demonstrators. However, his fail-

ure to do so amounts to nothing more than a deferral to

the judgment of the federal official, admittedly ‘‘in charge

of all police activities within the Capitol Grounds’’ on May

5, 1971 (J. App. 1152). Chief Wilson’s inaction in such a

context hardly equates with the direct and conscious

wrongdoing on which constitutional tort actions must be

predicated. Ct. Paul v. Davis, 424 U. 8S. 693, 701 (1976) ;

Rizzo v. Goode, 423 U. S. 362 (1976); Wood v. Strickland,

420 U. S. 308, 319 (1975). Moreover, not a single demon-

3 Aside from any considerations pertaining to the unwarranted extension of

the Bivens doctrine by the court of appeals, it. is submitted that the court’s

construction of the Capitol Grounds statute, i.e. D. C. Code, 1973, § 9-126,

supra, vis a vis the matter of municipal liability at the federal enclave in-

volved, in and of itself raises a question of sufficient importance to justify

this Court’s review.

strator could be removed from the Capitol grounds with-

out the advance authorization of Chief Powell, that is, after

he (Chief Powell) made the arrests (J. App. 1152, 1185,

1631, 1703). The thesis that Bivens nonetheless justifies

Chief Wilson’s liability simply because the actual removal

was effected by local officers as the final link in a federally-

structured chain of command stretches the Bivens rationale

beyond its breaking point and is sufficiently substantial to

warrant this Court’s scrutiny.‘

Likewise substantial is the question presented by the

holding of the court of apeals that notice of a claim tend-

ered in behalf of a small number of persons is sufficient to

satisfy the statutory notice requirement as to all unnamed

members of an immense class which later files suit. In

Zahn v. International Paper Co., 414 U. S. 291 (1973), this

Court held that each member of a class, not merely the

named plaintiffs, must satisfy the amount in controversy

requirement of 28 U. S. C. § 1332 as a prerequisite to in-

vocation of jurisdiction. Since the notice requirement of

§ 12-309 is a mandatory threshold requirement and a neces-

sary condition precedent to the institution of suit—/Hill v.

District of Columbia, 345 A. 2d 867, 869 (D. C. App.,

1975)—it would appear that the court of appeals’ construc-

tion of that enactment is conceptually inconsistent with

Zahn. Moreover, the importance of this aspect of the case

from a certiorari standpoint is underscored by recent de-

cisions of three other circuits which reached a different

result in construing a similar notice requirement contained

in the Federal Tort Claims Act. See 28 U.S. C. § 2675(a).

4 Chief Powell asserts in his certiorari petition that substantial questions

exist as to whether his liability is foreclosed by the doctrine of official im-

munity and whether this Court’s holding in Bivens extends to First Amend-

ment based actions for damages. We agree with this submission, adopt the

position of Chief Powell in these respects, and hasten to add that if the

liaL.!ity of Chief Powell, who performed the key decisional role, is foreclosed

under this Court's teachings, it would indeed be anomalous to impose liability

on either the District or Chief Wilson.

In Commonwealth of Pa. v. National Ass’n of Flood Ins.,

520 F. 2d 11 (3rd Cir., 1975), the Court held that written

notice tendered by a State on behalf of numerous unnamed

property owners who sustained flood damage was insuffi-

cient to satisfy the FTCA notice requirement. The Court

relied heavily on the plain terms of § 2675 in holding that

such terms required separate and individual notice on the

part of each claimant (520 F. 2d at 23-24). And in con-

struing an implementing regulation which, like § 12-309,

permitted a claim to be presented by an authorized agent

of the claimant, the Court held that, without proof of agen-

cy, the notice was invalid (id. at 23).

Similarly, in Blain v. United States, 552 F. 2d 289 (9th

Cir., 1977), the Court considered the sufficiency of a class

type notice as to unnamed individuals whose property was

damaged by a forest fire. In concluding that, under FTCA

standards, the notice was fatally defective as to the unspeci-

fied plaintiffs, the Court emphasized that there was no evi-

dence of any kind to establish an agency relationship be-

tween those filing the notice and these plaintiffs.

More recently, in Lunsford v. United States, —— F. 2d

—— (8th Cir., No. 76-1984, December 31, 1977), a small

number of persons brought an action on behalf of all indi-

viduals who lost their lives and piv »erty as a result of a

flood causing substantial property damage as well as 283

deaths. The Court held that absent individual notice by

identifiiable injured parties or specifie proof that the named

parties acted as their agents, the aplicable FTCA notice

requirement could not be met. See also Harrigan v. United

States, 63 F. R. D. 402 (E. D. Pa., (1974).

The unprecedented class-based notice holding of the

court of appeals is difficult to reconcile with these recent

decisions and plainly rises to a level of importance suffi-

cient to warrant this Court’s review.

CONCLUSION

Upon the foregoing, it is respectfully submitted that the

petition for a writ of certiorari should be granted.

Joun R. RisHer, JR.,

Corporation Counsel, D. C.

Ricuarp W. Barton,

Deputy Corporation Counsel, D. C.

Davi Sutton,

Assistant Corporation Counsel, D. C.

Attorneys for Petitioners,

District Building,

Washington, D! C. 2004

Telephone: 629-3916

APPENDIX A

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Comt of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-1975

HONORABLE RONALD V. DELLUMS et al.

Vv.

JAMES M. POWELL, Chief,

United States Capitol Police, et al.

JERRY V. WILSON, Chief, Metropolitan Police Department,

and DISTRICT OF COLUMBIA, APPELLANTS

[DISTRICT OF COLUMBIA APPEAL]

Appeal from the United States District Court

for the District of Columbia

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

Argued January 14,1977 | ac,

Decided August 4, 1977 | <qumma® “ate

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

David P. Sutton, Assistant Corporation Counsel for

the District of Columbia, with whom John R. Risher, Jr.,

Corporation Counsel, Louis P. Robbins, Principal Assist-

ant Corporation Counsel, and Richard W. Barton, Assist-

ant Corporation Counsel, were on the brief, for appellants.

C. Francis Murphy, Corporation Counsel at the time the

record was filed, also entered an appearance for appel-

lants.

Warren K. Kaplan, with whom Lawrence H. Mirel,

Ralph J. Temple, Mary McReynolds, and Kenneth V.

Handal were on the brief, for appellees.

Before WRIGHT, TAMM, and LEVENTHAL, Circuit

Judges.

Opinion for the court filed by Circuit Judge WRIGHT.

Dissenting statement filed by Circuit Judge TAMM.

WRIGHT, Circuit Judge: In this companion case to

Dellums v. Powell, D.C. Cir. No. 75-1974 (August 4, 1977)

(Dellums I), we consider appeals taken by Metropolitan

Police Chief Jerry V. Wilson and the District of Columbia

from a final judgment entered on jury verdicts in the

trial below. The facts of this case and its procedural

history are set out in Dellums I.

On this appeal the District of Columbia defendants

have adopted points raised in Chief Powell’s brief “to

the extent consistent with their non-liability in this case.”

Appellants’ brief at 22. We shall follow suit and adopt

Dellums I in answer to those points except as expressly

stated herein. While the bulk of the remaining issues in

this case pertain to the District of Columbia, we turn

first to Chief Wilson’s liability.

I. LIABILITY OF METROPOLITAN POLICE CHIEF

JERRY V. WILSON

Chief Wilson was held liable by the jury for false ar-

rest, malicious prosecution, and violation of both Dellums’

and the class plaintiffs’ First Amendment rights. At trial

Chief Wilson did not seek to establish official immunity as

a defense, but instead asserted that he was insufficiently

involved with the May 5 arrests to support tort liability.

He takes the same position here. We disagree with re-

spect to the false arrest and First Amendment claims,

but we find no link between Chief Wilson and the prose-

cution of the class plaintiffs and therefore reverse in

part.

The record is conflicting with respect to Chief Wilson’s

role in the events of May 5. Nonetheless, evidence would

support a finding that Chief Wilson collaborated on the

charge upon which arrests were to be made, and further

that he advised Chief Powell against taking additional

steps to ensure the effectiveness of dispersal orders at a

time when there was some doubt that the orders had been

heard.’ It is also undisputed that Chief Wilson retained

personal operational control over all Metropolitan Police

officers on the scene and could have withdrawn them had

he thought the arrests unjustified? This was sufficient

* See Tr. 1927-1929, 2461, 820, 2071-2077, 3859-3860; JA

1151-1153, 1478, 645, 1261-1267, 2000-2001.

—" Wilson testified as follows, Tr. 2681-2682, JA 1640-

1641:

Q Is one of the purposes for Chief Powell maintain-

ing the rank that he does in the Metropolitan Police De-

partment so that he will have authority over other lower

ranking Metropolitan Police officers who are assigned

on detail to the Capitol Police?

A No, sir.

Q_ Itis not?

A No.

_ Q And if he testified to the contrary, that would be

incorrect?

A _ I would say that would be incorrect: I would say

he does not have authority over the Metropolitan Police.

Q [Does Chief Powell have authority over] those who

are detailed temporarily such as the Special Operations

Division people on May 5th?

proof of Chief Wilson’s independent involvement in the

arrest process to make his liability one for the jury to

decide.*

The record will not, however, support Chief Wilson’s

liability for malicious prosecution. Chief Wilson’s involve-

ment—other than his personal control and supervision of

all Metropolitan Police participating in the arrests—was

limited to participation in the arrest decision, which to

be sure included determination of the charge to be re-

corded on the field arrest forms as the tentative charge

upon which arrestees were to be held. Yet, as far as the

A_ No, he did not have control over them.

Q_ Did he have authority over them?

A No.

Q Did he have authority to tell them to go up and

bring people down off the steps?

A He had authority to make arrests, and they were

there to assist him in the fundamentals of making arrests.

* * * He did not have authority to issue them commands

that Deputy Chief Zanders could not have counter-

manded, for example.

Deputy Chief Zanders, who reported to Chief Wilson, also

testified as follows, Tr. 3428, 3424, JA 1829-1830:

Q Is it fair to say, sir, that you just left it up to

Chief Powell as to whether these persons ought to be

arrested or not?

A He made the initial determination, yes.

Q And you assumed that whatever he said was all

right with you, is that right?

[A] Well, no, I don’t think that is a correct statement,

that I think what he was doing appeared to me to be a

logical line of reasoning to follow and that I would concur

with it.

If I thought the arrests were unreasonable, certainly I

wouldn’t have concurred with it.

Q You were not under Chief Powell’s authority that

day, were you?

A No, sir.

* No one has challenged the jury instructions on this aspect

of the case.

record shows Chief Wilson’s personal involvement with

the events of May 5 ended with determination and re-

cordation of the tentative charge. There is no evidence

linking Wilson to the meeting on the evening of May 5

at which Chief Powell and Attorney Zimmerman con-

vinced Attorneys Hannon and Moore to file informations.

Indeed, although Wilson was an eyewitness to the events

of May 5, there is no mention that he was contacted by

the Assistant United States Attorneys at any time or

filed a report with them. As we indicated in Dellums I,*

the critical event triggering liability for malicious prose-

cution is the filing of an information. Having failed to

link Chief Wilson with that decision, plaintiffs did not

make out a prima facie case, and the judgment against

him insofar as it awards damages for malicious prosecu-

tion must be vacated. Because the only basis for holding

the District of Columbia liable for malicious prosecution

is respondeat superior predicated on Chief Wilson’s lia-

bility, the judgment against the District of Columbia, in-

sofar as it awards damages for malicious prosecution,

must also be vacated.

II. THE DISTRICT OF COLUMBIA

The District was held liable on a respondeat superior

theory for all acts for which Chief Wilson was liable and

also, as custodian, for violation of arrestees’ Eighth

Amendment rights. In addition to the defenses of Chiefs

Wilson and Powell, the District asserts 2 number of the-

ories intended to defeat respondeat sup ior liability and

also challenges the sufficiency of the evidence to support

Eighth Amendment damages.’

*See Dellums v. Powell, —— F.2d . (D.C. Cir.

No. 75-1974, decided August 4, 1977) (siip op. at 45-46)

(hereinafter cited as Dellums /).

5’ Chief Wilson has been represented throughout this litiga-

tion by members of the staff of the Corporation Counsel for

A. Defenses to Vicarious Liability for False Arrest

1. The Borrowed Servant Doctrine

The law of agency is clear that a person generally the

servant of one master can become a “borrowed” servant

of another.’ If the borrowed servant commits a tort while

carrying out the bidding of the borrower, vicarious lia-

bility for that tort attaches to the borrower and not to

the general master.’ Relying on these propositions, the

District argues that the sole master to whom liability

can attach for the events of May 5 is the United States,

the borrowing master.‘ Whether this is the case is usually

the District of Columbia. See 4 D.C. Code § 148a (1973). The

position the District has taken here gives us some pause, since

it is potentially adverse to the interests of Chief Wilson inso-

far as the District’s arguments would exonerate the District

from joint and several liability with Chief Wilson. We would

hope that the Corporation Counsel’s office would examine

its ethical obligations under the CODE OF PROFESSIONAL RE-

SPONSIBILITY, see Ethical Considerations 5-14 to 5-19; Dis-

ciplinary Rule 5-105, and consider whether further represen-

tation of Chief Wilson is advisable. We note that under

§ 143a Chief Wilson will be reimbursed by the District for

attorney’s fees should the Corporation Counsel withdraw.

* See, e.g., Denton v. Yazoo & Mississippi Valley R. Co.,

284 U.S. 305 (1932); Balinovic v. Evening Star Newspaper

Co., 118 F.2d 505 (D.C. Cir. 1940) ; RESTATEMENT (SECOND)

OF AGENCY § 227 (1958).

' See, e.g., Denton v. Yazoo & Mississippi Valley R. Co.,

supra note 6.

® The District places heavy reliance on Provancial v. United

States, 454 F.2d 72 (8th Cir. 1972). There the court held that

two municipal police officers who were also unpaid deputy

special officers of the Department of the Interior, Bureau of

Indian Affairs, were “employees” of the United States within

the meaning of the Federal Tort Claims Act with respect to

their actions in arresting an Indian on a reservation. The

key fact in making this determination was that the officers

would have had no authority to make such an arrest unless

a question of fact, generally to be decided by the jury.’

Here, however, the facts are undisputed, and the only

question is whether Chief Wilson and his men were “do-

ing the work” of the United States or of the District of

Columbia.”°

We begin by noting that there is a presumption that

an actor remains in his general employment

so long as, by the service rendered another, he is

performing the business entrusted to him by the gen-

eral employer. There is no inference that because

the general employer has permitted a division of con-

trol, he has surrendered it.

There can be no question that Chief Wilson was perform-

ing “the business entrusted to him by [his] general em-

ployer” when he undertook to keep the peace on Capitol

Hill pursuant to an agreement between the Capitol and

Metropolitan Police. Consequently, to avoid liability the

District must show that the United States had “the power

they held special officer appointments. By parity of reasoning

the District suggests that Metropolitan Police officers who are

said to be similarly without general authority to make an

arrest on the Capitol Grounds must have been officers of the

United States when they made arrests upon the request of

the United States. For reasons set out in text infra we reject

the District’s characterization of applicable law governing

arrests at the Capitol. Further, we decline to follow Pro-

vancial since it did not purport to examine the borrowed

servant doctrine and in addition did not consider whether the

general employer of the officers might not be equally liable

with the United States.

* See RESTATEMENT, supra note 6, § 227, comment a, at 501.

But cf. Dornan v. United States, 460 F.2d 425 (9th Cir. 1972)

(semble).

1” See Denton v. Yazoo & Mississippi Valley R. Co., supra

note 6, 284 U.S. at 308-309.

11 RESTATEMENT, supra note 6, § 227, comment bd, at 501;

accord, Dornan v. United States, supra note 9, 460 F.2d at

428.

to control and direct [Chief Wilson] in the performance

of [his] work,” * and liability does not shift to the United

States unless it had “authoritative direction and con-

trol” * over Chief Wilson, which is something more than

the power merely to “suggest details or the necessary

cooperation.” *

The facts relevant to such proof are these. The Metro-

politan Police Department of the District of Columbia is

under a general duty to enforce the laws of the United

States and of the District of Columbia within the terri-

torial boundaries of the District. However, Congress has

also provided for a Capitol Police force with the special

obligation to patrol the Capitol Buildings and the Capitol

Grounds.** This force is under the direction of a three-

member Capitol Police Board which consists of the

Sergeants-at-Arms of the Senate and House and the

Architect of the Capitol.* The Capitol Police force is

staffed by members of the Metropolitan Police Depart-

ment, detailed to the Capitol for varying periods of time."

In addition, the Capitol Police are entitled to draw on

the resources of the Metropolitan Police from time to

time to provide necessary reinforcements. Acting under

this authority Chief Powell had requested, and Chief

Wilson had furnished, members of the Metropolitan Po-

lice Special Operations Division for the purpose of keep-

ing order on May 5.

** Standard Oil Co. v. Anderson, 212 U.S. 215, 222 (1909) ;

accord, Denton v. Yazoo & Mississippi Valley R. Co., supra

note 6, 284 U.S. at 309-310.

's Standard Oil Co. v. Anderson, supra note 12, 212 U.S. at

222.

* Id.

* 9 D.C. Code § 126 (1973), 40 U.S.C. § 212a (1970); see

note 18 infra.

** See 9 D.C. Code § 126-a (1978).

The division of authority between the Capitol Police

and the Metropolitan Police with respect to the Capitol

Buildings and Grounds is set out in 9 D.C. Code § 126

(1978), 40 U.S.C. §212a (1970).% Under that section

the Metropolitan Police are authorized to make arrests

within the United States Capitol Buildings and Grounds,

except that they may not patrol the Buildings or Grounds,

nor may they “enter such builvings to make arrests in

response to complaints or to serve warrants * * *,” ex-

cept with the consent (or upon request) of the Capitol

Police Board. The District argues that the effect of this

statute is to put any arrests for violations occurring on

the Capitol Grounds under the control of the United

States. We disagree.

First, the statute does not by its terms limit the au-

thority of the Metropolitan Police to arrest persons vio-—

lating the laws of the United States or of the District of

Columbia when such violations occur in the presence of

an officer of the Metropolitan Police who has been re-

quested to patrol the Capitol Grounds.” Had the Capitol

% This provision was amended in 1973, but the language

relevant here was not changed. See 40 U.S.C. § 212a (Supp.

V 1975).

* The legislative history indicates that Congress intended

to allow the Metropolitan Police to make arrests on the

Capitol Grounds when they were in pursuit of an offender

and when they were asked to patrol on the Grounds, but not

when acting on complaint or warrant. See S. Rep. No. 1709,

79th Cong., 2d Sess. 5 (1946):

There are, of course, many instances [not barred by

the requirement of consent of the Capitol Police Board]

in which it is necessary for the Metropolitan Police to

be able to make arrests within the Capitol Grounds, such

as when pursuing traffic offenders; also to be able to

make arrests within the Capito] Buildings; for example,

when detailed to the Capitol at the request of the Capitol

Police Board on occasions such as visits of the President,

and other important events.

10a

Grounds statute been violated by the plaintiffs, such a

violation would manifestly have occurred in the presence

of Metropolitan Police Officers. Thus, with respect to the

arrests at issue here, 9 D.C. Code § 126 at most confers

authority on the Capitol Police Board to prescribe meth-

ods for coordinating police action. Nonetheless, the rec-

ord read in the light most favorable to the District does

indicate that it was understood that Chief Powell would

make the initial decision whether to arrest the plain-

tiffs.° Yet it is further undisputed that Chief Powell

had no authority to order the Metropolitan Police officers

on the scene to take persons into custody.” Only if Chief

Wilsor. agreed that an arrest should be made would he

then order the Metropolitan Police officers to begin the

process of taking persons into custody. What the record

shows, therefore, is that Chief Powell and Chief Wilson

could each veto the other’s decision to arrest the plain-

tiffs. Accordingly, the fact that arrests were made indi-

cates an agreement or joint effort between Chiefs Powell

and Wilson, each acting within the scope of his respective

master’s employment. Where such mutual or joint action

exists, the borrowed servant doctrine is inapposite—for

it conceives of authoritative direction and control vesting

in one master to the exclusion of the other, not coordi-

nated action by two masters of their respective servants—

and liability attaches to both masters. This is true even

if the situation is conceptualized as one in which Chief

Wilson was acting simultaneously for both the United

States and the District of Columbia.”

2. Inconsistency of Respondeat Superior Liability

with Other Federal Laws

Although the District’s arguments under this heading

are somewhat inartfully drawn, it is apparently asking

2° See testimony of Deputy Chief Zanders, quoted at note

2 supra.

21 See testimony quoted at note 2 supra.

22 See RESTATEMENT, supra note 6, § 226.

lla

us to limit the scope of the remedy to be implied under

Bivens principles to avoid what it sees as an inconsist-

ency between vicarious municipal liability for constitu-

tional torts and policies said to underlie the Federal Tort

Claims Act and 42 U.S.C. § 1983. The argument from

Section 1983 has been raised only with respect to Eighth

Amendment liability, but its logical force cannot be so

limited and we consider it here.

Arguments similar to the Federal Tort Claims Act

point have been consistent losers in the courts of the Dis-

trict of Columbia. At first the District argued that the

non-applicability of the Federal Tort Claims Act to the

District of Columbia indicated a congressional intent that

the District be altogether free from tort liability. This

was rejected by this court sitting en banc in Spencer v.

General Hospital of the District of Columbia, 425 F.2d

479, 484 (D.C. Cir. 1969). Subsequently, the position

taken in Spencer was adopted by the District of Columbia

Court of Appeals, also sitting en banc. See Wade v. Dis-

trict of Columbia, 310 A.2d 857, 861-862 (1973). The

District next argued that it could not be held liable for

the intentional torts of its police officers, pointing to pro-

visions of the Federal Tort Claims Act which excepted

false arrest, false imprisonment, and malicious prosecu-

tion from the waiver of sovereign immunity otherwise

worked by that Act.* This argument was rejected by

this court in Carter v. Carlson, 447 F.2d 358, 366-367

*s [Sovereign immunity is not waived as to} [a]ny claim

arising out of assault, battery, false imprisonment, false

arrest, malicious prosecution, abuse of process, libel,

slander, misrepresentation, deceit, or interference with

contract rights.

28 U.S.C. § 2680(h) (1970). This subsection was amended

in 1973 to remove the above exception as to “assault, battery,

false imprisonment, false arrest, abuse of process, [or]

malicious prosecution,” 28 U.S.C. § 2680(h) (Supp. V 1975) ;

however, this amendment applies only to claims arising

the date of the amendment. .

12a

(D.C. Cir. 1971), rev’d in part on grounds not relevant

here, sub nom. District of Columbia v. Carter, 409 U.S.

418 (1973), and, again, was expressly rejected by the

District of Columbia Court of Appeals sitting en banc,

Wade v. District of Columbia, supra, 310 A.2d at 861-

863.* Thus as matters now stand there can be no doubt

that “the District of Columbia may be sued under the

common law doctrine of respondeat superior for the in-

tentional torts of its employees acting within the scope of

their employment.” Jd. at 863.

This conclusion does not quite end our inquiry, how-

ever. At issue in both Carlson and Wade were common

law torts. Here, on the other hand, the action is brought

under a Bivens theory and is predicated on a tortious

invasion of Fourth, First, and Eighth Amendment rights

as well as of interests protected at common law. None-

theless, this is an irrelevant distinction under the ration-

ale of Spencer, Carlson, and Wade. In those cases the

critical question was not the interests protected by tort

law, but whether imposition of tort liability would im-

pede “ ‘the performance of functions calling for the high-

est degrees of discretion and judgment.” Spencer v. Gen-

eral Hospital of the District of Columbia, supra, 425 F.2d

at 482, quoting Elgin v. District of Columbia, 337 F.2d

152, 156 (D.C. Cir. 1964). Carlson and Wade confirmed

that the arrest function is not one calling for such dis-

cretion and judgment and consequently respondeat su-

perior liability would lie.** In light of the reasoning in

*¢ The en banc opinion in Wade does not clearly disclose that

the District in that case made both arguments set out in text.

The panel opinion in that case does show this, however. See

Graves v. District of Columbia, 287 A.2d 524, 525 (D.C. App.

1972).

25 See Carter v. Carlson, 447 F.2d 358, 366 (D.C. Cir. 1971),

rev'd in part on other grounds, sub nom. District of Columbia

v. Carter, 409 U.S. 418 (1973) ; Wade v. District of Columbia,

310 A.2d 857, 860 (D.C. App. 1973) (en banc). Of course,

13a

these cases and our holding above that Chief Wilson was

not a borrowed servant, we again reject the District’s

Tort Claims Act argument and hope that, after four

strikes, it is now finally and decisively put out.*

The District’s second argument is more troublesome,

but it is also unavailing. As we understand the argu-

ment, it is that relief in a Bivens action should be styled

on the pattern of 42 U.S.C. § 1983. Since the legislative

history of Section 1983 was held in Monroe v. Pape, 365

U.S. 167 (1961), to preclude suits against municipalities,

it is argued it would be anomalous for us to find a right

of action under Bivens against the District of Columbia.

More troublesome yet is the subsequent decision in Moor

v. County of Alameda, 411 U.S. 693 (1973), where the

Court held that a municipality could not be held vicari-

ously liable for Section 1983 damages even though state

law quite clearly recognized such liability in common law

tort suits.

At the threshold it must be recognized that both Bivens

and the law of false arrest in the District of Columbia

are federal common law doctrines. Both protect consti-

tutional rights coming under the general heading of the

Fourth Amendment, although the Bivens action goes

farther in recognizing damages for violation of First and

Eighth Amendment rights as well. As a consequence of

this parallelism, acceptance of the argument proffered by

the District would require reversal in both Carlson and

both Carter and Wade recognized that the arrest function

involved discretion in the ordinary sense but not discretion in

the policymaking sense, which is the interest protected by

municipal immunity.

** The history of District of Columbia liability in tort is

traced in Spencer v. General Hospital of the District of Co-

lumbia, 425 F.2d 479, 481 n.2 (D.C. Cir. 1969) (en banc).

The most recent decision rejecting the District’s claims of

sovereign immunity is that of the District of Columbia Court

of Appeals in Wade v. District of Columbia, supra note 25.

l4a

Wade as well as in this case. Manifestly, such a wrench

in the well settled law of the District of Columbia should

not be lightly considered, or imposed without the clearest

indication that Supreme Court cases mandate such an

outcome.

We begin our analysis by noting that Section 1983 does

not apply to officers of the District of Columbia. In Dis-

trict of Columbia v. Carter, 409 U.S. 418 (1973), a unan-

imous Supreme Court held that the phrase “[e] very per-

son who, under color of any statute * * * of any State

or Territory,” which describes those subject to Section

1983 liability, does not apply to officers of the District of

Columbia since it is neither a state nor a territory within

the meaning of Section 1983. The rationale for constru-

ing this language narrowly was that the historical situa-

tion of the District was such that it was extremely un-

likely that the Civil War era Congress intended to address

itself to the problem of civil rights in the District: *

There was no need * * * to create federal court

jurisdiction for the District of Columbia. Even prior

to 1871, the courts of the District possessed general

jurisdiction over both federal and local matters. * * *

Thus, the jurisdictional aspects of §1 of the 1871

Act were entirely superfluous with respect to the

District. Moreover, while Congress was unable to

exert any direct control over the actions of state offi-

cials, it was authorized under Art. I, § 8, cl. 17, of

the Constitution to exercise plenary power over the

District of Columbia and its officers. * * * And since

the District is itself the seat of the National Govern-

ment, Congress was in a position to observe and, to

a large extent, supervise the activities of local offi-

cials. Thus, the rationale underlying Congress’ deci-

sion not to enact legislation similar to § 1983 with

respect to federal officials * * * is equally applicable

to the situation then existing in the District of Co-

lumbia.

** District of Columbia v. Carter, supra note 25, 409 U.S.

at 429-430 (footnotes and citations omitted).

15a

Because Congress did not address the problem of civil

rights in the District, the legislative history of Section

1983 obviously does not directly limit the common-

lawmaking powers of the courts of the District of Colum-

bia.

Nor is the rationale for the congressional exemption of

municipalities from Section 1983 liability so persuasive

that it should be recognized by the common law as a mat-

ter of logic and reason. As indicated in Monroe, Moor,

and District of Columbia v. Carter, Congress stayed its

hand, not out of any special solicitude for municipalities,

but because “the House had solemnly decided that in their

judgment Congress had no constitutional power to impose

any obligation upon county and town organizations * * *.”

Monroe v. Pape, supra, 365 U.S. at 190. Even assuming

that this is a correct statement of constitutional principle,

it is nonetheless a rationale that simply points nowhere

on the issue before us. See U.S. ConstT., Art. I, § 8, el. 17.

Moreover, if one is casting about through the United

States Code for guidance in structuring the common law

of respondeat superior, the 1973 amendments to the Fed-

eral Tort Claims Act cannot be overlooked.” Those amend-

ments modify 28 U.S.C. § 2680(h) so that the federal

government is now generally responsible for the inten-

tional torts of its law enforcement officers. The Senate

report, while recognizing Bivens as a source of relief for

an injured party, stated: “Of course, Federal agents are

usually judgment proof so this [Bivens] is a rather hol-

low remedy.” S. Rep. No. 588, 93d Cong., 1st Sess. 3

(1973). The Report goes on to indicate that the waiver

of sovereign immunity is intended to be “a counterpart

to the Bivens case and its progenty [sic]” by making the

government “independently liable in damages for the same

**The amendments are contained in §2 of Pub. L. No.

93-258, 88 StaT. 50 (1973). Section 2680(h) as amended

is codified at 28 U.S.C. § 2680(h) (Supp. V 1975).

l6a

type of conduct that is alleged to have occurred in Bivens

* * *.” Id. Thus to adopt the District’s position on the

theory that it removes an anomaly in the law of munici-

pal liability would be to create an anomaly in the appli-

cation of the only extant congressional statement of policy

dealing precisely with the question of the need and wis-

dom of respondeat superior liability for constitutional

torts.

For the reasons set out above, we conclude that neither

the Federal Tort Claims Act nor Section 1983 requires

us to restrict relief for false arrest under a Bivens theory

to a narrower compass than under the settled common

law.

B. Defenses to Eighth Amendment Liability

Arrests of the plaintiffs commenced between 3:00 and

4:00 P.M. on May 5. Each arrestee was charged with

unlawful entry, and field arrest forras were completed to

reflect the fact of arrest and the identity of the arresting

officer. Persons processed in this way were placed aboard

buses and taken to the District of Columbia Coliseum

which had been pressed into service as a temporary deten-

tion facility. Testimony concerning subsequent events is

conflicting in some respects due to the different vantage

points of the various observers and fading powers of

recollection. Nonetheless, an outline of essentially uncon-

tested facts can be made out.”

2° The District of Columbia does not appear to have chal-

lenged on cross-examination any of the testimony offered

concerning conditions of detention. On appeal the District has

generally conceded the accuracy of this testimony or has been

unable to cite record support for any of its contrary assertions.

17a

At the Coliseum arrestees were told that they would be

taken before a Superior Court judge for arraignment if

they would consent to being “processed” into the criminal

justice system by having their fingerprints taken and an-

swering a detailed set of questions. Notwithstanding this

promise, persons who had completed processing were told

to sit in the stands, were moved back and forth from the

stands to the floor perhaps a number of times, and were

not brought before judges until at the earliest some time

in the late morning of May 6.*° No reason appears in the

record why this group was not taken expeditiously before

the Superior Court, which was sitting in continuous ses-

sion at the time.

Those who refused to submit to “processing”—some 500

persons *"—were segregated within the Coliseum and were

detained there until the late afternoon of May 6. At that

time all persons who had refused processing were taken

to the cellblock in the United States Courthouse. Some

*° Persons were delayed both in leaving the Coliseum and in

being arraigned once they were in the vicinity of the Superior

Court. For example, one arrestee who was processed almost

immediately upon arrival at the Coliseum, Tr. 857, JA 662,

was apparently taken from the Coliseum some time on May 6,

see Tr. 858, JA 663, but was not arraigned until 5:00 A.M.

on May 7, Tr. 867, JA 672. Another witness testified that

she had finished processing about 4:30 P.M. on May 5, but was

not taken from the Coliseum until 6:00 P.M. the following

day and did not gain her release until some five hours later.

Tr. 974-975, JA 739-740. See also Tr. 620, 887, 954, JA 460,

681, 733.

*t The record is not clear on how many persons were moved

to the cellblock. In Sullivan v. Murphy, 478 F.2d 938, 952 (D.C.

Cir.), cert. denied, 414 U.S. 880 (1973), facts were presented

which tended to indicate that 500 persons were so detained.