478 F.2d 938 (D.C. Cir. 1973), 71-1632, Sullivan v. Murphy

Docket Nº:71-1632.
Citation:478 F.2d 938
Party Name:Nancy SULLIVAN et al., Appellants, v. C. Francis MURPHY, Corporation Counsel of the District of Columbia, et al.
Case Date:April 16, 1973
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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478 F.2d 938 (D.C. Cir. 1973)

Nancy SULLIVAN et al., Appellants,


C. Francis MURPHY, Corporation Counsel of the District of Columbia, et al.

No. 71-1632.

United States Court of Appeals, District of Columbia Circuit.

April 16, 1973

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Ralph Temple, Washington, D. C., with whom were Edward L. Genn, Monroe H. Freedman and William L. Sollee, Washington, D. C., for appellants.

David P. Sutton, Asst. Corp. Counsel, with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the petition for appellees.

On Appellees' Petition for Rehearing

Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.

LEVENTHAL, Circuit Judge:

This case arises from the civil disturbances in Washington, D. C., between April 22 and May 6, 1971, in connection with the "May Day" demonstrations protesting American military involvement in Southeast Asia. During this period a total of 14,517 persons were arrested on a variety of charges, the most common of which were disorderly conduct, violation of police lines, unlawful assembly, and unlawful entry onto public property. The vast majority of those arrested were required to post collateral bond to obtain their release from custody. Approximately 3,749 of the resulting cases were terminated administratively and never entered judicial channels. Another 9,666 cases came to final

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disposition in the Superior Court of the District of Columbia, but only 871 of these proceeded to a full trial on the merits. The present controversy centers around the procedures used by police in effecting these arrests, the disposition of criminal charges, and the continued maintenance of arrest records.


On May 24, 1971, this class action was brought in the United States District Court by the Plaintiffs 1 on behalf of themselves and all other persons "arrested in the District of Columbia during the week of May 3, 1971, for whom the authorities lack a contemporary field arrest form, [P]olaroid photograph or other evidence of probable cause to support the charges [then] pending against them." Defendants (appellees) were the Corporation Counsel, 2 Chief of Police, Mayor, and Clerk of the Superior Court. 3 Plaintiffs requested, inter alia, that certain acts of the Defendants with respect to the arrests and ensuing prosecutions be declared unconstitutional, 4 that further prosecution of the Plaintiffs be enjoined, and that all sums posted as collateral bond to secure the release from detention of members of the plaintiff class be deposited in the District Court to be refunded to the Plaintiffs.

Plaintiffs accompanied their complaint with motions for a preliminary injunction and temporary restraining order barring the Defendants from prosecuting members of the plaintiff class or from causing their bond to be forfeited. The motions were denied by an order of the District Court (filed May 25, 1971) on the ground that Plaintiffs had failed to demonstrate either irreparable injury, or that the prosecution was rooted in harassment or bad faith. On May 26, on interlocutory appeal, 28 U.S.C. § 1292(a) (1), the motions panel of this court, after hearing argument, reversed the District Court's ruling, and entered an order enjoining Defendants from the further prosecution of any cases against members of the plaintiff class in which the Defendants "do not reasonably believe they have in their files and records adequate evidence to support probable cause for arrest and charge" and requiring Defendants to take all reasonable steps to assure that members of the plaintiff class received timely notice of the dismissal of any charge so as to avoid unnecessary court appearances. 5

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The order was entered pending disposition of Plaintiffs' motion for a preliminary injunction. Sullivan v. Murphy, 143 U.S.App.D.C. 382, 444 F.2d 840 (1971).

On June 10, 1971, Plaintiffs amended the complaint to enlarge the plaintiff class to include all persons arrested during the week of May 3 with respect to whom, "irrespective of . . . alleged contemporaneous field arrest forms, photographs or other evidence, the . . . authorities could not, after an adequate personal consultation with the witness or witnesses, establish a prima facie case. . . ." The prayer for relief was also expanded by adding requests that the Defendants be enjoined from prosecuting any case that had not previously been screened to determine the existence of probable cause for arrest and prosecution, that all forfeitures of collateral bond be set aside except in cases for which adequate probable cause exists and in which the accused had knowingly and intelligently waived his right to a trial on the merits, that a judgment issue declaring the rights of the Plaintiffs to the expungement of all arrest records pertaining to members of the plaintiff class, and that, pending determination of the Plaintiff's right to expungement, an order issue prohibiting the dissemination of these arrest records.

The District Court entered its findings and order with respect to Plaintiffs' motion for a preliminary injunction on June 23, 1971. Judge Corcoran concluded that Plaintiffs' suit was maintainable as a class action; that no modification of our order of May 26, 1971, was necessary to prevent irreparable injury to the plaintiff class, and that consideration of Plaintiffs' request to expunge arrest records was premature. He therefore directed that the May 26 order continue in effect for an indefinite period of time but denied the Plaintiffs' prayers in all other respects.

On August 3, 1971, the District Court denied Plaintiffs' written motion, filed July 2, to expand relief and also denied a motion made during oral argument for an order directing the expungement of all arrest records in the Superior Court relating to members of the plaintiff class.

This appeal followed.

On September 22, 1971 the then-sitting motions panel of this court heard oral argument on Plaintiffs' motion, filed August 19, 1971, for summary reversal of the order denying the preliminary injunction, and Defendants' crossmotion of September 9, 1971, for summary affirmance.

On October 1 1971, this court entered an order (unreported) 6 that granted most of the relief Plaintiffs had sought. The matter of expunging arrest records was reserved. Defendants filed a petition for rehearing; we heard argument

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thereon on December 13, 1971; received additional memoranda; and heard reargument on July 12, 1972.


The case is before us on interlocutory appeal from denial of a preliminary injunction, and the facts may be subject to amplification and refinement upon entry of a final judgment on a full record. A heft of the pertinent facts, sufficient for interlocutory purposes, is available not only from affidavits filed in District Court with the motion papers, including Superior Court transcripts incorporated therein, and files of the District Court and this court in related cases, but also information supplied by Defendants to this court at our request.

Both the Metropolitan Police and the Clerk of the Superior Court maintain systems of computerized files. This court was furnished with a computer print-out listing each case processed by the Superior Court pertaining to a member of the plaintiff class, together with its ultimate disposition. It developed, however, that these records were, at the same time, both voluminous and fragmentary. We directed the Defendants to provide additional statistical data relating to the arrests of members of the plaintiff class and to the disposition of the criminal charges that were lodged against them. We appreciate the diligent efforts of the Corporation Counsel and the Clerk of the Superior Court in securing these data. We now present the shape of the circumstances of the fateful period as they may fairly be discerned from the record before us.

A. Arrests.

One of the Plaintiffs' chief grievances is addressed to the way arrests were made during the May Day period. 7 We shall first outline the arrest procedures customarily employed by the Metropolitan Police Department, and then consider the facts surrounding the arrests put at issue in the instant case.

1. District of Columbia arrest procedures

Customary procedures

A police officer in the District of Columbia has authority to arrest without a warrant any person whom he has probable cause to believe has committed an offense in his presence. 8 When the arresting officer does not proceed by way of mere citation to appear at a later date, he ordinarily escorts his prisoner to the local precinct stationhouse, where the arrest is recorded and the defendant booked. Customarily, the evidence shows, persons arrested for violating municipal ordinances or other petty offenses of the disorderly conduct type are not fingerprinted or photographed, although this is subject to the booking officer's discretion. During the booking process, the arresting officer fills out a complaint form, identifying the person taken into custody and describing both the circumstances of the apprehension and the precise nature of the charge; the information so recorded is later used by the Corporation Counsel as the basis for preparing a formal information charging the defendant.

Following completion of the booking procedures, the person arrested is given an opportunity to secure his release by posting collateral bond at the stationhouse in accordance with a schedule prescribed by the Superior Court. 9 In the

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case of petty offenses, the accused may elect to waive trial...

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