Dellums v. Powell

• Decision Date: 14 November 1977
• Docket Number: No. 75-1974,75-1974
• Citation: 566 F.2d 167,184 U.S.App.D.C. 275
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 167

566 F.2d 167

184 U.S.App.D.C. 275

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.

No. 75-1974.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 14, 1977.

Decided Aug. 4, 1977.

Rehearing Denied Nov. 14, 1977.

Dennis G. Linder, Atty., Dept. of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., and Robert E. Kopp and David J. Anderson, Attys., Dept. of Justice, Washington, D. C., were on the briefs, for appellant.

Warren K. Kaplan, Washington, D. C., with whom Lawrence H. Mirel, Ralph J. Temple, Mary A. McReynolds, and Kenneth V. Handal, Washington, D. C., were on the brief, for appellees.

Before WRIGHT, TAMM and LEVENTHAL, Circuit Judges.

Opinion for the court filed by J. SKELLY WRIGHT, Circuit Judge.

Concurring opinion filed by LEVENTHAL, Circuit Judge.

Dissenting opinion filed by TAMM, Circuit Judge.

J. SKELLY 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. Persons named as defendants included various officials of the United States and of the District of Columbia and the District itself. ¹ Suit was predicated on an allegation 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 Amendments to the Constitution of the United States; the Civil Rights Act, 42 U.S.C. §§ 1981, et seq.; 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. ²

The complaint stated that the class plaintiffs had met with some 2,000 persons on the Mall near the United States Capitol 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 assembled 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 arrangements 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." ³ While Congresswoman 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 sanitation, inadequate or filthy bedding, insufficient food, and no medical care. Access to attorneys and telephones was said to have been denied or severely restricted.

Abzug was addressing the crowd, at about 3:30 P.M., the 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.

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 servants of the United States. All defendants denied that conditions of detention had been inhumane.

After a period of pretrial motion practice and discovery, the trial court certified this suit as a class action in May 1973 and defined the class as "all persons who were arrested while assembled on the Capitol steps on May 5, 1971." ⁴ This action came on for trial before 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 complaint and the answer. At the close of plaintiffs' case and again at the close of all the evidence, the defendants remaining in the case ⁵ Deputy Attorney General Kleindienst, 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. ⁶

Chiefs Powell and Wilson and the District of Columbia each prosecuted appeals from the judgment entered below on the jury verdicts. The plaintiffs below have also appealed the directed verdict in favor of Deputy Attorney 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 Chief Powell was held liable to the class plaintiffs for common law false arrest, false imprisonment, and malicious prosecution and for a Bivens ⁷ claim based on violations of the First and Fourth Amendments. In addition, he was held liable to Congressman Dellums on a Bivens claim based on the First Amendment. We begin 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 liability for malicious prosecution of the class and First Amendment liability to both the class and Congressman Dellums.

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.

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 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 action 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 imprisoned without process." Clarke v. District of Columbia, 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, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Director General of Railroads v. Kastenbaum, 263 U.S. 25, 27, 44 S.Ct. 52, 68 L.Ed. 146 (1923); see, e.g., Restatement (Second) 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 showing 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. District 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, 1347-1348 (2d Cir. 1972); Hill v. Rowland, 474 F.2d 1374, 1377 (4th Cir. 1973). See also Restatement, supra, §§ 121, 127.

The mechanics of pleading and proof in a Bivens action 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, indicates that the details of constitutional tort actions should be shaped by reference to the parallel common law. See 386 U.S. at 556-557, 87 S.Ct. 1213. The rule recognized in the District that an allegation of arrest and imprisonment without warrant shifts to the defendant the burden 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...