Tarpley v. Greene

• Decision Date: 02 July 1982
• Docket Number: No. 81-1246,81-1246
• Parties: Fred TARPLEY, Sr., Appellant, v. Raymond J. GREENE, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1

684 F.2d 1

221 U.S.App.D.C. 227

Fred TARPLEY, Sr., Appellant, v. Raymond J. GREENE, et al.

No. 81-1246.

United States Court of Appeals, District of Columbia Circuit.

Argued April 26, 1982.

Decided July 2, 1982.

As amended July 2, 1982.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-1237).

Gary E. Bair, Washington, D. C., with whom Arthur B. Spitzer and Elizabeth Symonds, Washington, D. C., were on the brief, for appellant.

Brien A. Roche, Fairfax, Va., for appellees, Montgomery County, DiGrazia and Booth.

David R. Lasso, Arlington, Va., with whom Charles G. Flinn, Arlington, Va., was on the brief, for appellees, Arlington County, et al.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D. C., were on the brief, for appellees, District of Columbia, et al.

Before BAZELON, Senior Circuit Judge, and EDWARDS and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Appellant Fred Tarpley, Sr. was the subject of a 1978 criminal investigation by the police departments of the District of Columbia, Arlington County, Virginia and Montgomery County, Maryland. Appellant brought this suit against the three local governments, their chiefs of police and individual police officers based on several incidents during the investigation in which police officers interrogated appellant and searched him and his home. Appellant sought injunctive relief and damages under 42 U.S.C. § 1983 (1976) ("section 1983") and directly under the Constitution for alleged violations of his Fourth and Fourteenth Amendment rights. His complaint also included several pendent state tort claims.

In a series of rulings the District Court dismissed Tarpley's claims against certain defendants and granted summary judgment to the rest. Based on our review of the record and the District Court's reasoning, we affirm all of the District Court's rulings except for its grant of summary judgment to District of Columbia police officer Greene and Montgomery County police officer Booth regarding their search of appellant's home on June 9, 1978. We reverse and remand this ruling because we find that the District Court used an erroneous legal standard for determining whether the officers' execution of the search warrant on that date was "reasonable" under the Fourth Amendment.

I. Proceedings Below

A. The Complaint

On July 6, 1978, appellant filed this suit seeking damages and injunctive relief under 42 U.S.C. § 1983 (1976) ¹ and directly under the Constitution for violation of his Fourth and Fourteenth Amendment rights. ² His complaint also included pendent state claims of common law trespass, assault and battery, destruction and conversion of property, false arrest and false imprisonment. See R.E. 34-39. ³ The suit was based on four separate encounters with the police that took place over a two-week period in 1978. Only two of the incidents are relevant to this appeal.

The first incident occurred on May 25, 1978, when Detective Robert H. Carrig, of the Arlington County police department, and Detective Raymond J. Greene, of the District of Columbia police department, interrogated appellant at his home. The complaint alleged that the officers entered appellant's home without a warrant or consent and unlawfully detained, interrogated, and verbally abused appellant despite his requests that they leave. Complaint, P 11; R.E. 35-36. The second incident involved a search of appellant's home by District of Columbia Detective Greene, ⁴ Montgomery County police officer Jack Booth, and several other Montgomery County police officers. The search occurred on June 9, 1978, pursuant to a warrant issued by Judge Bruce Mencher of the District of Columbia Superior Court. The complaint alleged that, in executing the search warrant, the officers destroyed property, removed items from appellant's home and detained and assaulted appellant. Complaint, P 15; R.E. 36. ⁵

B. The District Court Rulings

Three rulings of the District Court are relevant to this appeal. First, on May 17, 1979, the District Court granted motions to dismiss filed by Arlington County, Montgomery County and their respective chiefs of police. See R.E. 11-15. The District Court noted that, under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), municipalities cannot be held liable under section 1983 on a respondeat superior theory of liability. Rather, municipal liability attaches only to actions taken pursuant to some official policy or custom of the municipality. See 436 U.S. at 690-94, 98 S.Ct. at 2035-2037. Applying this principle to both appellant's section 1983 and constitutional claims, the court held that the counties and their chiefs of police could not be held liable on a respondeat superior theory and that the complaint did not allege that these defendants were directly involved in any of the alleged incidents of police misconduct. R.E. 12-13. Having dismissed the federal claims against those defendants, the court also dismissed the pendent common law claims against them pursuant to United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). R.E. 13.

The second ruling challenged on appeal is the District Court's grant of summary judgment to the remaining Arlington County defendants-four Arlington police officers-on April 16, 1980. See R.E. 16-23. ⁶ With respect to the May 25, 1978 interview of appellant, the court found that three of the four Arlington officers were completely uninvolved in the incident and could not be liable either directly or on a respondeat superior theory. R.E. 17-18. The one officer involved, Robert Carrig, filed an uncontroverted affidavit denying that any physical assault and battery, verbal abuse, or entry without permission had occurred. Based on appellant's failure to submit any evidence in response to Carrig's denials, the court held that "no actionable violations occurred" and that summary judgment was appropriate under Fed.R.Civ.P. 56(e). R.E. 18-19. ⁷ As to appellant's claims concerning the June 9, 1978 search of his home, the court granted summary judgment to the four Arlington officers because it was undisputed that none of them were present during that search. R.E. 22. ⁸

The third, and most complicated, ruling at issue is the District Court's decision on January 29, 1981 to grant summary judgment to the District of Columbia, its chief of police, Burtell M. Jefferson, District of Columbia Detective Greene and Montgomery County police officer Booth. See R.E. 24-32. ⁹ The court granted Booth's motion for summary judgment as to appellant's claims concerning the June 9, 1978 search ¹⁰ based largely on an affidavit filed by Booth. In that affidavit Booth stated that he did not touch or assault appellant or witness any touching or assaulting of appellant that he did not damage any property except as necessary to execute the warrant, and that he did not take any property other than the items listed in the returned warrant. The court found, first, that appellant had not met his burden under Fed.R.Civ.P. 56(e) and Local Rule 1-9(h) of producing evidence to contradict Booth's sworn denial that any assault and battery took place. Second, based on its reading of another affidavit that led to the issuance of the search warrant, the court rejected appellant's claim that the warrant was not based upon probable cause. Finally, the court held that appellant had raised no genuine issues of fact as to whether the search warrant was reasonably executed. R.E. 26-27.

The court granted summary judgment to District of Columbia Detective Greene as to the June 9, 1978 search for similar reasons. It again concluded that the search warrant was supported by probable cause and that appellant had failed to produce evidence to support his contention that Greene had acted unreasonably in executing the warrant. R.E. 30. With respect to the May 25, 1978 incident, the court found that appellant had neither alleged in his complaint nor produced any evidence of an assault and battery by Greene. Nor had appellant produced any evidence to contradict the statement in the affidavit of Arlington County Detective Carrig, who had accompanied Greene during the May 25 interview, denying that the officers had entered appellant's home without permission. In addition, the court again noted that appellant's allegation of verbal abuse, without any assault and battery, was inadequate to state a claim under section 1983. The court concluded that, given appellant's "total failure to raise any specific factual issues," it was appropriate to grant summary judgment to Greene as to the May 25 interview. R.E. 29.

The court also granted summary judgment to the District of Columbia and its chief of police, Burtell Jefferson, on both the section 1983 and the Bivens claims. First, the District Court rejected appellant's section 1983 claim because section 1983 did not cover deprivations of federal rights committed under color of District of Columbia law at the time of the alleged police misconduct in this case. ¹¹ Second, the court held that summary judgment as to the constitutional claims against the District of Columbia and its police chief was appropriate because appellant had failed to present any evidence of liability-creating acts by police officers of the District of Columbia upon which respondeat superior liability could be based. In addition, it suggested that the proscription in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), against respondeat superior liability might independently bar recovery on appellant's constitutional claims because appellant had failed to show that these defendants were involved in the alleged violations or that the violations were authorized under a...