737 F.2d 1 (D.C. Cir. 1984), 82-2159, Hobson v. Wilson

Docket Nº:82-2159, 82-2160, 82-2221, 82-2226 and 82-2227.
Citation:737 F.2d 1
Party Name:Julius HOBSON, et al. v. Jerry WILSON, Thomas J. Herlihy, Jack Acree, Christopher Scrapper, Edward Jagen, John Mahaney & George Suter, Appellants, John B. Layton, et al. Julius HOBSON, et al. v. Jerry WILSON, et al. Charles D. Brennan, Courtland J. Jones, Gerald T. Grimaldi, George C. Moore & Gerould W. Pangburn, Appellants. Julius HOBSON, et al. v
Case Date:June 08, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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737 F.2d 1 (D.C. Cir. 1984)

Julius HOBSON, et al.

v.

Jerry WILSON, Thomas J. Herlihy, Jack Acree, Christopher

Scrapper, Edward Jagen, John Mahaney & George

Suter, Appellants,

John B. Layton, et al.

Julius HOBSON, et al.

v.

Jerry WILSON, et al.

Charles D. Brennan, Courtland J. Jones, Gerald T. Grimaldi,

George C. Moore & Gerould W. Pangburn, Appellants.

Julius HOBSON, et al.

v.

Jerry WILSON, et al.

District of Columbia, a Municipal Corporation, Appellant.

Julius HOBSON, et al.

Washington Area Women Strike for Peace, Appellant,

v.

Jerry WILSON, et al.

Julius HOBSON, et al.

Abe Bloom, Arthur I. Waskow, Tina Hobson, David Eaton,

Sammie A. Abbott, Richard P. Pollock, Reginald

Booker, Washington Peace Center and

Washington Area Women Strike

for Peace, Appellants,

v.

Jerry WILSON, et al.

Nos. 82-2159, 82-2160, 82-2221, 82-2226 and 82-2227.

United States Court of Appeals, District of Columbia Circuit

June 8, 1984

Argued Jan. 23, 1984.

As Amended June 20, 1984.

Opinion on Denial of Rehearing Aug. 17, 1984.

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Richard B. Nettler, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, Washington, D.C. (at the time the brief was filed), Charles L. Reischel, Deputy Corporation Counsel, and Edward S. Schwab, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellants, Wilson, et al., in Nos. 82-2159 and 82-2221 and appellees in Nos. 82-2226 and 82-2227.

David H. White, Washington, D.C., of the Bar of the Supreme Court of Kentucky, pro hac vice, by special leave of the Court, with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Washington, D.C. (at the time the brief was filed), Barbara L. Herwig and Marc Johnston, Attys. Dept. of Justice, Washington, D.C., were on the brief for Brennan, Moore, Pangburn and Grimaldi, appellants in No. 82-2160 and appellees in Nos. 82-2226 and 82-2227.

A. Raymond Randolph, Washington, D.C., with whom Christopher L. Varner, Washington, D.C., was on the brief, for Jones, appellant in No. 82-2160 and appellee in Nos. 82-2226 and 82-2227.

Anne Pilsbury, New York City, with whom Morton Stavis, Hoboken, N.J., and Arthur B. Spitzer, Washington, D.C., were on the brief, for Hobson, et al., appellees in Nos. 82-2159, 82-2160, 82-2221 and appellants in Nos. 82-2226 and 82-2227. Mary B. Pike and Herb Semmel, New York City, entered appearances for Hobson, et al.

Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Barbara L. Herwig and Freddi Lipstein, Attys., Dept. of Justice, Washington, D.C., on petition for rehearing and rehearing en banc on behalf of appellate Brennan, Moore, Pangburn and Grimaldi.

Before EDWARDS, SCALIA and STARR, Circuit Judges.

TABLE OF CONTENTS BACKGROUND Page I. The Parties ............................................................ 8 II. The Facts .............................................................. 9 III. The Causes of Action ................................................... 13 IV. The Special Verdicts ................................................... 13 DISCUSSION I. Liability Under Section 1985(3) ........................................ 14 A. The Statutory Scheme ................................................ 14 B. Applicability of Section 1985(3) to the District of Columbia and Its Employees ........................................................... 16 C. Applicability of Section 1985(3) to Federal Officers ................ 19 D. Class-Based Discriminatory Animus ................................... 20 II. Harlow v. Fitzgerald and Defendants' Qualified Immunity ................ 24 A. Qualified Immunity and the Harlow Standard .......................... 24 B. Application of the Harlow Standard .................................. 25 C. Pleading Unconstitutional Motive .................................... 29 D. Municipal Liability ................................................. 31 Page 7

  1. Statute of Limitations ................................................. 32 A. Fraudulent Concealment: Case Law .................................... 33 B. The Tolling Doctrine Applied ........................................ 36 1. The Self-Concealing Wrong ........................................ 36 2. Notice to Trigger the Statute of Limitations ..................... 38 C. Remaining Objections to the Fraudulent Concealment Instructions ..... 41 IV. Defendant Courtland Jones .............................................. 42 V. Juror Contact .......................................................... 46 VI. Sufficiency of the Evidence ............................................ 50 A. The Conspiracies .................................................... 51 B. Individual Liability ................................................ 55 VII. Damages ................................................................ 57 VIII. Arguments on Cross-Appeal .............................................. 63 A. Expungement of FBI Records .......................................... 64 CONCLUSION .................................................................... 66 ON PETITION FOR REHEARING ..................................................... 66

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This case presents yet another chapter in the saga of the Federal Bureau of Investigation's notorious COINTELPRO operation. It is now clear that COINTELPRO has long been abandoned; but, as this case demonstrates, its victims have remained vigilant in seeking redress for past wrongs.

In 1976, several Washington area residents, who had been politically active in the late 1960s and early 1970s, brought suit in District Court claiming that certain of their constitutional rights had been violated. The plaintiffs sought damages and injunctive relief against numerous active and retired special agents of the Federal Bureau of Investigation (FBI) and members of the Metropolitan Police Department (MPD), as well as the District of Columbia itself. The amended complaint, filed October 28, 1977, alleged that each defendant had violated plaintiffs' constitutional rights, individually and through conspiracies, while plaintiffs engaged in lawful political protest against Government policies. 1

Following a 17-day trial, over which Judge Oberdorfer ably presided, a jury returned verdicts against most of the defendants and in favor of most of the plaintiffs. The jury also awarded substantial compensatory and punitive damages: awards to the eight prevailing plaintiffs, against the thirteen defendants found liable, totalled $711,937.50. 2

On appeal, defendants have raised a number of arguments. We have given every argument thorough consideration and, following a painstaking effort--including examination of the record, verdicts and decisions from the trial court, review of the parties' briefs and study of the relevant statutory and case law--we have reached the following conclusions: (1) the claims of three of the prevailing plaintiffs against the FBI defendants were barred by the statute of limitations, and the judgments in their favor cannot stand; (2) the evidence was insufficient to support findings of liability against the individual MPD defendants and the District of Columbia, and the judgments against them cannot stand; (3) the evidence was insufficient to support findings that the FBI defendants participated

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in a conspiracy with MPD officials, and findings of liability for their participation in a joint FBI-MPD conspiracy are reversed; (4) consistent with our holdings herein, the damages issues are remanded for further consideration; and (5) in all other respects the judgments at trial--including the findings of individual and conspiratorial liability against the FBI defendants--are affirmed, except for our remand for reconsideration of one issue raised on cross-appeal.

BACKGROUND

I. The Parties

We begin with a brief review of the parties to this action. Because each plaintiff brings an individual claim, as well as conspiracy claims, against each defendant, it is crucial that we set forth clearly the role that each played during the relevant time period.

In the late 1960s and early 1970s, each plaintiff engaged in a variety of activities--such as organizing meetings and demonstrations, and publishing newsletters--to express disagreement with, and rally support against, certain national and local Government policies. Generally, they focused their efforts on three issues: military involvement in Vietnam, proposals to build a superhighway through the District of Columbia, and equal rights for Black citizens of the District of Columbia. Each individual plaintiff played a leadership role in one or more of these efforts.

Plaintiff Sammie Abbott, a graphic artist, organized and was active in the Emergency Committee on the Transportation Crisis (ECTC), a coalition of Black and White neighborhood associations that opposed freeway construction through the District of Columbia. Plaintiff Abe Bloom, an engineer, was especially active in antiwar organizations, such as the Washington Mobilization Committee (WMC) and the Washington Area Peace Action Coalition (WAPAC), which organized major antiwar demonstrations in the...

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