Apton v. Wilson

Decision Date16 August 1974
Docket NumberNos. 73-1614,73-1615,s. 73-1614
Citation165 U.S.App.D.C. 22,506 F.2d 83
PartiesWilliam H. APTON et al., Appellants, v. Jerry V. WILSON (chief of Police) et al. Roger S. KUHN et al., Appellants, v. Jerry V. WILSON, Individually and as Chief of Police, Metropolitan Police Department, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

John Silard, Washington, D.C., with whom Joseph L. Rauh, Jr., and Elliott C. Lichtman, Washington, D.C., were on the brief, for appellants.

Barbara L. Herwig, Atty., Dept. of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen. Harold H. Titus, Jr., U.S. Atty. at the time the brief was filed, and Kathryn H. Baldwin, Atty., Dept. of Justice, were on the brief for federal appellees.

David P. Sutton, Assistant Corp. Counsel, Washington, D.C., for the District of Columbia with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D.C., were on the brief, for District of Columbia appellees.

Before LEVENTHAL, MacKINNON and WILKEY, Circuit Judges.

LEVENTHAL, Circuit Judge:

These cases arise from law enforcement activities during the 'May Day Demonstrations' of May, 1971, described in Sullivan v. Murphy. 1 That was a class action in which plaintiffs complaining of arrest, detention, fingerprinting, booking, and prosecution without probable cause sought expungement of police records. This court held that a class action was appropriate in light of the extraordinary circumstances of the May Day arrests, for which the police suspended normal post-arrest procedures that ordinarily allow individualized determinations of probable cause; that arrests unaccompanied by the usual indicia of the basis therefor were presumptively invalid; and that the plaintiffs were entitled to expungement of records or reasonably equivalent relief unless the District of Columbia authorities demonstrated probable cause for the arrests.

In the cases at bar, the thirty-four plaintiffs allege that they were arrested at the time of the May Day demonstrations while engaging in entirely lawful and unobjectionable conduct and were thereafter detained, fingerprinted, photographed and booked, notwithstanding the absence of probable cause supporting any charge of unlawful conduct. The plaintiffs seek damages for alleged violations of their Fourth and Fifth Amendment rights and certain equitable relief.

The defendants Mitchell, Kleindienst, and Will Wilson were, at the time of the events in controversy, respectively, the Attorney General of the United States, Deputy Attorney General and Assistant Attorney General, Criminal Division. The defendants Santarelli and Ugast were staff assistants to Attorney General Mitchell. Additional defendants are unidentified officers of the District of Columbia police department, Chief of Police Jerry Wilson, and the District of Columbia. The plaintiffs allege that the Chief of Police and the Justice Department defendants 2 directed the law enforcement activities complained of.

The District Court granted summary judgment in favor of the Justice Department defendants on the ground that they were immune from suit over acts taken in their capacity as executive officials. As to the District of Columbia defendants 3 the District Court certified the lawsuit against them to the Superior Court for the District of Columbia.

On reviewing the doctrine of official immunity, particularly in light of the recent Supreme Court decision in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), we reverse the District Court's ruling as to the Justice Department defendants. We also hold that it was error to certify the case against the District of Columbia defendants to the Superior Court.


A. General Background of the May, 1971 Demonstrations and Ensuing Law Enforcement Activities.

Beginning in April, 1971, the nation's capital became the scene of numerous demonstrations, marches, and protest activities designed to focus national attention upon U.S. military involvement in Southeast Asia. In early April, demonstrations were small and sporadic, generating no serious encounters with police. Toward the end of the month, however, as the influx of demonstrators and protesters into the city swelled, tensions between protest activity and public authority mounted, and law enforcement resources became strained. Still, until April 30, protest activities had been directed at only a few government agencies. Some demonstrators were arrested, usually on charges of disorderly conduct or obstruction of building exits, but the Metropolitan Police seemed able to curtail serious disorder and disruption of government activity.

During the weekend of April 30, however, certain protest leaders announced plans to block access to the city during the morning rush hour of Monday, May 2. They designated for obstruction specific locations on the major arteries used by the many Federal employees commuting from Maryland and Virginia suburbs.

Following these announcements, the authorities made plans during the weekend to cope with the threat. Some Federal offices asked employees to volunteer to report for work early on Monday morning. The Metropolitan Police Force was augmented by 4,000 Federal troops and the District of Columbia National Guard was called up for training.

Efforts by protesters to impede commuter traffic into the city did materialize on May 2, but the police and other city personnel deployed were generally able to thwart them. Police, fire, and sanitation department personnel counteracted the protesters' attempts to obstruct streets and bridges by abandoning vehicles, burning trash containers, or strewing nails and glass fragments. On two bridges leading into the city, crowds of demonstrators who charged police lines were repulsed with truncheons and tear gas. Despite some delay traffic did flow into the city, and by the end of the day government officials reported fewer absences than those expected on an average workday.

The events of the following day, May 3, have been described in detail in Sullivan v. Murphy, supra, and it suffices here to quote an excerpt from that opinion:

The authorities were confronted on May 3 with the need to prevent any build-up of large numbers of persons at the focal points of the demonstration. There was a danger that the police ranks would themselves be overwhelmed. There was also the possibility that crowds of people would, by the mere fact of their presence, thwart efforts to keep the highways open.

The police responded to the situation by making mass arrests. In so doing, however, they swept up innocent persons along with the lawbreakers. The Washington Star quoted Assistant Police Chief Hughes as saying: 'We had them . . . and we had to do something right away. Someone can judge the rightness of it later.' This is, of course, not evidence as such, but it vividly summarizes the situation fairly apprehended from the record.

. . . .ht

The pivotal moment was 6:23 a.m., when Police Chief Jerry Wilson issued an order suspending normal field arrest procedures. According to Chief Wilson's sworn testimony in another action, incorporated into the record of this case, his decision was motivated by reports that demonstrators were in the process of damaging automobiles and blocking traffic at a number of locations. He also testified as to his apprehension of 'serious property damage or death or serious injury to innocent persons if the city were closed or if the demonstrators should decide to do something more than simply block traffic, as, for example, loot or engage in acts of thrashing or arson,' and his conclusion that 'it is not practical for the police to rapidly arrest hundreds of individuals who are blocking traffic and process them through the field arrest process.'

This suspension remained in effect throughout the day, and for the vast majority of the nearly eight thousand persons taken into custody neither field arrest forms nor Polaroid photographs were prepared at the time of apprehension. Instead, the arrestees were simply loaded aboard vehicles and taken to various detention areas that had been established, principally Robert F. Kennedy Stadium and the District of Columbia Jail. Arresting officers did not accompany their prisoners. Indeed, in many instances, the arrestee had no way of even becoming aware of the identity of the officer making the arrest, because many policemen wore neither badges nor name tags.

. . . .the

In the absence of field arrest forms, the authorities lacked any information concerning the thousands of persons who were being held in police custody. There was no record of time, location or circumstances of the arrests. Manifestly, the District of Columbia was at this time utterly incapable of preparing cases against the arrestees. If the prisoners had been arraigned, the Superior Court would plainly have been compelled to order their release for failure to show probable cause for arrest. In a post hoc effort to remedy this situation, special booking procedures were established to gather and record information concerning the persons arrested and to photograph, fingerprint and formally charge them.

It appears that many of the persons held at the District of Columbia Jail were either processed there or transferred to local police precincts for booking. Those who had been detained at RFK Stadium-- together with some prisoners being held at the Jail and at other locations-- were sent to a makeshift booking center that had been established at the District of Columbia Coliseum, located close by the Stadium. This processing facility was staffed in large part by volunteer attorneys from various divisions of the Justice Department, acting under the supervision of Metropolitan Police officers. Their testimony, given under subpoena, is incorporated in the record.

Prisoners were taken from the detention areas to a table...

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