O'CALLAGHAN v. District of Columbia

• Decision Date: 22 June 1990
• Docket Number: Civ. A. No. 89-1015.
• Citation: 741 F. Supp. 273
• Court: U.S. District Court — District of Columbia
• Parties: Joan C. O'CALLAGHAN, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.

741 F. Supp. 273

Joan C. O'CALLAGHAN, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.

Civ. A. No. 89-1015.

United States District Court, District of Columbia.

June 22, 1990.

John P. Racin, Washington, D.C., for plaintiff.

Earnest Franklin, Jr., Office of the Corp. Counsel, Washington, D.C., for defendants.

MEMORANDUM OPINION

JOHN H. PRATT, District Judge.

I. Introduction

Plaintiff Joan C. O'Callaghan brings this action for declaratory relief and damages under 42 U.S.C. § 1983 (1982). She alleges that defendants, the District of Columbia ("the District"), Maurice T. Turner, Jr., Charles Samarra, and Edward J. Spurlock,¹ approved and implemented an undercover "sting" operation that resulted in the violation of her fifth amendment right to due process. In addition, she asserts a pendent claim of tortious conversion. Presently before the Court is plaintiff's motion for summary judgment on the issue of liability.²

II. Background

The essential facts are not in dispute. In mid-1987, members of the District's Metro-politan Police Department ("MPD") began implementing "Operation Killjoy," a four month undercover "sting" operation designed to combat motor vehicle theft. Under the Operation, undercover MPD officers established an auto body shop where they "purchased" stolen vehicles.³ The transactions, which were recorded by concealed video cameras, led to the apprehension of numerous recidivist auto thieves. The Operation was funded in large part by insurance companies. In particular, they provided the cash with which the "purchases" were made.

From the outset, Operation Killjoy called for the secret storage of recovered vehicles in Maryland; this storage was designed to prevent "target" sellers from seeing the vehicles on the street again and becoming suspicious. See Spurlock Dep. at 13. Thus, those who planned and approved the Operation anticipated that rightful owners would be deprived of their recovered vehicles for as long as four months. Moreover, it was understood that these owners would not even be notified of the recovery until after the Operation had ended. Those who planned and approved the Operation realized that, absent such notice, most owners would settle their insurance claims regarding the vehicles, since it was "common knowledge" that insurers settle such claims within approximately thirty days of theft.⁴ See id. at 18-20, 22, 27-28.

Operation Killjoy was planned and implemented by officers in the MPD's Special Operations Division, Repeat Offenders Project ("ROP"). It was approved by defendant Spurlock, then-Commander of ROP, who in turn sent the proposal through the full chain of command to defendant Turner, then-Chief of the MPD. See id. at 4-5. At the very least, Turner was aware of the specifics of the Operation and acquiesced in its implementation.⁵

Over the course of the Operation, 119 vehicles were recovered, almost all within a few days of being stolen. Plaintiff's 1965 Buick Skylark was one of them. Plaintiff's car was stolen in the District on September 25, 1987. Plaintiff immediately notified the police. Undercover officers detailed to Operation Killjoy recovered the Skylark four days later, but pursuant to Operation procedure, the car was placed in storage and plaintiff received no notice of the recovery until after the Operation had ended. In fact, the police provided no information to plaintiff until January 22, 1988, over two months after the Operation had ended, and almost four months after the recovery. At that time, an MPD officer falsely told her that the Skylark had only recently been recovered from a "skinny white guy" who had been driving it. See O'Callaghan Aff. at 1. Plaintiff obtained repossession of her car on January 27, 1988.

Plaintiff alleges that defendants, by adopting an express policy of non-notification and secret storage as part of the Operation, accorded no weight to the owners' legitimate possessory interests in their vehicles. The implementation of this policy, she argues, resulted in: (1) the deprivation of her property rights, both procedural and substantive, in violation of the due process clause of the fifth amendment; and (2) the tortious conversion of her automobile. For the reasons that follow, we hold that plaintiff is entitled to summary judgment on both counts.

III. Plaintiff's Claim Under Section 1983

A. Defendants are "Persons" Within the Meaning of Section 1983

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....

42 U.S.C. § 1983. Congress added "or the District of Columbia" to this provision in 1979.⁶ Prior to that time, District officials could not be sued under section 1983 because the Supreme Court had held that the District was not a "State or Territory" within that section's meaning. See District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).

Five years after Carter, the Supreme Court held that municipalities and their officers were "persons" under section 1983. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The District is a municipal corporation. See D.C.Code § 1-102(a) (1981); House Report, supra note 6, at 2, U.S.Code Cong. & Admin.News 1979, p. 2610. In passing the 1979 amendments, Congress' express intent was to extend the principles underlying Monell to the District, and thereby render District officials liable for civil rights deprivations under section 1983. See House Report, supra note 6, at 1-3, U.S.Code Cong. & Admin.News 1979, pp. 2609-2611. Therefore, defendants undeniably are "persons" within that section's meaning.⁷

B. Operation Killjoy is Attributable to the District

The District may be held liable for causing a constitutional deprivation through an officially adopted "policy statement," Monell, 436 U.S. at 690, 98 S.Ct. at 2036 or through a custom or usage that, though never formally approved through "official decisionmaking channels," id. at 690-91, 98 S.Ct. at 2035-36, may nonetheless "be said to represent official policy." Id. at 694, 98 S.Ct. at 2037-38. In either case, the essential requirement is that the policy or custom be sanctioned by the "final policymaking authority" in that area of the city's business. See St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988) (plurality opinion) (citing Pembaur v. Cincinnati, 475 U.S. 469, 482-83 & n. 12, 106 S.Ct. 1292, 1299-1300 & n. 12, 89 L.Ed.2d 452 (1986) (plurality opinion)).⁸ This occurs not only when a subordinate casts a decision in the form of a policy statement that the supervising policymaker "expressly approves," but also when the subordinate makes "a series of decisions" that "manifested a `custom or usage' of which the supervisor must have been aware." Id. at 130, 108 S.Ct. at 927.

Applying these standards, we have no trouble concluding that Operation Killjoy was sanctioned by Turner, and therefore represents a policy, custom, or usage attributable to the District itself. At all relevant times, Turner, as Chief of Police, was the MPD's "final policymaking authority." See Praprotnik, 485 U.S. at 123, 108 S.Ct. at 924 (plurality opinion). Under applicable regulations, he was the MPD's "chief executive officer," and as such had "authority to plan and prescribe departmental policy," including "the coordination, direction and control of all Metropolitan Police programs, services, and operations." D.C.Mun. Regs. tit. 6A, §§ 800.1, 800.16 (1984). Furthermore, he was empowered "to delegate authority" to subordinates "in such a degree as in his ... judgment was necessary to establish and maintain efficiency and good administration." Id. § 800.20.⁹

The evidence demonstrates that Turner, in addition to being "chief executive officer" of the MPD, also sanctioned Operation Killjoy. Spurlock testified that after approving the final plan for Killjoy, he forwarded it through the chain of command for Turner's approval. See Spurlock Dep. at 5. After being informed of the plan, including its provision for secret storage of recovered vehicles, Turner authorized Spurlock to implement it. See id. at 9-11, 14-15. The evidence further indicates that Turner was aware that owners would not be notified when their vehicles were recovered, and that they would not be allowed to repossess their vehicles until after the Operation was over. See id. at 18-19, 20, 22, 27-28.¹⁰ Thus, Turner either "expressly approved" the non-notification and secret storage provisions or knowingly acquiesced in their implementation. See Praprotnik, 485 U.S. at 130, 108 S.Ct. at 927 (plurality opinion).

Moreover, Operation Killjoy clearly constituted a policy, custom, or usage. "The word `policy' generally implies a course of action consciously chosen from among various alternatives." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985). Operation Killjoy was chosen in precisely this manner. See Spurlock Dep. at 3-4; Skolada Dep. at 9-12. It was planned for several months, committed to writing, sanctioned by Turner, and put into effect for four months. It yielded 119 recovered vehicles, which, pursuant to Operation procedure, were secretly stored without notice to their owners until after the Operation ended. See Skolada Dep. at 13, 14-15. Under these circumstances, we hold that the deprivation suffered by these owners resulted from an established, governmental procedure, not some random action on the part of a lower level District employee. See Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984). We turn now to the substance of plaintiff's...