Carter v. Carlson

• Citation: 447 F.2d 358
• Decision Date: 23 July 1971
• Docket Number: No. 23225.,23225.
• Parties: Melvin CARTER, Appellant v. John R. CARLSON et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

447 F.2d 358 (1971)

Melvin CARTER, Appellant v. John R. CARLSON et al.

No. 23225.

United States Court of Appeals, District of Columbia Circuit.

Argued June 12, 1970.

Decided July 23, 1971.

COPYRIGHT MATERIAL OMITTED

Mr. Warren K. Kaplan, Washington, D. C., with whom Mr. Ralph J. Temple, Washington, D. C., American Civil Liberties Union Fund, was on the brief, for appellant.

David P. Sutton, Asst. Corporation Counsel, for appellees. Messrs. Hubert B. Pair, Acting Corporation Counsel, Richard W. Barton and Ted D. Kuemmerling, Asst. Corporation Counsel, entered appearances for appellees.

Before BAZELON, Chief Judge, ROBINSON, Circuit Judge, and NICHOLS^*, Judge, United States Court of Claims.

BAZELON, Chief Judge.

This is an appeal from the dismissal of a complaint which raises several important questions concerning the remedies for the torts of a police officer. For the purpose of testing the sufficiency of the complaint, the court must of course accept the allegations as true.¹

The complaint alleged that in 1968 one police officer Carlson arrested appellant Carter without probable cause in a bar and, as Carter was being held by two other officers, proceeded to beat him with brass knuckles. The complaint further alleged that Carlson's precinct captain, and the Chief of Police, and the District of Columbia each negligently failed to train, instruct, supervise, and control Carlson with regard to the circumstances in which (1) an arrest may be made, and (2) various degrees of force may be used in making an arrest.

Carter sought to hold Carlson liable for assault and battery, or for negligence in making an arrest. He sought to hold precinct captain Prete and Police Chief Layton liable for negligence in failing to give Carlson adequate training and supervision. Finally, he sought to hold the District of Columbia liable either for its own negligence in failing to train and supervise Carlson, or for the torts of Carlson, Prete, and Layton on a theory of respondeat superior. In each case, he asserted both a common law tort theory of liability, and an action for deprivation of civil rights under 42 U.S.C. § 1983.

Officer Carlson was never found for service of process. Captain Prete and Chief Layton moved to dismiss the complaint on the ground that it failed to state a claim for which relief can be granted. Their supporting memorandum argued that no tort on their part had been alleged, and that in any event they were protected by the doctrine of official immunity. The District of Columbia moved to dismiss the complaint for failure to state a claim, and also on the ground of sovereign immunity. The district court dismissed the complaint against all defendants without explanation.

The common law liability of the individual officers and of the District for police misconduct is similar in many respects to their liability under § 1983, but the two theories of liability are by no means coextensive. The federal statute provides:²

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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, suit in equity, or other proper proceeding for redress.

When a police officer makes an arrest without probable cause, or uses excessive force in making an arrest, his action is sufficiently cloaked with official authority to satisfy the limitation of the statute to wrongs performed under color of law.³ Such conduct invades an interest ordinarily protected both by the common law of torts, and by the Constitutional guarantee against unreasonable searches and seizures. The common law, however, may create immunities that do not apply to an action under § 1983. Conversely, the developing law of torts may extend potential liability to some defendants beyond the reach of the federal statute. Accordingly, for each ground of liability asserted in the complaint, it will be necessary to consider separately the relevant principles at common law and under § 1983.

I. THE INDIVIDUAL OFFICERS

We start with the premise that a government officer, like any other person, is liable at common law for his torts, even if they are committed within the scope of his employment.⁴ A government officer, however, is protected by the doctrine of official immunity if the alleged tort was committed in the performance of a "discretionary" rather than a "ministerial" function.⁵

The distinction between discretionary and ministerial functions in this context must be drawn primarily with reference to its purpose. Official immunity, like the related doctrine of sovereign immunity,⁶ is designed to protect government officers from the inhibiting fear of damage suits, and the time-consuming duty to defend them; its purpose is to encourage "fearless, vigorous, and effective administration of policies of government." Barr v. Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 1339, 3 L.Ed.2d 855 (1959). Accordingly, in determining whether a particular government function falls within the scope of official immunity, it does not suffice to consider simply whether the officer has "discretion" in the sense that he exercises judgment in choosing among alternative courses of action. The proper approach is to consider the precise function at issue, and to determine whether an officer is likely to be unduly inhibited in the performance of that function by the threat of liability for tortious conduct.⁷

Under this standard, it is clear that an action could be maintained against Officer Carlson at common law for the conduct alleged in the complaint. An arrest without probable cause constitutes a tort at common law, as does the use of excessive force to make an arrest.⁸ And the law is clear that an arresting officer has no immunity from suit for torts committed in the course of making an arrest.⁹

Officer Carlson would likewise be subject to suit under the federal statute. An arrest without probable cause, or an arrest made with excessive force, constitutes an unreasonable seizure in violation of the Fourth Amendment.¹⁰ Thus the complaint alleges that Officer Carlson deprived Mr. Carter of a constitutional right, and it states a cause of action under § 1983. Like the common law, the federal statute recognizes no official immunity for the arresting officer.¹¹

The arresting officer, however, is not at present a party to this litigation. Accordingly, we turn to the more difficult question of the possible liability of Carlson's superior officers. The claim against Chief Layton and Captain Prete is based on the allegation that they were each negligent in the exercise of duties to train, instruct, supervise, and control Carlson. At this stage, of course, we have no way of knowing the extent, if any, to which such duties may have rested upon them instead of others. Likewise, we cannot now determine whether a breach of such duties occurred, or had any causal relationship to appellant's injuries. We are confronted only with the threshold claim that the suit is barred by the doctrine of official immunity.

In our view, even that claim cannot be resolved in this case on the basis of the bare pleadings before us. The functions of training, supervising, and controlling police officers subsume a variety of distinct duties, conceivably incumbent in some degree on a variety of police personnel. No doubt some of these duties should be regarded as discretionary for the purposes of official immunity, but others are clearly ministerial for that purpose.¹² The relevant duties of each supervisory officer in this case must be spelled out with much greater specificity before the issue of his immunity can be resolved, and procedures by which that may be done are available to both sides in this litigation. Either Chief Layton or Captain Prete will prevail in his claim of immunity if he can establish that his responsibility, if any, for the training and supervision of Officer Carlson was wholly discretionary in character.¹³ He may be able to establish that fact by reference to police department regulations delegating the crucial responsibility to another officer, or by means of uncontroverted affidavits in support of a motion for summary judgment.¹⁴ Alternatively, Mr. Carter may be able to defeat one or both claims of official immunity after he has had the opportunity through pretrial discovery to ascertain how the relevant responsibilities are allocated within the police department, and how, if at all, they were fulfilled in this case. When the necessary factual information emerges, either officer may of course again invoke his claim of immunity;¹⁵ in the absence of the relevant information, however, it was error to dismiss the common law claims against the officers.

Even if Captain Prete or Chief Layton is protected by official immunity from suit at common law, they are both subject to suit under § 1983 for any negligent breach of duty that may have caused appellant to be subjected to a deprivation of constitutional rights. Indeed, Mr. Justice Frankfurter maintained that § 1983 was designed for precisely such a case, i. e., the case in which the State shields a police officer from liability for conduct which would subject a private citizen to liability.¹⁶ While the Supreme Court has read into the statute immunity for legislators¹⁷ and judges,¹⁸ it has not read into the statute a broad common law immunity for all government officers exercising discretionary functions.¹⁹ In particular, various supervisory officers have been held subject to suit under § 1983 for negligence in supervising their subordinates.²⁰

In Roberts v. Williams, the Fifth Circuit affirmed a judgment against a prison superintendent for injuries resulting from the careless use of a shotgun by a prisoner-guard, or "trusty."...