Dixon v. District of Columbia, 21084.

• Decision Date: 16 April 1968
• Docket Number: No. 21084.,21084.
• Citation: 394 F.2d 966
• Parties: Miller A. DIXON, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

394 F.2d 966 (1968)

Miller A. DIXON, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 21084.

United States Court of Appeals District of Columbia Circuit.

Argued November 27, 1967.

Decided April 16, 1968.

Mr. Ralph J. Temple, Washington, D. C., with whom Messrs. Barrington D. Parker and Wm. Warfield Ross, Washington, D. C., were on the brief, for appellant.

Mr. David P. Sutton, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellee.

Before BAZELON, Chief Judge, and WILBUR K. MILLER, Senior Circuit Judge, and McGOWAN, Circuit Judge.

BAZELON, Chief Judge:

On October 18, 1965, separate informations were filed in the Criminal Division of the Court of General Sessions charging appellant with two traffic offenses.¹ The cases were continued three times at the request of the appellant, three times by mutual consent, and once at the request of the Government. On March 31, 1966, the prosecutor requested another continuance on the ground that one of the two police officers who had witnessed the offenses was ill. The judge, noting the many prior continuances, refused to grant another one, though he stated that "if it became apparent that the other officer would be needed on rebuttal the Court would consider adjourning the trial at the end of the day to permit the Government to bring in its witness the following day." The prosecutor then stated that he would enter a nolle prosequi so that he could reprosecute at a later date. The court, however, ordered the Government to proceed with its case, and when the prosecutor refused, directed that findings of "not guilty" be entered as to both charges.

The Government appealed these judgments to the District of Columbia Court of Appeals. At the Government's request the District of Columbia Court of Appeals ordered the trial judge to confer with counsel for the purpose of assuring the accuracy of the judge's statement describing the events leading to the findings of not guilty. During this conference, the prosecutor admitted that the prosecutions were brought because appellant went back on an agreement not to file complaints of misconduct against the police officers who stopped him. In his argument to the District of Columbia Court of Appeals appellant raised this issue, as well as asserting that the prosecutor did not have the right to nol pros the case.

The District of Columbia Court of Appeals' brief opinion dealt only with the nol pros issue. The court held that the prosecutor has a right to decide when to nol pros a case except when that right is exercised "in a scandalous or corrupt manner, or shown to be `capricious and vexatiously repetitious.'" It concluded that appellant's was not such a case. Dixon v. District of Columbia, 230 A.2d 481 (D.C.App. June 13, 1967).

I need not consider appellant's contention that this holding allows the prosecutor to nullify the court's control over continuances because I believe appellant has demonstrated that, in any event, this prosecution was impermissibly brought. Accordingly, the decisions of the District of Columbia Court of Appeals and the Court of General Sessions should be vacated, and the information dismissed.

I

Although we do not know the full story of the decision to prosecute appellant, the outline is reasonably clear. On June 6, appellant was stopped by two police officers for alleged traffic violations. He was neither charged nor ticketed at that time. Two days later, appellant delivered a written complaint to the police department concerning the conduct of the officers who had stopped him. At this point appellant and the Corporation Counsel's office apparently entered into a tacit agreement: appellant would not proceed further with his complaint and the Government would not prosecute the traffic charges.²

On September 1, 1965, however, appellant filed a formal complaint with the District of Columbia Commission's Council on Human Relations. After some "hearings" at the Corporation Counsel's office, appellant refused to withdraw the complaint. As a result he was charged with the two traffic offenses. As the then Chief of the Law Enforcement Division of the Corporation Counsel explained:

We had discussed it back when it originally occurred and, at the time, everybody was happy to forget the whole thing * * * But three months later he comes in and makes a formal complaint. So we said `If you are going to play ball like that why shouldn\'t we proceed with our case?\' * * * I had no reason to file until he changed back on his understanding of what we had all agreed on. This is done in many cases.

Without embarrassment, the prosecutor in this case has admitted to a gross abuse of discretion. Of course prosecutors have broad discretion to press or drop charges. But there are limits. If, for example, the Government had legitimately determined not to prosecute appellant and had then reversed its position solely because he filed a complaint, this would clearly violate the first amendment. The Government may not prosecute for the purpose of deterring people from exercising their right to protest official misconduct and petition for redress of grievances. Moreover, a prosecution under such circumstances would be barred by the equal protection clause,³ since the Government employs an impermissible classification when it punishes those who complain against police misconduct and excuses those who do not.⁴

Appellant's case, however, is more complicated. The record indicates that the Government's initial decision not to prosecute was based on appellant's tentative agreement not to proceed with his complaint. It would therefore be naive to say that the Government made a legitimate decision not to prosecute and then reversed it solely because appellant decided to complain. On the contrary, it may be that the Government should have prosecuted Dixon and that its failure to do so stemmed from an illegitimate desire to protect the two police officers. And if the Government should have prosecuted Dixon in the first place, there is arguably no reason why it should be barred from prosecuting him now.

But I believe reason is to be found in the need to prevent the type of agreement which was attempted in this case. These agreements have been publicly condemned by the Government of the District of Columbia. In February 1964 the President of the Board of Commissioners of the District of Columbia announced that

The Corporation Counsel states that he has issued directions to his staff forthwith to discontinue the practice of demanding releases of claims against police officers in exchange for the dropping of charges, and not to allow their discretion in the manner of a nolle prosequi to be influenced by a desire to protect and exonerate the arresting officer from civil liability.⁵

The major evil of these agreements is not that charges are sometimes dropped against people who probably should be prosecuted. Much more important, these agreements suppress complaints against police misconduct which should be thoroughly aired in a free society. And they tempt the prosecutor to trump up charges for use in bargaining for suppression of the complaint. The danger of concocted charges is particularly great because complaints against the police usually arise in connection with arrests for extremely vague offenses such as disorderly conduct or resisting arrest.⁶

Courts may not become the "enforcers" of these odious agreements. We must therefore bar prosecutions which are brought because the defendant refused to promise or reneged on a promise not to file a complaint against the police. Prosecutors will then have no incentive to offer or make such agreements.⁷

I recognize that there is some controversy as to whether the federal courts can use their supervisory power to grant immunity from prosecution. The question has arisen with regard to the entrapment defense. In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), the Supreme Court stated that this defense was not based on a judicial power to grant immunity because of Government misconduct, but on a legislative intent not to convict entrapped persons. Justice Roberts, joined by Justices Brandeis and Stone, argued that, on the contrary, the "true foundation" of the entrapment defense was the court's power to protect "the purity of government and its processes." 287 U.S. at 455, 53 S.Ct. at 217. In Sherman v. United States, four justices again maintained that the defense was based on "a supervisory jurisdiction over the administration of criminal justice" rather than on legislative intent. 356 U.S. 369, 381, 78 S.Ct. 819, 825, 2 L.Ed.2d 548 (1958). The majority in Sherman, though announcing its reaffirmance of Sorrells, did not discuss this point. Thus, in subsequent entrapment cases, several courts of appeals have felt free to employ the supervisory power approach. United States v. Morrison, 348 F.2d 1003, 1004 (2d Cir. 1965); Whiting v. United States, 321 F.2d 72, 76-77 (1st Cir.), cert. denied, 375 U.S. 884, 84 S.Ct. 158, 11 L.Ed.2d 114 (1963); Accardi v. United States, 257 F.2d 168, 172-173 (5th Cir.), cert. denied, 358 U.S. 883, 79 S.Ct. 124, 3 L.Ed.2d 112 (1958).

In light of this history I do not believe we are foreclosed from granting immunity from prosecution in order to deter blatant Government misconduct.⁸ I conclude that in this case our supervisory power must be used to protect "the purity of the government and its processes." Accordingly, I would vacate both judgments below and remand to the trial court with instructions to dismiss the information.

II

The concurring opinions hold that we need not reach the merits in this case, that we can vacate the judgments below and dismiss the information simply because "it was expressly signified to us by the Government that it...