Gomez v. Turner, 81-1559

• Decision Date: 26 February 1982
• Docket Number: No. 81-1559,81-1559
• Citation: 672 F.2d 134,217 U.S. App. D.C. 281
• Parties: Manuel GOMEZ, et al. v. Maurice T. TURNER, Jr., Chief of Police, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 134

672 F.2d 134

217 U.S.App.D.C. 281

Manuel GOMEZ, et al. v. Maurice T. TURNER, Jr., Chief of Police, Appellant.

No. 81-1559.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 9, 1981.

Decided Feb. 26, 1982.

Richard B. Nettler, Asst. Corp. Counsel, with whom Judith W. Rogers, Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Michael E. Zielinski, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellant.

Keith S. Watson, with whom Daniel L. Koffsky, Arthur B. Spitzer, Nancy Pyeatt, Charles A. Patrizia, and Cynthia A. Lewis, Washington, D. C., were on the brief, for appellees.

Charles F. C. Ruff, U. S. Atty., John A. Terry, and Michael W. Farrell, Asst. U. S. Attys., Washington, D. C., were on the brief for, amicus curiae United States, urging reversal.

Before WRIGHT, TAMM and EDWARDS, Circuit Judges.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

The issue presented in this case is whether a police officer who approaches and asks a pedestrian for identification, without a reasonable suspicion of criminal conduct, has "seized" that person within the meaning of the fourth amendment. ¹ Because we find that such conduct, without more, is not a seizure, we vacate the injunction entered by the district court and remand the cause for further proceedings.

I. BACKGROUND

This action, which is before the court for the fourth time, arises from a complaint filed over fourteen years ago by Manuel Gomez alleging that the officers of the Metropolitan Police Department of the District of Columbia (MPD) routinely engage in unlawful and unconstitutional behavior during police-initiated encounters with pedestrians. The facts that led to the filing of the original complaint are set out in some detail in the prior opinions of this court. See Gomez v. Wilson, 477 F.2d 411 (D.C.Cir.1973); Gomez v. Wilson, 430 F.2d 495 (D.C.Cir.1970); Gomez v. Layton, 394 F.2d 764 (D.C.Cir.1968). For purposes of this appeal, it suffices to say that the current thrust of the Gomez complaint is that Gomez and the members of the class he represents have been, and will continue to be, approached and asked questions by police officers who lack any articulable basis for believing that a crime has been, is being, or is about to be committed. Consequently, appellees complain that their fourth amendment right to personal security has been violated-they are not free "to walk upon the streets of the Nation's Capital without police harassment." Brief for Appellees at 2.

A. General Order 304.10 and "Contacts"

In 1973 the MPD promulgated General Order 304.10 ² for the purpose of "(establishing) policies and procedures ... governing police-citizen 'contacts,' stops, frisks, and motor vehicle spot checks." Metropolitan Police Department General Order 304.10, effective July 1, 1973 (revised August 13, 1978) at 1 (hereinafter General Order); Joint Appendix (J.A.) at 484-500. The General Order has been revised from time to time to reflect changes in the law and to clarify sections of the order that have proved confusing to the MPD officers. ³

The portion of the General Order dealing exclusively with "contacts" provides in pertinent part:

A. Contacts.

Conduct by an officer which places him in face-to-face communication with an individual under circumstances in which the individual is free to leave if he wishes is considered a "contact." Contacts may be initiated by an officer when he reasonably believes that investigation of a situation is justified. The standard for a police citizen-contact (sic) is not "probable cause," "reasonable suspicion," or any other specific indication of criminal activity. While an officer may initiate a contact for any legitimate purpose, contacts shall not be conducted in a hostile, aggressive manner, or as a means of harassing individuals or coercing them to leave the area. Contacts shall not be initiated merely because a person is "hanging around," "loitering," or "standing on the corner," unless the overall circumstances are such as would reasonably arouse the curiosity, concern, or suspicion of the officer.

1. Initiating a Contact.

An officer may initiate a contact with a person in any place in which the officer has a right to be....

2. Conduct of Contacts.

Persons "contacted" may not be detained against their will or frisked. They may not be required to answer the officer's questions or in any way respond to the officer if they choose not to do so. The officer may not use force or coercion to attempt to require citizens to stop or respond. If they refuse to co-operate, they must be permitted to go on their way; however, if it seems appropriate under the circumstances, they may be kept under surveillance. Since a contact is not a stop or an arrest and the person contacted may be innocent of wrongdoing of any kind, officers should take special care to act in as restrained and courteous a manner as possible.

General Order at 1-2; J.A. at 484-85 (emphasis in the original). In contrast, the General Order defines a "stop" as

the temporary detention of a person for the purpose of determining whether probable cause exists to arrest that person. A stop occurs whenever an officer uses his authority to compel a person to halt, or to keep him in a certain place, or to require him to perform some act (such as walking to a nearby location where the officer can use a radio, telephone or call box). If a person is under a reasonable impression that he is not free to leave the officer's presence, a "stop" has occurred.

Id. at 2; J.A. at 485. There is a basis for a stop if "(the) officer reasonably suspects that a person has committed, is committing, or is about to commit any crime...." Id. (emphasis in the original).

Both types of police-citizen encounters are recorded on a "PD Form 76," an MPD form that provides space for recording the name, address, race, sex, date of birth, height, weight, eye and hair color, complexion and clothing of the person encountered. In addition, there is a section in which the officer is to record the justification for the stop or contact. Officers are required to maintain records of stops; records of contacts, however, are not mandatory, but may be required by individual commanding officers. Id. at 16; J.A. at 499. Excluding encounters that result in formal arrests, MPD officers record approximately 14,000 police-citizen encounters per year. ⁴

In March 1980, the Gomez plaintiffs filed an amended and supplemental complaint for declaratory and injunctive relief alleging, inter alia, that "(w)hen a police officer "contacts" a pedestrian pursuant to General Order 304.10 or any other MPD order authorizing such behavior, the officer is making an unreasonable seizure of the pedestrian in violation of the Fourth Amendment." Second Amended and Supplemental Complaint at 1, Gomez v. Jefferson, Civ. No. 2909-67 (D.D.C. May 13, 1981, as amended May 18, 1981) (hereinafter Gomez v. Jefferson); J.A. at 141, 153. Thereafter, both parties moved for summary judgment.

B. The District Court Order

On May 13, 1981, the district court partially granted appellees' motion for summary judgment and held that the MPD policy and practice of making "contacts" without an articulable basis for concluding that the person "contacted" has committed, is committing, or is about to commit a crime is "an unlawful intrusion upon personal privacy and violative of the Fourth Amendment of the United States Constitution." Memorandum Order at 1, Gomez v. Jefferson; J.A. at 755. ⁵ The court defined "contacts" as "investigative interrogations asking pedestrians to identify themselves or account for their presence on the public streets ...." Id.; J.A. at 755. ⁶ The defendant Chief of Police ⁷ was enjoined from "authorizing or effectuating any 'contacts' " and was directed to draft for court approval an order directing MPD officers to cease all acts encompassed by the injunction. Id. at 2; J.A. at 756. The court further ordered that "General Order 304.10 and any other order, directive or authority inconsistent with (the court-approved directive) shall be rescinded." Id.; J.A. at 756. This appeal followed.

C. Contentions of the Parties

A "seizure" occurs "(o)nly when (an) officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen ...." Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The parties agree that whether a person has been "restrained" must be determined by reference to an objective standard and that the test in this circuit is " '(whether) a reasonable (person), innocent of any crime, would have thought (he was free to leave) had he been in the defendant's shoes.' " United States v. Wylie, 569 F.2d 62, 68 (D.C.Cir.1977) (quoting Coates v. United States, 413 F.2d 371, 373-74 (D.C.Cir.1969)), cert. denied, 435 U.S. 944, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978). Appellant and appellees part company, however, over the question whether the conduct authorized in General Order 304.10, and specifically a request for identification, ⁸ constitutes, in the mind of the reasonable person, such a restraint on liberty.

Appellant argues quite simply that "contacts" as defined by General Order 304.10 are not "seizures." The thrust of appellant's argument is that courts using the reasonable person test-particularly this court-have found no seizure in a variety of situations where officers approached and directed questions to pedestrians, including requests for identification. Consequently, General Order 304.10, which authorizes no more, cannot be facially invalid. Whether particular conduct constitutes a seizure, it is argued, must be determined on a case-by-case basis.

Appellees, on the other hand, argue that no reasonable person asked to produce identification would feel free to refuse to answer or to leave the presence of a police officer. Therefore, appellees contend, such police conduct...