Graves v. District of Columbia, 5086.

• Decision Date: 17 February 1972
• Docket Number: No. 5086.,5086.
• Citation: 287 A.2d 524
• Parties: Margaret GRAVES, Individually and as parent and next friend of minor, Linwood Lawrence Graves, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

Page 524

287 A.2d 524

Margaret GRAVES, Individually and as parent and next friend of minor, Linwood Lawrence Graves, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 5086.

District of Columbia Court of Appeals.

Argued March 24, 1970.

Decided February 17, 1972.

Steven M. Cooper and Marvin E. Preis, Washington, D. C., were on the brief for appellant.

Leo N. Gorman, Asst. Corp. Counsel, with whom Charles T. Duncan, Corp. Counsel at the time the brief was filed, Hubert B. Pair, Principal Asst. Corp. Counsel at the time the brief was filed, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellee.

C. Thomas Dienes, Washington, D. C., amicus curiae, appointed by this court, of the bar of the Supreme Court of Illinois.

Before KELLY, FICKLING and NE-BEKER, Associate Judges.

KELLY, Associate Judge:

This appeal is from the dismissal of a complaint filed by appellant Margaret Graves, individually, and as next friend of her minor son, against the District of Columbia, demanding compensation for injuries resulting from an alleged assault and battery on, and false arrest of the son by Metropolitan police officers. The District, sued on the theory of respondeat superior, raised the defense of sovereign immunity by motion to dismiss and the motion was granted. We reverse.

The case was originally submitted to this court in March of 1970, prior to the effective date of the District of Columbia Court Reform and Criminal Procedure Act,¹ with the request that our decision abide the outcome of a similar case pending in the Circuit Court of Appeals. The opinion in that case, Carter v. Carlson,² ultimately issued on July 23, 1971, beyond the effective date of the Court Reform Act. As we were then free to either accept or reject the holding in Carter,³ we requested oral argument from the parties and appointed an amicus curiae to assist the court.⁴

The District of Columbia faults the Carter decision in only one respect, the failure of the court to rule that the District is not liable to respond in damages, under the theory of respondeat superior, for the intentional torts of its police officers acting within the scope of their employment to the same extent as the United States is immune from liability under the Federal Tort Claims Act.⁵ This precise point was urged in Carter and rejected by the court.⁶ We similarly reject it here. That the District might be liable for the intentional torts of its police officers appears to have been recognized prior to Carter, Thomas v. Johnson, 295 F.Supp. 1025 (D.D.C.1968) (suit based in part on assault and battery),⁷ and the legal principle has since been reaffirmed in a suit against correctional officers. Baker v. Washington, D.C.Cir., 448 F.2d 1200 (1971). Accordingly, following the pertinent holding of Carter v. Carlson,⁸ the order of the trial court is

Reversed with instructions to reinstate the complaint.

NEBEKER, Associate Judge (dissenting):

I am compelled to dissent from the adoption by this court of a new rule of law respecting sovereign liability of what in reality is the United States. My disagreement is not confined to the way in which my colleagues read or apply Carter v. Carlson, D.C.Cir., 447 F.2d 358 (1971), cert. granted sub nom. District of Columbia v. Carter, 404 U.S. ___, 92 S.Ct. 683, 30 L.Ed.2d 661 (Jan. 10, 1972), since to me that opinion reached a result which is contrary to congressional reservation of sovereign immunity as recognized in Spencer v. General Hospital, 138 U.S.App.D.C. 48, 425 F.2d 479 (1969). Carter is also founded upon unproved and questionable assumptions respecting the effective function of law enforcement and the operation of our police. I do agree with the majority, however, that we are free to reject the holding in Carter,¹ decided as it was after February 1, 1971, and I would.

Because the instant case presents a question of exceptional importance under Rule 40(c) of the rules of this court, it is appropriate for rehearing in banc. A suggestion to that effect would put the question properly before the full court. I also note that the United States Supreme Court has granted the petition for certiorari filed in Carter v. Carlson, supra. The issue there raised of the applicability of 42 U.S.C. § 1983 (1970) to the District of Columbia may well encompass the general question of sovereign liability as decided in Carter in addition to the narrower question whether the District of Columbia is a "person" under section 1983. In this connection, I note with some surprise an apparent inconsistency between what the District of Columbia argued in this court and in its Petition for Writ of Certiorari. Here, the District of Columbia argued, and I agree, that the reservation of immunity found in 28 U.S.C. § 2680 (1970) derivatively applies to bar the instant action. Spencer v. General Hospital, supra, recognized and followed this policy respecting so-called discretionary torts under section 2680(a). The District of Columbia urges us to follow that concept by applying the same rationale to so-called intentional torts under section 2680(h). Yet in its petition to the Supreme Court it said:

"It is true, as the circuit court of appeals recognized, that, at the time the action was filed, respondent was entitled to proceed against petitioner in the United States District Court for the District of Columbia on a common-law theory, . . ." [Emphasis added.] [Petition at 6.]

Presumably the District of Columbia will clarify its position to the extent that it adheres to the argument made before this court.

The importance attaching to the holding in this case, as in Carter, is its unqualified application² to all instances in which it is determined that police conduct did not meet constitutional standards regardless of whether that conduct arose from an honest, but erroneous, effort to perform a duty or from flagrant or calculated abuse of police power.³ Moreover, the majority in following Carter exacerbates the anomaly created by this divergent application of the immunity doctrine (depending on who makes the arrest — a District of Columbia policeman or an officer of one of the many other United States law enforcement agencies operating here) and creates the appearance, if not the fact, of unequal application of the law.

In Spencer v. General Hospital, supra, the United States Court of Appeals was quite properly influenced by the retention of immunity for discretionary torts under the Federal Tort Claims Act.⁴ 28 U.S.C. § 2680(a) (1970). The court compared the developments in Spencer with the principles found under the Federal Tort Claims Act. Indeed, the result in Spencer was in complete harmony with the expressed intent of Congress as seen in the Act. In Carter the United States Court of Appeals specifically recognized that the Spencer decision was influenced by the Federal Tort Claims Act in adopting the test set forth for sovereign immunity in the area of discretionary torts. Without an articulated basis, that court rejected the application of the principles of the Act to intentional torts.⁵ It is inescapable to me that Spencer declares the law to be that the congressional policy revealed in section 2680 applies to suits against the District of Columbia. Moreover, under the Spencer rationale, subsequent limited congressional action indicates that Congress has recognized the case law existence of sovereign immunity. See D.C.Code 1967, § 23-554(c) (Supp. IV, 1971) (where Congress expressly removed the immunity bar in the limited area of eavesdropping). See also Spencer v. General Hospital, supra, 138 U.S.App.D.C. at 53, 425 F.2d at 484 (regarding congressional inaction). It seems entirely inconsistent to utilize the express legislative intent of Congress for one kind of tort and not for another where both clearly fall within the nature of tort suits specifically reserved by Congress for sovereign immunity. I respectfully suggest that the court in Carter was wrong when it said, "The District of Columbia is immune from suit only for acts committed in the exercise of discretionary functions." Id., 447 F.2d at 366 (emphasis supplied). The reservation of immunity for such torts in section 2680(a) is but one of a number of applicable subsections of that statute. Subsection (h) is clearly another and Spencer did not strike a limitation to subsection (a) alone.

Moreover, it is clear that resources to defend this suit and funds to pay any judgment against the District of Columbia must in the last analysis emanate from Congress. A decision which provides for conflicting results depending on whether the United States or the District of Columbia is being sued is to me an affected blindness to the fact that the funds utilized to satisfy a judgment in either case belong to the national treasury. Indeed, the intent of Congress has been to limit the hampering impact on certain government functions as well as the drain on the treasury in the types of tort actions delineated in section 2680.

Putting aside the purely fiscal considerations, which are a legitimate but perhaps a less appealing factor in deciding this case, I am compelled to question and disagree with an underlying and unproved assumption of the Carter decision. That is, that the efficiency of government will not be adversely affected by this extension of liability. It seems clear to me that proliferation of suits brought by many of those who are arrested will have an adverse impact on an already burdened police force.⁶ While the courts must be vigilant to ensure constitutional police conduct, we should not bear down so hard as to further encourage police not to get "involved" or "take" decisive action — a regrettable symptom in society as demonstrated by frequent instances where citizens refuse to help a pathetic victim of crime or distress. As far as suits against police officers, the simple fact is that few are brought because of the inability ultimately to realize the amount awarded. This...