Harper v. McDonald, 81-1568

• Decision Date: 08 June 1982
• Docket Number: No. 81-1568,81-1568
• Citation: 679 F.2d 955,220 U.S.App.D.C. 137
• Parties: Robert HARPER, Jr., Appellant, v. D. B. McDONALD, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 955

679 F.2d 955

220 U.S.App.D.C. 137

Robert HARPER, Jr., Appellant, v. D. B. McDONALD, et al.

No. 81-1568.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 8, 1982.

Decided June 8, 1982.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-2336).

James P. Chandler, Washington, D. C., for appellant.

David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D. C., were on the brief, for appellees.

Before WRIGHT and TAMM, Circuit Judges, and HOWARD T. MARKEY, ^* Chief Judge, United States Court of Customs and Patent Appeals.

Opinion PER CURIAM.

PER CURIAM:

Appellant Robert Harper, Jr., brought suit in the United States District Court for the District of Columbia seeking damages for injuries allegedly suffered as a result of his false arrest and imprisonment by officers of the Metropolitan Police Department of the District of Columbia (MPD). Claiming that his rights under the Fourth, Fifth, and Sixth Amendments had been violated, appellant asserted jurisdiction under 28 U.S.C.A. § 1331 (West Supp.1982). The district court dismissed the suit for want of jurisdiction on the ground that it presented no actionable claim of constitutional dimension. Since appellant's complaint seeks recovery directly under the Constitution, and his claims are neither "wholly insubstantial" nor "frivolous," we hold that the district court does possess jurisdiction over this action. Accordingly, we reverse and remand for further proceedings.

I. BACKGROUND

Appellant's complaint alleges that on the evening of September 15, 1979, while eating dinner at a Washington restaurant, he was approached by uniformed members of the MPD and asked to present identification. Although Harper displayed his National Broadcasting Company employee identification card, the officers, allegedly without probable cause or a warrant, ordered him to accompany them to the home of a burglary victim since he "fitted the description" of the culprit. Harper protested his innocence, stating that he had been at work all evening and was presently on his break. Nevertheless, allegedly through implied force and over his objections, Harper was required to accompany the police to the victim's home. Thereafter the officers allegedly forced Harper "to abandon his vehicle, subjected him to (an) unlawful search, and forced him to accompany them to Police Headquarters (where he) was unlawfully arrested, imprisoned and detained without bail for several hours all without warrant and probable cause or any lawful cause whatsoever." Plaintiff's Second Amended Complaint at P 11, Harper v. McDonald, 512 F.Supp. 368 (D.D.C.1981); Appellant's Appendix (A.A.) at 4-5. The complaint further contends that although Harper "demanded to be released and notified of the criminal charges against him, his demands were ignored. No charges were ever preferred against (him) in support of the arrest, search and seizure and imprisonment ...." Id. at P 12; A.A. at 5.

Harper sued the District of Columbia, the Chief of Police, Officer D. B. McDonald, and four unnamed police officers on the ground that the actions of the policemen deprived him of rights secured by the United States Constitution. ¹ Jurisdiction was asserted under 28 U.S.C. § 1331, which empowers district courts to hear "all civil actions arising under the Constitution, laws, or treaties of the United States." ² 28 U.S.C.A. § 1331 (West Supp.1982). The defendants-appellees here-moved for dismissal or, alternatively, for summary judgment. They argued that the district court lacked jurisdiction to hear the suit, that the police chief could not be held liable for the alleged tortious conduct of Officer McDonald, and that some of plaintiff's claims were barred due to failure to comply with the mandatory notice requirements of the D.C.Code.

The district court dismissed appellant's complaint, stating that it presented "no actionable claim of constitutional proportions" and that therefore there was no federal jurisdiction under section 1331. Harper v. McDonald, 512 F.Supp. 368, 371 (D.D.C.1981). The district court believed that the complaint alleged no more than a tort claim based on a false arrest "that in no way shocks the conscience and for which review in a local court ... is readily available." Id. at 370. The other issues raised in appellees' motions were not addressed by the district court.

II. ANALYSIS

The sole issue on appeal is whether Harper's claims arise under the Constitution or laws of the United States so as to confer jurisdiction on the district court under section 1331. Harper alleges that he was arrested and subsequently detained without probable cause or a warrant in violation of, inter alia, his Fourth Amendment right to be free from unreasonable searches and seizures. The Supreme Court has held that a private cause of action exists for violation of Fourth Amendment rights. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). ³ Appellees do not dispute that private suits may be brought to vindicate Fourth Amendment rights; they contend, however, that Harper's claims do not rise to the level of a constitutional deprivation and at most allege a common law tort. They argue that "not every local law tort becomes a constitutional tort simply because it is committed by a government official, even though it results in a loss of personal liberty." Brief for Appellees at 6.

It is true, of course, that a violation of local law cannot "be transformed into a constitutional tort at the whim of a plaintiff simply because it was committed by a governmental agent under color of official authority." Payne v. Government of the District of Columbia, 559 F.2d 809, 829 (D.C.Cir.1977) (Tamm, J., concurring). It is equally clear, however, that the fact that Harper might be entitled to relief under state law does not deprive him of the right to a federal forum if he is otherwise entitled to one. In Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the premier case on federal question jurisdiction, petitioners claimed that FBI agents had searched their homes, seized their papers, and incarcerated them in violation of the Fourth and Fifth Amendments. The suit was dismissed by the district court for lack of jurisdiction. The court of appeals affirmed, and the Supreme Court reversed. The Bell Court rejected respondents' argument-similar to the one made by appellees here-that because petitioners' complaint stated a cause of action for the common law tort of trespass made actionable by state law, it did not raise questions arising under the Constitution or laws of the United States. The Court stated that where the complaint is clearly drawn to seek recovery directly under the Constitution or laws of the United States, the district court must entertain the suit. Id. at 681-82, 66 S.Ct. at 775-76. In this sense, " 'the party who brings a suit is master to decide what law he will rely upon ....' " Id. at 681, 66 S.Ct. at 775 (quoting The Fair v. Kohler Die Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913)).

The Court noted two situations in which an action alleging a constitutional deprivation or federal statutory claim may be dismissed for want of jurisdiction: "where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Id. 327 U.S. at 682-83, 66 S.Ct. at 776. Throughout the years the Supreme Court has enunciated several tests for determining whether a claim meets the threshold requirement of substantiality. The Court has held that federal courts are without jurisdiction to entertain claims that are "so attenuated and unsubstantial as to be absolutely devoid of merit," claims that raise issues that are "no longer open to discussion" because of prior decisions of the Supreme Court, and claims that are "essentially fictitious." See Hagans v. Lavine, 415 U.S. 528, 536-38, 94 S.Ct. 1372, 1378-79, 39 L.Ed.2d 577 (1974), ⁴ and cases cited therein. We believe that "(t)he standard for want of 'substantiality' is a stringent one, and 'if there is any foundation of plausibility to the claim (then) federal jurisdiction exists.' " Payne, 559 F.2d at 823 (Tamm, J., concurring) (quoting 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3564, at 428 (1976)). ⁵

Appellees rely on Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), and Sami v. United States, 617 F.2d 755 (D.C.Cir.1979), to support the argument that Harper's claims are not of constitutional magnitude. This reliance is misplaced, however, as both decisions are distinguishable from the instant case. In Baker, the respondent brought an action under 42 U.S.C. § 1983 (1976), claiming that his arrest and erroneous detention for eight days deprived him of liberty without due process of law. The Supreme Court, in rejecting this challenge, did indeed state that "(j)ust as '(m)edical malpractice does not become a constitutional violation merely because the victim is a prisoner,' false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official." Baker, 443 U.S. at 146, 99 S.Ct. at 2696 (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976)). The key factor in the Court's decision in Baker, however, was that respondent had been arrested pursuant to a facially valid warrant :

Absent an attack on the validity of the warrant under which he was arrested, respondent's complaint is simply that despite his protests of mistaken identity, he was detained in ... jail .... Whatever claims this situation might give rise to under state tort law, we think it gives rise to no claim under the United...