Jackson v. District of Columbia

• Decision Date: 06 March 1980
• Docket Number: No. 79-283.,79-283.
• Parties: Anne JACKSON et al., Appellants, v. DISTRICT OF COLUMBIA et al., Appellees.
• Court: D.C. Court of Appeals

Page 948

412 A.2d 948

Anne JACKSON et al., Appellants, v. DISTRICT OF COLUMBIA et al., Appellees.

No. 79-283.

District of Columbia Court of Appeals.

Argued November 13, 1979.

Decided March 6, 1980.

Rehearing and Rehearing En Banc Denied April 28, 1980.

A. Palmer Ifill, Washington, D. C., for appellants.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, and Richard W. Barton Deputy Corp. Counsel, Washington, D. C., were on the brief, for appellees.

Before KELLY, FERREN and PRYOR, Associate Judges.

FERREN, Associate Judge:

Michael Jackson and his parents appeal from an order granting summary judgment on all their claims derived from a mistaken arrest of Michael by District of Columbia police and federal agents. The Jacksons contend that (1) the trial court improperly considered a defense of collateral estoppel, since it was not affirmatively pleaded, (2) the trial court erred in holding their claims barred by collateral estoppel based on a prior judgment of the United States District Court, and (3) the trial court erred in finding that the police officers had probable cause and reasonable grounds to arrest Michael. We affirm on all counts.

I.

This case results from an arrest at the close of the Sting II operation conducted by law enforcement officials in 1976. Sting II was an undercover project in which District of Columbia and federal law enforcement agents posed as "fences" operating out of a garage labeled H & H Trucking Service in Northeast Washington. Each purchase of goods was recorded on videotape and noted in a police report. On several occasions in early 1976, a young man named Michael Jackson sold stolen goods to Sting agents and was recorded on videotape. In order to locate juvenile suspects such as Jackson, Detective Green of the Metropolitan Police asked local school officials to identify students from photographs taken from the videotape. When shown a photograph of Michael Jackson, both the principal of Shaw Junior High School and a school aide identified the subject as Michael Jackson, a Shaw student who was then 16 years old. The principal provided the police with an address from school records, 2011 First Street, N.W. Green verified this address through juvenile court records.

At approximately 6 a. m. on July 6, 1976, a team including Special Agent Young of the FBI; Agent Horton of the Bureau of Alcohol, Tobacco and Firearms; Officers Beasley, Howery, and Webber of the Metropolitan Police Department; and Ernest Hanley of the Federal Protective Service, arrived at Michael Jackson's home on First Street to make an arrest.¹ Two of the police officers and Agents Horton and Young went to the front door while the other members of the team covered the back. The officers rang the doorbell; Wesley Jackson, Michael's twelve-year-old sister, answered. The parties disagree about whether she gave the officers permission to enter, but agree that the officers did come into the house and arrest Michael Jackson in bed. Michael objected that he was not the person the officers were looking for, but they took him into custody nonetheless. The Jacksons also claim that the officers first entered Mrs. Jackson's bedroom while she was undressed and in bed, insisting that she tell them where Michael was, and that the officers pulled guns on Michael.

Michael was taken to the Police Academy, where the Sting arrestees were being processed. During the course of processing, Michael was pointed out to Detective Green, who realized that the wrong Michael Jackson had been arrested. Green explained the mistake to Michael and offered to drive him home. Green did so and explained the error to Mrs. Jackson. As a result of the arrest, Michael Jackson had been away from home for approximately four hours.

The Jacksons filed two suits for damages based on the mistaken arrest. The first was filed on February 18, 1977, in Superior Court, claiming damages for slander and defamation,² violation of the constitutional right of privacy, invasion of privacy, procuring arrest and imprisonment, false arrest and imprisonment, false pretenses, negligence, breaking and entering, infliction of emotional distress, and assault and battery. The defendants were the District of Columbia, then-Mayor Walter Washington, then-Chief of Police Maurice J. Cullinane, Sting II, H & H Trucking Service, Detective Green,³ and the employees of Sting II. The Jacksons filed a second suit in the United States District Court for the District of Columbia against the federal agents, Young and Hanley, alleging a violation of the constitutional right of privacy. The federal district court granted summary judgment for the defendants in Jackson v. Young, No. 77-1010 (D.D.C. May 4, 1978). That judgment was affirmed by per curiam order of the United States Court of Appeals for the District of Columbia Circuit in Jackson v. Young, 194 U.S.App.D.C. 400, 600 F.2d 280 (D.C. Cir. 1979).

In their motion for summary judgment in the Superior Court suit, defendants argued that, because of collateral estoppel, the district court decision precluded further litigation of many of the issues in the Superior Court action; that they were entitled to judgment on all claims as a matter of law because the arrest was reasonable and based on probable cause; and that defendants Washington and Cullinane could not be held liable in their official capacities because superior officers are not responsible for the torts of fellow employees. The trial court agreed with all three arguments and granted summary judgment for the defendants on all counts. The Jacksons have appealed.

II.

The Jacksons contend, first, that the trial court should not have considered the defendants' collateral estoppel argument because Super.Ct.Civ.R. 8(c) requires a party to "set forth affirmatively . . . estoppel, . . . res judicata, . . . and any other matter constituting an avoidance or affirmative defense" in the pleadings. On March 23, 1977, when the defendants filed their answer, a collateral estoppel defense was not available because the district court decision (of May 4) had not yet been announced, but the defendants never amended their answer to include the collateral estoppel defense.

Although orderly progress of litigation requires that parties have notice of the claims and defenses asserted, there is room for flexibility in interpreting Rule 8(c), and where no prejudice results from a party's failure to adhere to the letter of the rule, a defense should not be lost. See Willis v. Fournier, 418 F.Supp. 265, 267 (M.D.Ga.), aff'd, 537 F.2d 1142 (5th Cir. 1976); Beall v. Kearney & Trecker Corp., 350 F.Supp. 978, 981 (D.Md.1972); see also North Central Truck Lines v. United States, 381 F.Supp. 1217, 1220 (W.D.Mo.1974), aff'd, 420 U.S. 901, 95 S.Ct. 820, 42 L.Ed.2d 832 (1975).⁴ The plaintiffs here were not prejudiced by the defendants' failure to amend their answer to include the collateral estoppel defense. They were aware of the judgment of the district court, since they were parties to that action. In the summary judgment motion, the defendants argued the effect of the prior judgment, and the plaintiffs responded to this argument in their opposition to the motion.⁵ The trial judge therefore considered the views of both parties on the collateral estoppel issue. His conclusion should not be set aside for a technical pleading error.⁶

III.

We turn to the question whether the defendants can use the federal district court judgment to preclude the Jacksons from relitigating issues decided in that prior suit. Since the defendants were not parties to the federal litigation, they could not invoke the judgment under a strict rule of mutuality.

The doctrine of mutuality requires that, as a general proposition, one who invokes the conclusive effect of a judgment must have been either a party or his privy to the suit in which the judgment was rendered. Stated differently, the mutuality requirement prevents a litigant from invoking the conclusive effect of a judgment unless he would have been bound if the judgment had gone the other way. [1B Moore's Federal Practice ¶ 0.412[1] at 1801 (1974) (footnote omitted).] ⁷

We have recognized that issue preclusion may not be asserted against one who was not a party in the first case. See W. W. Chambers, Inc. v. Audette, D.C.App., 385 A.2d 10, 13-14 n. 4 (1978); Schrier v. Home Indemnity Co., D.C.App., 273 A.2d 248, 251 (1971); Wolf v. Paving Supply & Equipment Co., D.C.Mun.App., 154 A.2d 544, 546 (1959). But this case presents a different question: whether a defendant may assert preclusion against a plaintiff on issues that were litigated in a prior suit by the same plaintiff. In this situation, we conclude that the answer is yes.

In Bernhard v. Bank of America National Trust & Savings Association, 19 Ca1.2d 807, 122 P.2d 892 (1942), the leading case recognizing the "defensive" use of res judicata,⁸ Justice Traynor explored the reasoning behind precluding relitigation of issues in various situations. He found that one who had not been a party to earlier litigation could not be precluded by a prior judgment because "[t]he requirements of due process of law forbid the assertion of a plea of res judicata against a party unless he was bound by the earlier litigation in which the matter was decided." Id. at 812, 122 P.2d at 894 (citations omitted). A party must have a day in court on an issue before being barred from litigating it. But the Bernhard court found no satisfactory rationale for the mutuality doctrine when preclusion is asserted against a party who already has had a day in court on the issue. Id. at 812, 122 P.2d at 895. We agree with the many courts which have followed Bernhard and have permitted preclusion in such cases.⁹

When issue preclusion is asserted defensively, there are no inherent considerations of fairness or correct resolution of the dispute that should prompt a court to rehear issues already decided....