Marusa v. District of Columbia

• Decision Date: 21 August 1973
• Docket Number: 72-1140.,No. 72-1027,72-1027
• Citation: 484 F.2d 828
• Parties: Duane S. MARUSA, Appellant, v. DISTRICT OF COLUMBIA et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

484 F.2d 828 (1973)

Duane S. MARUSA, Appellant, v. DISTRICT OF COLUMBIA et al.

Nos. 72-1027, 72-1140.

United States Court of Appeals, District of Columbia Circuit.

Argued December 20, 1972.

Decided August 21, 1973.

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Jack H. Olender, Washington, D. C., for appellant.

Leo N. Gorman, Asst. Corp. Counsel for the District of Columbia with whom C. Francis Murphy, Corp. Counsel and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellee, District of Columbia.

Samuel Intrater, Washington, D. C., with whom Albert Brick, Washington, D. C., was on the brief for appellee, DeMiers.

Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.

BAZELON, Chief Judge:

Appellant Duane Marusa brought these actions in the District Court¹ to recover damages for a bullet wound he suffered, allegedly at the hand of Officer Delbert C. Clark of the Metropolitan Police Department. In his amended complaint, Marusa alleged that, on May 29, 1969, Officer Clark consumed an excessive amount of liquor in a bar on K Street, N.W., and that immediately after leaving the bar, the "grossly intoxicated" Clark shot Marusa with his service revolver.

Marusa sought to hold Officer Clark liable for the injuries he had inflicted. He sought to hold Police Chief Jerry V. Wilson liable for negligence in hiring Officer Clark and in failing to train and supervise him adequately. He sought to hold the District of Columbia liable for negligence on the same grounds, and vicariously liable for the negligence of Chief Wilson. Marusa asserted both common law claims and statutory civil rights claims (under 42 U.S.C. § 1983) against each of these defendants. Finally, he sought damages for negligence from DeMiers Investments, Inc., the owner of the bar in which Officer Clark was drinking prior to the shooting.

Officer Clark was never served with process and is not a party to this appeal. Chief Wilson and the District of Columbia moved to dismiss the suit on the grounds that a) the complaint failed to state a claim upon which relief could be granted and b) it had been filed after the applicable statute of limitations had run. DeMiers moved to dismiss for failure to state a claim. The District Judge granted the motions to dismiss. Marusa appealed.

In reviewing such dismissals, this court must accept as true the allegations of the plaintiff's complaint.² This being so, we think that under our precedents and well-established principles of tort liability Marusa's complaint stated causes of action against Chief Wilson, the District of Columbia, and DeMiers Investments. Moreover, we think the actions were filed within the time limit set by the applicable statute. We therefore reverse and remand the cases for further proceedings.

I. The Claims Against Chief Wilson and the District

A. Cause of Action

Marusa's action against the District Government and its officials is similar, in its essential respects, to the suit that was before us in Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971). There, as here, the plaintiff alleged that he had been the victim of unnecessary and excessive force at the hands of a District policeman; there, as here, the individual officer was never found for service of process; and there, as here, the plaintiff prosecuted his suit against the police chief and the District of Columbia under both common law and statutory theories. We held in Carter that, on both theories, the complaint stated causes of action against the District and its police officials.

Earlier this year, the Supreme Court reversed that ruling in part. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). After analyzing the purposes and scope of 42 U.S.C. § 1983, the Court concluded that the District of Columbia is not a "state or territory" within the meaning of that statute. Thus, there is no federal statutory basis for Marusa's action.

The Court's opinion, however, made it clear that Carter v. Carlson was reversed only "insofar as that judgment sustained the plaintiff's claims under § 1983." Id. at 419-420, 93 S.Ct. at 604. Accordingly, our holding in Carter as to the common law cause of action — the alternative ground of Marusa's suit — remains the law.³ Indeed, in arguing Carter to the Supreme Court, the District of Columbia appears to have conceded that our common law holding was correct:

It is true, as the circuit court of appeals recognized, that, at the time the action was filed, respondent was entitled to proceed against the District of Columbia in the United States District Court for the District of Columbia on a common law theory . . . .⁴

On the basis of Carter and the line of cases upon which it relied,⁵ we hold that Marusa has stated a cause of action against the District Government and the police chief on common law grounds.

The fact that Officer Clark was out of uniform at the time of the alleged assault on Marusa does not affect our conclusion.⁶ Officer Clark's tort was made possible only through the use of his service revolver, which he carried by authority of the city government. Policemen are, in fact, not only authorized but required to carry their service revolvers, as well as their badges and identification cards, "at all times" (except in their homes), whether in or out of uniform.⁷ Clearly, the government has a duty to minimize the risk of injury to members of the public that is presented by this policy. Thus, if the officer misuses his weapon,⁸ a judge or jury might reasonably find that misuse to have been proximately caused by the government's negligence in hiring, training, or supervising the policeman. Whether Chief Wilson or the government was negligent here is not before us and we intimate no opinion on that issue.

We are aware that the line of precedent upon which our decision here is predicated — in particular, Carter, Baker v. Washington,⁹ and Thomas v. Johnson¹⁰ — was strongly criticized in a dissenting opinion last year in Graves v. District of Columbia, 287 A.2d 524, 525 (D.C.Ct.App.1972). The majority of the District of Columbia Court of Appeals panel in Graves did not find that dissent persuasive. Nonetheless, the dissent represents the kind of thoughtful criticism that requires us to retrace the paths of our reasoning and to reassess our conclusions. Having done so, we think it would be unwise to abandon the Carter — Thomas rule.

The dissenting opinion in Graves suggests that, because the Federal Tort Claims Act preserves immunity for the federal government in the area of intentional torts, that immunity should extend to the local government as well. 287 A.2d at 526-527. As Judge McGowan noted for the court en banc in Spencer v. General Hospital,¹¹ the federal act in no way controls the existence or scope of the local government's immunity from suit. Spencer made it clear that the extension or contraction of the District's immunity is a matter of judicial policy. In Carter v. Carlson, we expressed our reluctance to extend that immunity to encompass intentional torts. As we indicated there,¹² the intentional tort immunity of the FTCA has been severely criticized; no sound reasons were offered to support such immunity when the act was written, and none has been set forth in the intervening decades.¹³ The dissenting opinion in Graves offers no policy considerations to support its position in favor of such immunity.

The dissenting Graves opinion is correct when it warns that "funds to pay any judgment against the District of Columbia must in the last analysis emanate from Congress." 287 A.2d at 527. But that fact does not seem to advance the argument. The source of funds for a particular governmental activity is not invariably determinative of whether that activity is "federal" or "local". If this were the test, there would be nothing "local" at all about the D.C. government, because all funds for the government of this city "emanate from Congress" in one way or another. Thus the "source of funds" rationale, logically extended, would leave no room whatsoever for the operation of "local" law in our jurisdiction.

The Graves dissent suggests that Carter v. Carlson was based on the "unfounded and dangerous assumption" that the District of Columbia "will not be adversely affected by this extension of liability." 287 A.2d at 527, 528. Carter v. Carlson did not involve that assumption. It seems obvious that any individual or institution, public or private, will be adversely affected to some degree if it is subjected to a lawsuit. Carter v. Carlson reflected "a long-standing judgment that the threat of damage suits does not significantly impede the effective operation of a police department, when the impediment is weighed against the public interest in a tort remedy for police misconduct."¹⁴ In essence, Carter struck a balance. As is true of any balancing test, the opinion might be criticized if it had misweighted one side of the issue. But to suggest that Carter v. Carlson was based on absolutist assumptions is to miss the thrust of the opinion altogether.

Accordingly, we think the present case should be governed by the rules set forth in Thomas v. Johnson and Carter v. Carlson. Under those precedents, Marusa can get to court against Chief Wilson and the District of Columbia on a theory of common law liability.

B. Statute of Limitations

The government defendants maintain, however, that they have a complete defense to Marusa's suit under the Statute of Limitations. Marusa filed his complaint some two years and three months after the incident of which he complains occurred. The government argues that Marusa's suit is essentially an action for "wounding;" since the applicable limitation period for "wounding" is one year, the government insists that the suit was properly dismissed.

The application of the "wounding" statute appears to be one of first impression — a remarkable happenstance when one considers that the statute in question can be...