Natwig v. Webster

• Decision Date: 05 April 1983
• Docket Number: Civ. A. No. 82-0351 P.
• Citation: 562 F. Supp. 225
• Parties: Eric John NATWIG v. William H. WEBSTER, in his capacity as Director of the Federal Bureau of Investigation.
• Court: U.S. District Court — District of Rhode Island

562 F. Supp. 225

Eric John NATWIG v. William H. WEBSTER, in his capacity as Director of the Federal Bureau of Investigation.

Civ. A. No. 82-0351 P.

United States District Court, D. Rhode Island.

April 5, 1983.

R. Daniel Prentiss, Providence, R.I., for plaintiff.

William French Smith, U.S. Atty. Gen., U.S. Dept. of Justice, Washington, D.C., Everett C. Sammartino, Asst. U.S. Atty., Providence, R.I., for defendant.

OPINION AND ORDER

PETTINE, Senior District Judge.

In this action the plaintiff, Eric John Natwig, seeks an injunction requiring the defendant to expunge from the files of the Federal Bureau of Investigation records relating to his arrest on January 19, 1968. Both the plaintiff and the defendant have moved for summary judgment. The facts of this case are not in dispute and are stated fully in the plaintiff's uncontested affidavit filed in support of his motion for summary judgment.

On January 6, 1968, the plaintiff, a student attending Brown University, attempted to purchase several cans of beer at a liquor store in Westerly, Rhode Island. Although the plaintiff was 21 and legally entitled to purchase alcohol, the liquor store owner refused to make the sale. Several days after this incident the plaintiff sent an insulting letter to the liquor store owner. On the basis of the contents of this letter he was arrested and charged with extortion. On March 8, 1968 the Grand Jury returned a "no true bill" on the extortion charge. The record of the plaintiff's arrest, however, became part of his permanent FBI file.

The plaintiff is currently an economist who works as a consultant to private firms and state and federal government agencies. He seeks the expunction of his arrest record because it has in the past and will in the future create a false and misleading impression of him, cause him to suffer disrespect and stymie his potential for employment. In his affidavit supporting his motion for summary judgment, he states that he is aware of at least one government agency by whom he was employed that discovered his arrest record through a security check. He also states that he fears that other prospective employers will discover his arrest record and that this will influence their decisions as to whether to use his services. Specifically, the plaintiff states that he is considering emigrating to Australia to work in the field of resource development, but has not pursued this opportunity because he fears that the presence of his arrest record could cause the Australian government to refuse to issue the required visas and permits.

The plaintiff seeks two forms of relief. First, he requests that this Court exercise its equitable power to expunge his arrest record and enjoin the defendant from disseminating it to any person.¹ Second, the plaintiff requests that this Court exercise its authority under 28 U.S.C. § 2201 to declare that he may answer in the negative any inquiry regarding whether he has ever been arrested.

I.

The Attorney General of the United States is required by 28 U.S.C. § 534(a) (1970) to acquire, retain and disseminate criminal records. The regulation governing this statute further provides that criminal records will be made available "for use in connection with licensing or local/state employment or for other uses only if dissemination is authorized by Federal or state statutes and approved by the Attorney General of the United States." 28 C.F.R. § 20.33 (1982). It is thus undisputed that the government has authority not only to maintain the plaintiff's arrest record, but to disseminate it in certain limited instances.

Despite this statutory scheme, however, courts have recognized that they possess inherent power to order the expunction of arrest records. See Doe v. Webster, 606 F.2d 1226, 1230 n. 8 (D.C.Cir.1979); Sullivan v. Murphy, 478 F.2d 938, 968-69 (D.C.Cir.), cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973); United States v. Benlizar, 459 F.Supp. 614, 622-23 (D.D.C.1978); Kowall v. United States, 53 F.R.D. 211, 213-14 (W.D.Mich.1971). A court's power to remedy legal wrongs is premised on "the natural law of remedies" which "does not set arbitrary limits on a federal court's jurisdiction to right wrongs cognizable by common law within the jurisdiction of the court." United States v. Benlizar, 459 F.Supp. at 623 (quoting Kowall v. United States, 53 F.R.D. at 213). Nevertheless, a court's remedial power is not unlimited; there must be a logical relationship between the injury and the requested remedy. Doe v. Webster, 606 F.2d at 1231; United States v. Benlizar, 459 F.Supp. at 624; see United States v. McLeod, 385 F.2d 734, 749-50 (5th Cir.1976); Bilick v. Dudley, 356 F.Supp. 945, 952 (S.D.N.Y.1973).

Courts have consistently ordered expungement of arrest records in cases in which individuals are arrested without probable cause, see Sullivan v. Murphy, supra; Urban v. Breier, 401 F.Supp. 706 (E.D. Wisc.1975); Washington Mobilization Committee v. Cullinane, 400 F.Supp. 186, 218-19 (D.D.C.1975), aff'd in part, rev'd in part, 566 F.2d 107 (D.C.Cir.1977), or for the purposes of harassment. See Tatum v. Morton, 562 F.2d 1279 (D.C.Cir.1977); United States v. McLeod, supra; Bilick v. Dudley, supra; Hughes v. Rizzo, 282 F.Supp. 881 (E.D.Pa. 1968). Similarly it has been held that expunction is appropriate when the arrest is defective for some other reason, such as when an individual is arrested as a result of entrapment, United States v. Benlizar, 459 F.Supp. at 625, or is arrested based on a statute subsequently declared unconstitutional. Kowall v. United States, supra. Expunction is considered appropriate in these cases because it "is the remedy which will, to the maximum extent possible, eliminate the effects of illegal arrests." Bilick v. Dudley, 356 F.Supp. at 952. See also United States v. McLeod, 385 F.2d at 750.

The scope of a court's power to order expunction is less clearly defined in cases that involve constitutionally valid arrests that do not result in conviction. While it is generally acknowledged that courts do possess the power to expunge an arrest record of a person who has been acquitted, it would appear that an acquittal, standing alone, is not sufficient to warrant an expunction of an arrest record. United States v. Linn, 513 F.2d 925, 927-28 (10th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 63, 46 L.Ed.2d 55 (1975); United States v. Singleton, 442 F.Supp. 722, 723 (S.D.Tex.1977); United States v. Seasholtz, 376 F.Supp. 1288, 1290 (N.D.Okl.1974); United States v. Dooley, 364 F.Supp. 75, 78-79 (E.D.Pa. 1973). "The power to expunge an arrest record is a narrow one, and should not be routinely used whenever a criminal prosecution ends in an acquittal, but should be reserved for the unusual or extreme case." United States v. Linn, 513 F.2d at 927.

In deciding what constitutes "the unusual or extreme case" justifying expunction courts have balanced the government's need for the arrest record against the harm to the person arrested that results from maintaining the records. Doe v. Webster, 606 F.2d at 1231; United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir.1979), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978); Paton v. LaPrade, 524 F.2d 862, 868 (3d Cir.1975). There appears to be no definitive all purpose rule governing this determination and to a considerable degree each case must stand on its own two feet. United States v. Linn, 513 F.2d at 927; see Diamond v. United States, 649 F.2d 496, 497 (7th Cir.1981).

II.

The Court is convinced that it is appropriate to expunge the arrest record of the plaintiff in this case. He has suffered harm and it cannot be doubted that considerable more harm will result from maintaining his arrest records. The plaintiff's affidavit, which is not contested by the Government, indicates that his arrest record already has been released to one employer and the plaintiff fears that the further release of his record will jeopardize his plans to emigrate to Australia to pursue his work as an economist. The harms stemming from the release of arrest records are not imaginary. It is well recognized that:

Information denominated a record of arrest, if it becomes known, may subject an individual to serious difficulties. Even if no direct economic loss is involved, the injury to an individual's reputation may be substantial. Economic losses themselves may be both direct and serious. Opportunities for schooling, employment or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved. An arrest record may be used by the police in determining whether subsequently to arrest the individual concerned, or whether to exercise discretion to bring formal charges against an individual already arrested. Arrest records have been used in deciding whether to allow a defendant to present his story without impeachment by prior convictions, and as a basis of denying release prior to trial or an appeal; or they may be considered by a judge in determining the sentence to be given a convicted offender.

Menard v. Mitchell, 430 F.2d 486, 490-91 (D.C.Cir.1970).

See also United States v. Schnitzer, 567 F.2d at 539; United States v. Benlizar, 459 F.Supp. at 620-21; Kowall v. United States, 53 F.R.D. at 214-15.

The Government's interest in maintaining the plaintiff's arrest record does not outweigh these harms. The Government asserts that arrest records are vital to effective law enforcement and that they should be retained even where, as here, there was no unlawful arrest, illegal seizure, or misuse of the records. Dissemination of the plaintiff's record in connection with state or local employment, the Government argues, does not constitute misuse of his record as it is allowed under 28 C.F.R. § 20.33 when authorized by a federal or state statute and approved by the United States Attorney General.

Several court...