Utz v. Cullinane, 72-1116

• Citation: 172 U.S. App. D.C. 67,520 F.2d 467
• Decision Date: 03 October 1975
• Docket Number: No. 72-1116,72-1116
• Parties: Jackie E. UTZ et al., Appellants, v. Honorable Maurice CULLINANE.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 467

520 F.2d 467

172 U.S.App.D.C. 67

Jackie E. UTZ et al., Appellants, v. Honorable Maurice CULLINANE.

No. 72-1116.

United States Court of Appeals,

District of Columbia Circuit.

Argued June 10, 1975.

Decided Oct. 3, 1975.

Louis M. Seidman, Washington, D. C., was on the brief for appellants. William W. Taylor, III, Washington, D. C., entered an appearance for appellants.

David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief for appellees.

Before WRIGHT and ROBINSON, Circuit Judges, and MERHIGE, ^* District Judge.

Opinion for the Court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

Appellants in this case challenge on both constitutional and statutory grounds the Metropolitan Police Department's policy of routinely transmitting to the Federal Bureau of Investigation the fingerprint cards and accompanying identification data of individuals who are arrested in the District of Columbia. Although we believe there is substantial merit to appellants' constitutional contentions, we do not premise our holding on those grounds, for we believe there are narrower statutory grounds on which we must interdict this indiscriminate dissemination of arrest records in the absence of a specific FBI request for particular data to be used by the FBI or other law enforcement officials for strictly law enforcement purposes.

I

On January 7, 1971, shortly before the effective date of the District of Columbia Court Reform and Criminal Procedure Act of 1970, ¹ appellants four individuals arrested for and charged with local criminal offenses brought a class action ² for injunctive and declaratory relief to enjoin appellees the Chief of Police and the Director of the Central Records Division of the Washington, D.C., Metropolitan Police Department from transmitting appellants' arrest records to the FBI and to request the return of those records already transmitted. Plaintiffs-appellants asserted that the Metropolitan Police lacked a statutory basis for engaging in this practice, which was also allegedly specifically prohibited by the "Duncan Ordinance," a regulation promulgated by the District's Board of Commissioners to govern the distribution of arrest records in this jurisdiction. ³ Plaintiffs-appellants further asserted that the preconviction or post-exoneration dissemination of their arrest records abridged their constitutional rights to due process, privacy, and the presumption of innocence.

Appellant Utz was arrested on January 7, 1971 and was charged with possession of marijuana. Her case was subsequently "no papered" by the United States Attorney, and she allegedly represents the class of individuals ultimately exonerated of the charges lodged against them. Appellant Boyd was arrested on January 6, 1971 and was charged with petit larceny. At the time the complaint in this case was filed he had been released on a personal bond and was awaiting trial in the Court of General Sessions; although a nolle prosequi was entered on this charge before the District Court's ruling in this case, he allegedly represents the class of individuals who have not yet been brought to trial and who are thus presumed to be innocent of charges pending against them. ⁴ Appellant Leon M., a juvenile who brought his action by his mother and next friend, Jean M., was arrested on October 27, 1970 for unauthorized use of a motor vehicle, and he allegedly represents the class of juveniles charged in the Juvenile Branch of the Family Division of the Superior Court for the District of Columbia. The charge against Leon M. was dismissed on December 14, 1970, when he entered a plea of guilty to another traffic offense and he was sentenced to 60 days of court supervision and traffic school. Appellant Bolling was arrested on November 20, 1970 and charged with possession of numbers slips. He entered a plea of guilty to this charge on December 30, 1970 and was sentenced to one year of probation; he allegedly represents those individuals who are actually found guilty of the offense for which they were arrested, and premises his challenge to the Metropolitan Police Department's practices solely on statutory grounds.

Before the arrests which formed the predicate for this case, none of the named plaintiffs-appellants had a criminal record. Although they do not allege that their arrests were made without probable cause and thus do not seek expungement of their arrest records, appellants contend that the dissemination of those records to the FBI, and inevitable nationwide redissemination by the FBI, will cause them irreparable injury. More particularly, appellants in their complaint maintain that fingerprint cards (containing data identifying the person arrested and information concerning the arrest) of all persons arrested and fingerprinted by the Metropolitan Police Department are routinely transmitted to the FBI, regardless of whether the charges are dismissed, "no papered," "nollied," reduced, or terminated through an acquittal, and that this dissemination normally transpires before a court disposes of the case. These data submitted to the FBI are allegedly added to the FBI's Computerized Criminal History File (part of the FBI's National Crime Information Center), from which a master "rap" sheet is prepared listing each person's name, his identifying data, the date of the arrest, and the offense or offenses for which he is arrested; the "rap" sheet is allegedly disseminated upon request to over 14,500 public and private agencies including the United States Civil Service Commission, the Armed Services, banks, and state and local governments, which allegedly utilize that information adversely for employment and promotion purposes to the detriment of appellants and other individuals listed in the FBI's criminal ⁵ data bank.

Both plaintiffs-appellants and defendants-appellees moved for summary judgment and submitted the same affidavit of the Director of the Central Records Division of the Metropolitan Police Department describing the practice of that Department with respect to the dissemination of arrest records to the FBI. The Director averred that the Metropolitan Police Department "routinely" forwarded to the FBI the arrest records of all adults who are "charged with a felony or violation of laws against the United States" or "who because of the type of offense committed and/or records of arrest are likely to be wanted by other local or federal law enforcement agencies" or who are arrested for "participating in mass demonstrations," as well as the arrest records of all juveniles "16 years or older who have been charged with a felony." ⁶ He also reported that as of October 1971, "all appropriate records forwarded to the FBI are subsequently supplemented with entries that reflect Court disposition." The parties amplified on this affidavit by stipulating that the fingerprint cards of these arrestees are sent to the FBI "within several days of the arrest and generally before trial," as are the arrest records of "most misdemeanants, excepting traffic violat(ors), charged with violations of the D.C.Code and arrested by the Metropolitan Police." ⁷ It was also stipulated that the arrest records of appellants Leon M. and Bolling had already been submitted to the FBI, that the records of appellants Utz and Boyd would have been routinely sent to the FBI but for an agreement between counsel not to do so pending the outcome of this case, and that although the FBI will return these records to the Metropolitan Police Department at the latter's request, the FBI will continue to keep and disseminate all records, regardless of court disposition, unless such a return of the records is requested by the Metropolitan Police. ⁸

With the case in this posture District Judge Gesell granted appellees' motion for summary judgment, reasoning in an oral opinion that appellants' constitutional arguments lacked "substantiality" and that the "Duncan Ordinance" was inapplicable to the relationship between the Chief of Police and the FBI. ⁹

II

In framing the constitutional question which appellants present, it is important to state with specificity what is and what is not involved in this case. First, appellants do not seek expungement of the arrest records maintained by the Metropolitan Police Department. ¹⁰ Since they do not contend that their arrests were constitutionally invalid, they admit that the mere maintenance of a record of that fact does not violate their right to due process or allow the Police Department to retain the tainted product of a Fourth Amendment violation. ¹¹ Indeed, appellants recognize that there are situations in which the fact of prior arrests even those which did not culminate in a conviction may be legitimately employed in the criminal justice process, whether by police investigators, judicial officers, or probation or other law enforcement officials. In such situations, there are substantial procedural safeguards and significant judicial oversight which may check any potentially improper use of the information.

Second, appellants do not challenge the constitutional propriety of disseminating particular arrest records to the FBI when there is a specific law enforcement need for those data. ¹² They recognize that the constitutional interests of privacy and due process which they assert must be protected may nevertheless be balanced against legitimate and weighty state interests, and that there will likely be situations in which the latter will override an individual's interest in preventing dissemination.

Finally, appellants do not suggest that the Metropolitan Police Department is prohibited from routinely disseminating more limited categories of data to the FBI. For example, routinely transmitting to the FBI the fingerprints or names (without...