Wade v. District of Columbia

• Decision Date: 17 October 1973
• Docket Number: No. 5086.,5086.
• Parties: Coolidge WADE, Individually and as uncle and next friend of minor, Linwood Lawrence Graves, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

310 A.2d 857

Coolidge WADE, Individually and as uncle and next friend of minor, Linwood Lawrence Graves, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 5086.

District of Columbia Court of Appeals.

Argued En Banc October 26, 1972.

Decided October 17, 1973.

Steven M. Cooper and Marvin E. Preis, Silver Spring, Md., were on the brief for appellant.

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

C. Thomas Dienes, Washington, D. C., amicus curiae, appointed by this court, of the bar of the Supreme Court of Illinois.

Robert A. W. Boraks, Washington, D. C., amicus curiae, American Civil Liberties Union Fund, with whom Ralph J. Temple, Washington, D. C., was on the brief.

Before REILLY, Chief Judge, and KELLY, FICKLING, KERN, GALLAGHER, NEBEKER, YEAGLEY and HARRIS, Associate Judges.

KELLY, Associate Judge:

Some years ago Margaret Graves, individually and as next friend of Linwood Lawrence Graves, her minor son, sued the District of Columbia on a complaint charging it, through several of its police officers, with an assault and battery on and a false arrest of the minor plaintiff. Thereafter, the complaint was dismissed upon motion of the District interposing the defense of governmental immunity. After submission without argument of an appeal from that order of dismissal, and at the suggestion of the litigants, this court deferred decision on the merits pending the outcome of a similar case, Carter v. Carlson,¹ then under consideration by the United States Court of Appeals for the District of Columbia Circuit. When the Carter decision issued,² we requested and had oral argument on particular supplemental questions posed to the parties and thereafter reversed the judgment of dismissal with instructions to reinstate the complaint. Graves v. District of Columbia, D.C.App., 287 A.2d 524 (1972).³ Upon petition of the District for a rehearing en banc, the court's panel opinion was vacated and the case reheard by the full court.⁴

It should be kept in mind that, unlike Carter, our discussion of the merits of this case deals with a complaint against a single defendant — the District of Columbia — premised on a single theory of recovery — the District's liability under the doctrine of respondeat superior for the intentional torts of its police officers committed while acting within the scope of their employment. The issue of official immunity is not present in the case and is not discussed.⁵ Our only concern is whether or not, taking as we must the allegations contained therein to be true, the complaint states a claim against the District upon which relief may be granted.

The allegations of the complaint are that about 11 p. m. on a February evening, as the minor plaintiff was leaving a party, several District of Columbia police officers, acting within the scope of their employment, assaulted him without justification or probable cause, to his severe injury. It is further alleged that the minor plaintiff was thereafter unlawfully arrested and maliciously deprived of his physical liberty. Each plaintiff sought compensatory damages in the sum of $5,000.

The government's motion to dismiss was based on the contentions that the maintenance of a police department is a governmental function and that police officers are not agents of a municipal corporation. The District also argued that because Congress had consciously excluded it from the application of the Federal Tort Claims Act,⁶ the only statutory exception to its immunity from suit was D.C.Code 1967, § 1-922, the District of Columbia Non-Liability Act.⁷ The trial court granted the motion without comment.

Without question the operation of a police force is a governmental function.⁸ However, the much abused and much criticized "governmental-proprietary test" used for many years in this jurisdiction to determine municipal immunity from suit was permanently discarded by the circuit court en banc in Spencer v. General Hospital of District of Columbia, 138 U.S.App.D.C. 48, 425 F.2d 479 (1969), where in commenting upon an even earlier decision, Elgin v. District of Columbia, 119 U.S.App.D.C. 116, 337 F.2d 152 (1964), the court said:⁹

We did not [there] feel inhibited, however, from probing the emerging formulations of the municipal immunity principle and, in particular, we remarked the trend, in this jurisdiction as elsewhere, towards an analysis which looked to the nature of the function being performed by a municipality and which did not stop short at a finding of the governmental character of the activity in question. We found that the articulation of the immunity test in terms of "governmental," as opposed to "proprietary," functions had increasingly lost its vitality as an accurate or adequate rationale for the immunity privilege. . . ."

Since Elgin, a different and more logical "ministerial-discretionary" test has been applied as a yardstick for measuring the availability of the defense of immunity, discretionary functions being those "of such a nature as to pose threats to the quality and efficiency of government in the District if liability in tort was made the consequence of negligent act or omission."¹⁰ Under this standard the District is immune from suit only if the act complained of was committed in the exercise of a discretionary function; if committed in the exercise of a ministerial function the District must respond. Baker v. Washington, 145 U.S.App.D.C. 277, 448 F.2d 1200 (1971); Carter v. Carlson, supra; Spencer v. General Hospital of District of Columbia, supra; Elgin v. District of Columbia, supra.

Proceeding from general principles to the facts of this case, we think it settled that for immunity purposes the act of making an arrest is ministerial. Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 456 F.2d 1339 (2d Cir. 1972); Carter v. Carlson, supra; Sherbutte v. Marine City, 374 Mich. 48, 130 N.W.2d 920 (1964). Thus, as we have pointed out, the federal circuit court has recognized that, based on the actions of its employees, the District of Columbia is amenable to suit for assault and battery and/or false arrest and imprisonment. Carter v. Carlson, supra; Graham v. District of Columbia, 139 U.S.App. D.C. 378, 433 F.2d 536 (1970). It has also cited with approval the opinion of a federal District judge who wrote:

Nor is the District of Columbia necessarily immune from suit as principal for the intentional torts of its agent police officers, so long as the applicable "scope of employment" rules can be proved at trial to apply to the facts of the instant case. Cf. Hargrove v. Town of Cocoa Beach, 96 So.2d 130, 133 (Fla.1957). Those jurisdictions which have considered this aspect of the problem have held that the action of a police officer in making an assault upon a citizen is not a discretionary act, but is merely ministerial. Robinson v. Smith, 211 Cal.App.2d 473, 27 Cal.Rptr. 536, 541 (1962). Cf. Sherbutte v. Marine City, 374 Mich. 48, 54-55, 130 N.W.2d 920, 923 (1964). We believe this is a sound determination. Similarly, we believe that when our Court of Appeals adopted the discretionary-ministerial distinction in the area of sovereign immunity, it did not intend that the distinction be limited to cases of negligent torts, or it would have made an explicit holding to that effect. See Simpson v. City of Miami, 155 So.2d 829 (Fla.Dist.Ct.App.1963). The discretionary-ministerial distinction applies to cases of intentional, as well as negligent torts.¹¹

Despite this impressive authority, the District now contends that its liability in tort is limited to the same extent as that of the federal government under the Federal Tort Claims Act. After many years of litigation in which the District consistently maintained that its immunity from suit was broader than that of the federal government,¹² it now argues that as a municipality it has no immunity per se but only that derived from the sovereign United States. This notion is contrary to the common law theory of municipal governmental immunity as it has developed in the case law of this jurisdiction. It is belied by the fact that in the one instance where the District's immunity was expressly waived, it was by an act of Congress enacted many years after the passage of the Federal Tort Claims Act. Moreover, the identical argument was made to the circuit court in Carter and was rejected by that court in the following language:¹³

The District urges us to limit the rule of Spencer to cases involving negligence, and to hold the municipal government completely immune from suit for the intentional torts of its employees.

In Spencer we indicated that we were influenced by the provisions of the Federal Tort Claims Act, 28 U.S.C. § 2680(a), in adopting "discretion" as the hallmark of acts protected by sovereign immunity. 138 U.S.App.D.C. at 53 & n. 7, 425 F.2d at 484 & n. 7. We are now urged to follow the Act again, and to adopt a rule of immunity for intentional torts, whether discretionary or ministerial in character. See 28 U.S.C. § 2680(h). We made it clear in Spencer, however, that the Act does not in any way control the character of sovereign immunity in the District of Columbia; the developing common law of the District is neither precluded from adopting principles contained in the Act, nor required to do so. [Footnote omitted.]

The provision of the Act asserting the immunity of the United States with respect to certain intentional torts has been subject to severe and persuasive criticism. See, e. g., K. Davis, Administrative Law Treatise § 25.08 (1958, Supp. 1970). In the absence of legislation, we see no reason to incorporate that immunity into the law of the District. When a tort is made possible only through the abuse of power granted by the government, then the government should be held accountable for the abuse, whether it is negligent...