Wardlaw v. Pickett, 91-5070

• Decision Date: 06 December 1993
• Docket Number: No. 91-5070,91-5070
• Parties: William C. WARDLAW, Appellant, v. William R. PICKETT, Deputy United States Marshal, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1297

1 F.3d 1297

303 U.S.App.D.C. 130

William C. WARDLAW, Appellant, v. William R. PICKETT, Deputy United States Marshal, et al., Appellees.

No. 91-5070.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 8, 1993.

Decided Sept. 10, 1993.

Rehearing and Suggestion for Rehearing En Banc

Denied Dec. 6, 1993.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 89-01557).

Daniel M. Schember, Washington, DC, argued the cause, for appellant.

John R. Munich, Asst. U.S. Atty., Washington, DC, argued, for appellees. On brief were Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC. John C. Cleary, Asst. U.S. Atty., Washington, DC, also entered an appearance, for appellees.

Before BUCKLEY, D.H. GINSBURG and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

William Wardlaw brought a Bivens action ¹ in district court seeking damages and alleging that United States Deputy Marshals William Pickett and Albert Crew violated his constitutional rights by using excessive force against him, falsely arresting him and wrongfully prosecuting him. Relying in part on the defendants' claims of qualified immunity, the district court granted them summary judgment. For the reasons explained below, we affirm the district court.

I.

Wardlaw and the two deputies presented the district court with two very different accounts of the relevant events. Because we are reviewing the grant of summary judgment in favor of the defendants, we view "the facts in the record and all reasonable inferences derived therefrom in a light most favorable to the plaintiff." Martin v. Malhoyt, 830 F.2d 237, 253-54 (D.C.Cir.1987). Accordingly, we consider Wardlaw's version of events.

A. Wardlaw's Account

On June 7, 1988, Wardlaw and John Heid were watching a hearing in a courtroom on the sixth floor of the United States Courthouse in Washington D.C. The hearing related to a lawsuit challenging conditions in a women's prison and, because the Marshal's office had received information leading it to believe that a demonstration might occur, security around the courtroom was especially tight. Late in the afternoon, the judge called a recess. Deputy Marshal Donald Horton observed that Heid refused to stand as the judge left the room. As the judge re-entered the courtroom after the recess, Horton approached Heid and told him to stand, but Heid resisted, saying that he stood for no one but God.

Deputy Horton then asked Heid to leave the courtroom but Heid again refused, telling Horton that he would leave only if carried out. Horton summoned Deputy Marshal Crew and together the two removed Heid, who went limp instead of resisting. Outside, Horton turned Heid over to Crew and Deputy Marshal Pickett, who had come to assist. Together, Pickett and Crew moved Heid to the stairwell to take him to the first floor and from there to eject him from the courthouse. Wardlaw, who had witnessed the events involving his friend, followed.

When Wardlaw first entered the stairwell, he saw Pickett holding Heid "like a sack of potatoes" and dragging him down the steps from the sixth floor. Crew accompanied Pickett and Heid. On a landing halfway to the fifth floor, according to Wardlaw, Pickett punched and kicked Heid. Simultaneously, Wardlaw rushed down the stairs toward Pickett, shouting out "Don't hurt him please. He is totally nonviolent." Pickett turned and punched the approaching Wardlaw once in the jaw and two or three times in the chest.

Heid attempted to move but Crew restrained him. Heid then told Wardlaw to get the deputies' names. At that point, Wardlaw claims that Pickett said to Crew, "We better charge them with assault." Both Wardlaw and Heid were arrested and tried for assault. Deputies Pickett and Crew testified at the trial, at the conclusion of which Heid was convicted and Wardlaw was acquitted. See United States v. Heid, 904 F.2d 69 (D.C.Cir.1990) (summarizing events at trial). Although Wardlaw acknowledges on appeal that he refused medical treatment for his injuries after the scuffle, he maintains that he experienced substantial pain in his chest and jaw over the next several months. ²

B. District Court Proceedings

In district court, Wardlaw alleged that Pickett and Crew committed numerous torts including false arrest, wrongful prosecution and use of excessive force. ³ In granting the deputies summary judgment on the false arrest and wrongful prosecution claims, the district court found that "there is simply no evidence of malice or bad faith on the part of the marshals." Mem. at 8. In addition, the court concluded that the marshals had probable cause to arrest Wardlaw for his role in the altercation.

The district court also granted the defendants summary judgment on the excessive force claim because it concluded that the "plaintiff's fourth amendment excessive force claim does not overcome the defense of qualified immunity." Mem. at 11. Qualified immunity protects a government official from suits for damages if the official's conduct did not violate clearly established rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). To support its result, the court decided that "the unlawfulness of defendants' actions [was not] 'so apparent' that no reasonable officer could have believed in the lawfulness of his actions." Mem. at 10.

II.

A. Excessive Force Claim Against Pickett

Wardlaw's excessive force argument proceeds as follows. Wardlaw first asserts a common-law privilege to intervene in an arrest in which law enforcement officers use excessive force. Although we have not ruled on the existence or scope of that privilege, it has been recognized in other jurisdictions. ⁴ In addition, Wardlaw argues that two Supreme Court decisions could be interpreted as creating an inference that the privilege exists. In Imbler v. Pachtman, 424 U.S. 409, 418, 96 S.Ct. 984, 989, 47 L.Ed.2d 128 (1976), the Supreme Court indicated that a claim pursued under 42 U.S.C. Sec. 1983 should be interpreted in conformity with traditional tort defenses and immunities. And in Butz v. Economou, 438 U.S. 478, 500, 98 S.Ct. 2894, 2907, 57 L.Ed.2d 895 (1978), the Court stated that the law governing a Bivens action should mirror section 1983 law. Accordingly, Wardlaw asserts that the privilege was clearly established at the time the incident occurred.

Wardlaw next argues that he acted within the scope of the privilege in rushing down the stairs and shouting at the two deputies to desist. An intervenor, according to Wardlaw, may use force against the officers in proportion to the excess force the officers use against the arrestee. Because Pickett allegedly hit and kicked Heid, Wardlaw claims he was entitled to accost Pickett. Instead, he simply rushed down the steps shouting at Pickett; thus, Wardlaw claims he was well within the scope of the privilege. He maintains that Pickett, as the aggressor, had no right to resist and, by doing so, violated Wardlaw's clearly established right to intervene.

We find this argument unpersuasive for several reasons. First, we note that jurisdictions that have recognized the privilege to intervene in an arrest have recognized it as a defense to the intervenor's criminal and civil liability, not as a means of imposing liability on law enforcement officers. In some jurisdictions the privilege grows out of the arrestee's right to defend himself from the use of excessive force without incurring criminal liability. By coming to the arrestee's aid, an intervenor places himself in the arrestee's shoes and is entitled to defend himself. See, e.g., State v. Anderson, 40 N.C.App. 318, 253 S.E.2d 48 (1979); State v. Wenger, 58 Ohio St.2d 336, 12 O.O.3d 309, 390 N.E.2d 801 (1979). These jurisdictions, then, recognize that "one who comes to the aid of an arrestee must do so at his own peril." State v. Gelinas, 417 A.2d 1381, 1386 (R.I.1980). Other jurisdictions allow the intervenor to assert the privilege based on a reasonable but mistaken belief that excessive force was being used against the arrestee. See, e.g., Graves v. United States, 554 A.2d 1145 (D.C.App.1989); Commonwealth v. Martin, 369 Mass 640, 341 N.E.2d 885 (1976). Even in these jurisdictions, however, the privilege constitutes no more than a recognition of a reluctance to impose liability on individuals who reasonably acted in an attempt to save others from what they perceived as serious, imminent danger. "[I]t is hardly conceivable that the law ... should mark as criminal those who intervene to protect others.... To the fear of involvement and of injury to oneself if one answered a call for help would be added the fear of possible criminal prosecution." Commonwealth v. Martin, 341 N.E.2d at 891; cf. State v. Westlund, 13 Wash.App. 460, 536 P.2d 20, 25 (1975) ("in rare circumstances, the brutality may be so dangerous to the arrestee that his resistance or the intervention of others is necessary to prevent death or serious disability"); Commonwealth v. French, 531 Pa. 42, 611 A.2d 175, 179 (1992) (referring to privilege as "justification" for action that would otherwise be criminal).

That concern, however, must be balanced against the ability of law enforcement officers to perform their duties. They must be free to use the reasonable force necessary to effect an arrest. Giving the privilege too broad a scope might easily deter officers from using force when it is necessary and justified. In recognition of this concern, some jurisdictions extend the privilege only to situations in which an officer uses excessive force capable of causing death or serious bodily injury. ⁵ See e.g., Commonwealth v. French, 611 A.2d at 175; State v. Smits, 58 Wash.App. 333, 792 P.2d 565, 569 (1990)....