Washington Mobilization Committee v. Cullinane

• Decision Date: 27 August 1975
• Docket Number: Civ. A. No. 779-70.
• Citation: 400 F. Supp. 186
• Parties: WASHINGTON MOBILIZATION COMMITTEE et al., Plaintiffs, v. Maurice J. CULLINANE, Chief of the Metropolitan Police Department, et al., Defendants.
• Court: U.S. District Court — District of Columbia

400 F. Supp. 186

WASHINGTON MOBILIZATION COMMITTEE et al., Plaintiffs, v. Maurice J. CULLINANE, Chief of the Metropolitan Police Department, et al., Defendants.

Civ. A. No. 779-70.

United States District Court, District of Columbia.

July 28, 1975.

Judgment August 27, 1975.

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John E. Vanderstar, John H. Quinn, Jr., Lawrence H. Mirel, Ralph J. Temple, Washington, D. C., for plaintiffs.

C. Francis Murphy, Corp. Counsel, D. C., John A. Earnest, Robert J. Sher, Richard G. Wise, Asst. Corp. Counsels, Washington, D. C., for defendants.

MEMORANDUM OPINION INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW

WADDY, District Judge.

Introduction

During the period 1969-1971¹ a number of large-scale demonstrations took place in the District of Columbia to protest various actions taken by the federal and city governments. Participants sought to exercise their rights under the First Amendment peaceably "to assemble, and to petition the Government for a redress of grievances." Plaintiffs in this action are two organizations which had sponsored demonstration activities and individuals who had become involved in the demonstrations as participants, attorneys or observers.² Their complaint challenges the policies and actions of the District of Columbia police department during these mass demonstrations. Four general areas of unlawful conduct are alleged as the source of these claims: (1) unlawful dispersal and arrest of demonstrators; (2) use of excessive physical force; (3) unlawful post-arrest, booking procedures; and (4) unnecessary and discriminatory fingerprinting and photographing of demonstrators arrested on disorderly conduct and related charges. Plaintiffs further attack the constitutionality of statutory and administrative enactments invoked by defendants in the performance of their duties. Equitable relief is sought which would require the police department to revise its practices and procedures in a manner which will rectify the claimed constitutional deficiencies.

Defendants are supervisory officials of the Police Department who allegedly are responsible for the actions cited by plaintiffs.³ They contend in their defense that they have not overstepped the bounds of constitutional propriety and that their actions have been consonant with the due process and first amendment rights guaranteed to all citizens. Defendants argue that even if there have been incidents in the past in which individual officers have acted improperly, this finding would not warrant the extensive injunctive relief sought by plaintiffs.

This Court has jurisdiction over the subject matter and parties of this action pursuant to D.C.Code § 11-521(a)(1).⁴ Jurisdiction is also conferred on this Court by 28 U.S.C. § 1331 and the 1st, 4th and 5th amendments to the constitution. Sullivan v. Murphy, 156 U.S.App. D.C. 28, 478 F.2d 938 (1973).

The case was tried before the Court sitting without a jury. The trial was conducted from March 19 to April 9, 1974.⁵ Plaintiffs presented the testimony of 25 witnesses at trial and the testimony of 3 additional persons by deposition. The trial was shortened by an agreement between the parties permitting plaintiffs to introduce into evidence the affidavits of 47 potential witnesses whose testimony would merely have been cumulative of the evidence introduced through plaintiffs' primary witnesses. The affidavits were admitted only as summaries to show what these persons would have testified to if they had been called as witnesses. The veracity of the affiants or of their statements was not stipulated. Finally, plaintiffs introduced well over 100 exhibits into evidence including police department documents, interrogatories and depositions. Defendants presented at trial the testimony of ex-Chief Wilson and other supervisory officials of the department who were responsible for the training, supervision and discipline of officers assigned to duty during mass demonstrations. Defendants supplemented this testimony with 21 exhibits introduced into evidence, consisting of internal memoranda, orders and documents of the department.

In order to obtain the relief they seek, plaintiffs must prove that the police have engaged in widespread violations of constitutional rights; that such breaches of official duty have occurred over a period of time and are subject to repetition; and that the misconduct either has resulted from departmental policies and procedures or lack thereof, or has been fostered by the department's failure to take corrective action. See Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974); Washington Free Community, Inc. v. Wilson, 157 U.S.App.D.C. 360, 484 F.2d 1078 (1973); Long v. District of Columbia, 152 U.S.App.D.C. 187, 469 F.2d 927 (1972); Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966). In an effort to satisfy this burden, plaintiffs have produced evidence depicting the events of demonstrations occurring in the District of Columbia during 1969-1971. Defendants' evidence concentrates on the guidelines developed by the department during this time period in an effort to show that any misconduct was individually inspired, rather than the outgrowth of officially sanctioned policies, and that the department has actively sought rectification of the deficiencies in operating procedures.

FACTS

1. The Civil Disturbance Unit

The evidence in support of and in opposition to the respective positions of the parties and the facts deducible therefrom will be discussed hereinafter. At the outset, however, a description of the makeup of the department's Civil Disturbance Unit (CDU) is helpful in understanding the evidence.

The CDU is a special component of the police department established to provide personnel for service during largescale civil disturbances, including riots and mass demonstrations. Because of the nature of its duties, the Unit is mobilized on an ad hoc basis. Organizationally it is part of the department's Special Operations Division (SOD), which has duties extending beyond the narrowly defined scope of CDU activities. Of the approximately 650 officers assigned to the CDU, 300 are drawn from the ranks of the SOD; the remaining officers are regularly assigned to other full-time positions within the department.⁶ The Deputy Chief of Police in charge of the SOD is also Commander of the CDU.⁷

2. The Demonstrations⁸

a. November 14, 1969 — Dupont Circle

On November 14, 1969, an anti-war demonstration was staged near the South Vietnamese embassy, in the vicinity of Dupont Circle. As the demonstrators became unruly, breaking windows and threatening police, they began to congregate in and around the Circle. Upon orders of Chief Wilson, CDU officers surrounding the area launched tear gas cannisters into the Circle in an attempt to subdue the crowd.

Dr. Timothy Tomasi, a physician who, at that time, was employed as a resident by D. C. General Hospital, volunteered his services to provide first aid. From 6:00 until 9:30 P.M. he was stationed in a house near the Circle where he treated approximately 20-30 persons suffering from tear gas burns, bruises and lacerations. By 9:30 tear gas had seeped into the house, requiring evacuation from the building. Clearly identified by a red cross armband, Tomasi went to the Circle to ascertain if any demonstrators there needed medical attention. At first officers refused to allow him access through the police line surrounding the Circle, but then relented. Finding that his assistance was not needed, Tomasi left the circle just as further tear gas was set off.

As Tamasi approached Massachusetts Avenue, CDU officers grabbed him and struck him a number of times with their clubs, knocking him to the ground. He was then dragged to a police bus and locked in the back. He showed one of the officers his medical identification, but to no avail. A short time later, when officers returned to the bus, he was ordered to leave. As he disembarked some of the officers again struck him across the body with their batons; one officer kneed him in the groin. Tomasi was then allowed to leave, never having been advised that he was under arrest or that he had violated any law.

b. November 16, 1969 — Three Sisters Bridge

On November 16, 1969 a large crowd gathered on Canal Road in Georgetown to protest construction of the proposed Three Sisters Bridge.⁹ As the crowd became loud and disorderly, the participants began to block traffic proceeding along M Street and Canal Road. Police stationed in the area were subjected to verbal abuse and, in a few instances, were the targets of thrown objects.

Eventually three squads of police were ordered to the area who directed the demonstrators back to the vicinity of 34th and M Streets. Two squads then moved further east along M Street, while the third squad attempted to clear 34th Street by proceeding north along that thoroughfare. At the intersection of 34th and Prospect Streets, a line of police was formed which prevented all pedestrian and vehicular traffic from moving south. Lieutenant Watson, in command of the maneuver, then ordered a sweep of the area by a contingent of officers moving north on 34th Street and east along Prospect Street.

At this juncture, a number of persons who were apparently occupants of a residence at 3401 Prospect Street¹⁰ began shouting obscenities at the officers, but were not otherwise interfering in the police action. Several officers broke ranks and moved to the steps of the house before being ordered to return to their line by superiors. Later, when the police made a return sweep of the area, these same hecklers renewed their activities. At this point, four officers proceeded to the front yard, swinging their batons,¹¹ and arrested two of the protestors. Lieutenant Watson supported this action, noting that the comments made by the arrestees were "unacceptable in a decent and self-respecting society."¹²

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