The opinion of the court was delivered by: ROBINSON, JR.
AUBREY E. ROBINSON, Jr., District Judge.
The complaint in this case alleges assault and battery, negligence and deprivation of civil rights. The original defendants were Johnson and Weir, two police officers of the Metropolitan Police Department in the District of Columbia; Walter Washington, Mayor of the District of Columbia; John R. Layton, Chief of the Metropolitan Police Department of the District of Columbia; and the District of Columbia itself. A motion to dismiss as to Defendants Washington and Layton was granted by this Court on September 12, 1968. The complaint asserts liability for personal injuries occurring as the result of an alleged assault and false arrest by two Metropolitan Police officers. It alleges that Defendant Johnson, an officer of the Metropolitan Police Department of the District of Columbia, inflicted on the male plaintiff serious injuries by hitting him on the head with his baton. The complaint alleges that the District of Columbia was negligent in its duties to train, instruct, supervise and control a police officer about whom it had received numerous complaints.
The motion before the Court is a Motion of Defendant District of Columbia to Dismiss the Complaint. In support of its motion, Defendant District of Columbia urges the position that in the maintenance of a police department, the District of Columbia is engaged in the performance of a governmental function, rather than a proprietary one, and, under the doctrine of sovereign or governmental immunity, it is not liable for negligence which may occur during the performance of that function. Plaintiff responds by citing two alleged exceptions to the doctrine of governmental immunity: (1) the ministerial actions exception, under which the test is not whether the sovereign is engaged in a governmental as opposed to a proprietary function, but whether the activity is discretionary, in which case immunity attaches, or ministerial, in which case there is no immunity from suit; and (2) the dangerous instrumentality exception, under which the sovereign is not immune from suit for the acts of a dangerous instrumentality which it looses upon the community.
Sovereign immunity began with the theory, allied with the divine right of kings, that "the King can do no wrong" and that it was a contradiction of his sovereignty to allow him to be sued as of right in his own courts. W. Prosser, The Law of Torts § 125, at 996-997 (3d ed. 1964). The doctrine was first extended to a municipality in 1798 in Russell v. Men of Devon, 2 Term Rep. 667, 100 Eng.Rep. 359 (1798). That decision was predicated upon the absence of funds in the treasury of Devon to pay judgments arising out of tort claims, as well as the fear of a multitude of such suits. Greenstone, Liability of Police Officers for Misuse of Their Weapons, 16 Cleve.-Mar.L.Rev. 397, 398 (1967).
Today, the rule of municipal immunity from tort liability is generally considered to rest upon three grounds: (1) the immunity of the sovereign from suit, which is extended to the municipality as the representative of the sovereign; (2) the theory that it is more expedient that scattered individuals suffer than that the public in general, as represented by the government, be inconvenienced; and (3) the theory that governmental agents will perform their duties more effectively if not hampered by fear of tort liability. Annot., 60 A.L.R.2d 1198, 1199 (1958).
Without elaborating further on the history of governmental immunity,
suffice it to say that the doctrine has come under sharp criticism in recent years.
In summary, the critics have argued that, since the state is no longer totally immune from suit under the doctrine of "sovereign" immunity, "municipal" immunity from suit, a theory developed largely by analogy to the immunity of the sovereign state, should also be less than complete; that individual rights are entitled to protection even if the result is some public inconvenience; and that the "hampering" of negligent or tortious conduct by the government is to be desired rather than condemned. See Annot., supra 60 A.L.R.2d at 1199. See also, e.g., Hargrove v. Town of Cocoa Beach, 96 So.2d 130, 132 (Fla.1957). It has been said by one distinguished judge, Justice Roger Traynor of the California Supreme Court, that "the rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by the force of inertia." Muskopf v. Corning Hospital District, 55 Cal.2d 211, 216, 11 Cal.Rptr. 89, 92, 359 P.2d 457, 460 (1961).
Judge Traynor explains that the doctrine
* * * began as the personal prerogative of the king, gained impetus from sixteenth century metaphysical concepts, may have been based on the misreading of an ancient maxim, and only rarely had the effect of completely denying compensation. How it became in the United States the basis for a rule that the federal and state governments did not have to answer for their torts has been called "one of the mysteries of legal evolution." -- Muskopf, supra 55 Cal.2d at 214-215, 11 Cal.Rptr. at 90-91, 359 P.2d at 458-459.
Courts in the District of Columbia have voiced similar views about the anomalous role of sovereign immunity in today's world. Judge Holtzoff noted in one case that "[government] immunity from suit is an obsolescent and dying doctrine." Calomeris v. District of Columbia, 125 F. Supp. 266, 267 (D.D.C.1954). In affirming, the Court of Appeals said, "We agree with Judge Holtzoff that the defense of governmental function to a complaint for negligence, mistreatment or malpractice is 'an obsolescent and dying doctrine' * * *." Calomeris v. District of Columbia, 96 U.S.App.D.C. 364, 366, 226 F.2d 266, 268 (1955). Judge Sirica also noted with approval the trend toward abrogation of absolute sovereign immunity in Barr v. District of Columbia, 202 F. Supp. 260 (D.D.C.1962). But the limits of the extent of that abrogation were left for the Court of Appeals to detail in Elgin v. District of Columbia, 119 U.S.App.D.C. 116, 337 F.2d 152 (1964), discussed herein in some detail.
To apply the District of Columbia rules pertaining to sovereign immunity and the extent of the abrogation thereof to the present situation, it is important to note at the outset that the termination of the doctrine of governmental immunity is for the legislature, not the judiciary. Urow v. District of Columbia, 114 U.S.App.D.C. 350, 316 F.2d 351, cert. denied, 375 U.S. 826, 84 S. Ct. 69, 11 L. Ed. 2d 59 (1963). While many state courts have taken the view that sovereign immunity is judicially created and thus can be judicially abolished, e.g., Muskopf v. Corning Hospital District, 55 Cal.2d 211, 218, 11 Cal.Rptr. 89, 93, 359 P.2d 457, 461 (1961); Hargrove v. Town of Cocoa Beach, 96 So.2d 130, 134 (Fla.1957), the Court of Appeals for the District of Columbia has explicitly ruled to the contrary. Urow, supra, 114 U.S.App.D.C. at 351 n. 2, 316 F.2d at 352 n. 2. See Vanlandingham, Local Governmental Immunity Re-Examined, 61 Nw.U.L.Rev. 237, 255-61 (1966). The Court reasoned that since Congress, as recently as 1960, had made a limited modification of the immunity rule, the courts are powerless to declare a general abolition of it. Urow, supra at 351 n. 2, 316 F.2d at 352 n. 2. See also Elgin, supra, 119 U.S.App.D.C. at 117 n. 2, 337 F.2d at 153 n. 2; Harbin v. District of Columbia, 119 U.S.App.D.C. 31, 336 F.2d 950 (1964); Calomeris v. District of Columbia, 96 U.S.App.D.C. 364, 366, 226 F.2d 266, 268 (1955). However, the Court of Appeals in Urow did make this concession to the role of the judiciary in expanding or contracting the doctrine of governmental immunity:
While the courts of this jurisdiction no doubt have a certain flexibility in interpreting the existing exceptions to the doctrine, general abolition of the rule as it prevails here is not, in light of this background, something to be undertaken by the judiciary. -- Urow, supra, 114 U.S.App.D.C. at 351 n. 2, 316 F.2d at 352 n. 2.
Thus our inquiry must now focus on "the existing exceptions" to the doctrine of governmental immunity in the District of Columbia and whether the facts of the instant case fall within the rule or its exceptions. This examination is undertaken in light of the widely held view, which has been discussed previously and which this Court shares, that the doctrine of governmental immunity is an "obsolescent," "anachronistic" doctrine "without rational basis."
Dissatisfaction with the doctrine of municipal immunity from tort liability led to the partial breakdown of the doctrine and the now well-settled distinction between governmental and proprietary functions of a municipality. The theory is that while governmental immunity "cloaks the acts of the municipality done as the agent of the sovereign, there is no such immunity when the acts are done in a proprietary capacity." Annot., 60 A.L.R.2d 1198, 1203 (1958). Thus, whether a municipality is immune from suit turns on the nature of the function involved in the particular case.
It has been said that the underlying test of governmental as against proprietary function is whether the act performed is for the common good of all, or for the special benefit or profit of the corporate entity. Whether the activity in question is one traditionally performed by a municipality may be important * * *. It has been said that functions which could be as well performed by a private corporation, or which involve the sale of a commodity or service, may properly be described as proprietary. -- Annot., supra 60 A.L.R.2d at 1203-04.
It is clearly established in the District of Columbia that the operation of a police force is a governmental, not a proprietary, function. Adams v. District of Columbia, 122 A.2d 765, 766-767 (D.C.Mun.App.1956); Savage v. District of Columbia, 52 A.2d 120, 121 (D.C.Mun.App.1947). Under this proprietary-governmental distinction, our Court of Appeals explicitly held that "torts committed by officers and employees of the District of Columbia, in the exercise of governmental functions such as the operation of a police force, cannot be made the basis of liability in a suit against the District." Capital Transit Company v. District of Columbia, 96 U.S.App.D.C. 199, 202, 225 F.2d 38, 41 (1955). However, the Court in Elgin v. District of Columbia, 119 U.S.App.D.C. 116, 337 F.2d 152 (1964), announced that the proprietary-governmental dichotomy of Capital Transit, supra, no longer constitutes the complete test in determining whether in a given case the District of Columbia is immune from suit. "A finding that a function is 'governmental' is the beginning of inquiry into the issue of answerability in tort, not the end of it." Elgin, supra 119 U.S.App.D.C. at 120, 337 F.2d at 156. There must be a further determination before ...