the affairs of the office of the Corporation Counsel, he acted reasonably. As discussed in detail in section IIIB, supra, reasonableness is ordinarily a jury question. The Court has reviewed all of the submissions with respect to the alleged negligence of defendant Murphy and has concluded that it would be inappropriate to find that he acted negligently as a matter of law; accordingly, the question will be reserved for the finder of fact.
In reaching this conclusion, the Court is influenced by the knowledge that the Corporation Counsel had a system, albeit an allegedly defective one, for the processing of requests for opinions. Thus, a determination of negligence in this case goes not to a total failure to supervise, but to an unreasonable choice of supervisory methods. To make such a determination on a motion for summary judgment would be difficult enough even if all relevant evidence had been produced. In the instant case, it is made even more difficult by the failure of the plaintiffs to develop such facts as the methods by which officials in comparable positions supervise their offices. In addition, while there is some information in the depositions filed in this case as to what the attorneys in the office were actually working on while the request for an opinion on the speech regulation was pending, there has been no effort by either side to interpret this information, despite the fact that a discussion of "priorities" would seem to have some relevance to the instant claim. In general, the Court believes that it is possible that more relevant information will be produced and that, in any case, plaintiffs have not produced sufficient evidence to justify a finding of negligence as a matter of law.
VI. Liability of the District of Columbia
Plaintiffs sue the District of Columbia under two theories of liability: 1) vicarious liability for the tortious acts of its employees; and 2) direct liability for its own failure to properly supervise its employees. Since the liability of the District is largely dependent upon the liability of the individual defendants, and since the Court declines to issue summary judgment in favor of or against any of those defendants, the issue of the District's liability is obviously one which need not be resolved at this stage of the proceedings. The Court will, however, discuss some of the legal issues which will affect a determination of the District's liability.
Although municipalities are immune from suit under 42 U.S.C. § 1983, that immunity stems from the unique legislative history of § 1983. See Moor v. County of Alameda, 411 U.S. 693, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973); Monroe v. Pape, 365 U.S. 167, 187-191, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). Municipalities, including the District of Columbia, can be held liable in actions for deprivation of constitutional rights brought under 28 U.S.C. § 1331(a) and the Constitution. E.g., City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Skehan v. Board of Trustees, 501 F.2d 31 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975); Tatum v. Morton, 402 F. Supp. 719 (D.D.C. 1974); Williams v. Brown, 398 F. Supp. 155 (N.D.Ill. 1975); Maybanks v. Ingraham, 378 F. Supp. 913 (D.C. Pa. 1974); Dahl v. City of Palo Alto, 372 F. Supp. 647 (N.D.Cal. 1974). There is some question, however, as to whether municipalities are entitled to their local common law immunities in suits brought under § 1331(a). Williams v. Brown, supra, 398 F. Supp. at 160. The few courts which have considered the issue have found, at least implicitly, that municipalities are entitled to whatever common law immunities are applicable to the facts in cases brought under § 1331(a). Skehan, supra, 501 F.2d at 44; Maybanks, supra, 378 F. Supp. at 916. Since the parties in this case have not yet addressed these cases or this issue, the Court will give them an opportunity to file supplemental briefs before deciding whether to follow the decisions which have indicated that common law immunities would be available, to the extent applicable, in cases brought under § 1331(a). The parties should also discuss the issue of whether that immunity, as defined by the courts, would be applicable to the District to bar respondeat superior and/or direct liability. See Wade v. District of Columbia, 310 A.2d 857 (D.C. App. 1973); Carter v. Carlson, 144 U.S. App. D.C. 388, 447 F.2d 358, 365-68 (1971), rev'd on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 34 L. Ed. 2d 613, 93 S. Ct. 602 (1973).
The Court concludes that Article II, § 3 of the Police Regulations of the District of Columbia is unconstitutional on its face. The Court denies all motions for summary judgment, reserving the issues of the liability of the individual defendants for the finder of fact.
An Order in accordance with the foregoing will be issued of even date herewith.
SUPPLEMENTAL MEMORANDUM OPINION
In this Court's Memorandum Opinion of March 9, 1976, the Court left open two questions, one relating to the standing of plaintiff Abraham Bloom and the other to the liability of the District of Columbia under 28 U.S.C. § 1331(a) and the Constitution. In this supplemental opinion, the Court resolves those remaining questions.
I. Standing of Plaintiff Bloom
In the Memorandum Opinion, supra, at 1292 n.9, the Court noted that, despite defendants' demand of strict proof of Bloom's allegations of standing, such proof had not been proffered. The Court gave plaintiff Bloom a limited amount of time to submit the necessary materials to establish the genuineness of his allegations. Since the issuance of the opinion, plaintiff Bloom has submitted an affidavit supporting his allegations of past, present, and future exercise of his first amendment freedoms through participation in various organizations. Plaintiff has also sworn to the inhibiting effect of the speech regulation upon the exercise of his first amendment rights. Despite defendants' contentions that Bloom still lacks standing, the Court is now convinced that Bloom has demonstrated sufficient injury in fact to his constitutional rights to maintain this action.1a
II. Liability of the District of Columbia
The District of Columbia is sued in the instant case under two theories of liability: 1) vicarious liability for the tortious conduct of its employees; and, 2) direct liability for its own failure to properly supervise its employees. As pointed out in the Memorandum Opinion, supra, at 1305 -- 1306, municipalities are subject to suit in actions for deprivation of constitutional rights brought under 28 U.S.C. § 1331(a) and the Constitution. E.g., City of Kenosha v. Bruno, 412 U.S. 507, 93 S. Ct. 2222, 37 L. Ed. 2d 109 (1973); Skehan v. Board of Trustees, 501 F.2d 31 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975); Tatum v. Morton, 402 F.Supp. 719 (D.D.C.1974). There is some question, however, as to whether municipalities can invoke their local common law immunities in suits brought under § 1331(a). Williams v. Brown, 398 F.Supp. 155, 160 (D.N.Ill.1975). In the Memorandum Opinion, supra, the Court ordered the parties to submit further briefs on this question, and the parties have done so.
In deciding this question, it is necessary, first, to identify the extent of the District of Columbia's common law sovereign immunity. In Wade v. District of Columbia, 310 A.2d 857 (D.C.App.1973), the District of Columbia Court of Appeals held that "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." Id. at 860. The test for determining whether a given governmental function is discretionary and therefore one to which immunity ought to be applied is whether that function is "'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.'" Id.
Next it is important to realize that the policy goals served by federal actions, such as the instant case, for the deprivation of constitutional rights dictate that local common law immunities not be imported into such suits in a wholesale and uncritical manner. Memorandum Opinion, supra at 1294 n.14 and accompanying material in the text. Indeed, in the case of government officials, the Court has already held, pursuant to established precedent, that the common law immunity available for those officials' discretionary acts is not available in "constitutional tort" actions. Id. at 1297 -- 1298. Instead, as this Court held, again pursuant to established precedent, a "good faith and reasonableness" qualified immunity is appropriate for the officials involved.
With that background, it becomes apparent that in cases involving alleged deprivation of constitutional rights it would make little sense to extend common law immunity to the District to protect it from vicarious liability for the discretionary but tortious acts of its employees. For, as noted above, the purpose of the immunity is to prevent threats to the proper functioning of government; yet, again as noted above, this Court has already held that government officials cannot invoke that immunity in constitutional tort cases. Thus, the "damage," if any, to the smooth functioning of government has been done: the officials themselves may be held liable for their discretionary but tortious acts in constitutional tort cases. Under these circumstances, protecting the District from vicarious liability for the same acts would not alleviate that damage.2a See Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358, 367 (1971), rev'd on other grounds sub. nom. District of Columbia v. Carter, 409 U.S. 418, 93 S. Ct. 602, 34 L. Ed. 2d 613 (1973).
Turning to the District's direct liability in constitutional tort cases, it might be argued that common law immunity would serve a purpose in protecting the District from liability when its own discretionary functions are involved, thereby ensuring the smooth and efficient operation of government. However, in the instant case, the defendants have not demonstrated that the functions in question -- the supervision of police officers, the Police Chief, and the Corporation Counsel -- are discretionary in nature. Indeed, the few indications from case law are to the contrary. E.g., Thomas v. Johnson, 295 F.Supp. 1025 (D.D.C.1968). More importantly, the federal policy involved here -- protection of cherished constitutional rights -- outweighs the goal of assuring quality and efficiency in government. As the Supreme Court has stated, "'where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.'" Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 777, 90 L. Ed. 939, 944 (1946), as cited in Bivens v. Six Unknown Federal Narcotic Agents, 403 U.S. 388, 392, 91 S. Ct. 1999, 2002, 29 L. Ed. 2d 619, 624 (1971). Thus, in Bivens, the Supreme Court provided the remedy which makes suits such as the instant one possible -- a cause of action stemming from the Constitution itself. To allow the government to escape liability in such actions on the grounds that the functions which give rise to its liability are discretionary in nature would undercut the policy of Bivens ; for it is often the case that the government is the only defendant in such cases with the resources to redress the constitutional deprivation involved. See 89 Harv.L.Rev., supra, at 955 -- 58.
Accordingly, the Court holds that in federal actions for deprivation of constitutional rights under 28 U.S.C. § 1331(a), the District of Columbia can be held liable for its own acts and for those of its employees, regardless of whether those acts would fall within the common law immunity for discretionary functions.