imprisonment. Finally, the Court reserved for trial a ruling on the applicability of the statutes of limitations to the claims against the federal defendants.
Plaintiff filed a second amended complaint on February 8, 1980. The complaint is alike in almost every respect to the first amended complaint, the only differences being in the second amended complaint one paragraph referring to the statute of limitations question and the omission of 42 U.S.C. §§ 1983, 1985 as causes of action. See Second Amended Complaint para. 8; Compare Second Amended Complaint paras. 9-20 with First Amended Complaint paras. 8-19. The plaintiffs continue to allege violations of their constitutional rights and the same common law torts.
The plaintiffs argue that summary judgment is inappropriate because of a number of allegedly material factual issues, among which are: the conditions of their detainment in the District of Columbia jails, whether they were advised of their rights, the procedures of identification to which they were subjected, and other violations of their interests. The defendants contend that because the arrests were based on probable cause, they cannot be liable in damages for any tortious conduct. They further maintain that parts of the complaint fail to state a claim under Fed.R.Civ.P. 12(b)(6), and that to the extent that the constitutional claims are all predicated on a false arrest, the arresting officers and the government are immune from suit because the arrests were based on probable cause.
The plaintiffs' failure to plead with specificity the grounds for alleging that their constitutional rights were violated continues to be troubling. The Court directed the plaintiffs to plead their constitutional violations with greater detail in its order of January 31, 1980. See Memorandum Opinion at 4, n. 2, Wilcox v. United States, Civ. A. No. 77-0105, Jan. 31, 1980. Nonetheless, the plaintiffs have not done so, although in their memoranda in opposition to the summary judgment motions by the defendants, they recite some alleged constitutional violations related to a claim for damages in an action similar to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). Accordingly, the plaintiffs' allegations of constitutional violations will be considered as reflected in the order of January 31, 1980, i. e., limited to the claims for false arrest and imprisonment and for assault and battery associated with the arrest.
As to the claims against all defendants for false arrest and imprisonment and for assault and battery, the defendants contend that both the first arrest on January 23, 1976, and the second arrest on January 24, 1976, were predicated on probable cause. The plaintiffs maintain that they were denied their constitutional rights as to the first arrest, and that as to the second arrest, the Superior Court Judge had actually dismissed the case against the plaintiffs.
The tort action of false arrest, both in common law and as a constitutional variant, requires resolution of whether the arresting officer was justified in ordering the plaintiffs' arrest. If so, the conduct of the arresting official is privileged and the action fails. Dellums v. Powell, 184 U.S. App. D.C. 275, 566 F.2d 167, 175 (D.C.Cir. 1977), cert. denied 438 U.S. 916, 98 S. Ct. 3146, 57 L. Ed. 2d 1161 (1978).
Without a warrant, the law of the District of Columbia, Clarke v. District of Columbia, 311 A.2d 508, 511 (D.C.App. 1973) reflects that the unlawfulness of a detention is presumed and the burden shifts to the defendant to justify the arrest. See, Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980); Pierson v. Ray, 386 U.S. 547, 556-557, 87 S. Ct. 1213, 1218-19, 18 L. Ed. 2d 288 (1967).
Justification for arrest and imprisonment can be established by showing there was probable cause for arrest of plaintiffs on the grounds charged. Shaw v. May Department Stores Co., 268 A.2d 607, 609 (D.C.App. 1970). If the arresting officer had reasonable grounds to believe a crime had been committed and was prompted by good faith in securing plaintiffs' arrest for the charge, justification for the arrest would be demonstrated.
The constitutional tort action is molded by the common law where local and federal enforcement officers have been sued for false arrest/imprisonment. The defendants have available a qualified immunity defense, a privilege based on good faith and reasonableness, which they must prove. Dellums v. Powell, supra, at 175-176. See also, Lucas v. United States, 443 F. Supp. 539 (D.D.C. 1977) aff'd without opinion, 590 F.2d 356 (D.C.Cir. 1973). Moreover, where officers have in good faith sought the advice of counsel, that advice is also a defense. Dellums, 566 F.2d at 185.
The Supreme Court has clarified the focal considerations for a determination of this issue:
It is the existence of reasonable grounds for the belief (that cause for action existed) formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct.
Scheuer v. Rhodes, 416 U.S. 232, 247-248, 94 S. Ct. 1683, 1691-1692, 40 L. Ed. 2d 90 (1974).
To establish reasonableness, policemen are entitled to show reliance "on traditional sources for the factual information on which they decide and act", Id., at 246, 94 S. Ct. at 1691. "To establish good faith, an official must show that he was "acting sincerely and with a belief that he is doing right', Dellums, supra, at 176, citing Wood v. Strickland, 420 U.S. 308, 321, 95 S. Ct. 992, 1000, 43 L. Ed. 2d 214 (1975).
The 1974 amendment to the Federal Torts Claims Act, codified at 28 U.S.C. 2680(h) (1976), substantially enlarges the United States' liability for its employees' torts by permitting claims with regard to the acts of investigative or law enforcement officers of the United States Government for "assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution."
The Senate report on this amendment to § 2680(h) emphasized its applicability to the federal government for the acts of its law enforcement officers who, acting within the scope of their employment and under color of federal law, commit any of the above torts, in that
This provision should be viewed as a counterpart to the Bivens case and its progenty (sic), in that it waives the defense of sovereign immunity so as to make the Government independently liable in damages for the same type of conduct that is alleged to have occurred in Bivens (and for which that case imposes liability upon the individual Government officials involved.