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February 25, 1981

Douglas WILCOX, et al., Plaintiffs,
UNITED STATES of America, et al., Defendants

The opinion of the court was delivered by: GREEN

Pending before the Court are two motions for summary judgment, one filed by the federal defendants, the United States government and nine individuals, and one filed by the District of Columbia. Based on an examination of the pleadings, the memoranda of points and authorities, the affidavits, and the discovery materials filed with this Court, it is apparent that no material factual issues remain in dispute and that all defendants are entitled to summary judgment.

 On January 23, 1976, the plaintiffs voluntarily accompanied two agents of the Federal Bureau of Investigation to the Washington Field Office for questioning. The FBI had received a report that the plaintiffs had sought at two banks in Virginia to change currency that the bank tellers noticed to be part of a ransom paid in the Alan Bortnick kidnapping case then under investigation. During the course of the questioning, the plaintiffs gave the agents conflicting accounts concerning the source of the money they changed at the banks. Based on the inconsistency, the agents arrested the plaintiffs, suspecting them of violating 18 U.S.C. § 1202. *fn1" After detaining them overnight, the plaintiffs were brought before a Judge of the Superior Court of the District of Columbia, who asked to see the warrants for the plaintiffs' arrest. FBI agents and officers of the Metropolitan Police Department explained that the warrants were issued in the Eastern District of Virginia, and had not yet been received in Washington over the Telex machine. The Judge ordered the plaintiffs released from custody; almost immediately, federal officials attempted to rearrest the plaintiffs, but the Judge ordered the officers not to arrest them inside the Courthouse. As soon as the plaintiffs left the Courthouse, federal marshals arrested them on reliance of the federal warrant for their arrest issued in the Eastern District of Virginia at 12:14 p.m. on January 24, 1976.

 The plaintiffs were detained until January 26, when a United States Magistrate found that the plaintiffs had been arrested on probable cause and set a $ 50,000 bond for each plaintiff. On February 3, 1976, the plaintiffs waived their right to a hearing in the District of Columbia so that they would be transferred to the Eastern District of Virginia. On March 26, 1976, the plaintiffs testified before a federal grand jury investigating the kidnapping and all charges against them were dropped.

 The plaintiffs filed their complaint on January 21, 1977, and amended it on January 6, 1978. They alleged that their fourth and eighth amendment rights had been violated and that the federal government and the government of the District of Columbia had intentionally inflicted emotional distress, arrested and imprisoned them falsely, defamed them, invaded their privacy, and negligently supervised the participating governmental officials. In mid-1979, this case was transferred to this Judge from another Judge of this Court pursuant to random assignment, and on January 31, 1980, an order issued granting the motion of the federal defendants for summary judgment as to claims under 42 U.S.C. §§ 1983, 1985 and directing the plaintiffs to plead with greater specificity those claims constituting violations of the plaintiffs' constitutional rights. The Court also dismissed as to the defendant District of Columbia all claims except those for false arrest and 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 ...

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