his First Amendment rights to speak and communicate with an audience. See Dellums I, 184 U.S.App.D.C. at 303, 566 F.2d at 195.
1. Action Against the Individual Federal Officers.
" 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)] established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." Carlson v. Green, 446 U.S. 14, 18, 100 S. Ct. 1468, 1471, 64 L. Ed. 2d 15 (1980). This right of action was explicitly extended to redress First Amendment violations in Dellums I, 184 U.S.App.D.C. at 302, 566 F.2d at 194. Plaintiff, therefore states a valid cause of action against the individual officers of the United States Capitol Police for false arrest, false imprisonment and First and Fourth Amendment violations.
2. Action Against the United States and the United States Capitol Police.6
Absent an express indication to the contrary, sovereign immunity precludes damage actions against the United States, United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 1351, 63 L. Ed. 2d 607 (1980), including those actions arising in the context of constitutional torts. See Bivens, 403 U.S. at 410, 19 S. Ct. at 2012 (Harlan, J., concurring). The post-Bivens amendments to the Federal Tort Claims Act ("FTCA"), embodied in 28 U.S.C. § 2680(h), waive governmental immunity for the intentional torts of false arrest and false imprisonment, so plaintiff has a cause of action against the United States and the United States Capitol Police on these grounds. See Carlson v. Green, 446 U.S. at 20, 100 S. Ct. at 1472.
Turning to the First Amendment claim, under the FTCA citizens do not have a cognizable cause of action against the federal government for violations of their constitutional rights by federal officers unless they specify an underlying tort covered by the Act. See Note, Constitutional Tort Remedies: A Proposed Amendment to the Federal Tort Claims Act, 12 Conn.L.Rev. 492 (1980).
In this case, as in Dellums I, the false arrest and imprisonment claims relate to plaintiff's Fourth Amendment allegations, whereas the alleged First Amendment violations concern the infringement of plaintiff's right to communicate to the public and to Congress. As plaintiff recognizes,
there are no additional torts involved, and he therefore does not have a cause of action against the United States or the United States Capitol Police under the First Amendment.
B. False Arrest and False Imprisonment Claim -- Against All Defendants.
The focal point of a tort action for false arrest and false imprisonment, in either their common law or constitutional variants,
"is whether the arresting officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the arresting officer is privileged and the action fails." Dellums I, 184 U.S.App.D.C. at 283, 566 F.2d at 175.
Under District of Columbia law, plaintiff must show that he was imprisoned and that the imprisonment was unlawful. The former is a jury issue and the latter is presumed once there has been an allegation that "plaintiff was arrested and imprisoned without process." Clarke v. District of Columbia, 311 A.2d 508, 511 (D.C.1973). The burden then shifts to defendant who must justify the arrest by showing either probable cause or the lesser requirement of good faith. See Dellums I, 184 U.S.App.D.C. at 283-284, 566 F.2d at 175-176.
To establish good faith the federal officers must show "reasonable grounds to believe a crime had been committed and that plaintiff's arrest was made for the purpose of securing the administration of the law. . . ." Id. at 283, 566 F.2d at 175. Good faith has "objective" and "subjective" elements, the ultimate test being whether the official "acted sincerely and with a belief that he [was] doing right. . . ." Wood v. Strickland, 420 U.S. 308, 321, 95 S. Ct. 992, 1000, 43 L. Ed. 2d 214 (1975). Moreover, while federal officers are not "charged with predicting the course of constitutional law," Pierson v. Ray, 386 U.S. 547, 557, 87 S. Ct. 1213, 1219, 18 L. Ed. 2d 288 (1967), they may not ignore or disregard well settled constitutional rights,
nor may they act with actual malice.
Wood v. Strickland, 420 U.S. at 321-322, 95 S. Ct. at 1000-1001.
In this case plaintiff was allegedly arrested and imprisoned without process, so defendants have the burden of proving good faith or probable cause. Essentially they must show, at a minimum, an honest belief that plaintiff was violating the laws and that this belief was reasonable in light of the facts and law at the time. See Dellums I, 184 U.S.App.D.C. at 285, 566 F.2d at 177.
Defendants contend that they had probable cause and acted in good faith because plaintiff had no permit to demonstrate. Plaintiff responds by asserting that he did not need a permit to express his views at an event "open to the public,"
and that the permit requirement is unconstitutional on its face as it applied to him. Finally plaintiff argues that even if defendants were acting pursuant to the permit regulations, his arrest was based on the content of his speech which violates one of the most fundamental concepts of constitutional law. All this, plaintiff argues, amounts to bad faith as a matter of law.
In this jurisdiction probable cause is a mixed question of law and fact. The jury decides facts in dispute. If, however, the undisputed facts, viewed in a light most favorable to plaintiff, establish probable cause as a matter of law, summary judgment should be granted to defendants. Lansburgh's, Inc. v. Ruffin, 372 A.2d 561, 564-565 (D.C.1977). Defendants have not shown probable cause as a matter of law, nor have they exhibited reasonable and good faith reliance on the regulation (as it applied to plaintiff) as a matter of law. Reasonableness and good faith are questions usually reserved for the finder of fact and should be submitted to the jury in this case.
Unrelated to the probable cause, good faith and reasonableness defenses to the intentional torts alleged in this case, in any Bivens action federal officers have a qualified immunity defense, also based on good faith and reasonableness. Dellums I, 184 U.S.App.D.C. at 284, 566 F.2d at 176. While the two defenses are separate and distinct, in this case they have identical elements of proof. Id.; see also Scheuer v. Rhodes, 416 U.S. 232, 247-248, 94 S. Ct. 1683, 1692, 40 L. Ed. 2d 90 (1974) (to establish good faith the officers must show "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"); Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980) (burden is on defendant to plead good faith as an affirmative defense).
Plaintiff argues that notwithstanding the outcome of the officers' qualified immunity defense the liability of the United States is not coterminous with that of its officers. Rather, the extent of the government's waiver of immunity under the FTCA should be determined by federal law, which points to broader liability for the government. Plaintiff's Reply Memorandum at 11-21. The Court does not need to reach this troubling issue, however, due to the unique posture of this case.
As shown supra a showing of good faith and reasonableness establishes both a qualified immunity defense and a direct defense to the intentional torts of false arrest and false imprisonment. Plaintiff acknowledges that he must prove the underlying tort before the United States can be found liable under the FTCA. Plaintiff's Reply Memorandum at 20. Since a showing of good faith and reasonableness not only triggers qualified immunity but also defeats the tort claims the inquiry in this case need not go beyond good faith and reasonableness to determine the liability of the United States. In each of the cases cited by plaintiff in support of his theory that the United States can be found liable even if the federal officers are not found liable, the torts alleged against the United States did not have good faith and reasonableness as a defense. See Picariello v. Fenton, 491 F. Supp. 1026 (M.D.Pa.1980) (plaintiff subject to battery when he was confined in restraints in his jail cell); Crain v. Krehbiel, 443 F. Supp. 202 (N.D.Cal.1977) (claim under California law for intentional infliction of emotional distress); Norton v. Turner, 427 F. Supp. 138 (E.D.Va.1977), rev'd, 581 F.2d 390 (4th Cir.1978), cert. denied, 439 U.S. 1003, 99 S. Ct. 613, 58 L. Ed. 2d 678 (1979) (illegal search and seizure which is violation of FTCA). In those cases the courts concluded that "the immunity of individual officers does not serve to defeat the existence of a tort -- it merely provides a defense to monetary liability" Norton, 427 F. Supp. at 146. As discussed above, a showing of good faith and reasonableness would defeat not only the officers' liability here but also "the existence of a tort."
Thus, whether or not the liability of the United States is generally coterminous with that of its officers, the liability of all the defendants in this case for false arrest and false imprisonment is governed by whether the officers acted in good faith and with reasonableness. If they acted in such a manner, the tort would be defeated, and no one could be held liable.
C. First Amendment Violation -- Against the Individual Officers.
In Dellums I, 184 U.S.App.D.C. at 302-303, 566 F.2d at 194-195, the court said:
If [plaintiff was] arrested while lawfully exercising "basic constitutional rights in their most pristine and classic form," the violation of First Amendment rights is directly attributable to the arresting officers.
Liability, therefore, turns solely upon whether plaintiff's First Amendment rights were violated. There is no good faith or reasonableness defense.
Since plaintiff was unlawfully arrested while exercising First Amendment rights, he is entitled to recover damages. The extent of those damages will, of course, be decided by a jury; however, the damages attributable to this violation stem from the loss of opportunity to express one's views, and must be commensurate with the actual loss incurred. Id. at 303, 566 F.2d at 195.
Based on the above the Court concludes that plaintiff was unlawfully arrested by the United States Capitol Police, and is entitled to present his claim for damages to a jury. An appropriate Order shall issue.