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09/29/87 Kenneth J. Martin v. John P. Malhoyt

September 29, 1987








MALHOYT, 833 F.2D 1049


Rehearing Denied, December 4, 1987. Reported at 1987 U.S. App.

Appeals from the United States District Court for the District of Columbia, Civil Action Nos. 85-02274 and 85-02035.


Ruth B. Ginsburg and Williams, Circuit Judges, and McGowan, Senior Circuit Judge.


These consolidated appeals arise out of independent but, in legally relevant respects, similar episodes. Each began with U.S. Park Police officers investigating a minor traffic incident, escalated into a violent (or at least physical) encounter, and culminated in an arrest. Plaintiffs in the two cases -- Kenneth Martin and Shirley Stevens -- subsequently filed suit in the district court, seeking damages for alleged violations of their common law and constitutional rights. The defendant federal officers asserted immunity, by reason of their official positions, from all of the plaintiffs' claims, and moved for dismissal of the actions as to them. The district court denied their motions, and this appeal followed. We affirm in part and reverse in part. In explaining our dispositions, we grapple with unsettled aspects of the federal law governing official immunity. I. THE EPISODES IN SUIT

The congeries of facts that prompted these lawsuits, as the district judge observed, are sharply disputed. We set the opening scene in each case, then summarize separately each side's account of what occurred.

Plaintiff Kenneth W. Martin worked as a chauffeur for a limousine tour service operating in Washington, D.C. On July 17, 1984, at about 12:35 p.m., he was seated behind the wheel of a Cadillac limousine parked near the Lincoln Memorial in a zone reserved for the disabled. From this point on, the parties' accounts diverge. *fn1

1. Martin's account

According to Martin, a man in a United States Park Service uniform approached the limousine and asked Martin why he was parked in the disabled-only area. Martin replied that one of his passengers, a child, was having difficulty walking, whereupon the uniformed man departed. A few minutes later, a United States Park Police officer, later identified as Sergeant John P. Malhoyt, arrived at the spot. He too asked why Martin had parked in a restricted area. Martin repeated his explanation. Malhoyt said he would wait to see if Martin's story was true. Malhoyt then returned to his police vehicle and parked it in another space reserved for disabled persons, directly to the rear of Martin's limousine.

About ten minutes later, Martin noticed his passengers -- a family of four (two young children and their parents) -- descending the steps of the Lincoln Memorial. He drove slowly towards them. Malhoyt immediately pursued, emergency lights flashing and siren sounding. Martin promptly stopped. Malhoyt appeared at the driver's window of the limousine and demanded Martin's driver's license and vehicle registration. Martin started to get out of the car to conveniently remove from his pocket his wallet, which contained his license and the vehicle registration. Before Martin could retrieve his wallet, however, Malhoyt "brutally grabbed [Martin] around [the] waist, . . . threw [him] back into [the] driver['s] seat," and slammed the car door on his leg. *fn2 Martin handed over his driver's license and the vehicle registration. Malhoyt thereupon returned to the police car, apparently to check the documents.

Just then, Martin saw his passengers approaching the limousine. Almost reflexively, he got out of the vehicle to open the door for them. Suddenly, without a word of instruction or command to Martin, Malhoyt reappeared at the limousine, pushed Martin against the vehicle, and twisted his arms behind his back. Malhoyt then handcuffed Martin and forced him into the police car, where Martin was obliged to sit, hands cuffed behind his back, for a prolonged period of time. An old shoulder injury made the awkward position severely painful for Martin, and he felt humiliated in front of his passengers and other onlookers.

After talking to the limousine passengers, Malhoyt drove Martin to the Park Police Station at 1100 Ohio Drive, S.W. Unable to say why he had made the arrest, Malhoyt asked Martin to sign a document and pay $10.00 to end the matter. Martin refused and was then fingerprinted and placed in a jail cell. Hours later, as Martin recalls, he was again put in a police car, hands cuffed behind his back, and was brought to the courthouse, but arrived there too late to obtain a hearing that day. On return to the Park Police Station, Mayhoyt told Martin that this time, Martin would remain locked up overnight. Martin then called an attorney; on the attorney's advice, Martin posted $10.00 as collateral so that he could gain release. Martin estimates that he was released at about 5:00 p.m., approximately four hours after his arrest. Just as he was leaving the station, Martin states, Malhoyt informed him for the first time that he was being charged with disorderly conduct and disobeying the order of a police officer.

Two weeks later, on the date set for trial of the disorderly conduct charge, Martin and his attorney spent hours waiting in the District of Columbia Superior Court, but Martin's name was not called. Upon checking with the Office of the Corporation Counsel, Martin's attorney learned that the charge would be dismissed because no one from the Park Police had appeared to "paper" it. Trial on the charge of disobeying an officer's order was set for August 29, 1984; on August 28, however, Martin learned that this charge too would be dismissed for the same reason.

2. Malhoyt's account

According to Sergeant Malhoyt, at about 12:30 p.m. on the afternoon of July 17, 1984, Part Aide John R. Jones III summoned him to the Lincoln Memorial Circle to resolve a parking problem. On arrival, he saw Martin's Cadillac Limousine parked in a space reserved for disabled persons; Jones informed Malhoyt that the limousine driver had twice refused to leave, and had dared Jones to call the police. When Malhoyt told Martin that the Cadillac was parked illegally, Martin responded that one of his passengers, a child, was having difficulty walking. Jones, who was within earshot, and Martin began to argue, Jones claiming that Martin had said nothing to him about a disabled passenger. Malhoyt stopped the argument by sending Jones away. Telling Martin he would wait to verify Martin's account, Malhoyt returned to his police cruiser and parked it behind the limousine.

A few minutes later, without warning, the limousine started south on French Drive away from the Lincoln Memorial. Because no passengers had approached the Cadillac and the driver was apparently leaving the Memorial, Malhoyt decided to ticket the driver for illegally parking in a disabled-only zone. Malhoyt switched on his emergency equipment as he pursued the limousine, which came to a stop 75 to 100 yards down French Drive. After Malhoyt asked Martin several times for his driver's license and registration, Martin opened the car door and got out. As Martin handed Malhoyt his license and registration, Malhoyt told Martin to get back in the car because Malhoyt thought this would be safer for Martin and oncoming traffic, as well as for Malhoyt himself if Martin proved dangerous. After Malhoyt repeated this instruction several times, Martin sat down in the car, leaving the door open and keeping his left foot on the street. Malhoyt, as he tells it, "lifted [Martin's] leg, plac[ed] it in the carand closed the door." *fn3

Back in his police cruiser, Malhoyt noticed some people approaching the Cadillac; surmising (correctly) that these were the limousine passengers, he left the cruiser to determine whether anyone in the group was walking with difficulty. Martin also left his vehicle and walked toward the passengers. Malhoyt then asked Martin to return to the limousine so that Malhoyt could speak to the passengers without Martin's interference. Martin refused, and became "increasingly argumentative, loudand uncooperative." *fn4 "Concerned that th(e) situation was getting out of control," *fn5 Malhoyt arrested Martin for disorderly conduct.

At the Park Police Station, Malhoyt charged Martin with disorderly conduct and disobeying the order of a police officer. Malhoyt then explained Martin's options to him: Martin could post collateral (and either forfeit or demand a court date) or go directly to court. Malhoyt claims he processed the case as quickly as possible. He does not dispute that he arrived at court with Martin several minutes too late to afford Martin a hearing that day, but he asserts that Martin was released by midafternoon, immediately upon posting $10.00 as collateral, at about 3:30 p.m. Malhoyt further states that he asked another Park Police sergeant to have an officer from his squad "paper" Martin's case and that he provided that other sergeant with the necessary information and documentation. Malhoyt next heard of Martin, he avers, after the instant suit was filed.

B. Stevens v. Stover, 830 F.2d 237

The events giving rise to this case began at about 11:30 p.m. on June 22, 1984. Plaintiff Shirley Ann Stevens, then a sergeant in the Metropolitan Police Department but off-duty and out of uniform, was driving north on Pennsylvania Avenue, S.E. in Washington, D.C.; she encountered a traffic tie-up near Sousa Bridge caused by crowds departing from a concert in Fort Dupont Park. Again, the opposing sides account differently for the ensuing imbroglio. *fn6

1. Stevens' account

According to Stevens and the other two occupants of the car -- Stevens' aunt, Mary Ella Stevens, and cousin, Johnny Bush, Jr. -- Stevens sat patiently in the stalled traffic at a red light. She had imbibed only a small glass of wine that evening and was not intoxicated. Stevens heard car horns blaring but did not sound her own; she noticed an MPD officer apparently conversing with people in a car three or four car lengths ahead of hers. Stevens and her passengers state that this officer, whom the parties agree was MPD Officer McKinstry, did not speak to Stevens.

When the traffic light turned green and cars began to move, Stevens proceeded apace with the other vehicles towards Sousa Bridge. She then heard a siren, which she guessed was an emergency vehicle en route to an accident; as quickly as was possible in the heavy traffic, Stevens pulled to the right-hand curb. A car swerved to a stop in front of her, and a man dressed in blue jeans, a plaid shirt, and a painter's cap jumped out, sprinted to Stevens' car, and shouted, "You're locked up." *fn7 Reaching for her purse, Stevens tried to identify herself as a police officer, but the man opened her car door, dragged her out of the vehicle, and struck her in the face. He then handcuffed her, "brutally grinding her body and face onto the trunk of her . . . vehicle," while "hysterically screaming" to a companion: "She's got a gun." *fn8 Her assailant's companion, Stevens remembers, stood by "with his hands in his pocket[s]," doing nothing to intervene. *fn9 Stevens did not in fact have a gun on her person or in her vehicle.

Stevens' assailant forced her into his car, throwing her on the back seat by her hair and arm, and dispersed all onlookers. After rolling up the car windows, he began punching Stevens in the chest and abdomen. She turned over to protect herself, but he continued to beat her. During this attack, the man said to Stevens, as she recalls his words: "You are one black bitch we don't have to worry about anymore, and . . . guess what I am going to do for you. I'm going to charge you with assaulting a police officer." *fn10

Stevens next remembers being placed on the cold metal of what she believes was a police van; she recalls little else until she awoke in severe pain on the floor of a cell. The cell was in the Anacostia Station of the United States Park Police, and the man who had arrested and battered her, she learned, was Park Police Sergeant David H. Stover (since promoted to lieutenant). Stover's companion at the Bridge, the man who had not come to Stevens' aid, was Park Police Officer John Harasek. Eventually, Stevens was moved to a holding cell at the District of Columbia Superior Court where U.S. Marshals informed her that she was charged with assaulting a police officer and driving while intoxicated .

After her release on bond, Stevens was treated at Providence Hospital for renal failure, which necessitated catheterization. She had also suffered a concussion and multiple contusions and abrasions on her face and body. Stevens spent eight days in the hospital. The concussion caused partial amnesia, and Stevens is undergoing psychiatric care as a result of the incident.

The DWI charge was dropped and, on April 10, 1985, after a grand jury refused to indict Stevens for assaulting a police officer, all charges were dismissed. Stevens was later discharged from the Metropolitan Police Department because of the events of June 22, 1984.

2. Stover-Harasek account

According to Stover and Harasek, on the evening of Stevens' arrest, the two Park Police officers, wearing plain clothes, were on duty in an unmarked cruiser; Stover was driving. At about 11:30 p.m., they were waiting on westbound Pennsylvania Avenue, S.E. at its intersection with Minnesota Avenue, S.E., while two uniformed MPD officers directed the dense traffic. When one of the officers, later identified at Officer McKinstry, held up the westbound traffic for an entire cycle of the traffic lights, a car horn began sounding. Stover and Harasek observed that the driver of the car to their right, later identified as plaintiff Shirley Stevens, was doing the honking.

McKinstry shouted a command telling the honker to stop, and Stevens paused. McKinstry held the traffic through another cycle of the lights, and Stevens began honking again. This time, McKinstry walked toward the cars, and Harasek indicated that Stevens was the source of the noise. McKinstry politely informed Stevens that using a horn in a non-emergency situation is punishable by a $25.00 fine. Stevens continued honking. McKinstry asked Stevens for her driver's license and vehicle registration. Just then, the light turned green. Stevens shouted, "Fuck you," and drove away, nearly hitting McKinstry. *fn11 Stover turned on his lights and siren and followed. *fn12

Stover and Harasek say Stevens moved to the right but did not stop, even when Stover brought his car alongside hers and he and Harasek gestured for her to pull over. Stover finally forced Stevens to stop by cutting in front of her. He then ran back to her car and showed her his badge. Stevens screamed, "Who the fuck are you?" *fn13 Stover noticed that Stevens' eyes were watery, and he smelled alcohol.

After stating who he was and again displaying his badge, Stover asked Stevens whether she had heard the MPD officer request her license and registration. Stevens responded that she was an MPD sergeant herself and that Stover could not arrest her "for failure to exhibit." She reached for her purse. Stover ordered her not to touch it, but Stevens ignored him. Fearing that the purse contained a weapon, Stover grabbed it, and Stevens bit him on his right forearm, drawing blood. At this point, Harasek helped pull a struggling and cursing Stevens from the car. The officers brought Stevens to the rear of the car, and Stover announced that she was under arrest. Stevens flailed her arms, trying to prevent Stover and Harasek from handcuffing her. After a scuffle, they bent her over the trunk of the car and put on the cuffs.

Stover placed the still resisting Stevens in the back of his cruiser and sat down in front to use the radio. Stevens rocked onto her back and began kicking him in the head; next, she repeatedly attempted to escape by lifting the rear door lock with her teeth, twice managing to open the door.

Other officers arrived on the scene and Stevens was removed from the cruiser, placed in a police wagon, and transported to the Park Police Anacostia Station. There, Stevens refused to take a breath test for alcohol and continued to use abusive language; two officers at the station observed Stevens washing herself with water from the toilet in her cell. At her request, Stevens was taken by ambulance to D.C. General Hospital. Once there, however, she refused to identify herself or to allow doctors to treat her. She was returned to the police station and charged with assault on a police officer, DWI, and failure to exhibit her driving permit.

Stover further recounted that Stevens' two passengers, Johnny Bush and Mary Stevens, were interviewed on the night of the episode and appeared to be extremely intoxicated. Mary Stevens, according to Stover, admitted that all three had been drinking.

3. Administrative proceedings against Stevens

On August 25, 1985, the MPD gave Stevens notice that the Department proposed to remove her from the police force because of the arrest episode. Stevens requested review by an MPD Adverse Action Panel. A three-member panel, at a hearing which ran several days, received documentary and testimonial evidence. Stevens was represented by counsel. On May 22, 1986, the panel recommended Stevens' removal from the MPD.

Substantially crediting the Stover-Harasek account, the panel found that Stevens had in fact honked her horn unnecessarily, failed to display her driver's license and registration, refused to yield to Stover's police vehicle, resisted arrest, attempted escape, operated her car under the influence of alcohol, and used marijuana. *fn14 Further, the panel found that any injuries Stevens sustained were the result of her fighting with, and resisting arrest by, the Park Police. *fn15 On May 29, 1986, the MPD adopted the panel's decision, *fn16 and on June 20, Stevens was removed from the police force. Stevens appealed the MPD's decision to the Office of Employee Appeals, see D.C. CODE ANN. § 1-606.3 (1981); that appeal remains pending. II. THE DISTRICT COURT PROCEEDINGS

Martin filed suit in the district court on July 16, 1985 against, inter alia, Malhoyt and Lynn H. Herring, Chief of the United States Park Police. Stevens commenced her action in the district court on June 21, 1985 against, inter alia, Stover, Harasek, and Herring. All four were sued in their individual and official capacities. Martin and Stevens named numerous other defendants who are not parties to this appeal. *fn17

The complaints charged that the defendants had violated Martin's and Stevens' constitutional rights, including fourth amendment right to be free of unreasonable seizures, the fifth amendment right not to be deprived of liberty or property without due process of law, and the sixth amendment right to be informed of the nature and cause of criminal accusations. Stevens also alleged that Stover, Harasek, and McKinstry, as part of a conspiracy to violate Stevens' constitutional rights, and in contravention of 42 U.S.C. § 1985, had made statements calculated to secure Stevens' criminal prosecution. Both plaintiffs claimed, "on information and belief," that it is a practice of the United States Park Police to arrest and assault people who have committed no offense and to charge them with disorderly conduct, disobeying a police officer, or assaulting a police officer. These charges, according to plaintiffs, are usually dismissed before trial. *fn18

In addition to alleging claims of constitutional dimension, the tow complaints also allege common law claims for assault, battery, false arrest and imprisonment, malicious prosecution, intentional and negligent infliction of emotional distress, negligence, and gross negligence. Martin included a defamation claim. Stevens, in a particularized separate count, charged appellant Harasek with breaching his "affirmative duty to intervene and prevent Defendant Stover from unlawfully arresting and assaulting Plaintiff." *fn19 Martin and Stevens requested compensatory and punitive damages as well as declaratory and injunctive relief. The two cases were assigned to the same district judge.

In both cases, the appellants now before us -- Malhoyt and Herring in Martin ; Stover, Harasek, and Herring in Stevens -- moved for dismissal under Rule 12(b)(6) (failure to state a claim upon which relief can be granted) or for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. On July 9, 1986 in Martin, and on July 15, 1986 in Stevens, the district court filed opinions and orders denying these motions in substantial part.

In support of their dispositive motions, all four appellants first argued, citing Barr v. Matteo, 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959), that they have absolute immunity from liability on appellees' common law tort claims. The district court rejected this plea as to Malhoyt, Stover, and Harasek on the ground that absolute immunity shelters only "discretionary" acts, not "ministerial" conduct. Featuring Carter v. Carlson, 144 U.S. App. D.C. 388, 447 F.2d 358 (D.C.Cir. 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 ruled that arrests by police officers qualify as ministerial acts for the purpose at hand, and therefore are not shielded by Barr immunity. *fn20 The district court, however, did dismiss on immunity grounds pleas against Park Police Chief Herring insofar as they involved allegedly negligent training; deciding what to cover in training, the district court said, is a "discretionary" act, indeed, it involves "the essence of policy formulation." *fn21

As to the alleged constitutional torts, appellants claimed qualified immunity, citing Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The district court recited the Harlow standard: qualified immunity shields government officials as long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818. The law was clear, the district judge observed, on the necessity of probable cause for an arrest, the impermissibility of excessive force in making an arrest, and the elements of the offenses for which the arrests had been made. Because the facts relevant to the probable cause determination were sharply disputed, however, the district judge stated that he could not determine whether Malhoyt, Stover, and Harasek had violated clearly established legal rules concerning arrests until further discovery had taken place. Similarly, the court stated that further discovery was in order before it could resolve the question of Park Police Chief Herring's immunity from suit on the charge of maintaining a policy of arresting absent probable cause, and later dropping the charges. *fn22 With respect to the constitutional tort claims, the court therefore denied without prejudice appellants' Rule 12(b)(6) and Rule 56 motions. *fn23

Malhoyt, Stover, Harasek, and Herring filed appeals from the district court's denials of their immunity-based dismissal motions. *fn24 The appeals were consolidated. Pending appeal, appellants moved in the district court, under Rule 26(c) of the Federal Rules of Civil Procedure, for protective orders halting discovery, and for stays of all district court proceedings. The court refused to postpone discovery, but stayed trial pending appeal. *fn25

On January 8, 1987, appellants Malhoyt and Herring in Martin and Stover, Harasek, and Herring in Stevens moved for reconsideration in the district court in light of several cases decided by this court in December 1986 dealing with qualified immunity and the specificity of pleading necessary to withstand a motion to dismiss. See Ellsberg v. Mitchell, 257 U.S. App. D.C. 59, 807 F.2d 204 (D.C.Cir. 1986); Smith v. Nixon, 257 U.S. App. D.C. 52, 807 F.2d 197 (D.C.Cir. 1986); Halperin v. Kissinger, 257 U.S. App. D.C. 35, 807 F.2d 180 (D.C.Cir. 1986). The Stevens appellants, citing University of Tennessee v. Elliott, 478 U.S. 788, 106 S. Ct. 3220, 92 L. Ed. 2d 635 (1986), also argued in their motion for reconsideration that Stevens was precluded from relitigating issues of fact resolved by the Adverse Action Panel. *fn26 The district court denied the motion to reconsider on March 17, 1986 in Martin and on April 7, 1987 in Stevens. *fn27 III. OFFICIAL IMMUNITY

To determine whether the district court erred in refusing to enter summary judgment on the defendants' pleas of official immunity from the claims asserted by Martin and Stevens, we must first pursue a threshold inquiry: What are the contours of immunity to which the defendants are entitled? As to the alleged constitutional violations, the parties agree that the defendants can assert a "qualified immunity" from suit; their disagreement centers on the application of that standard to the plaintiffs' allegations, a question we address in Section IV. Officers Malhoyt, Stover and Harasek additionally contend that, by virtue of the "absolute immunity" rule established in Barr v. Matteo, 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959), they are totally immune from suit on the common law claims facing them. We reject the pleas of total immunity, and hold that these officers have, instead, a "qualified immunity" from liability on the common law claims alleged in the Martin and Stevens complaints. Because the law in this area is unsettled -- still evolving and variously interpreted -- we spell out our reasoning in some detail. We note that guidance from Higher Authority may soon be available to us and our sister courts, for the Supreme Court has undertaken to address the question of Barr's reach. See Erwin v. Westfall, 785 F.2d 1551 (11th Cir. 1986), cert. granted, 55 U.S.L.W. 3586, 94 L. Ed. 2d 517, 107 S. Ct. 1346 (U.S. Mar. 2, 1987) (No. 86-714); Brief for the Petitioners at 8, Westfall v. Erwin (No. 86-714) (Solicitor General argues that "federal employees acting within the scope of their employment -- and most clearly those exercising a modicum of discretion -- are entitled to [absolute] immunity from state law tort suits.").

A. Barr and the Doctrine of "Absolute Immunity" for Federal Officials

In Barr, the Supreme Court held that the Acting Director of the Office of Rent Stabilization, a federal agency, was immune from a libel suit arising out of actions taken "within the outer perimeter of [his] line of duty." 360 U.S. at 575; see also Howard v. Lyons, 360 U.S. 593, 597 (1959) (scope of immunity afforded federal employees is a matter of federal law "to be formulated by the courts in the absence of legislative action by Congress"). The precise reach of the Barr holding as to other tortious acts and less elevated federal employees was not settled by the Court's decision; in sustaining Barr's immunity claim, Justice Black, whose vote was necessary to form a majority, stressed the importance of "informed public opinion" to the "effective functioning of a free government." Barr, 360 U.S. at 577 (Black, J., concurring); see also id. ("If federal ...

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