The opinion of the court was delivered by: RICHEY
This suit arises out of events surrounding the arrest of plaintiff, a former Sergeant with the Metropolitan Police Department, by officers of the United States Park Police and the Metropolitan Police Department near the Sousa Bridge in Washington, D.C. on June 22, 1984. As a result of these events, plaintiff filed suit against these officers in their individual and official capacities, the United States, and the District of Columbia for violations of her common law and constitutional rights. During the course of this case's long history, many of the named defendants and the counts originally included in plaintiff's complaint have been dismissed. At this juncture, the only claims that remain are those against the United States for violation of the Federal Tort Claims Act and for equitable relief, and those against Officer Stover, in his individual capacity, for violation of 42 U.S.C. § 1983 and for various common law torts.
On October 15, 1985, the federal defendants filed a motion to dismiss, or, in the alternative for summary judgment.
The federal defendants based this motion on their contention that they had absolute immunity from liability with respect to plaintiff's common law claims and qualified immunity with respect to plaintiff's constitutional claims. On July 15, 1986, this Court issued an Opinion and Order denying the federal defendants' claim to absolute immunity because the Court interpreted Supreme Court precedents as holding that federal officials are entitled to absolute immunity for common law torts only when they are performing discretionary acts within the "outer perimeter" of their line of duty, and found that defendants were performing ministerial rather than discretionary acts when they arrested plaintiff. In addition, the Court denied, without prejudice, the federal officers' claim of qualified immunity because of an insufficient factual record upon which to evaluate the "objective reasonableness" of their conduct. See Stevens v. Stover, No. 85-2035 (D.D.C. July 15, 1986).
The federal defendants appealed this Court's denial of immunity on August 14, 1986 and filed an answer to plaintiff's complaint on August 18, 1986. While the federal defendants' appeal was pending, they filed a motion to amend their answer on January 8, 1987, so as to add the defenses of res judicata and collateral estoppel and a motion for reconsideration of this Court's decision of July 15, 1986. In their motion for reconsideration, defendants argued that plaintiff was precluded from relitigating issues of fact resolved by the AAP. This Court denied defendants' motion for reconsideration and declined to rule on their motion for leave to amend their answer while their appeal was pending.
On September 29, 1987, the Court of Appeals for this Circuit affirmed in part and reversed in part this Court's decision concerning whether the federal defendants, and in particular Officer Stover, were entitled to immunity. See Martin v. Malhoyt, 265 U.S. App. D.C. 89, 830 F.2d 237 (D.C. Cir. 1987). The primary issue of disagreement between this Court and the Court of Appeals was over whether United States Park officers, as defendant Stover, can ever enjoy absolute immunity from common law tort suits. Id. at 248-49. The Court of Appeals rejected a "bipartite scheme" that entitled federal officials to qualified immunity for constitutional torts and absolute immunity for common law torts. Id. at 253. Instead, the Court of Appeals adopted a "uniform federal qualified immunity standard" for both constitutional and common law torts. The Court of Appeals did not, however, make a specific finding as to the "objective reasonableness" of Officer Stover's actions and, therefore, his entitlement to qualified immunity because of the inadequacy of the factual record before it. In addition, the Court of Appeals did not consider the § 1983 claim against Officer Stover.
It is important to note that in rejecting a "bipartite" scheme for common law and constitutional torts, the Court of Appeals recognized that it was entering an "unsettled" area of the law, and expressed hope that guidance from the Supreme Court would soon be forthcoming. Id. at 247. The Court of Appeals was expressly referring to an Eleventh Circuit decision to which the Supreme Court had granted certiorari ; that case would require the Supreme Court to revisit its decision in Barr v. Matteo, 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959) and to provide some guidance as to its "reach."
Id. See Erwin v. Westfall, 785 F.2d 1551 (11th Cir. 1986), cert. granted, 480 U.S. 905, 107 S. Ct. 1346, 94 L. Ed. 2d 517 (1987).
Since the decision of the Court of Appeals, the Supreme Court has clarified its holding in Barr. See Westfall v. Erwin, 484 U.S. 292, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988). The precise question before the Court was whether federal officials are absolutely immune from liability for common law torts committed in the course of their employment without regard to the discretionary nature of their conduct. The Court held that "absolute immunity from state-law tort actions should be available only when the conduct of federal officials is within the scope of their official duties and the conduct is discretionary in nature." Id. at 584. The Court, however, warned that "conduct by federal officials will often involve the exercise of a modicum of choice and yet be largely unaffected by the prospect of tort liability, making the provision of absolute immunity unnecessary and unwise." Id. at 585.
In light of the Supreme Court's recent decision in Westfall, the Court finds that if the Court of Appeals were called upon today to consider the applicability of absolute immunity to the common law tort claims against the federal defendants, it would apply a different legal analysis than the one it applied in Martin v. Malhoyt, 265 U.S. App. D.C. 89, 830 F.2d 237 (D.C. Cir. 1987). Rather than apply the standard of "objective reasonableness" associated with qualified immunity to the common law tort claims against the federal defendants, the Court of Appeals would have examined whether the acts of the federal defendants were sufficiently discretionary so as to entitle them to absolute immunity.
In its Opinion of July 15, 1986, this Court denied the federal officers' claim of absolute immunity to the common law tort claims brought against them because the act of making an arrest is a ministerial rather than a discretionary function. Because the Court's analysis is consistent with the Supreme Court's holding in Westfall, the portion of the Court's Opinion and Order of July 15, 1986 denying the officers absolute immunity to suit for common law torts will stand.
After the Court of Appeals issued its Opinion, the federal defendants filed a new motion to dismiss or, in the alternative, for summary judgment on February 3, 1988. Their motion for leave to file an amended answer to plaintiff's complaint which was filed on ...