The opinion of the court was delivered by: OBERDORFER
LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE.
The complaint in this action, filed on September 11, 1987, named as defendants United States Park Police Officers Michael Barrett and Donald Jelinek. On December 7, 1987, both defendants filed a motion to dismiss or for summary judgment. By Order of April 8, 1988, that motion was granted in part and denied in part. An Order filed on May 13, 1988, granted defendant Jelinek's motion for reconsideration and dismissed him from the case without prejudice. At a hearing on June 24, 1988, the Court denied plaintiff's motion for leave to file an Amended Complaint. Due to inadvertence, no Order was issued on that ruling; therefore, the accompanying Order will deny plaintiff's motion for leave to file an Amended Complaint. On December 2, 1988, the remaining defendant, Michael Barrett, filed a motion to dismiss or for summary judgment on the only remaining claim in this case, use of excessive force in violation of the Fourth Amendment of the United States Constitution. Plaintiff has opposed the motion, defendant has replied, and a hearing was held on January 30, 1989. Because some genuine issues of material fact remain in dispute and because defendant has not established that he is entitled to qualified immunity on the basis of those facts not in dispute, defendant's motion for summary judgment must be denied as to plaintiff's claims against defendant in his individual capacity. Because plaintiff has not properly filed an administrative claim pursuant to the Federal Tort Claims Act, however, defendant's motion to dismiss must be granted as to plaintiff's claims against defendant in his offical capacity.
For the purpose of assessing defendant's motion for summary judgment, only undisputed facts or contested facts seen in the light most favorable to plaintiff may be considered. From that perspective, the events at issue in this suit are as follows. At approximately 3:30 p.m. on June 7, 1987, plaintiff and a group of approximately 30 persons were participating in a demonstration on the sidewalk directly in front of the White House. The demonstrators were carrying banners, signs, and placards urging the impeachment of then President Ronald Reagan, then Vice-President George Bush, and then Attorney General Edwin Meese and the termination of research in support of a space-based anti-ballistic missile system. See Affidavit of Bennett A. Masel (Jan. 24, 1988) ("Masel Affidavit") at paras. 1, 2. Defendant was assigned to supervise the approximately half a dozen United States Park Police officers who were assigned to monitor the demonstration. See Declaration of Michael Barrett (Nov. 24, 1987) ("Barrett Declaration") at para. 2.
Defendant observed two demonstrators carrying a banner that violated the White House sidewalk sign size regulations, 36 C.F.R. § 7.96(g)(5)(viii). See id. at para. 4. After defendant warned the two demonstrators that they would face arrest if they did not remove the banner, plaintiff approached the demonstrators and volunteered to carry the banner instead. See id. at paras. 4, 5; Masel Affidavit at para. 6. As plaintiff walked in a "loop," he received two warnings from Park Police officers at five minute intervals that, if he did not cease to display the banner, he would be arrested. See Masel Affidavit at para. 7. But see Barrett Declaration at paras. 6, 7 (stating that defendant warned plaintiff on three occasions). Several minutes later, one of the demonstrators, Mary Huddle, shouted to the participants "that the demonstration was over[,] and at that time the participants in the demonstration began to disperse." Affidavit of Mary Huddle (Jan. 20, 1988) ("Huddle Affidavit") at para. 8. Upon hearing Huddle's shout, plaintiff folded the banner he was carrying and walked east toward the persons with whom he planned to depart. See Masel Affidavit at para. 10.
Plaintiff was then approached by Officer Jelinek, who had been ordered by defendant to arrest plaintiff and who grabbed plaintiff's upper right arm. See id. at para. 11; Barrett Declaration at para. 7; Declaration of Donald Jelinek (Nov. 30, 1987) at para. 6. Plaintiff then received a sharp blow to the back of his head. When he spun around to determine the source of the blow, another unidentified Park Police officer grabbed his left arm. See Masel Affidavit at para. 12. One or two Park Police officers then grabbed plaintiff's legs, and, as plaintiff offered no resistance, the officers dragged him head first over a concrete barrier that separates the White House sidewalk from Pennsylvania Avenue. See id. at para. 13; Supplemental Affidavit of Bennett A. Masel (Dec. 20, 1988); Dellinger Affidavit at paras. 6-9; Huddle Affidavit at paras. 11-13. Defendant, acting in the capacity of Officer Jelinek's on-site supervisor, "observed the entire sequence of Masel's arrest by Officer Jelinek," but did not come to plaintiff's assistance as he was dragged to and then over the concrete barrier. Barrett Declaration at para. 19.
According to plaintiff's version of the facts, which must be accepted as true for purposes of ruling on defendant's motion for summary judgment, as plaintiff was lying, subdued and face down, on Pennsylvania Avenue, surrounded by Park Police officers and under their control, defendant approached plaintiff and struck him three or four times in the lower back with a long wooden nightstick. See Dellinger Affidavit at paras. 12-16, 18-19; Huddle Affidavit at paras. 15-16. But see Barrett Declaration at para. 14 ("I did not at any time strike Masel with a nightstick or otherwise."). At the time he was struck, plaintiff was offering no resistance to the officers and was "helpless." See Dellinger Affidavit at para. 17; Masel Affidavit at para. 15. As a result of being dragged over the concrete barrier and hit with a nightstick, plaintiff suffered injuries that required treatment at the George Washington University Hospital emergency room and limited his mobility for two and a half weeks. See Masel Affidavit at paras. 17-18.
Plaintiff sues defendant in both his official and individual capacities. Sovereign immunity, however, bars all actions for damages against government officers in their official capacities, unless the United States has expressly waived immunity. See United States v. Mitchell, 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980). Although the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, constitutes such a waiver, the Act precludes all actions for money damages against federal officers acting in their official capacities unless "the claimant shall have first presented the claim to the appropriate Federal agency." Id. at § 2675(a). Defendant has asserted that plaintiff has made no such claim to the United States Park Police, and plaintiff has not disputed this assertion. See Defendant's Memorandum in Reply to Plaintiff's Opposition to the Motion to Dismiss or for Summary Judgment ("Defendant's Reply") at 1. Accordingly, the accompanying Order will grant defendant's motion to dismiss plaintiff's claims against defendant in his official capacity.
Plaintiff alleges two possible theories of liability against defendant acting in his individual capacity.
First, plaintiff claims that defendant is liable for failing to intervene when he observed Officer Jelinek and others violating the Fourth Amendment's prohibition against the use of excessive force when they dragged plaintiff over the concrete barrier. Second, plaintiff claims that defendant is directly liable for hitting plaintiff three or four times with his nightstick.
To be found liable for the injuries plaintiff received when he was dragged over the concrete barrier, defendant must be found (1) to have had a duty arising under the Constitution, (2) to have violated that duty, and (3) to have acted in a manner that fails to meet the standard for qualified official immunity. The first issue -- the scope of defendant's constitutional duty to protect plaintiff from harm in the context of an observed arrest -- has not been addressed by the Court of Appeals for this Circuit. The Court of Appeals has held that "a law enforcement officer is answerable in damages for standing by and failing to protect a member of the public from an assault allegedly perpetrated by a fellow officer," but it did so in the context of a common law, rather than a constitutional, tort. See Martin v. Malhoyt, 265 U.S. App. D.C. 89, 830 F.2d 237, 259 (D.C. Cir. 1987). There is a difference between recognizing a common law "duty to protect" that arises when a police officer and an individual citizen are in a special relationship
and recognizing a duty arising from the Constitution to intervene to prevent the violation of constitutional rights such as the right against the use of ...