With its recent decisions in this area, the Court of Appeals has elaborated on the demanding nature of the heightened pleading standard. The Court of Appeals has erected such a demanding pleading standard so "that bare allegations of improper purpose, like the bare allegations of malice rejected in Harlow, do not suffice to drag officials into the mire of discovery." Smith v. Nixon, 807 F.2d at 200. As the Court of Appeals has declared: "To avert dismissal short of trial, [the plaintiff] must come forward with something more than inferential or circumstantial support for his allegation of unconstitutional motive. That is some direct evidence that the officials' actions were improperly motivated must be produced if the case is to proceed to trial." Martin v. D.C. Metro. Police, 812 F.2d at 1435. (emphasis added) (citation omitted).
Plaintiff has failed to meet this heavy burden. Such naked conclusory allegations cannot provide the basis for subjecting government officials to the burdens of discovery or trial. Siegert, 895 F.2d at 803-804. (citation omitted). Since plaintiff has failed to allege any direct evidence of unconstitutional intent, "his claim must be dismissed immediately." Whitacre v. Davey, 281 U.S. App. D.C. 363, 890 F.2d 1168, 1171 n. 4 (D.C. Cir. 1989).
VI. COMMON LAW TORTS
Plaintiff also asserts common law tort claims against the defendant Officer DeLullo and various agencies. However, as discussed in footnote 10 above, pursuant to the Federal Tort Claims Act the only proper defendant is the United States. The Court now directs its attention to the merits of these common law claims.
First, in Count II of his complaint, plaintiff alleges that Officer DeLullo committed the intentional common law torts of assault and battery. An individual is subject to liability for assault if 1) he acts intending to cause a harmful or offensive contact with the person of the other . . ., or an imminent apprehension of such a contact; and 2) the other is thereby put in such imminent apprehension. Restatement of Torts (Second) § 21 (1965). An individual is subject to liability for battery if the conditions outlined in (1) above are met and an offensive contact with the person of the other directly or indirectly results. Id. at § 18. Plaintiff has adequately pleaded the elements of assault and battery. Nevertheless, plaintiff's claim must fail because the alleged assault and battery occurred during the effectuation of an arrest. The existence of probable cause to arrest is a defense to a claim for assault and battery in connection with an arrest as long as the force used in making the arrest was reasonable. Wilcox v. United States, 509 F. Supp. 381, 386 (D.D.C. 1981), citing Wade v. District of Columbia, 310 A.2d 857 (D.C. 1973). In light of the entire record in this case, this Court concludes that Officer DeLullo did not use unreasonable force when arresting the plaintiff. Accordingly, summary judgment is appropriate as to Count II of plaintiff's complaint.
In Count III of his complaint, plaintiff alleges the common law torts of false arrest and false imprisonment. An actor is liable for false imprisonment if 1) he acts intending to confine the other . . . within boundaries fixed by the actor; 2) his act directly or indirectly results in such a confinement of the other; and 3) the other is conscious of the confinement or is harmed by it. Restatement of Torts (Second) § 35 (1965). To establish that he was a victim of a false arrest, the plaintiff must allege that he was arrested and imprisoned without process. Dellums v. Powell, 566 F.2d at 175. (citations omitted). Once such an allegation is made the burden then shifts to the arresting officer to show that his actions were justified. Id., see also Wilcox, 509 F. Supp. at 384. Justification can be established by showing that the officer possessed the requisite probable cause to arrest the plaintiff on the grounds charged. Dellums, 566 F.2d at 175.
Alternatively, justification exists if the arresting officer had reasonable grounds to believe a crime had been committed and that the arrest was made for the purpose of securing the administration of the law. Id., see also Lucas v. United States, 443 F. Supp. 539, 543 (D.D.C. 1977).
As discussed above relating to plaintiff's Fourth Amendment constitutional tort claim, this Court is convinced that the plaintiff willfully and intentionally disregarded Officer DeLullo's instruction to "go around." Indeed, he jumped the fence in direct contravention of the officer's instructions. Such conduct provided Officer DeLullo with at least a basis to form a good faith and reasonable belief that probable cause to arrest existed. Accordingly, defendants' motion for summary judgment as to Count III of the complaint is granted.
Although this Court is convinced that plaintiff has no legal cause of action against the defendant Officer DeLullo, it is deeply troubled by the conduct that allegedly occurred. The defendant officer acted in accordance with established procedures in his dealings with the plaintiff, but he had other options available to him. Indeed, he could have simply waited for the plaintiff to exit the mens room before he locked the gate, or he could have opened the gate to allow the plaintiff to pass through. In short, the defendant officer did not have to exercise the complete panoply of authority with which his office is delegated. Moreover, the Court finds the use of racial epithets by an officer of the law to be offensive and entirely unwarranted.
Police officers must be unequivocally instructed that the use of racial slurs will not be tolerated and will subject a police officer to severe punishment if he engages in such conduct.
Officer DeLullo also exercised the full extent of his authority when he was responsible for plaintiff's being fingerprinted and held in custody for close to five hours. It is clear that, while his conduct in this regard was permissible because he "followed the book," here again, Officer DeLullo had other options which he chose not to exercise. For example, he could have simply sent the plaintiff on his way after orally reprimanding him for not heeding an officer's instructions. Instead, by "following the book" the defendant officer was able to act as prosecutor, judge, and jury which resulted in the plaintiff receiving a five-hour jail sentence without the benefit of a real trial. The defendant officer took these actions with the presumed knowledge that no court would have given plaintiff a jail term for his minor transgression. Because the defendant officer "followed the book" no civil liability can attach to his actions. However, being absolved of civil liability should in no way be taken as approbation of his conduct in this case. Officer DeLullo, for whatever motive or reason, decided to escalate this little incident into a "federal case."
The Court is appalled to think that officers of the Park Service exercise so little discretion in discharging their duties. In addition, the Court cannot understand why such actions were taken without supervision by superiors within the Park Police. While discretion and common sense are difficult to teach, the Court would hope that the Park Service could find a way to encourage its officers to use sound discretion in discharging their responsibilities. Officers must always carry out their duties in a purely objective fashion. They must not allow themselves to be taunted or allow their emotions to govern their actions. Instead, they must anticipate the reactions that citizens may have in their encounters with the police and exercise only that degree of authority and force necessary to resolve the matter. In short, they should refrain from overreaction. As a general rule when dealing with these minor confrontations, officers should interface with the public in the same way they would expect to be treated if the roles were reversed.
Officer DeLullo is fortunate in this instance, but he might not be so lucky the next time around, especially if this opinion is placed in his file. Of course, nothing stated in this opinion precludes the Park Police from taking appropriate administrative action. Specifically, the defendant officer might benefit from being required to take courses in the exercise of good judgment, objectivity, and common sense. Therefore, the Court recommends that Officer DeLullo's supervisors closely examine the facts of this case in an effort to determine what steps can be taken to instruct DeLullo and other officers how to reasonably exercise their awesome authority when confronted with similar "walking on the grass" episodes.
Upon consideration of defendants' motion to dismiss, or in the alternative for summary judgment, the plaintiff's opposition thereto, after hearing the arguments of counsel, and in accordance with the the Court's written opinion of this date, it is this 12th day of June 1990, hereby
ORDERED that the defendants' motion is granted as to all counts of the plaintiff's complaint.