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January 29, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. George W. Mitchell, Trial Judge)

Before Terry, Farrell and Wagner, Associate Judges.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: Appellant, Michael A. Durso (Durso), appeals from an interlocutory order denying his motion for summary judgment which was based in part on an assertion of qualified immunity against appellee's claim under 42 U.S.C. § 1983 (1981) and official immunity against appellee's common law claims. *fn1 Appellee, Eric L. Taylor (Taylor), a former student at Woodrow Wilson Senior High School in the District of Columbia, filed this suit alleging that Durso, the school's principal at the time, violated his constitutional rights by improperly suspending him from school and subsequently refusing to readmit him. *fn2 Appellee also asserted claims for damages for slander and invasion of privacy. Appellant challenges the trial's court order denying his motion for summary judgment on the grounds that: (1) the doctrine of qualified immunity is an absolute bar to appellee's federal claim; (2) appellant did not violate appellee's constitutional or federally protected rights; and (3) appellee's remaining claims either lack merit or are barred by the doctrine of official immunity. We hold that the doctrine of qualified immunity bars appellee's § 1983 claim and that the doctrine of official immunity bars in part appellee's local law claims. We do not reach the merits of appellant's other challenges to appellee's remaining claims for lack of jurisdiction.


The undisputed facts underlying this controversy are as follows. Taylor was arrested at Wilson High School on April 14, 1986 by Metropolitan Police officers in the presence of Durso. The officers arrested appellee pursuant to a warrant issued by the Superior Court of the District of Columbia based upon a complaint alleging that Taylor, while armed, had raped a fifteen year old Wilson High School student in February 1986. The rape was alleged to have occurred at appellee's home. Appellee, who was almost seventeen years old at the time, was charged as an adult. *fn3 At the time of his arrest, Taylor had in his possession a concealed weapon, i.e., a blackjack. *fn4 After the arrest, as many as twenty students saw the police escort Taylor away in handcuffs.

The day the police arrested Taylor, Durso informed him that he could not return to school until Durso spoke with Taylor's mother. The following day, Durso met with Taylor and his mother to discuss arrangements for Taylor's education while the criminal charges were pending. *fn5 At that meeting Durso tried to convince appellee to transfer to another school. Durso also offered to make arrangements for Taylor to receive instructional materials at home until the transfer was completed. Appellee's mother, Ms. Taylor, initially agreed to her son's participation in the home-study program while the charges against him were pending. However, on Friday, April 18, 1986, Ms. Taylor talked with the assistant superintendent of schools about the proposed transfer and arranged to meet with her on Monday, April 21, 1986. At that meeting, the superintendent also suggested to Ms. Taylor that a transfer would be best for everyone involved. Ms. Taylor testified at deposition that she told them, "fine, go ahead" and that "they could draw any Conclusion they wanted to" from the remark. However, Ms. Taylor requested a hearing, which was scheduled on Monday, April 28, 1986, the earliest available date. Taylor did not try to return to school between April 17 and April 28. During that period, Taylor continued to receive home-study for some classes. Both the superintendent and Durso believed at that time that the Taylors were in agreement with the plans for the transfer.

The hearing officer determined after the hearing that Taylor should be readmitted to the school promptly, although the written decision to that effect was not issued until May 5, 1986. The hearing officer's decision was based upon his Conclusion that: (1) no notice of an involuntary transfer or suspension in excess of two days had been given; (2) the law presumed the innocence of the accused; and (3) there was no showing that Taylor was a danger to himself or others.

Taylor returned to school on April 29, 1986 before the issuance of the hearing officer's written decision, and Durso refused to admit him. Ms. Taylor protested Durso's actions to the superintendent. After Ms. Taylor informed the superintendent that she definitely wanted her son to return to Wilson, the superintendent directed Durso to admit Taylor in a memorandum dated April 30, 1986. Durso responded in writing that he could not do so and therefore requested a reassignment and a leave of absence in the interim. Taylor attended and remained at school on April 30, 1986 despite Durso's refusal to admit him the day before. On April 30, there was a school-wide assembly and a demonstration by Wilson students concerning these events which the media covered. During an interview, Durso explained, without naming any of the individuals involved, that he was concerned for the safety of the accused and the victim.

The Board of Education convened on May 1, 1986 to consider the request of the Superintendent of Schools to confirm the superintendent's authority to "transfer a student accused of a crime without first holding a hearing." The Board adopted an emergency rule providing for that authority which was codified later as 5 DCMR § 2108 (1987). *fn6

The criminal charges against Taylor were ultimately dismissed. Taylor graduated with his class. About one year later, Taylor filed this action.


Appellant argues that the trial court improperly rejected his claim that the doctrine of qualified immunity bars appellee's federal claims. The doctrine of qualified immunity is an affirmative defense available to government officials performing discretionary functions which generally shields them from liability for civil damages for conduct which does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 815, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The scope of immunity afforded local school officials is extremely broad. Pollnow v. Glennon, 757 F.2d 496, 500 (2d Cir. 1985). The doctrine provides a government official with greater protection than the defense that no constitutional violation occurred. Gooden v. Howard County, 917 F.2d 1355, 1360-61 (4th Cir. 1990), rev'd on other grounds, 954 F.2d 960 at 968 (4th Cir. 1982) (en banc). The defense is available even to a defendant who violates the constitutional rights of another, unless it is established that the official's conduct was "unreasonable under the applicable standard." Davis v. Scherer, 468 U.S. 183, 190, 82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984). Officials do not lose this qualified immunity merely because their conduct violates some statutory or administrative rule. Id. at 194.

The test for applicability of the doctrine focuses upon the objective legal reasonableness of the official's action when measured against clearly established law. Harlow, supra, 457 U.S. at 819; Davis, supra, 468 U.S. at 191. "A plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue." Davis, 468 U.S. at 197. The use of an objective standard to determine the reasonableness of an official's conduct is deemed to protect both the public and private interests involved. As the Supreme Court stated in Harlow :

Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official's duties legitimately require action in which clearly established rights are not implicated, the public ...

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