Graves v. District of Columbia

287 A.2d 524, 1972 D.C. App. LEXIS 420

Opinions

KELLY, Associate Judge:

This appeal is from the dismissal of a complaint filed by appellant Margaret Graves, individually, and as next friend of her minor son, against the District of Columbia, demanding compensation for injuries resulting from an alleged assault and battery on, and false arrest of the son by Metropolitan police officers. The District, sued on the theory of respondeat superior, raised the defense of sovereign immunity by motion to dismiss and the motion was granted. We reverse.

The case was originally submitted to this court in March of 1970, prior to the effective date of the District of Columbia Court Reform and Criminal Procedure Act,¹ with the request that our decision abide the outcome of a similar case pending in the Circuit Court of Appeals. The opinion in that case, Carter v. Carlson,² ultimately issued on July 23, 1971, beyond the effective date of the Court Reform Act. As we were then free to either accept or reject the holding in Carter,3 we requested oral argument from the parties and appointed an amicus curiae to assist the court.⁴

The District of Columbia faults the Carter decision in only one respect, the failure of the court to rule that the District is not liable to respond in damages, under the theory of respondeat superior, for the intentional torts of its police officers acting within the scope of their employment to the same extent as the United States is immune from liability under the Federal Tort Claims Act.⁵ This precise point was urged in Carter and rejected by the court.⁶ We similarly reject it here. That the District might be liable for the intentional torts of its police officers appears to have been recognized prior to Carter, Thomas v. Johnson, 295 F.Supp. 1025 (D.D.C.1968) (suit based in part on assault and battery),⁷ and the legal principle has since been reaffirmed in a suit against correctional officers. Baker v. Washington, D.C.Cir., 448 F.2d 1200 (1971). Accordingly, following the pertinent holding of Carter v. Carlson,⁸ the order of the trial court is

Reversed with instructions to reinstate the complaint.

Footnotes

1

. Pub.L.No.91-368 (1970).

2

. D.C.Cir., 447 F.2d 358 (1971), cert. granted sub nom. District of Columbia v. Carter, 404 U.S. -, 92 S.Ct. 683, 30 L.Ed.2d 661 (Jan. 10, 1972).

3

. See M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (No. 5939, decided December 29, 1971).

4

. The court' expresses its appreciation to amicus curiae for the excellent brief filed herein.

5

. Under 28 U.S.C. § 2680(h), the United States is immune from “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.”

6

. 447 F.2d 358, 366 (1971).

7

. See also Graham v. District of Columbia, 139 U.S.App.D.C. 378, 433 F.2d 536 (1970) (suit based in part on false arrest) .

8

.We are here presented only with a suit against the District of Columbia on the theory of respondeat superior and are not concerned with any issue of official immunity or independent negligence of the District.