Melvin Carter v. John R. Carlson

447 F.2d 358, 144 U.S. App. D.C. 388, 1971 U.S. App. LEXIS 8776

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 23, 1971
• Docket: 23225
• Status: Published

Opinions

BAZELON, Chief Judge.

This is an appeal from the dismissal of a complaint v/hich raises several important questions concerning the remedies for the torts of a police officer. For the purpose of testing the sufficiency of the complaint, the court must of course accept the allegations as true.¹

The complaint alleged that in 1968 one police officer Carlson arrested appellant Carter without probable cause in a bar and, as Carter was being held by two other officers, proceeded to beat him with brass knuckles. The complaint further alleged that Carlson’s precinct captain, and the Chief of Police, and the District of Columbia each negligently failed to train, instruct, supervise, and control Carlson with regard to the circumstances in which (1) an arrest may be made, and (2) various degrees of force may be used in making an arrest.

Carter sought to hold Carlson liable for assault and battery, or for negligence in making an arrest. He sought to hold precinct captain Prete and Police Chief Layton liable for negligence in failing to give Carlson adequate training and supervision. Finally, he sought to hold the District of Columbia liable either for its own negligence in failing to train and supervise Carlson, or for the torts of Carlson, Prete, and Layton on a theory of respondeat superior. In each case, he asserted both a common law tort theory of liability, and an action for deprivation of civil rights under 42 U.S.C. § 1983.

Officer Carlson was never found for service of process. Captain Prete and Chief Layton moved to dismiss the complaint on the ground that it failed to state a claim for which relief can be granted. Their supporting memorandum argued that no tort on their part had been alleged, and that in any event they were protected by the doctrine of official immunity. The District of Columbia moved to dismiss the complaint for failure to state a claim, and also on the ground of sovereign immunity. The district court dismissed the complaint against all defendants without explanation.

The common law liability of the individual officers and of the District for police misconduct is similar in many respects to their liability under § 1983, but the two theories of liability are by no means coextensive. The federal statute provides :2

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

When a police officer makes an arrest without probable cause, or uses excessive force in making an arrest, his action is sufficiently cloaked with official authority to satisfy the limitation of the statute to wrongs performed under color of law.³ Such conduct invades an interest ordinarily protected both by the common law of torts, and by the Constitutional guarantee against unreasonable searches and seizures. The common law, however, may create immunities that do not apply to an action under § 1983. Conversely, the developing law of torts may extend potential liability to some defendants beyond the reach of the federal statute. Accordingly, for each ground of liability asserted in the complaint, it will be necessary to consider separately the relevant principles at common law and under § 1983.

I. THE INDIVIDUAL OFFICERS

We start with the premise that a government officer, like any other person, is liable at common law for his torts, even if they are committed within the scope of his employment.⁴ A government officer, however, is protected by the doctrine of official immunity if the alleged tort was committed in the performance of a “discretionary” rather than a “ministerial” function.⁵

The distinction between discretionary and ministerial functions in this context must be drawn primarily with reference to its purpose. Official immunity, like the related doctrine of sovereign immunity,⁶ is designed to protect government officers from the inhibiting fear of damage suits, and the time-consuming duty to defend them; its purpose is to encourage “fearless, vigorous, and effective administration of policies of government.” Barr v. Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 1339, 3 L.Ed.2d 855 (1959). Accordingly, in determining whether a particular government function falls within the scope of official immunity, it does not suffice to consider simply whether the officer has “discretion” in the sense that he exercises judgment in choosing among alternative courses of action. The proper approach is to consider the precise function at issue, and to determine whether an officer is likely to be unduly inhibited in the performance of that function by the threat of liability for tortious conduct.⁷

Under this standard, it is clear that an action could be maintained against Officer Carlson at common law for the conduct alleged in the complaint. An arrest without probable cause constitutes a tort at common law, as does the use of excessive force to make an arrest.⁸ And the law is clear that an arresting officer has no immunity from suit for torts committed in the course of making an arrest.⁹

Officer Carlson would likewise be subject to suit under the federal statute. An arrest without probable cause, or an arrest made with excessive force, constitutes an unreasonable seizure in violation of the Fourth Amendment.¹⁰ Thus the complaint alleges that Officer Carlson deprived Mr. Carter of a constitutional right, and it states a cause of action under § 1983. Like the common law, the federal statute recognizes no official immunity for the arresting officer.¹¹

The arresting officer, however, is not at present a party to this litigation. Accordingly, we turn to the more difficult question of the possible liability of Carlson’s superior officers. The -claim against Chief Layton and Captain Prete is based on the allegation that they were each negligent in the exercise of duties to train, instruct, supervise, and control Carlson. At this stage, of course, we have no way of knowing the extent, if any, to which such duties may have rested upon them instead of others. Likewise, we cannot now determine whether a breach of such duties occurred, or had any causal relationship to appellant’s injuries. We are confronted only with the threshold claim that the suit is barred by the doctrine of official immunity.

In our view, even that claim cannot be resolved in this case on the basis of the bare pleadings before us. The functions of training, supervising, and controlling police officers subsume a variety of distinct duties, conceivably incumbent in some degree on a variety of police personnel. No doubt some of these duties should be regarded as discretionary for the purposes of official immunity, but others are clearly ministerial for that purpose.¹² The relevant duties of each supervisory officer in this case must be spelled out with much greater specificity before the issue of his immunity can be resolved, and procedures by which that may be done are available to both sides in this litigation. Either Chief Layton or Captain Prete will prevail in his claim of immunity if he can establish that his responsibility, if any, for the training and supervision of Officer Carlson was wholly discretionary in character.¹³ He may be able to establish that fact by reference to police department regulations delegating the crucial responsibility to another officer, or by means of uncontroverted affidavits in support of a motion for summary judgment.¹⁴ Alternatively, Mr. Carter may be able to defeat one or both claims of official immunity after he has had the opportunity through pretrial discovery to ascertain how the relevant responsibilities are allocated within the police department, and how, if at all, they were fulfilled in this case. When the necessary factual information emerges, either officer may of course again invoke his claim of immunity;¹⁵ in the absence of the relevant information, however, it was error to dismiss the common law claims against the officers.

Even if Captain Prete or Chief Layton is protected by official immunity from suit at common law, they are both subject to suit under § 1983 for any negligent breach of duty that may have caused appellant to be subjected to a deprivation of constitutional rights. Indeed, Mr. Justice Frankfurter maintained that § 1983 was designed for precisely such a case, i. e., the case in which the State shields a police officer from liability for conduct which would subject a private citizen to liability.¹⁶ While the Supreme Court has read into the statute immunity for legislators¹⁷ and judges,¹⁸ it has not read into the statute a broad common law immunity for all government officers exercising discretionary functions.¹⁹ In particular, various supervisory officers have been held subject to suit under § 1983 for negligence in supervising their subordinates.²⁰

In Roberts v. Williams, the Fifth Circuit affirmed a judgment against a prison superintendent for injuries resulting from the careless use of a shotgun by a prisoner-guard, or “trusty.” The superintendent’s liability was based on the finding that he had negligently failed to train or supervise the guard in the safe use of the weapon. (No. 28,829, Apr. 1, 1971) (slip opinion at 6-20). Similarly in this case appellant will be entitled to prevail if he can show that Captain Prete or Chief Layton was negligent in performing his own duty to supervise or train Officer Carlson, and that the negligence caused appellant to be deprived by Carlson of his constitutional rights. The showing may well be difficult, but if it succeeds then no local rule of immunity can bar recovery under the federal statute.

II. THE DISTRICT OF COLUMBIA

We turn now to appellant’s claim against the government of the District of Columbia. That claim may rest on a theory of vicarious liability for the torts of the individual police officers, or on the theory that the District itself was negligent in the performance of its own duty to supervise and control police officers. In either case, the first question is whether the District is protected from suit by the doctrine of sovereign or governmental immunity.

Sovereign immunity serves essentially the same function as the distinct doctrine of official immunity discussed above. Thus it is not surprising to. find that in this jurisdiction, as in others, the common law has developed the same criteria for both kinds of immunity. The District of Columbia is immune from suit only for acts committed in the exercise of discretionary functions. Spencer v. General Hospital, 138 U.S.App.D.C. 48, 425 F.2d 479 (1969) (en banc). A function is discretionary under Spencer if it is “of such a nature as to pose threats to the quality and efficiency of government in the District if liability in tort was made the consequence of negligent act or omission.” Id. at 51, 425 F.2d at 482. Accordingly, we must apply that standard to the conduct underlying each theory for holding the District subject to liability at common law.

A. Vicarious liability at common law for Carlson’s conduct. The alleged tort of arresting officer Carlson is one possible basis for imposing vicarious liability on the District. We have already noted that the discretionary character of the decision to make an arrest without a warrant or to use force in doing so, does not shield the arresting officer from liability for assault, or for false arrest.²¹ If the arresting officer himself is subject to suit for his tort, it is hard to conceive of any substantial additional threat to the efficiency of government that would result from subjecting the District to suit as well. Accordingly, we hold that the act of making an arrest is ministerial for the purposes of the Spencer doctrine of sovereign immunity.

The District urges us to limit the rule of Spencer to cases involving negligence, and to hold the municipal government completely immune from suit for the intentional torts of its employees.

In Spencer we indicated that we were influenced by the provisions of the Federal Tort Claims Act, 28 U.S.C. § 2680(a), in adopting “discretion” as the hallmark of acts protected by sovereign immunity. 138 U.S.App.D.C. at 53 & n. 7, 425 F.2d at 484 & n. 7. We are now urged to follow the Act again, and to adopt a rule of immunity for intentional torts, whether discretionary or ministerial in character. See 28 U.S.C. § 2680(h).²² We made it clear in Spencer, however, that the Act does not in any way control the character of sovereign immunity in the District of Columbia; the developing common law of the District is neither precluded from adopting principles contained in the Act, nor required to do so.

The provision of the Act asserting the immunity of the United States with respect to certain intentional torts has been subject to severe and persuasive criticism. See, e. g., K. Davis, Administrative Law Treatise § 25.08 (1958, Supp. 1970). In the absence of legislation, we see no reason to incorporate that immunity into the law of the District. When a tort is made possible only through the abuse of power granted by the government, then the government should be held accountable for the abuse, whether it is negligent or intentional in character. Accordingly, we reject the 1 suggestion that the District is immune from suit for the intentional torts of its employees.

At one time the intentional character of Officer Carlson’s alleged tort might have been a barrier to suit, not because of any quirk in the doctrine of immunity, but because many courts would not impose vicarious liability for an intentional tort.²³ Today, however, it is widely recognized that a master may be held liable for the intentional torts of his servants in appropriate circumstances. In particular, a servant authorized to make arrests ordinarily subjects his master to liability for using excessive force to make an arrest, or for making an unlawful arrest.²⁴ Since Officer Carlson was authorized by the District of Columbia to make arrests, misuse of that authority, even though intentional, may nevertheless result in vicarious liability on the part of the District.²⁵

B. Vicarious liability at 'common law for the conduct of supervisory officers. The alleged negligence of Captain Prete and Chief Layton is another possible basis for imposing vicarious liability on the District. As we have previously noted, the present record does not disclose the precise character of either officer’s supervisory functions. Thus at this stage it is impossible to determine whether the District is immune to suit with respect to their conduct, even as it is impossible to determine whether the officers themselves are immune at common law.

If it develops that either officer is subject to individual liability, then his negligence should subject the District to liability as well. That is, functions which are ministerial for the purpose of imposing liability on individual officers are also ministerial for the purpose of imposing liability on the government. For if the threat of individual liability does not impair the performance of a particular government function, then it is unlikely that the additional threat of government liability will have that effect.

If, on the other hand, it develops that the officers themselves are immune, we think that should not necessarily foreclose the question of the District’s vicarious liability for their conduct.²⁶ With respect to some government functions, the threat of individual liability would have a devastating effect, while the threat of government liability would not significantly impair performance. If the trial court determines that this is such a case, then the officers, but not the District, will be entitled to immunity at common law.²⁷

C. Direct liability of the District for negligence at common law. Appellant also claims that the District may be liable for its own negligence in failing adequately to supervise, train, and control Carlson. This claim may be superfluous if appellant can attribute to specific government officers any negligence that may have occurred, and proceed against the District on a theory of vicarious liability. The claim of direct government liability will be important, however, if no individual officer can be charged with the alleged failure of training and supervision, either because the District has never delegated to any officer the relevant supervisory functions, or because appellant is unable to discover which officer is responsible.

Here the threshold question is whether the common law imposes on the District such a duty of supervision, with potential liability in tort for its breach.²⁸ We think this question was correctly answered by the District Court in Thomas v. Johnson, 295 F.Supp. 1025, 1030-1033 (D.D.C.1968). In a carefully reasoned opinion, the court held that the District of Columbia as a corporate entity has a duty to supervise, train, and control its police officers.²⁹

A breach of that duty might involve either ministerial or discretionary aspects of supervising police officers. Accordingly, a claim of negligence based on a breach of that duty cannot be dismissed at this stage on the ground of sovereign immunity.

D. Applicability of § 1983 to claims against the District. Finally we reach the question of the District’s possible liability under § 1983, as distinguished from its liability at common law. At first liability under the federal statute might seem to be precluded by Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which held that the City of Chicago was not a “person” against whom suit could be brought under § 1983. The Court found that Congress, in enacting the statute, did not intend to extend liability to municipalities.

Monroe is regularly cited for the proposition that no suit against a municipality is authorized by § 1983.³⁰ The language of the Court’s opinion certainly seems to go that far ³¹ On the facts of the case before it, however, the Court held only that § 1983 does not authorize a suit for damages against a municipality which has been clothed in immunity by its parent state. And, as we shall see below, the legislative history underlying the decision supports an interpretation of Monroe that limits it to those facts.

Several federal courts have concluded that suits for injunctive relief fall outside Monroe’s prohibition on § 1983 suits against municipalities.³² We hold that a suit for damages from the District of Columbia, otherwise within § 1983, presents another such exception, for two independent reasons.

First, the reasoning of Monroe is inapplicable to the extent that local common law recognizes municipal liability. Monroe is based on the evidence in the legislative history that Congress intended to avoid interfering with the liability of municipal governments.³³ Municipal liability and immunity were to be left to the exclusive control of the states. The intent of Congress was not' to create municipal immunity, but to defer to the immunity that existed under local common law. Where local law has abolished or narrowed the scope of municipal immunity, the scope of immunity under § 1983 should follow the local rule.³⁴

That construction of § 1983 finds additional support in a related statute, 42 U.S.C. § 1988, also enacted by a Reconstruction Congress as part of the original Civil Rights legislation.³⁵ § 1988 provides:

[I]n all cases where [the laws of the United States] are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies * * * the common law * * * of the State wherein the court having jurisdiction * * * is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause * * *.

The Supreme Court has construed § 1988 to incorporate into the federal civil rights laws state rules of liability insofar as they serve the policies of the federal statutes more effectively than federal rules of liability. Sullivan v. Little Hunting Park, 396 U.S. 229, 240, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969). If local law recognizes government liability where federal common law might not, then § 1988 seems to provide that the local rule shall govern in an action under § 1983.³⁶

A second reason for holding the District subject to suit under the federal statute flows from the unique character of the District of Columbia. Monroe reflects the fact that the Reconstruction Congress had doubts about its constitutional power to impose new liability on an ordinary municipality, which was regarded as the “mere instrumentality for the administration of state law.” ³⁷ But Congress could have had no such doubts about its power to impose liability on the District of Columbia, over which it has complete legislative jurisdiction.³⁸ Thus the considerations that led the Monroe Court to exclude ordinary municipalities from the ambit of § 1983 have no application to the District.

Accordingly, we hold that the District of Columbia may be sued under § 1983, for all three claims presented by the complaint in this case.³⁹ If appellant can prove that he was deprived of constitutional rights by the negligence of the District, the negligence of Officers Prete or Layton, or the conduct of Officer Carlson, then he has a federal statutory right to damages from the District of Columbia.

III. CONCLUSION

We have concluded that the complaint in this case states facts sufficient to sustain a number of distinct causes of action against a motion to dismiss. Of these, perhaps the most promising is the claim against the District for the tort of the arresting officer. The theoretical profusion of remedies may of course be largely illusory. The obstacles to recovering in tort from an individual police officer are notorious, and the obstacles to recovering from the government are almost as great.⁴⁰ Nevertheless, until the legislature provides a substitute scheme for compensating the victims of police torts, common law principles and the federal Civil Rights Acts guarantee to people like appellant at least a day in court.

The judgment of the District Court dismissing the complaint is reversed, and the case is remanded for further proceedings on all counts.

So ordered.

1 . Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 172, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967) ; Clark v. Uebersee Finanz-Kor-poration, 332 U.S. 480, 482, 68 S.Ct. 174, 92 L.Ed. 88 (1947) ; 2A J. Moore, Federal Practice § 12.08 (1968).

2 . Civil Rights Act of 1871, § 1, R.S. § 1979, 42 U.S.C. § 1983 (1964).

3 . Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) ; see Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) ; Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). Acts under color of tlie law of the District of Columbia are under color of the law of a “State or Territory” for the purpose of § 1983. Hurd v. Hodge, 334 U.S. 24, 31, 68 S.Ct. 847, 92 L.Ed. 1187 (1948) ; Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961).

4 . See K. Davis, Administrative Law Treatise § 26.02 (1958, Supp. 1970) ; Restatement (Second) of Agency § 343 (1958).

5 . Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 855 (1959) ; David v. Cohen, 132 U.S.App.D.C. 333, 407 F.2d 1268 (1969). While many jurisdictions recognize official immunity only for negligence, others extend immunity to malicious acts as well, so long as they fall within the general scope of a discretionary function. Compare, e. g., Bedrock Foundations, Inc. v. Geo. H. Brewster & Son, 31 N.J. 124, 140, 155 A.2d 536, 545 (1959) (immunity limited to negligence) with Adams v. Tatsch, 68 N.M. 446, 362 P.2d 984 (1961) (immunity for malice). The immunity of federal officers is governed by federal common law, Howard v. Lyons, 360 U.S. 593, 597, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959), and extends to malicious as well as negligent acts, Barr v. Matteo, supra.

It is not clear whether the District of Columbia follows the federal rule. The courts have not expressly distinguished officers of the District of Columbia from federal officers for purposes of official immunity. See, e. g., Fortier v. Hobby, 105 U.S.App.D.C. 6, 262 F.2d 924 (1959) (federal and local welfare officials) ; Laughlin v. Garnett, 78 U.S.App.D.C. 194, 138 F.2d 931 (1943), cert. denied, 322 U.S. 738, 64 S.Ct. 1055, 88 L.Ed. 1572 (1944) (federal prosecutor and local police officer). Nevertheless, it appears that officers of the District, unlike federal officers, may lose their immunity when there are allegations of malice. Gager v. “Bob Seidel,” 112 U.S.App.D.C. 135, 139-140, 300 F.2d 727, 731-732 (dictum), cert. denied, 370 U.S. 959, 82 S.Ct. 1612, 8 L.Ed.2d 825 (1962). In this case, of course, there are no allegations of malice on the part of the supervisory officers; and Officer Carlson, whose duties were ministerial, lacks immunity in any event. Consequently, any distinction between the immunity of federal officers and that of local officers would seem to be irrelevant for present purposes.

6 . See p. 365, infra.

7 . This approach to the problem of discretion and immunity has been elaborated by the California Supreme Court in a thoughtful opinion, in the case of Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968). We agree with that court in refusing “to enmesh ourselves deeply in the semantic thicket of attempting to determine, as a purely literal matter, ‘where the ministerial and imperative duties end and the discretionary powers begin.’ ” Id. at 788, 73 Cal.Rptr. at 245, 447 P.2d at 357, quoting Ham v. County of Los Angeles, 46 Cal.App. 148, 162, 189 P. 462, 468 (1920). Instead we think the inquiry should be guided by the underlying purposes of the immunity doctrine. We have already adopted essentially this approach to the immunity of government units, see Spencer v. General Hospital, 138 U.S. App.D.C. 48, 425 F.2d 479 (1969) (en lane) ; Graham v. District of Columbia, 139 U.S.App.D.C. 378, 433 F.2d 536 (1970). It is equally appropriate when the issue is the immunity of government officers.

8 . Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) ; Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964) ; Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962) (en lane) ; Craig v. Cox, 171 A.2d 259 (D.C.Mun.App.1961), aff’d, 113 U.S.App.D.C. 78, 304 F.2d 954 (1962) ; see K. Davis, Administrative Law Treatise § 26.03 (1958, Supp.1970) ; Restatement (Second) of Torts §§ 121, 132 (1965).

9 . See sources cited note 8 supra. Official immunity does not extend to the arresting officer, despite the fact that a high degree of discretion is clearly involved in deciding when and how to make an arrest without a warrant. See e. g., Sherbutte v. Marine City, 374 Mich. 48, 130 N.W.2d 920 (1964), explicitly rejecting the argument that an arrest is discretionary for the purposes of official immunity. This rule presumably reflects a long-standing judgment that the threat of damage suits does not significantly impede the effective operation of a police department, when the impediment is weighed against the public interest in a tort remedy for police misconduct. See Jaffe, Suits Against Governments and Officers: Damage Actions, 77 Harv.L.Rev. 209, 218-219 (1963).

While the arresting officer has no immunity, he may nevertheless assert, as a defense on the merits, that he made the arrest in good faith, with probable cause, under a statute that he reasonably believed to be valid. Pierson v. Ray, 386 U.S. at 555-558, 87 S.Ct. 1213.

10 . Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) ; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed. 2d 492 (1961) ; Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964) ; Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962) (en banc). Indeed, it now appears that, wholly apart from statutory remedies, the Fourth Amendment itself gives rise to a federal cause of action for damages consequent upon an unconstitutional arrest or search, at least when the violation is committed by a federal officer. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

11 . See cases cited note 10 supra.

12 . For cases holding supervisory officers subject to suit, though not always ultimately liable on the merits for the particular transgressions involved, see e. g., Build of Buffalo, Inc. v. Sedita, 441 F.2d 284 (2d Cir. 1971) (mayor, police eomm’r) ; Roberts v. Williams (5th Cir. No. 28,829, Apr. 1, 1971) (slip op. at 6-20) (Nichols, J., sitting by designation) (prison superintendent) ; Sostre v. McGinnis, 442 F.2d 178, 189-190, 205 n. 51, 206-207 (2d Cir. 1971) (en banc) (state comm’r of corrections) ; Anderson v. Nosser, 438 F.2d 183 (5th Cir. 1971), rehearing en bane granted, June 16, 1971 (mayor, public safety comm’r, police chief, fire chief, pentientiary superintendent) ; Sheridan v. Williams, 333 F.2d 581 (9th Cir. 1964) (police chief) ; Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964) (police comm’r, police chief) ; Fernelius v. Pierce, 22 Cal.2d 226, 138 P.2d 12 (1943) (city manager, police chief).

Fernelius v. Pierce, 22 Cal.2d 226, 138 P.2d 12 (1943) (city manager, police chief).

13 . With respect to the general duties of training and supervision it may well be that the responsibilities of Chief Layton fall within the scope of official immunity, while those of Captain Prete do not. Both officers might be brought outside the protection of that doctrine, however, if appellant can sustain the allegations contained in a proposed amended complaint which he filed with this court. That proposed amendment alleges that both Prete and Layton knew, or should have known, that Carlson was likely to use excessive force in making an arrest, and in particular that he was likely to use brass knuckles. In that case, failure to take corrective action might well be negligence in the performance of a ministerial function, outside the protection of official immunity. The proposed amendment, of course, should be submitted in the first instance to the trial court on remand, to be considered in light of the liberal terms of Fed.R.Civ.P. 15(a).

14 . This was the course taken in David v. Cohen, 132 U.S.App.D.C. 333, 336, 407 F.2d 1268, 1271 (1969). In that case a collection officer of the Internal Revenue Service had erroneously served a notice of levy for the payment of back taxes which had in fact already been paid. The taxpayer filed suit against, inter alia, the Commissioner of Internal Revenue. The Commissioner claimed official immunity, and the trial court granted his motion for summary judgment on that basis. He submitted a Treasury Regulation and an uncontroverted affidavit to establish that he had delegated to subordinate officers all direct responsibility for issuing levies. In affirming the ruling below, this court concluded that if the Commissioner was in any way negligent with respect to the levy in question, that negligence could have occurred only in the performance of his general duty to supervise the operations of the agency, a duty properly treated as discretionary and immune from suit.

15 . See Graham v. District of Columbia, 139 U.S.App.D.C. 378, 433 F.2d 536 (1970) (pleadings insufficient to permit resolution of claim of sovereign immunity) ; Kisielewski v. State, 68 N.J.Super. 258, 172 A.2d 203 (App.Div.), pet. for certification denied, 36 N.J. 144, 174 A.2d 927 (1961).

The author of this opinion believes that it would greatly simplify analysis to eliminate the various doctrines of immunity, and to weigh the degree of discretion required in the performance of a particular governmental function as a factor bearing solely on the ultimate question of liability. See Elgin v. District of Columbia, 119 U.S.App.D.C. 116, 121, 337 F.2d 152, 157 (1964) (Bazelon, C. J., concurring); accord, Spencer v. General Hospital, 138 U.S.App.D.C. 48, 58-59, 425 F.2d 479, 489-490 (1969) (Wright, J., concurring).

In his view the doctrine of immunity is unnecessary to protect the government officer from inappropriate substantive liability, and it is increasingly ineffective to protect him from the mere harassment of litigation. With respect to the question of ultimate liability, he believes that the substantive law of torts is sufficient to protect the officer from liability for conduct that is reasonable in the circumstances. See, e. g., Roberts v. Williams, supra note 12, slip op. at 27-32 (county supervisors) ; Sostre v. McGinnis, supra note 12, 442 F.2d at 189-190, 205 n. 51, 206-207 (state comm’r of correction) ; Anderson v. Nosser, supra note 12, 438 F.2d at 199-202 mayor and comm’r of public safety) ; Orvis v. Brickman, 90 U.S.App.D.C. 266, 196 F.2d 762 (1952) (D.C. Mental Health Comm’rs, D.C. police officer). And with respect to the question of mere litigation, he questions the utility of the doctrine of immunity as a threshold screening device if, as in this case, it turns on facts that may be virtually identical to the facts that control the ultimate question of liability. As this court observed in Graham v. District of Columbia, supra: “If [the necessary particularity] is not developed until trial the defense of sovereign immunity will be closely akin to a motion for a directed verdict on the merits * * 139 U.S.App.D.C. at 379, 433 F.2d at 537.

16 . In his view, that state shield of immunity is what brings the officer’s conduct “under color of law” as required by § 1983. Monroe v. Pape, 365 U.S. 167, 211, 238, 242-243, 245-246, 255, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (Frankfurter, J., dissenting).

17 . Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).

18 . Pierson v. Ray, 386 U.S. 547, 553-555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

19 . Several federal courts have held that official immunity is more limited under § 1983 and related statutes than at common law. E. g., Roberts v. Williams, (5th Cir. No. 28,829, Apr. 1, 1971) (slip op. at 26-27) ; McLaughlin v. Tilendis, 398 F.2d 287, 290-291 (7th Cir. 1968) ; Jobson v. Henne, 355 F.2d 129, 133-134 (2d Cir. 1966).

20 . See cases cited note 12 supra. We think it clear that an action under § 1983 may be based on negligence, if that negligence leads to a constitutional deprivation. See also Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970) (Sobeloff, J.) ; Whirl v. Kern, 407 F.2d 781, 787-789 (5th Cir. 1968), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969).

21 . See p. 363 n. 9 supra.

22 . The FTCA exemption actually covers only certain specified torts, and not all intentional torts; it does, however, cover the torts arising out of Officer Carlson’s alleged conduct.

23 . F. Harper & F. James, Law of Torts § 26.9 (1956).

24 . Restatement (Second) of Agency § 245 & comment h (1957). Of course Carlson’s master for this purpose is his employer, the District, and not the supervisory officers who are in fact his fellow employees. See Robertson v. Sichel, 127 U.S. 507, 8 S.Ct. 1286, 32 L.Ed. 203 (1888) ; Bowden v. Derby, 97 Me. 536, 55 A. 417 (1903) ; Dowler v. Johnson, 225 N.Y. 39, 121 N.E. 487 (1918) ; Harper & James, supra note 23, & 29.8 at 1633-1634.

25 . Because we are concerned in this case primarily with the threshold question of immunity, we do not now explore the ramifications of vicarious liability for intentional torts.

26 . There is perhaps a conceptual difficulty with the notion of imposing vicarious liability on the District for the conduct of officers who are not themselves subject to liability. It is generally recognized, "however, that the master can assert only the servant’s substantive defenses, and not his immunity to suit. E. g., Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 164 N.E. 42 (1928) (servant’s immunity from suit of spouse no bar to master’s vicarious liability) ; see Harper & James, supra note 23, § 26.17.

27 . In concluding that the common law immunity of the government may sometimes be narrower in scope than the immunity of government officers, we are in accord with the views of several leading commentators. See, e. g., K. Davis, Administrative Law Treatise § 25.17 (1958, Supp.1970) ; 2 Harper & James, supra note 23, comment to § 29.10 n. 29 (Supp.1968) ; Mathes & Jones, Toward a “Scope of Official Duty” Immunity for Police Officers in Damage Actions, 53 Geo.L.J. 889 (1965). When the California Supreme Court embarked on its pioneering effort to update the law of the immunity of governments and of officers, the court similarly concluded that the immunity of a government unit for discretionary conduct should be narrower than that of an officer. Lipman v. Brisbane Elem. School Dist., 55 Cal.2d 224, 230, 11 Cal.Rptr. 97, 99, 359 P.2d 465, 467 (1961). The reasons given by the court are essentially those stated in text, infra. The California Legislature subsequently rejected that approach, however, making the two immunities for the most part coextensive. Calif.Tort Claims Act of 1963, § 1, Calif.Gov’t. Code § 815.2 (b) (West 1966).

28 . Compare Westminster Investing Corp. v. G. C. Murphy Co., 140 U.S.App.D.C. 247, 434 F.2d 521 (1970) (D.C. has no duty to protect citizens from riot damage, unnecessary to decide question of immunity) .

Commentators have long urged the recognition of a municipal duty to supervise and train police officers. See, e. g., Borchard, Government Liability in Tort, 34 Yale L.J. 229, 258 (1924) ; Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn.L.Rev. 493 (1955) ; Greenstone, Liability of Police Officers for Misuse of Their Weapons, 16 Clev.Mar.L.Rev. 397, 408-411 (1967).

29 . The court in Thomas apparently concluded that the duty of the District was broader than that of the Mayor or the Police Chief, for the court dismissed the complaint against each of those officers and refused to dismiss the complaint against the District. While we might question the propriety of reaching that _ conclusion on the bare pleading, we agree that on a proper record a court might well find a breach of duty attributable directly to the government, and find further either that no individual officers could properly be charged with that breach, or that the responsible officers were immune while the District was not.

30 . See, e. g., Patrum v. City of Greensburg, 419 F.2d 1300 (6th Cir. 1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1125, 25 L.Ed.2d 398 (1970) ; United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970) ; Wallach v. City of Pagedale, 359 F.2d 57 (8th Cir. 1966).

31 . After reviewing the legislative debates surrounding the defeat of a proposed amendment to the Civil Rights Act, the Court concluded:

The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word “person” was used in this particular Act to include them.

365 U.S. at 191, 81 S.Ct. at 486.

32 . See Garren v. City of Winston-Salem, 439 F.2d 140 (4th Cir. 1971) ; Harkless v. Sweeny Independent School Dist., 427 F.2d 319, 321-323 (5th Cir. 1970), cert, denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971) ; Dailey v. City of Lawton, 425 F.2d 1037 (10th Cir. 1970) ; Adams v. City of Park Ridge, 293 F.2d 585 (7th Cir. 1961) ; Service Employees Int’l Union v. County of Butler, 306 F. Supp. 1080 (W.D.Pa.1969) ; Atkins v. City of Charlotte, 296 F.Supp. 1068 (W. D.N.C.1969) ; Comment, Injunctive Relief Against Municipalities Under Section 1983,119 U.Pa.L.Rev. 389 (1970).

33 . The Court relied primarily on the vehemence of the opposition to the Sherman Amendment, which was resisted as unwise or unconstitutional or both. The constitutional basis for opposition was quoted by the Court:

[T]he House had solemnly decided that in their judgment Congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of State law.

365 U.S. at 190, 81 S.Ct. at 485, quoting Cong.Globe, 42d Cong., 1st Sess. 804 (1871) (remarks of Representative Poland) .

34 . See Kates, Suing Municipalities and Other Public Entities Under the Federal Civil Rights Act, 4 Clearinghouse Review 177, 196-198 (1970).

35 . Civil Rights Act of 1866, § 3; Civil Rights Act of 1870, § 18, R.S. §§ 722, 42 U.S.C. § 1988 (1964).

36 . The Ninth Circuit has rejected the argument that municipal liability under § 1983 is controlled by state law. Brown v. Town of Caliente, 392 F.2d 546 (9th Cir. 1968). In that case, however, it does not appear that the relevance of § 1988 was argued.

37 . See note 33 supra.

38 . U.S.Const. art. 1, § 8, cl. 17.

39 . A few courts have suggested that there can be no vicarious liability under § 1983. See Sanberg v. Daley, 306 F.Supp. 277 (N.D.Ill.1969) ; Salazar v. Dowd, 256 F.Supp. 220, 223 (D.Colo.1966). The real basis for these cases, however, is that a superior officer is not subject to vicarious liability for the torts of his subordinate, whether at common law or under § 1983, because they are both servants of the same employer, see note 24, supra.

Ordinarily in a § 1983 suit the only employer is a public entity, whose liability is thought to be precluded by Monroe, and not by any theoretical bar to the doctrine of vicarious liability. Hill v. Toll, 320 F.Supp. 185 (E.D.Pa.1970), presented the issue of vicarious liability with unusual clarity. The defendants in that case were, inter alia, a surety company that had provided the plaintiff with a bail bond, and the surety’s agent, who arrested the plaintiff in connection with the bail bond contract. While the arresting agent was deemed to be acting under color of law, his employer, unlike the ordinary § 1983 employer, had no claim to governmental immunity. Consequently, the court was confronted with a clear question of the applicability of respondeat superior in a suit under § 1983. The court held that § 1983 incorporates the common law doctrine of respondeat superior, 320 F.Supp. at 188-189, a result compelled in our view not only by the reasoning of the Bill court but also by 42 U.S.C. § 1988, discussed above. Accord, Hesselgesser v. Reilly, 440 F.2d 901 (9th Cir. 1971).

40 . See Wolf v. Colorado, 338 U.S. 25, 42-44, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (Murphy, T., dissenting) ; Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn.D.Rev. 493 (1955).