Full opinion text
MEMORANDUM OPINION INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW WADDY, District Judge. Introduction During the period 1969-1971 a number of large-scale demonstrations took place in the District of Columbia to protest various actions taken by the federal and city governments. Participants sought to exercise their rights under the First Amendment peaceably “to assemble, and to petition the Government for a redress of grievances.” Plaintiffs in this action are two organizations which had sponsored demonstration activities and individuals who had become involved in the demonstrations as participants, attorneys or observers. Their complaint challenges the policies and actions of the District of Columbia police department during these mass demonstrations. Four general areas of unlawful conduct are alleged as the source of these claims: (1) unlawful dispersal and arrest of demonstrators; (2) use of excessive physical force; (3) unlawful post-arrest, booking procedures; and (4) unnecessary and discriminatory fingerprinting and photographing of demonstrators arrested on disorderly conduct and related charges. Plaintiffs further attack the constitutionality of statutory and administrative enactments invoked by defendants in the performance of their duties. Equitable relief is sought which would require the police department to revise its practices and procedures in a manner which will rectify the claimed constitutional deficiencies. Defendants are supervisory officials of the Police Department who allegedly are responsible for the actions cited by plaintiffs. They contend in their defense that they have not overstepped the bounds of constitutional propriety and that their actions have been consonant with the due process and first amendment rights guaranteed to all citizens. Defendants argue that even if there have been incidents in the past in which individual officers have acted improperly, this finding would not warrant the extensive injunctive relief sought by plaintiffs. This Court has jurisdiction over the subject matter and parties of this action pursuant to D.C.Code § ll-521(a)(l). Jurisdiction is also conferred on this Court by 28 U.S.C. § 1331 and the 1st, 4th and 5th amendments to the constitution. Sullivan v. Murphy, 156 U.S.App. D.C. 28, 478 F.2d 938 (1973). The case was tried before the Court sitting without a jury. The trial was conducted from March 19 to April 9, 1974. Plaintiffs presented the testimony of 25 witnesses at trial and the testimony of 3 additional persons by deposition. The trial was shortened by an agreement between the parties permitting plaintiffs to introduce into evidence the affidavits of 47 potential witnesses whose testimony would merely have been cumulative of the evidence introduced through plaintiffs’ primary witnesses. The affidavits were admitted only as summaries to show what these persons would have testified to if they had been called as witnesses. The veracity of the affiants or of their statements was not stipulated. Finally, plaintiffs introduced well over 100 exhibits into evidence including police department documents, interrogatories and depositions. Defendants presented at trial the testimony of ex-Chief Wilson and other supervisory officials of the department who were responsible for the training, supervision and discipline of officers assigned to duty during mass demonstrations. Defendants supplemented this testimony with 21 exhibits introduced into evidence, consisting of internal memoranda, orders and documents of the department. In order to obtain the relief they seek, plaintiffs must prove that the police have engaged in widespread violations of constitutional rights; that such breaches of official duty have occurred over a period of time and are subject to repetition; and that the misconduct either has resulted from departmental policies and procedures or lack thereof, or has been fostered by the department’s failure to take corrective action. See Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974); Washington Free Community, Inc. v. Wilson, 157 U.S.App.D.C. 360, 484 F.2d 1078 (1973); Long v. District of Columbia, 152 U.S.App.D.C. 187, 469 F.2d 927 (1972); Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966). In an effort to satisfy this burden, plaintiffs have produced evidence depicting the events of demonstrations occurring in the District of Columbia during 1969-1971. Defendants’ evidence concentrates on the guidelines developed by the department during this time period in an effort to show that any misconduct was individually inspired, rather than the outgrowth of officially sanctioned policies, and that the department has actively sought rectification of the deficiencies in operating procedures. FACTS 1. The Civil Disturbance Unit The evidence in support of and in opposition to the respective positions of the parties and the facts deducible therefrom will be discussed hereinafter. At the outset, however, a description of the makeup of the department’s Civil Disturbance Unit (CDU) is helpful in understanding the evidence. The CDU is a special component of the police department established to provide personnel for service during large-scale civil disturbances, including riots and mass demonstrations. Because of the nature of its duties, the Unit is mobilized on an ad hoc basis. Organizationally it is part of the department’s Special Operations Division (SOD), which has duties extending beyond the narrowly defined scope of CDU activities. Of the approximately 650 officers assigned to the CDU, 300 are drawn from the ranks of the SOD; the remaining officers are regularly assigned to other full-time positions within the department. The Deputy Chief of Police in charge of the SOD is also Commander of the CDU. 2. The Demonstrations a. November lb, 1969—Dupont Circle On November 14, 1969, an anti-war demonstration was staged near the South Vietnamese embassy, in the vicinity of Dupont Circle. As the demonstrators became unruly, breaking windows and threatening police, they began to congregate in and around the Circle. Upon orders of Chief Wilson, CDU officers surrounding the area launched tear gas cannisters into the Circle in an attempt to subdue the crowd. Dr. Timothy Tomasi, a physician who, at that time, was employed as a resident by D. C. General Hospital, volunteered his services to provide first aid. From 6:00 until 9 :30 P.M. he was stationed in a house near the Circle where he treated approximately 20-30 persons suffering from tear gas burns, bruises and lacerations. By 9:30 tear gas had seeped into the house, requiring evacuation from the building. Clearly identified by a red cross armband, Tomasi went to the Circle to ascertain if any demonstrators there needed medical attention. At first officers refused to allow him access through the police line surrounding the Circle, but then relented. Finding that his assistance was not needed, Tomasi left the circle just as further tear gas was set off. As Tamasi approached Massachusetts Avenue, CDU officers grabbed him and struck him a number of times with their clubs, knocking him to the ground. He was then dragged to a police bus and locked in the back. He showed one of the officers his medical identification, but to no avail. A short time later, when officers returned to the bus, he was ordered to leave. As he disembarked some of the officers again struck him across the body with their batons; one officer kneed him in the.groin. Tomasi was then allowed to leave, never having been advised that he was under arrest or that he had violated any law. b. November 16, 1969—Three Sisters Bridge On November 16, 1969 a large crowd gathered on Canal Road in Georgetown to protest construction of the proposed Three Sisters Bridge. As the crowd became loud and disorderly, the participants began to block traffic proceeding along M Street and Canal Road. Police stationed in the area were subjected to verbal abuse and, in a few instances, were the targets of thrown objects. Eventually three squads of police were ordered to the area who directed the demonstrators back to the vicinity of 34th and M Streets. Two squads then moved further east along M Street, while the third squad attempted to clear 34th Street by proceeding north along that thoroughfare. At the intersection of 34th and Prospect Streets, a line of police was formed which prevented all pedestrian and vehicular traffic from moving south. Lieutenant Watson, in command of the maneuver, then ordered a sweep of the area by a contingent of officers moving north on 34th Street and east along Prospect Street. At this juncture, a number of persons who were apparently occupants of a residence at 3401 Prospect Street began shouting obscenities at the officers, but were not otherwise interfering in the police action. Several officers broke ranks and moved to the steps of the house before being ordered to return to their line by superiors. Later, when the police made a return sweep of the area, these same hecklers renewed their activities. At this point, four officers proceeded to the front yard, swinging their batons, and arrested two of the protestors. Lieutenant Watson supported this action, noting that the comments made by the arrestees were “unacceptable in a decent and self-respecting society.” Additional arrests were made along Prospect Street without any apparent probable cause. One witness, Karl Hess IY, was visiting friends living on the 3300 block of Prospect Street. Although not participating in the demonstration, he and his friends went outside to observe the commotion. As the police line moved past the house, Hess retreated to the steps. When one of his friends was detained by police, he attempted to explain to the officer that they were not involved in the demonstration and that they were staying at the above-mentioned house. The officer’s response was to walk onto the porch, seize the witness in an excessively physical fashion and arrest him. Hess’ father observed this event from inside the house and immediately attempted to explain to the officer that a mistake was being made. The father suffered the same fate as his son, as both were loaded into a patrol wagon and were taken to the local precinct station and booked. Collateral was posted for both and they were immediately released. When the case was subsequently reviewed by the Corporation Counsel, the charges were dropped and the collateral money was returned. c. February 19, 1970—Watergate On February 19, 1970 a crowd of persons (numbering in the hundreds) gathered on the George Washington University Campus for a rally protesting the results of the so-called Chicago 7 trial. Speakers addressed the crowd during the mid-day and early afternoon with no indications of disorderly conduct. Police were not present or did not make their presence evident on the campus. Upon completion of the speeches, a large number of the persons attending the rally proceeded to march towards the Watergate apartments intending to reiterate at that location their displeasure with the course of the trial. The Watergate was selected as the site for this demonstration because it was the residence of then Attorney General John Mitchell. Although the demonstrators had not sought a parade permit for the march to the Watergate, notices on campus posted prior to the 19th announced the intended course of the demonstration. The police department was aware of the proposed activities and in anticipation of difficulties stationed a large number of officers from the CDU around the apartment complex. Most of the demonstrators proceeded towards the Watergate along G Street, moving westward. A few police were observed along this route, although there was apparently no interaction between demonstrators and police at this point. When the marchers reached the intersection of G Street and Virginia Avenue, they were confronted by a police line extending across Virginia Avenue, preventing further movement along this thoroughfare. Estimates of the number of police varied from 50 to 200, the latter figure probably being the more realistic one. The officers manning the line were attired in CDU riot gear, including helmets, combat-type fatigues and long batons, held chest-high in a horizontal position. When most of the demonstrators had arrived in the vicinity of the Watergate, the crowd extended from the intersection of New Hampshire and Virginia Avenues (where the police line was set up), back along Virginia Avenue to the Columbia Plaza apartments (between 23rd and 24th Streets). A second contingent of police formed along the rear of the group of demonstrators, cutting off retreat eastward along Virginia Avenue. After realizing that the police were intent upon impeding any further demonstration activities, some of the marchers at the front of the assemblage (at the intersection of New Hampshire and Virginia Avenues) began taunting the officers, verbally and physically. Epithets were directed toward the police, along with small stones and other objects. The evidence shows that this activity was uncoordinated and spasmodic. The missile throwing could hardly have been characterized as a barrage. No evidence of injury to any police officer was introduced. At this point Deputy Chief Owen Davis, in command of the CDU and the senior officer present at the scene, announced over a bullhorn that the crowd should disperse. Davis, however, was situated at the head of the gathering, so that most of the persons in the rear of the crowd (especially around the Columbia Plaza apartments) did not hear the request to leave the area. In fact, the evidence shows that many of these persons were unaware of the confrontation between police and demonstrators further along Virginia Avenue which had given rise to the dispersal order. The situation remained static for a few minutes after the announcement to leave, until the line of police at New Hampshire and Virginia Avenues began moving eastward on Virginia, pushing the crowd ahead of it. At this point confusion seized both the police and demonstrators, as the people at Columbia Plaza were surprised by the movement of the police line towards them. Because of a lack of communication and inadequate attempts to inform the crowd of their intentions, the police succeeded in creating a stampede effect. At first, persons standing on the grounds of the Columbia Plaza apartments were allowed to pass through the line of police at the rear. However, after more of the demonstrators began to verbally and physically threaten the officers, the police broke ranks and began chasing the retreating crowd. This action compounded the confusion and escalated the tension between demonstrators and police. A number of persons huddled in the garage area of the apartment, hoping to avoid any confrontation, were seized and arrested. Demonstrators who were initially led to believe that they could retreat from the Columbia Plaza along Virginia Avenue were suddenly chased by groups of officers and arrested. Many of these persons were confronted by an irresolvable dilemma: if they sought security in the area of the Columbia Plaza they were arrested by the rear contingent of police. Those attempting to leave along Virginia Avenue were chased and, in some eases, arrested by the officers pursuing them eastward along Virginia Avenue. Most of the persons arrested were not engaging in any unlawful conduct. Some were merely onlookers who were caught up in the melee. Persons who attempted to intercede between police and demonstrators or who requested an explanation from officers as to the reasons for the arrests were themselves taken into custody. The chaotic atmosphere was further exacerbated by the unrestrained use of physical violence by some of the officers. For some officers, the verbal abuse hurled at them was sufficient provocation for their reaction. Numerous incidents occurred (including some visible on films of the event taken by police officers) in which police swung their batons in an overhead movement, knocking their victims to the ground and often inflicting injuries. Some people were observed to be bleeding from the injuries sustained. In at least two incidents medical students who were present at the demonstration (but not participating) attempted to give assistance to injured persons and were told by police to leave the area. In addition to the more blatant examples of violence, a pervasive pattern of lack of restraint by police was discernible from the police films and supported by the testimony of witnesses. Police often shoved and pushed demonstrators, intimidating them with their batons. Arrests were effectuated with a level of force far in excess of that required. The area along Virginia Avenue was eventually cleared by attrition and by the movement of demonstrators eastward on F and G Streets and north on 23rd Street. These thoroughfares pass through the central portion of the George Washington University campus. As might be expected, many of the people in this area were students or university personnel engaged in their collegiate routine, unassociated with the influx of demonstrators. Although there undeniably was some unruliness on the part of the crowd leaving the Watergate, including the destruction of property, the evidence is overwhelming that most persons arrested in this sortee were not engaged in criminal activity. Nicholas Sloan, a professor of engineering at George Washington University, testified to one such incident. Sloan arrived at one of the classroom buildings for a class scheduled for 6:10 P.M. and was told that the building was closed and that classes were suspended because of the disturbance. A guard allowed Sloan inside the building, where he could observe the events taking place outside. Shortly afterward, one of his students came to the door of the building to ascertain the status of the class. As the student was standing at the entrance to the building, he was grabbed from behind by an officer. In spite of Sloan’s efforts to have the student released, the officer persisted and maintained custody. Defendants proffered no evidence to justify this or similar arrests of persons who were not connected with the demonstration activities. Wanton use of physical force also accompanied the arrests made on campus in the late afternoon. One example of such violence occurred when CDU officers entered a school building, contrary to orders, to pursue demonstrators who had been throwing rocks at the police. Michael Marsh, a law student who had observed the incidents but was not participating, approached the officers entering the building and attempted to intercede peaceably between them and some other students. There is no evidence that Marsh had engaged in any illegal conduct on the street or when approaching the officers. There is no evidence that he was interfering with the officers in the performance of their duties. Nevertheless, he was struck on the head by one of the officers swinging his baton as a club. After incurring several blows, Marsh was dragged from the building. Although he was bleeding profusely, his requests for medical attention were ignored for several hours, until after he had been brought to the police station. Marsh was eventually hospitalized for treatment of his injuries (including stitches in his scalp) and then returned to police custody. Later that night collateral was posted and Marsh was released. Charges against him were subsequently dropped. The arrest and booking procedures employed by the CDU were also extraordinary. Although the department had devised a field arrest form specifically for use in mass arrest situations, a number of administrative snafus prevented its use on this day (e. g., shortage of cameras). In addition, many officers decided that it was not necessary to advise arrestees of the charges being placed against them or to give them their Miranda warnings. Arrestees were taken either to the Central Cell Block (males) or the Women’s Detention Center (females). At this point, essential information was recorded on various forms and the detainees were fingerprinted and photographed. Because of the large number of people involved and an apparent breakdown in police administration, the process dragged on for hours. Even during the booking process many detainees were not advised of the charges against them or the procedures for posting collateral. Persons who offered to post collateral immediately and were able to do so were required to wait hours before their release. Many persons were not allowed to leave on collateral until they answered a barrage of questions of a personal and extraneous nature (e. g., what do you smoke, what persons do you associate with, do you use narcotics). Persons requesting use of the telephones to contact an attorney or to obtain collateral were prevented from so doing. At the central cell block, which had only two telephones available for the use of prisoners, the influx of such a large number of arrestees overwhelmed the facilities. Even at times when the phones were not being used, some officers rejected requests to make calls. Attorneys who came to the cell block were thwarted in their efforts to speak to or advise those persons still incarcerated. These actions by police resulted in delays of nine or more hours before some detainees were released. Because of the failure to use the field arrest forms and the confusion during the booking process, , most of the arrests made could not be prosecuted by the Corporation Counsel’s office. Thomas Johnson, the Assistant Corporation Counsel responsible for reviewing the charges brought against persons arrested during these demonstrations, testified that more than 90% of the persons arrested had their charges “no-papered” (i. e., no complaint was filed). Of the remaining cases which were prosecuted, a majority resulted in dispositions favorable to the arrestees. Johnson offered a number of reasons for the unsuccessful resolution of so many of the cases. Foremost was the inability of the arresting officers to identify at a later date the persons they had taken into custody or the offense allegedly committed. The absence of field arrest forms made identification impossible. In many instances the charge designated by the officer at the time of arrest did not fit the facts of the incident giving rise to the arrest. In those cases in which people were charged with violating a police line, there were problems with the police tactic of moving with or pushing the crowd and then cutting it off from further movement out of an area. Questions arose whether people had attempted in good faith to comply with the order to disperse, but were prevented from doing so by the police. These observations led Johnson to testify: I personally have never seen a good police-lines case, that is my understanding of a good police-lines case. Those that I did see either the line would not have been established at all, or the line was established and moving- and engulfed someone. In the latter case, I don’t understand that to be a proper charge d. February 21, 1970—Washington Monument A second demonstration protesting the Chicago 7 trial took place on February 21, 1970, in the downtown area of the city. A police permit for the demonstration was issued on the day prior to the march, allowing the assemblage of approximately 5000 persons in the vicinity of 9th Street and Constitution Avenue. The marchers were to proceed to the destination of 3rd Street and Constitution Avenue, near the location of the police department’s central cell block. The demonstration proceeded uneventfully along its prescribed route, with little contact between demonstrators and police. After the scheduled event ended in the late afternoon (approximately 4:00 p. m.), many of the demonstrators began walking westward in the mall area. As these people approached the vicinity of the Washington Monument (15th Street and Constitution Avenue), a number of police on scooters, motorcycles and horses circled the crowd and formed a line along the hill of the monument, preventing further movement in a westerly direction. Shortly thereafter a group of CDU officers in riot attire, • under the supervision of Chief Wilson, formed a line along Constitution Avenue north of the Monument. The crowd consisted of tourists and onlookers as well as stragglers from the march. For reasons which were not made clear at trial, the police line extending east-west along Constitution Avenue began moving south in formation, across the monument grounds, sweeping people ahead of it. Although an announcement to clear the area was made, because of the noise of the crowd, not all of the persons subject to the order heard the instructions. As a result, there was confusion among demonstrators and bystanders as to the appropriate course of action. The chaos was magnified when police broke' ranks and began chasing people across the mall, making random arrests. A number of persons were physically assaulted by police officers using their batons as clubs. Persons who attempted to question police about the arrests or to protest their conduct were themselves apprehended. One news reporter who was taking notes during the demonstration was accosted from behind by an officer, choked with the officer's baton, and then forced to relinquish his notebook. After the officer had defaced the notebook, he left the scene and took no further action. Films of the demonstration taken by the police department confirm the abusive character of the officers’ actions. Two incidents in particular, occurring on the Mall in the vicinity of the Justice Department, highlight this fact. In the first example, a person was pulled from the crowd by police officers and dragged to a grassy area. The victim was then thrown to the ground, beaten and kicked by a number of officers who had encircled him. Whatever conduct on the part of the demonstrator had provoked official action, it was quite evident that the physical force far exceeded what was necessary to bring the person into custody. In the second incident, a person carrying a large movie camera (the kind used by the news media, although it is not clear whether the person was a member of the press) was pushed away by officers as he attempted to film some of the events. Although he appeared to offer no resistance, a scuffle ensued in which officers tried to pull the camera away from the photographer in order to prevent further picturetaking. Witnesses testifying for defendants stated that a number of demonstrators in the area of the Monument had become disorderly. However, these witnesses did not recite specific instances of misconduct which would have necessitated the sweep action, as opposed to making individual arrests. There were no satisfactory explanations for the physically abusive behaviour of the police. The arrest and booking procedures which followed were also of questionable propriety. A number of persons who were injured in the fracas requested and were refused medical attention at the time of arrest; in some cases medical care was not ministered until the arrestees were taken to the cell block. While in custody the arrestees were subjected to verbal and other abuse, and were often not advised of their rights or the charge(s) being placed against them until hours after the arrest took place. Some persons were not released for five or more hours. e. October 2, 1970—Georgetown During the evening of October 2, 1970, a political demonstration took place in Georgetown. Chief Wilson was present at the scene of the protest and ordered a sweep of the lower blocks of Wisconsin Avenue. Defendants presented no evidence to indicate why this step was taken. One result of this decision was that a number of passersby and persons uninvolved with the demonstration were arrested in the Georgetown area. In one incident, Peter Lamb, an attorney visiting friends residing on Wisconsin Avenue between Q and R Streets, was attracted to the disturbance taking place outside. He observed a line of 40-50 police moving north on Wisconsin Avenue, with persons being pushed along ahead of the line. When Lamb observed the police making an arrest which he considered unjustified, he approached the officer involved and asked why the arrest was being made. Lamb did not attempt to interfere with the officer’s activities, but merely sought an explanation of his conduct. Lamb himself was then arrested. At the police station, Lamb was not permitted to make a telephone call for at least 6 hours, although he eventually was able to effectuate his release. After the charges against him were dropped, Lamb complained in writing to the police department of his treatment. The department’s response was that it found no improprieties in any officer’s conduct on that particular day. f. May 5-11, 1970—American University/Ward Circle In the first few weeks of May, 1970, demonstrations protesting the activities of armed forces of the United States in Cambodia took place in various areas of the city. One such area of demonstrations was around the campus of American University. These demonstrations resulted in a number of confrontations between police and persons present on the campus. The initial demonstration activities on May 5 consisted of leafletting the area of Ward Circle adjacent to the campus (the Circle is the location of the intersection of Massachusetts and Nebraska Avenues, both heavily-travelled thoroughfares). Police were stationed at that location as a precautionary measure, although the initial interaction between officers and demonstrators was minimal. On May 6, however, when the leafletters began to block traffic in the Ward Circle intersection, the tension between the groups increased. CDU officers wearing gas masks and equipped with various gas projectiles were stationed around and in the Circle, facing the campus. Demonstrators were requested to vacate the streets and most did so, retreating to a grassy knoll in front of the Kay Spiritual Life Center, a university building located on the edge of the campus. It is unclear from the evidence which of the adversaries initiated the escalation. Demonstrators taunted police and threw marshmallows at them. After announcements to clear the area were made, the missiles changed to stones and rocks, inflicting injuries on a few officers. Lines of CDU police moved onto Nebraska Avenue, pushing the demonstrators back with their batons, but they were not successful in clearing the area or in stifling the bombardment of missiles. Deputy Chief Davis finally ordered the use of hand-thrown gas grenades, generally thrown from the north side of Massachusetts Avenue to the campus area by the Kay Spiritual Life Center. When these proved ineffective, larger projectiles (about one foot long) were fired from shotgun-like launchers. This action had the effect of saturating the immediate vicinity with gas, affecting numerous people who had no connection with the anti-war activities. Persons brought to the first aid station set up on campus were found to have suffered numerous .injuries in the course of this conflict (e. g., abrasions, contusions), in addition to the effects of tear gas. Police films of the activities on May 5 and 6 show that on several occasions arrests were effected by placing choke-holds with the baton around the necks of arrestees. Some of the injured required hospital treatment, although it appears that the police provided no medical facilities or services. A second major flare-up between police and demonstrators occurred on the 11th day of May. The conflict again was ignited in the Ward Circle area, where students engaged in leafletting and other less peaceful activities. Rocks and debris were thrown in the streets. The police attempted to clear the thoroughfares around the Circle, but met the same resistance as before. Missiles were again directed towards police stationed at the Circle, ranging from marshmallows to rocks. What seems to have distinguished the course of events on this date from the conflagration occurring the previous week was the increased intensity of animosity between protestors and law enforcement officials. This attitude was reflected in the severity of injuries incurred by persons in the area. Police officials again decided to employ shotgun gas launchers, with heavy, long-range projectiles. A number of officers using these launchers apparently took the view that they were appropriate offensive weapons, rather than merely being a means of dispersing the crowd. In at least three separate incidents, persons present in the campus area were deliberately made the direct targets of these weapons. Perhaps the most graphic example of this misuse of the gas launchers involved James Lee Kerr III, a student at American University. Kerr was editor and photographer for a number of campus publications and was identified by a press pass on his lapel. On May 6 he was present at Ward Circle, taking still photographs of the events. He returned on the 11th with a movie camera. While walking along Nebraska Avenue on the latter date, taking pictures, he was struck in the heel of his foot by a gas cannister and was knocked to the ground. As he tried to crawl away, another officer approached him and, from close range, shot Kerr in the ankle with another projectile. Two friends knocked the officer away, allowing Kerr to escape. Subsequent medical treatment revealed a broken bone and damaged ligaments, from which Kerr still has not fully recovered. A second example of misuse of the gas launchers is described in the affidavit of Gregory Hutchins. Hutchins was struck in the shoulder by a cannister as he attempted to leave the sidewalk along Nebraska Avenue following the dispersal order. There is no evidence in the record which would justify the conduct of the police in these incidents. There also is no dispute that both Deputy Chief Davis and Chief Wilson were present at various times during the demonstrations at Ward Circle and were responsible for the orders initiating the use of gas. In addition to Kerr, other actions were taken by police against persons who were clearly associated with media organizations. On May 11th, the University radio station (WAMU) was operating a broadcasting station on campus, giving continuous news coverage of the demonstrations. For reasons which were never releated to the persons operating the station, a number of officers approached the broadcasters, confiscated a telephone and disconnected the transmission line which had been set up for the emergency operation. This had the effect of abruptly ending the station’s broadcast. Deputy Chief Davis testified that he ordered the equipment disconnected, but was not aware that the students were running a radio station. When an employee of the radio station approached Davis at his outpost in the middle of Ward Circle, Davis told him that it was his understanding that the broadcasters were using the operation as a device for centrally directing the activities of the demonstration. Davis did not explain the basis for this assumption and was unable at trial to substantiate his hypothesis. After the discussion at the Circle the equipment was returned to the station. Two final examples of excessive force illustrate the lack of restraint on the part of police. In one incident, a number of students forsook the intensity of the Ward Circle battleground for the challenge of a more leisurely afternoon softball game. Upon completion of their sport some of the participants drove their cars to a parking lot on Nebraska Avenue, across from the campus, and visited friends in a nearby dormitory. When they returned to their cars in the late afternoon, they heard the instruction to disperse from police stationed at Ward Circle. They also observed the release of tear gas onto Nebraska Avenue. At this point, four or five officers ran into the parking lot chasing a student. One of the officers then approached a car with a number of students inside, drew his revolver and yelled accusations at the passengers. When two of the softball players proceeded to the scene of the altercation another officer seized them and accused them of rock-throwing. The officers addressed one student as “Jew boy” and then pulled his beard and slammed his head into the trunk of the car. The officer who drew his revolver was later reprimanded verbally by his superiors for improper use of his service weapon, but no disciplinary action was ever taken. The second incident involved Dr. Robert Strautz, a professor of biology at American University, who was conducting diabetes research in a laboratory in the Hurst Hall campus building, adjacent to Nebraska Avenue. Shortly after the police had begun to use gas, some of the chemical seeped into the laboratory, requiring the professor to evacuate. When he returned, he discovered that some of his experiments utilizing animal subjects had been destrpyed by the effects of the gas. Cloaked by his white laboratory coat, the professor went outside to protest the use of the gas to officers stationed in the vicinity. One of the officers, a member of the CDU, drew his pistol, pointed it at the complainant and then escorted him to the Ward Circle area. Although he was verbal and profane in his protests, no attempt was made by Strautz to interfere with the officers’ activities or to resist their hold on him. Nevertheless, for unexplained reasons, the officers beat the professor with their batons and then arrested him. There is no evidence that the arrestee had engaged in any unlawful conduct or that his actions required the physical force employed by the police. g. May Day Demonstrations 1971 The notorious May Day demonstrations of 1971, taking place on the second through fifth days of that month, were the last major mass arrest situations occurring in the District, although the CDU has been deployed on other occasions since that time. Plaintiffs have not presented extensive evidence pertaining to activities during this time, primarily because the facts have been reviewed in detail in previous litigation in this Court and in the United States Court of Appeals. Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974); Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938 (1973); Roberts v. Wilson, C.A.No. 1436-71, aff’d per curiam, D.C.Cir. No. 72-2184 (Jan. 16, 1974). The patterns of improper arrests and booking procedures (including suspension of the use of field arrest forms) in the previous demonstrations were repeated here. Especially important are the findings made in the Sullivan case as to the number of arrests and prosecutions. During the period April 22, to May 6, 1971, a total of 14,517 persons were arrested. Approximately 3,749 of these cases were terminated administratively, before judicial action was taken. Of those cases that proceeded to the District of Columbia Superior Court, many were terminated because the collateral was forfeited. However, 2,600 persons who posted collateral and were assigned trial dates had their cases dropped when the Corporation Counsel did not file an information. Approximately two-thirds of the cases that went to final disposition in Superior Court were terminated either by entry of a nolle prosequi or the granting of a motion to dismiss the information. Only 871 cases out of the original 14,517 arrests went to trial. In order to properly have this information before it, the Court has taken judicial notice of the proceedings and findings of the Courts in the Apton, Sullivan and Roberts cases. See Booth v. Fletcher, 69 U.S.App.D.C. 351, 101 F.2d 676 (1938), cert. denied, 307 U.S. 628, 59 S.Ct. 835, 83 L.Ed. 1511 (1939). 3. Recruitment and Training of CDU Officers Members of the CDU are selected from the ranks of officers already assigned to other divisions of the department. The selection process consists of a single interview of the applicant and review of his police record by the training officer of the Unit. No psychological tests or other screening devices are administered. The initial training consists of a 6-day course of classroom and field instruction. Three-day refresher courses are conducted twice a year. Informal, in-service training is also utilized as the occasion arises. The classroom curriculum for the initial and refresher courses includes such topics as completion of field arrest forms, psychological behaviour of crowds and effects of chemical crowd control agents (e. g., gas). Field training is directed primarily towards the use of weaponry. Oddly enough, the one weapon responsible for most injuries inflicted during demonstrations—the riot baton—has not been the subject of field training since 1969. Officers are merely instructed verbally that the baton is a defensive weapon and should not be used to strike persons except in situations involving physical danger. The CDU does have an instruction manual. It was agreed by all police officials testifying at trial that the manual, written in 1948, is hopelessly outdated and virtually useless. For this reason, it has not been used since 1969 in any of the Unit’s training programs. Chief Wilson testified that a revision of the Manual is in progress, with no scheduled deadline for completion. The Court has viewed the proposed revisions and notes that they are, at best, in a preliminary stage of review. The Department has supplanted the manual as a source of policy by verbal orders or written General Orders. Officers are also exposed to a series of Training Modules which discuss the basic functions of a police officer. It should be noted that the General Orders and Training Modules are directed to all police officers and, although some orders are principally oriented to CDU activities, they do not provide a centralized or comprehensive source of CDU policy. For example, there are no written guidelines on the appropriateness or mechanics of establishing a police line, one of the most widely used crowd-control tactics. Furthermore, the documents comprising these disparate policy pronouncements are so voluminous as to make it virtually impossible for an officer preoccupied with the busy pace of his daily duties to digest and retain the mass of information. The difficulty of the task facing the CDU officer would seem to be compounded by the necessity of ferret-ting out from this maze of papers those orders directly applicable to CDU activities. One might surmise that this haphazard method of instruction would result in a breakdown of orderly operations. The evidence of CDU misconduct during the demonstrations, discussed supra, proved this expectation fulfilled. The shortcomings of the training program are mirrored in the incoherency of official policy, indicating a causal relationship between defendants’ actions (or inaction) and the poor performance of CDU officers on duty. This observation is proven in a variety of contexts. A few illustrations should suffice. One example is found in Training Module 7.1 (to which every officer is exposed) which instructs that Miranda warnings are to be given to any person subjected to a full custody arrest, including a misdemeanor offense. One of the relevant General Orders also requires an arresting officer detailed to a mass demonstration to instruct an arrestee of the section and description of the law which has allegedly been violated. The evidence shows, however, that it was a common practice for arresting officers to refrain from advising arrestees of their rights and to refuse to reveal the offenses with which they were being charged. This procedure, although contrary to the dictates of the Training Module and General Order, comported with the practice advised by Chief Wilson. In his testimony at trial, Wilson stated that a person taken into custody during a demonstration need be told only that he is under arrest. If the detainee asks, he may be informed that he is charged with disorderly conduct, although the Corporation Counsel’s office may decide later that a different charge is more appropriate. A similar state of confusion has been fostered by conflicting orders and in-depth training in the use of chemical agents. The evidence shows that there has been difficulty in containing the use of tear gas in demonstrations. Defendants are well aware of the problem, as shown by a summary of an internal meeting of supervisory police officials held in November, 1969, which contains the following comment: All agreed that control is almost completely lacking and that something must be done. Officials loose [sic] control of the use of gas. We must have the ability to stop gasing [sic]. In other words, ‘we have the ability to turn on but no ability to turn off.’ In 1971, the department issued General Order No. 1, Series 805 which stated that “[c]hemicals (tear gas, sickening gas, and smoke), arms, and ammunition shall be used by' the CDU in accordance with the instructions of the unit commander.” This limited' guidance could hardly be termed a significant effort to resolve the- difficulties identified two years earlier. Deputy Chief Zanders testified at trial that no written orders were issued during his tenure as the head of the CDU which changed the policies or procedures of .the Unit. Defendants offered no proof of specific steps taken to alter the training curriculum to reflect a change in policy on the use of gas. In spite of the observation made in 1969, the misuse or overuse of gas was repeated in subsequent demonstrations. There is no basis in the evidence for concluding that the problem has been resolved. In a related area, policies regarding the use of Mace emphasize the difficulties growing out of the use of independently promulgated general orders. Memorandum Order No. 42, August 14, 1969, authorized officers below the rank of lieutenant to carry aerosal chemical dispensers (Mace) and set forth certain prescriptions and proscriptions concerning its use, including the admonition that the chemical not be used at close range. On December 1, 1971 the department issued General Order Series 1102, No. 1, which reiterated and amplified the contents of the earlier order. Also on December 1, 1971, a separate General Order identified as Series 805, No. 1, was directed specifically to the Civil Disturbance Unit with the described purpose “to establish the procedure for the utilization of the Civil Disturbance Unit (CDU) in whole or in part, and to establish the criteria for utilization of chemicals under control of the CDU.” On page 5 of the latter Order, it is advised that a larger, pint-sized chemical dispenser be assigned only to designated members of the CDU. The Order further stated on page 6 that the chemical dispenser “shall not be utilized against passive crowds or at the scene of a sit-down or arm-lock type of demonstration where the objective is simply to move a group or effect arrests.” During the May Day demonstrations of 1971, a photograph was published in the Washington Post which showed Deputy Chief Zanders spraying Mace at a group of demonstrators, sitting in the middle of an intersection, from a distance of no more than three feet. This action seems to violate the policies enunciated in each of the aforementioned orders. When Zanders testified at trial, he did not dispute the inferences of the photograph. When asked whether the policy embodied in General Order Series 805, No. 1, was in effect at the time of the photographed incident, he stated that he did not know if a written order was extant at that time, although the general policy predated that particular order. When asked whether any revised procedures had been adopted following this incident, Zanders replied “I don’t recall any.” The Court feels compelled to comment that if the Commander of the CDU expresses uncertainty over the existence of his Unit’s written policies at a given time, and conducts himself in a manner contrary to those policies, then it is not unlikely that this confusion will also be manifested among his subordinates. Furthermore, if the policies and procedures of the CDU emanate from verbal fiat and vary with the incumbents of the Commander's position, then consistency and continuity cannot be maintained in the operation, and constitutional i’ights are at the mercy of personalities. 4. Internal Review of CDU Policies Department officials have followed an informal procedure for the review and correction of deficiencies in CDU operations. General consideration of official conduct has been undertaken in “critiques” in which supervisory officials discuss the events of a preceding demonstration. Although Deputy Chief Davis testified that on some occasions notes or tape recordings were made of these meetings, no transcripts or tapes were put in evidence. Summaries of a few critique discussions have been made available to the Court, indicating that substantive matters concerning control of both the crowd and the police were scrutinized. However, the department has no policy requiring officials to make written reports or records of such police actions as erecting police lines or initiation of sweeps. The only effort to preserve the events of a demonstration has been the taking of motion pictures and still photographs by the department’s Mobile Crime Laboratory. Of necessity, this technique, while valuable, is limited in its adequacy and accuracy. Criticism of police activities originating from outside the department is handled in a variety of ways. Information critical of the CDU which is presented by the news media or litigation is never made the subject of an internal, disciplinary investigation. When a formal complaint or informal letter is received by the department (or referred to it), it is reviewed initially by the Internal Affairs Division (IAD). The investigation of the complaint, however, is conducted by the unit which was the subject of the complaint. For example, allegations of unjustified physical force by an officer will be investigated by that officer’s unit. After the unit prepares its report of the investigation, it is sent to the Disciplinary Review Officer of the IAD, who may conduct hearings if he thinks it appropriate (although he does not have the power to subpoena persons outside the department). Certain kinds of disciplinary actions may be taken at the unit level by a division commander, such as a dereliction report. Other forms of recommended discipline must be approved by the Chief after the case has gone to the Disciplinary Review Officer (e. g., convening a trial board; official reprimand from the Chief; letter of prejudice signed by the Chief). The outcome of these procedures as they pertain to CDU activities has not been very productive. Inspector George Chapoutot and Deputy Chief Davis testified that commanders can take and have taken corrective action against officers at the time of a disturbance when they have deviated from department policy or have reacted poorly in the heat of a demonstration. This informal form of discipline might consist of verbally rebuking the .official for his conduct, removing the officer from the police line or transferring him out of the CDU. However, in spite of the existence of the above-outlined mechanism for officially disciplining an officer for misconduct, not a single formal disciplinary action was taken against any officer involved in the demonstrations considered in this case. 5. Processing of Persons Arrested in Mass Demonstrations After civil disturbances occurred in the city in the Spring of 1968, the department developed new mass arrest procedures utilizing a shortened field arrest form which was designed to preserve the essential information relevant to a criminal prosecution. The department also instituted the practice of taking Polaroid photographs of both the arrestee and the arresting officer to accompany the field arrest form. These new procedures allowed the arresting officer to record the basic information of the arrest in a short amount of time. Difficulties with these procedures arose in demonstrations taking place by the Watergate apartment complex in the winter of 1970, when logistical problems necessitated the suspension of the field arrest process. The response to these problems came in the form of two memoranda issued by Deputy Chief Davis on March 23, 1970, and directed to all members of the CDU. They reiterated the need to follow all aspects of the field arrest procedures and defined certain techniques to be employed in the making and supervision of arrests. In October, 1971 the department took further steps to improve its procedures for booking detainees by revising its Prisoner Control Handbook. The Handbook puts responsibility for the transporting, detention, processing and controlling of persons arrested during civil disturbances in a Prisoner Control Center, an emergency unit which is activated strictly for this purpose. The Field Arrest Form has been changed in some respects to simplify its use during demonstrations and it has been accompanied by strict admonitions in the Handbook that all parts of the form be accurately and fully completed by the signing officer. Arresting officers are to be designated by superiors. No officer is to be made responsible for more than 15 arrestees. After the arrest forms are filled out and the Polaroid pictures taken, the prisoners are turned over to escort officers for frisking and transportation. In situations in which a particularly large number of arrests are made or when there is rapid movement among the demonstrators, an abbreviated procedure is followed. The field arrest form is still utilized, but in shortened form, requiring even less time for completion. Information of a general nature (e. g., date, time, location of arrest) is placed on a blackboard attached to the front and side of the transporting bus. When the photograph of the arresting officer and prisoner is taken, it is done in a manner so that the blackboard is in view, with the relevant information filled in. This information is later transferred to the field arrest form at the detention facility. The procedure allows the retention of information necessary to prosecution of the case, but also frees the arresting officer from some of the time-consuming aspects of the arrest. Prisoners may be transported to a number of detention facilities in the city, including the central cell block (48 cells), and the seven police districts and sub-stations (120 cells). Once a prisoner has been brought to a facility, the booking process begins with the completion of an arrest report, which includes information taken from the field arrest form and additional facts relating to the personal history of the arrestee. The prisoner is then fingerprinted and photographed and sent through a collateral and/or citation release procedure, whereby he is afforded the opportunity to qualify for release on collateral, citation or unsecured bond, regardless of whether the courts are in session. If the prisoner is unable or refuses to post bond or collateral, he is then detained until called for his court appearance. Although the Prisoner Control Handbook is more up-to-date than the CDU Training Manual, some of the same problems of inconsistent or non-existent instructions have affected the efficient functioning of post-arrest operations. For example, General Order No. 6, Series 1970 states that medical care shall be provided during civil disturbance by public health personnel assigned to district headquarters or substations. Persons suffering serious injuries are to be taken directly to D. C. General Hospital. A number of witnesses testified, however, that in demonstrations taking place after the issuance of this Order many persons injured in the course of disturbances were not taken to a detention facility or hospital for treatment until the passage of a substantial amount of time. When revisions were made in the Prisoner Control Handbook in 1971 and 1972, there were no modifications or additions to correct the problems encountered in providing medical attention to persons injured at the site of a demonstration. The Handbook mentions only that there is an agreement between the police department and the D. C. Department of Public Health to minister to the medical needs of persons being held in a detention facility. The Handbook also lacks instructions on the use of telephones by detainees who wish to call an attorney or some other person to arrange the posting of collateral. The problem is compounded by an informal policy of not allowing an attorney to consult with any detainees unless he can give the name of a client. Attorneys representing organizations or from educational institutions who cannot identify specific detainees are not allowed into the detention areas. In many instances the detainee is confronted with a no-win proposition: persons on the outside are unable to assist detainees until they know the identities of the persons arrested, while the latter are prevented from making telephone calls which would allow them to make known the fact of their detention. An official of the department testified that an arrangement was finally made with the bar association to facilitate representation and release of arrested demonstrators, but the details of this agreement were not explicated at trial and are not embodied in any written guidelines. SUMMARY OF MATERIAL FACTS During the mass demonstrations taking place in the District of Columbia in the time period 1969-1971, there were numerous instances of disruptive and destructive behaviour by persons participating in these activities. In response, officers of the CDU repeatedly took actions which were unreasonable and unnecessary in the performance of their duties, including: arresting persons who had not engaged in illegal conduct; excessive use of force; unrestricted and hazardous use of chemical agents (primarily gas); unjustified maintenance of police lines and initiation of sweeps; failure to give sufficient warning to demonstrators of the establishment of police lines; and refusing to advise arrestees of the charges being placed against them or of their constitutional rights under Miranda v. Arizona. The failure to use field arrest forms during some demonstrations made it virtually impossible to distinguish between those persons who had been properly arrested and those who had been taken into custody without probable cause. Preparation and administration of the Prisoner Control Center was also deficient, resulting in numerous examples of actions which were unreasonable and unnecessary in the performance of its duties, including: lengthy periods of incarceration of persons entitled to collateral release; placing detainees in overcrowded cells, restricting access to telephones; failing to provide adequate medical attention; failing to advise detainees of the specific charges being placed against them; and conditioning release on the willingness to answer questions of a purely personal nature and which were irrelevant to the proper processing of detainees. The persons named as defendants in this action, acting in their official capacities, are responsible for the selection, training and supervision of officers assigned to the Civil Disturbance Unit and Prisoner Control Center during mass demonstrations. The application and selection process devised by defendants for determining which officers will be assigned to the CDU does not adequately identify, to the extent practicably possible, those officers who are not qualified for these specialized duties. Further, many examples of misconduct by CDU and PCC officers were the direct result of policies and procedures authorized by defendants and of defendants’ failure adequately to train, supervise and coordinate the activities of subordinates. The CDU training manual, out