Full opinion text
MEMORANDUM OBERDORFER, District Judge. Plaintiffs brought this action for damages and injunctive relief against the District of Columbia and a number of active and retired members of the Metropolitan Police Department (“MPD”) and the Federal Bureau of Investigation (“FBI”). The amended complaint filed October 28, 1977, alleged that defendants had systematically violated plaintiffs’ constitutional rights, individually and through conspiracies, while plaintiffs engaged in lawful protest against government policy in the late 1960’s and in the 1970’s in the Washington area. Trial of the damages claim began on November 23, 1981, and continued for seventeen days. A jury of six returned verdicts, after nearly five days of deliberation, on December 23, 1981. Now before the Court are motions pursuant to Fed.R.Civ.P. 50(b), 59(a) for judgment notwithstanding the verdicts or, in the alternative, for a new trial. I. Introduction The verdicts the jury returned found most of the defendants liable to plaintiffs and awarded most of the plaintiffs substantial sums in compensatory and punitive damages. The total amount of all awards to the eight prevailing plaintiffs against the 13 defendants found liable to them was $711,937.50. Three plaintiffs recovered $81,062.50 each and five recovered $93,750 each. One plaintiff, the Washington Area Women Strike for Peace (“WAWSP”), was found not to have been injured by any defendant, and consequently had no recovery. The individual defendants found by the jury to be liable to one or more plaintiffs included five persons employed at FBI headquarters or the FBI Washington Field Office (“WFO”). Defendant Brennan was a section chief, and later assistant director, of the FBI’s Domestic Intelligence Division from 1966 to 1971. Defendant Moore served from 1967 to 1974 as a section chief in the same division as Brennan. Defendant Jones held the post of Security Coordinating Supervisor at WFO from 1964 to 1974. Defendant Grimaldi worked as a special agent at WFO from 1968 to 1970 and defendant Pangburn held a similar position from 1968 to 1972. The defendants employed by the District of Columbia included former MPD Chief Wilson, former Intelligence Division Inspector Herlihy, and four officers assigned to the Intelligence Division during some of the years when plaintiffs claimed to have been injured. Those officers were defendant Aeree, a sergeant at the relevant time; defendant Scrapper, also a sergeant; defendant Suter, then a lieutenant; and defendant Mahaney, then a line officer. The other individual MPD defendants were three undercover officers assigned to the Intelligence Division during the relevant period: defendants Bynum, Jagen, and Markovich. According to plaintiffs, the FBI defendants collaborated with each other, with other FBI agents, and with the MPD defendants in a variety of efforts to impede plaintiffs’ association with others for the purpose of publicly expressing opposition to government policies, chiefly opposition to the Viet Nam War and to policies espoused by national and local officials on race relations. Many of defendants’ activities alleged to have injured plaintiffs were related to COINTELPRO, a then-secret FBI activity begun in 1967 and discontinued in the early 1970’s. COINTELPRO had two components: COINTELPRO — New Left, which concerned activities of persons opposed to American involvement in the Viet Nam War and other related policies of the national government, and COINTELPRO— Black Nationalist, which concerned activities of persons seeking enhancement of civil rights for black persons. According to a memorandum prepared by defendant Brennan and circulated to the other FBI defendants and to agents across the country, COINTELPRO, in its “New Left” dimension, had the following objective: The purpose of this program is to expose, disrupt, and otherwise neutralize the activities of this group and persons connected with it. It is hoped that with this new program their violent and illegal activities may be reduced if not curtailed. Plaintiffs’ Exhibit 3. The purpose of COINTELPRO — Black Nationalist, according to an earlier memorandum, was inter alia to “[pjrevent the coalition of militant black nationalist groups;” the Southern Christian Leadership Conference, then headed by the Rev. Dr. Martin Luther King, Jr., was one of four “primary targets” listed in the same memorandum. The memorandum that had initiated COINTELPRO-Blaek Nationalist advised the agents to whom it was addressed, “You are urged to take an enthusiastic and imaginative approach to this new counterintelligence endeavor and the Bureau will be pleased to entertain any suggestions or techniques you may recommend.” See Plaintiff’s Exhibit 1. In addition to testimony there were in evidence some FBI documents indicating that COINTELPRO interfered tangibly with the protest activities of the kind carried on by plaintiffs. See, e.g.; Plaintiffs’ Exhibit 13 (WFO reporting that FBI distribution of fictitious addresses for housing of demonstrators at 1968 Chicago demonstrations caused “numerous demonstrators” to make “useless trips to locate nonexistent addresses.”); Plaintiffs’ Exhibit 69 (“security squad Buagents” supervised by defendant Jones instituted “an intensive interview program in the New Left community ... ” which “produced tangible results in the disruption of the day to day activities in the New Left communes....”). At trial, plaintiffs asserted, and the jury evidently was persuaded, that plaintiffs were victims of three conspiracies, actionable under 42 U.S.C. § 1985(3), to violate their civil rights. One such conspiracy, the jury found, included the five FBI defendants; another encompassed certain of the MPD defendants; and a third involved both FBI and MPD defendants. The jury also found that many of the defendants, acting outside the scope of any conspiracy, injured various plaintiffs in the exercise of their First-Amendment rights. The First-Amendment rights plaintiffs alleged had been violated included the opportunity to assemble for political protest, to associate with others in order to engage in political expression, and to speak on public issues, free of unreasonable government interference. Plaintiffs offered evidence of broad undertakings by defendants to disrupt their activities and of specific instances in which FBI and MPD action allegedly impeded those activities. Only two defendants, Bynum and Markovich, were found to be not liable to any plaintiff. Having determined that the other defendants were liable on various claims, the jury awarded varying sums to the prevailing plaintiffs against those defendants. The jury found all defendants other than Markovich and Bynum liable to plaintiffs Bloom, Abbott, Pollock, Waskow, and WPC. The jury also returned verdicts for plaintiffs Hobson, Eaton, and Booker against the five FBI defendants but, among the MPD defendants, only against former Chief Wilson and former Inspector Herlihy. All defendants except the District of Columbia and MPD officer Mahaney were found to be liable for both compensatory and punitive damages. The largest judgment against any individual defendant was that awarded against defendant Brennan, whom the jury found personally liable for $9,375 to each of the eight prevailing plaintiffs, for a total of $75,000 of which $50,000 was compensatory, and $25,000 punitive, damages. The jury returned the smallest award against defendant Mahaney, who was found liable to five plaintiffs for $1,875 each, for a total of $9,375, all compensatory. Every prevailing plaintiff recovered $37,937.50, all compensatory, from the District of Columbia. In their present motions for relief from the verdicts, the defendants found liable to various plaintiffs state numerous grounds for judgment notwithstanding the verdict (“judgment n.o.v.”) and for a new trial. Defendants assert that the instructions on conspiracy and on the defense afforded by the statute of limitations were erroneous, and that even if the instructions were correct, the jury improperly found conspiratorial liability and improperly denied them relief from plaintiffs’ claims under the statute of limitations. Defendants also assert that the damages awarded were excessive, and that the Court erred in not instructing the jury that the United States would not pay an award against the FBI defendants. The District of Columbia objects to the instructions on municipal liability, and, assuming arguendo the instructions were not erroneous, to the verdicts the jury returned against it.- And all defendants also claim that the verdicts against them for conduct allegedly performed outside the scope of the alleged conspiracies similarly were not supported by the evidence. There are numerous other objections in defendants’ motions. Each plaintiff also has sought judgment n.o.v. against defendants Bynum and Markovich, and plaintiff WAWSP seeks judgment against all the other defendants as well as Bynum and Markovich. For the reasons stated below, the Court will deny all motions, except the motion of defendants Wilson and Herlihy for relief from the jury’s award of punitive damages. II. The Instructions and Proof of Liability A. Liability under 42 U.S.C. § 1985(3) 1. The Conspiracy Instructions In their motion for a new trial the District of Columbia defendants renew their argument, first advanced at a pretrial conference and in their pretrial brief, that employees of the District cannot be liable as “persons within any State or Territory” under the terms of 42 U.S.C. § 1985(3). Defendants rest their argument on the interpretation of 42 U.S.C. § 1983 in District of Columbia v. Carter, 409 U.S. 418, 420-24, 93 S.Ct. 602, 604-06, 34 L.Ed.2d 613 (1973), in which the Supreme Court held that District employees did not in the course of their official duties act — for purposes of 42 U.S.C. § 1983 — under color of law of “any State or territory” so as to make their conduct actionable under section 1983. This action is based, however, on section 1985(3). The conspiracies that are actionable under 42 U.S.C. § 1985(3) exist whether or not the participants act under color of any official authority. The Carter decision, which did not require construction of the geographical terms of section 1985(3) that are at issue here, is wholly immaterial to this case. See District of Columbia v. Carter, supra, 409 U.S. at 421-424, 93 S.Ct. at 604-06; cf. Hurd v. Hodge, 334 U.S. 24, 31, 68 S.Ct. 847, 851, 92 L.Ed. 1187 (1948) (construing language identical to section 1985(3) in 42 U.S.C. § 1982). Hurd v. Hodge controls the question here. It would indeed be anomalous if private discriminatory conduct enjoyed a geographical immunity simply because it occurred in the nation’s capital. Cf. Hurd v. Hodge, supra, 334 U.S. at 31, 68 S.Ct. at 851. Accordingly, defendants’ motion on this issue cannot be granted. Defendants also assert now, as they did at trial, that there was no evidence of “class-based discriminatory animus” to justify an instruction on liability under 42 U.S.C. § 1985(3). Griffin v. Breckenridge, 403 U.S. 88, 96-104, 91 S.Ct. 1790, 1795-99, 29 L.Ed.2d 338 (1971), established the basic elements of conspiracies actionable under section 1985(3). The proof of a conspiracy to violate civil rights is often circumstantial, and determination of the ultimate fáctual questions of intent is peculiarly within the province of the jury. Adickes v. S.H. Kress & Co., 398 U.S. 144, 175-88, 90 S.Ct. 1598, 1617-19, 26 L.Ed.2d 142 (1970) (Black, J., concurring in the judgment). The District of Columbia defendants appear, however, to argue that it was error to instruct the jury on section 1985(3) because the alleged conspiracy was not based on racial animus. See generally Griffin v. Breckenridge, supra, 403 U.S. at 102 n. 9, 91 S.Ct. at 1798 n. 9. Passing for the moment the question whether there was sufficient evidence for the verdicts that the jury returned, it is long past dispute that section 1985(3) does not require that the targets of the conspiracy be members of a particular racial group. That principle has been clear at least since Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975). The cases now make it plain that it is the agreement vel non among the alleged conspirators to single a particular group or class for discriminatory interference with constitutional rights that should itself define the class for purposes of section 1985(3). If a conspiracy actionable under section 1985(3) does exist, it will have defined for itself the group or class of persons it intends to victimize. See Scott v. Moore, 640 F.2d 708, 718-19 (5th Cir.1981); cf. Kimble v. McDuffy, 648 F.2d 340, 346-47 (5th Cir.1981) (en banc); see also Canlis v. San Joaquin Sheriff’s Posse Comitatus, 641 F.2d 711, 719 n. 15 (9th Cir.1981) (collecting cases). See generally Hampton v. Hanrahan, 600 F.2d 600, 624 (7th Cir.1979), cert. denied on these grounds, rev’d in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). In this case plaintiffs offered, as proof of conspiratorial consensus defining the target classes, FBI memoranda launching COINTELPRO and directing agents’ attention to “New Left” and “Black Nationalist” political associations, as well as testimony of participants in the FBI program. Plaintiffs also examined the MPD defendants on the criteria explicitly used by the Intelligence Division to identify targets for the Division’s activities, and they closely questioned the MPD defendants on the implications of those criteria. There was substantial evidence from which the jury could have found that the alleged conspiracies targeted plaintiffs as opponents of the Viet Nam War or proponents of racial justice. Accordingly, the Court could not have kept plaintiffs’ claims of conspiracy from the jury. See Adickes v. S.H. Kress, supra; Hampton v. Hanrahan, supra. Conceding arguendo that the conspiracy issues had to be put to the jury, the FBI defendants raise specific objections to the content of some of the conspiracy instructions. One of their objections is that the Court incorrectly defined “overt act.” The Court defined “overt act” using the familiar standard instruction in the District of Columbia “Red Book.” As the FBI defendants correctly observe, a recovery under section 1985(3) may be had only if a plaintiff suffered an injury as a result of an act taken in furtherance of the conspiracy. See 42 U.S.C. § 1985(3) (“. .. the party so injured or deprived may have an action for the recovery of damages occasioned by such injury”); cf. Edwards v. James Stewart & Co., 82 U.S.App.D.C. 123, 125, 160 F.2d 935, 937 (1947); Fitzgerald v. Seamans, 384 F.Supp. 688, 693 (D.D.C.1974), rev’d on other grounds, 180 U.S.App.D.C. 75, 553 F.2d 220 (1977). Nevertheless, proof of the agreement itself, as distinct from compensable injury, may derive from evidence of acts done by conspirators, whether or not the act caused an injury that would be actionable under section 1985(3). See, e.g., Hampton v. Hanrahan, supra, 600 F.2d at 624. Thus when the FBI defendants contend that the Court erred in failing to instruct that “the overt act which makes the conspiracy actionable must have caused actual injury to the person, property or rights of the plaintiff,” they presumably mean to assert that the Court failed to instruct the jury that an overt act in furtherance of the conspiracy must have injured the plaintiff, if that plaintiff is to have a recovery for that injury under section 1985(3). The FBI defendants have not fairly read the Court’s instructions. The Court instructed the jury that “the defendant must ... have been proved by a preponderance of the evidence to have been a member of the conspiracy at the time the co-conspirator acted to injure the plaintiff in furtherance of his or her conspiratorial agreement.” Any question in the jury’s mind that only acts in furtherance of the conspiracy causing injury were compensable must have been put to rest by the Court’s subsequent instruction that liability would depend upon proof that “the act causing injury was committed by some one or more of [the] defendant’s co-conspirators,” if it had not been committed by the defendant himself. The separation of the basic definitions of the civil conspiracy from the elements of proof of liability in the instructions was merely a function of the fact that a Court’s instructions, like any other exposition, can only address one point at a time. “The impact of a jury instruction ‘is not to be ascertained by merely considering isolated statements, but by taking into view all the instructions given.’ ” Curtis Publishing Co. v. Butts, 388 U.S. 130, 156-57, 87 S.Ct. 1975, 1992, 18 L.Ed.2d 1094 (1967) (quoting Seaboard Air Line Ry. v. Padgett, 236 U.S. 668, 672, 35 S.Ct. 481, 482, 59 L.Ed. 777 (1915)). The instructions here introduced all the major terms the jury needed to apply, including “overt act,” and then led the jury through the order of proof of the various claims and defenses. No juror who followed the Court’s instructions could have conscientiously returned a verdict on the conspiracy theory for a plaintiff unless the juror believed that the plaintiff had proved that he or she had been injured by an act taken by a defendant or some other co-conspirator in furtherance of the conspiracy. Defendants’ second objection to the conspiracy instructions is that the instructions permitted the jury to find a defendant liable under section 1985(3) without having found him to possess the Breckenridge “discriminatory animus.” That objection, too, involves an implausible reading of the instructions. The instructions, incorporating the familiar principles of general civil-conspiracy doctrine, explained to the jury that “the participants in a conspiracy share the same general conspiratorial objective: there exists a meeting of the minds which creates an understanding to achieve the conspiracy’s objectives. Thus all participants know the common plan; each knows the conspiracy’s essential nature and general scope.” The instructions then defined a conspiracy actionable under section 1985(3) as one in which “the conspiracy discriminated with hostile intent against a group or class to which plaintiff belonged, with a view to singling out that group or class” for interference with its members’ rights under the Constitution. Under those instructions, the raison d’etre for the conspiracy was discrimination “with hostile intent against a group or class to which plaintiff belonged,” and to find a defendant liable for the conspiracy, the jury had to find that that defendant knew and agreed to the “general conspiratorial objectives.” While the instructions did state that a plaintiff must prove that “the conspiracy discriminated with hostile intent,” a person could not have been in the conspiracy, according to the instructions, unless he agreed to the “general conspiratorial objectives.” The jury could not, under these instructions, have thought “the conspiracy” to be capable of some distinct “hostile intent” not shared by those who had formed the conspiracy and defined its objectives, inasmuch as a conspiracy is simply an agreement among individuals to act together in particular ways. Thus defendants’ second attack on the conspiracy instructions, like the first, has no basis in a reasonable reading of the instructions. 2. The Conspiracy Proof [9] Defendants argue that they are entitled to judgment n.o.v. on the conspiracy issues. The evidentiary criteria for grant of judgment n.o.v. match those for grant of a directed verdict. Murphy v. United States, 653 F.2d 637, 640 (D.C.Cir.1981). Neither form of relief from a determination of the facts by a jury is appropriate unless “the evidence, together with all reasonable inferences that can reasonably be drawn therefrom, is so one-sided that reasonable men could not disagree on the verdict.” Vander Zee v. Karabatsos, 191 U.S.App.D.C. 200, 203, 589 F.2d 723, 726 (1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1066 (1979). In this case, defendants’ view of the jury’s verdicts, and the evidence upon which the verdicts were based, is not persuasive. Defendants’ principal argument for judgment n.o.v. is that the evidence demonstrated that they were simply law-enforcement officers performing their duties within relatively small, closely-knit organizations: the MPD Intelligence Division, the WFO, and the FBI headquarters unit. Undoubtedly the fact that defendants were co-workers within various police and intelligence organizations would not alone establish the conspiratorial liability the jury found. Cf. Girard v. 94th Street & Fifth Avenue Corp., 530 F.2d 66, 70-72 (2d Cir. 1976); Rackin v. University of Pennsylvania, 386 F.Supp. 992, 1005 (E.D.Pa.1974). Yet is it also possible for officers belonging to the same law-enforcement unit to conspire among themselves to engage in conduct denounced by the Civil Rights Act and actionable under section 1985(3). See Hampton v. Hanrahan, supra, 600 F.2d at 621, 623-24; cf. Rackin v. University of Pennsylvania, supra. In the present case, plaintiffs introduced substantial documentary evidence of close coordination within WFO, and between WFO and other FBI units, including headquarters, to disrupt and discredit individual and group protest activities the agents believed to be part of the “New Left” or “Black Nationalism.” The evidence of that concerted activity indicated that, consistent with FBI practice, individual agents exercised considerable discretion and initiative, subject to higher authorities’ approval, in planning and working together to disrupt protest activities in which plaintiffs were involved. There was also evidence of a similar pattern of activity among the MPD defendants, though the evidence concerning MPD activity was less extensive than that regarding the FBI. Moreover, plaintiffs introduced evidence of regular contacts between supervisory personnel of the Intelligence Division, including some defendants, and WFO agents engaged in COINTELPRO activities. On the other hand, MPD defendants denied at trial any recollection of participation by them in any concerted illegal activities with the FBI, and all the defendants indicated that whatever they did to obstruct plaintiffs’ activities was assumed by them to be specifically required by their orders from higher officials. Passing for the moment the question whether defendants were entitled to official immunity, and addressing only the character of their action as conspiracy vel non, the motions for judgment n.o.v. are not well-taken. The Court instructed the jury that “the fact that the individual defendants were engaged in law enforcement work in particular agencies of the F.B.I. and the police department is not, standing alone, proof of a conspiracy, nor does that fact preclude the existence of a conspiracy between some or all of them.” That instruction was delivered at defendants’ request. Only by impermissibly weighing the evidence could the Court now overturn the verdicts that built upon that instruction. Plaintiffs adduced documentary evidence and live testimony of wide-ranging long-term efforts by all the defendants to disrupt plaintiffs’ political activities. Evidence of express agreements to violate plaintiff’s constitutional rights was, predictably, absent from plaintiffs’ case, for the most part. But direct evidence of an agreement to achieve a particular purpose need not be present. Cf. Vander Zee v. Karabatsos, supra, 191 U.S.App.D.C. at 150, 589 F.2d at 727 (contract formation); see also Adickes v. S.H. Kress & Co., supra (civil conspiracy). How much a- particular defendant may have known of the overall design to violate First-Amendment rights was critical to plaintiffs’ case. Defendants denied knowledge of any conspiracy or scheme to disrupt lawful protests. There was evidence, including key documentary evidence, to the contrary. The scope of a defendant’s knowledge of arrangements existing between other persons must often be deduced from circumstantial evidence. If the inferences the jury has drawn from that evidence are reasonable, then the verdict must stand. Cf. Boutros v. Riggs Nat’l Bank, 655 F.2d 1257, 1259-60 (D.C.Cir.1981). Particularly is this so when the evidence did show without contradiction that defendants were positioned in organizations where oral and written information was required to move up and down and to and from them in a chain of command, as a matter of course. Cf. Hampton v. Hanrahan, supra. In light of this and similar evidence the Court cannot disturb the jury’s judgment on the issue of conspiratorial liability. B. Liability based upon non-eonspiratorial conduct Plaintiffs also alleged that individual defendants engaged in conduct proximately injuring plaintiffs that was not part of a conspiratorial design. The jury returned verdicts for most of the plaintiffs upon that theory of non-conspiratorial liability, and defendants found liable on that theory now seek judgment n.o.v. Many of the defendants held supervisory positions within the MPD or the FBI. As supervisors they had authority to direct the conduct of other agents and line officers, informants, and so-called agents provocateurs. In order to be held accountable in damages for the action of a subordinate, however, the supervising officer must have so exercised his authority as to have made his own conduct a proximate cause of the injury suffered by the victim. See Owens v. Haas, 601 F.2d 1242, 1245-47 (2d Cir. 1979), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1980); cf. Monell v. Department of Social Services, 436 U.S. 658, 694 n. 58, 98 S.Ct. 2018, 2037 n. 58, 56 L.Ed.2d 611 (1978); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978); Carter v. Carlson, 144 U.S.App.D.C. 388, 393-95, 447 F.2d 358, 363-65 (1971) rev’d on other grounds, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); Tate v. District of Columbia, Civil Action No. 81-846 (D.D.C., Oct. 26, 1981) (Greene, J.). The instructions so stated. When the defendants moved for a directed verdict at the close of plaintiffs’ evidence, the Court, without objection from plaintiffs, granted the motions of ten of them, most of whom were present or former MPD officers. There was evidence, however, that all of the other defendants played a role in the program of harassment and disruption outlined by plaintiffs’ evidence, and the evidence of their personal involvement, beyond the scope of what could properly be considered a conspiratorial plan or agreement, was not so insubstantial that it could be taken from the jury. The evidence against the defendants left in the action after the motion for a directed verdict was in some instances largely circumstantial. Defendant Mahaney, for example, an MPD officer who coordinated activities of the undercover agents Bynum and Markovich, was found liable to some plaintiffs even though Bynum and Markovich were found not liable to the same plaintiffs. There was evidence, however, that other MPD undercover activity injured plaintiffs, and the jury could have inferred that Mahaney had a supervisory role in that other injurious activity. Plaintiffs’ case against FBI defendant Pangburn also was to a large degree circumstantial. Pangburn was found liable to all the prevailing plaintiffs, even though he appears to have worked principally in the so-called “Racial Matters” dimension of COINTELPRO. The jury nonetheless returned verdicts against him in favor of plaintiffs with no direct involvement in Pangburn’s own civil-rights target groups. But those verdicts were supported by evidence that the disruption of the civil-rights movement, and the somewhat successful effort to discourage civil-rights activists from participation in anti-war protests, impeded plaintiffs engaged in either activity from free exercise of their First-Amendment rights. The Court’s task is at an end if it can discern any permissible theory of liability upon which the jury may have relied; the evidence upon which that theory may have been based need not be “strong.” Murphy v. United States, supra, 653 F.2d at 646. The plausibility of plaintiffs’ theories of liability and the credibility of the evidence for and against those theories are ultimately the business of the trier of fact. The motions for judgment n.o.v. on the jury’s findings of non-conspiratorial liability cannot be granted. C. Municipal liability [14] The District of Columbia, arguing that it could not have been liable on any theory to the plaintiffs, challenges the verdicts that the jury returned against it. According to defendant, the District of Columbia government “cannot be held liable under the theory of respondeat superior.” Defendant’s statement is undoubtedly correct. See Monell v. Department of Social Services, supra, 436 U.S. at 691, 98 S.Ct. at 2036. But the Court did not instruct the jury in a manner permitting recovery under respondeat superior. The instructions informed the jury that plaintiffs could recover damages from the District government only if an employee causing injury acted “in execution of the District’s laws, policies, or customs;” those “policies or customs,” as the Court explained, had to be “policies or customs that are made by its law-makers,” or “policies that are generally enforced by District employees in the community with the implicit approval of the District government.” Since the decisions in Monell v. Department of Social Services, supra, and Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), the principle of municipal liability for constitutional torts has had a firm basis. There is no basis in this case for distinguishing the rules established in Monell and Owen for section 1983 municipal liability from those governing the liability of the District of Columbia in non-statutory constitutional litigation. The District’s employees may be liable under a Bivens theory, and the rules governing their liability are generally to follow those existing under the statutory remedy. Cf. Dellums v. Powell, 184 U.S.App.D.C. 324, 333, 566 F.2d 216, 225 (1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). The District should be exposed to the same municipal liability, and have the benefit of the same limitations on that liability, as that attaching to other city governments. Defendant does not even appear in its motion for relief from the verdicts to press the argument that its liability should be different from that existing under Monell because its employees were not, prior to 1979, liable under section 1983. Instead, the District argues that the “evidence adduced by plaintiffs in this suit” was simply insufficient to permit an award under the Monell standard. Monell, and the Court’s instruction based upon it, created an issue of fact of whether the District employees’ actions were taken with the approval of the government. Plaintiffs argued and offered evidence that use of agents provocateurs and other plainly illegal conduct were common in the Intelligence Division. Counsel for the District were content to rest their defense principally on an MPD General Order that blandly stated that the Intelligence Division’s legitimate duties in the relevant period were to anticipate and deter unlawful disruptions within the District of Columbia. The jury was entitled to find that, despite that MPD directive, illegalities that injured plaintiffs in the exercise of their First-Amendment rights did occur, and were municipal practice, approved in the manner contemplated by the Monell Court. Given the record in this case, the Court cannot disturb the jury’s judgment that some of the District employees’ conduct was conduct executing the local government’s policies and customs. The jury found that the District government was liable for the participation of its employees in the conspiracies plaintiffs proved to have existed within the MPD and between MPD and FBI personnel. The Court could not, in view of the decision in Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir.1979), cert. denied, 444. U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1980), have withdrawn the issue of municipal conspiratorial liability from the jury on the theory that the District government is not a “person.” Moreover, defendant has, at no stage of this litigation, objected to the instructions as impermissibly permitting a verdict of conspiratorial liability against itself because it is not a “person” within the meaning of 42 U.S.C. § 1985(3). Corporation Counsel’s argument regarding the applicability of section 1985(3) to the District government was limited to the question, discussed at pp. 1166-1167 supra, of whether the District falls within the geographical terms of the statute that makes actionable certain conduct within “any state or territory.” Defendant made no attempt to disturb the Court’s decision to rely on the holding in Owens v. Haas that a municipal corporation is a “person” for purposes of 42 U.S.C. § 1985(3); indeed, Corporation Counsel did not cite Owens v. Haas on any question related to section 1985(3). To open this issue at this late stage of this protracted case would be contrary to considerations of fair and orderly trial administration. Cf. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 2754 n. 11, 69 L.Ed.2d 616 (1981). See generally Monell v. Department of Social Services, supra (municipal corporation a “person” within meaning of 42 U.S.C. § 1983); but cf. Owen v. City of Independence, supra (municipal corporation incapable of satisfying prerequisites for “good faith” immunity). III. The Statute of Limitations In September 1981 the FBI defendants sought judgment on the pleadings based upon the statute of limitations. Plaintiffs, the FBI defendants claimed, had failed to commence suit upon their rights of action within three years from the time those rights accrued, and the longest statute of limitations that might apply to the claims in this case was three years. Plaintiffs replied to defendants’ motion by seeking benefit of the doctrine of fraudulent or deliberate concealment. Plaintiffs alleged that the FBI and MPD defendants had deliberately concealed their program of disruption in the late 1960’s and early 1970’s from the public and from plaintiffs, and that consequently plaintiffs could not, through the exercise of due diligence, have learned the material facts necessary to commence the lawsuit within three years of the injuries they suffered. Defendants, however, offered in support of their motion newspaper and magazine articles from the early 1970’s that, according to defendants, should have provided plaintiffs with the material facts needed for commencement of suit; defendants also offered statements by various plaintiffs at depositions that they knew someone was either observing their activities or harassing them, and that they had, as early as 1968, considered suing government officials in response. Plaintiffs opposed the motion for judgment on the pleadings with evidence that the FBI and MPD had attempted to maintain strict secrecy about COINTELPRO and the MPD’s anti-protest activities. Not until 1976, they argued, after the hearings of the Church Committee and the inquiries of the D.C. City Council, did they possess the information they needed to sue in vindication of their First-Amendment rights. The Court denied the motion for judgment on the pleadings. See Hobson v. Wilson, Civil Action No. 76-1326 (D.D.C., Oct. 29, 1981). The Court determined that the applicable statute of limitations was the three-year statute in D.C.Code 12-301(8) (1973 ed.), and concluded that issues of fact were presented regarding inter alia the state of plaintiffs’ actual knowledge of their rights of action on July 16, 1973, the date three years before they commenced this action. As the Court noted, the doctrine of fraudulent or deliberate concealment attaches to every statute of limitations applied in federal-question litigation. See Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946). Issues of this character are not readily susceptible to summary disposition. See, e.g., Richards v. Mileski, 662 F.2d 65, 73 (D.C.Cir. 1981); Smith v. Nixon, 196 U.S.App.D.C. 276, 283, 606 F.2d 1183, 1190 (1979); Fitzgerald v. Seamans, 180 U.S.App.D.C. 75, 83, 553 F.2d 220, 228 (1977); cf. Emmett v. Eastern Dispensary & Casualty Hospital, 130 U.S.App.D.C. 50, 396 F.2d 931 (1967); see also Davidov v. Honeywell Inc., 515 F.Supp. 1358 (D.Minn., 1981), at 1361. And if the entitlement to equitable relief under the doctrine of fraudulent or deliberate concealment depends on questions of fact, those issues of fact must be resolved in a damages action by the jury. See Music Research, Inc. v. Vanguard Recording Soc’y, 547 F.2d 192 (2d Cir.1976); cf. Briskin v. Ernst & Ernst, 589 F.2d 1363 (9th Cir.1978); Jones v. Rogers Memorial Hospital, 143 U.S.App.D.C. 51, 442 F.2d 773 (1971). A. The Statute of Limitations Instructions The recent discussion of the order of proof on a claim of fraudulent or deliberate concealment in Richards v. Mileski, supra, together with the seminal decision in Fitzgerald v. Seamans, supra, provided the basis for the instructions to the jury. The Court of Appeals in Fitzgerald v. Seamans established that a plaintiff’s knowledge that some defendants were responsible for his injury did not necessarily mean that the plaintiff would have had sufficient knowledge of other defendants’ involvement intelligently to have prosecuted his claims against the others. See 180 U.S.App.D.C. at 84, 553 F.2d at 229. In Richards v. Mileski the Court of Appeals determined that a plaintiff’s knowledge that the defendants had injured plaintiff through false accusations that he was not suitable for a job was not equivalent, for purposes of the doctrine of fraudulent or deliberate concealment, to knowledge that those same defendants knew the accusations were false, and that the defendants were involved in a conspiracy to use the accusations against the plaintiff and to conceal their falsehood. Because the present case involved so many parties and so many particularized allegations of injury, the jury’s task was formidable: it had to determine, with respect to each claim, whether a particular plaintiff was, as to a particular defendant on that particular claim, barred from suit by the statute of limitations. As the Court explained that task to the jury,, it was necessary first to determine whether the plaintiff had sufficient actual knowledge of his right of action to have intelligently prosecuted it more than three years before the commencement of suit. If he did not, the plaintiff still had the burden of proving that the defendant who had raised the limitations defense deliberately concealed from him those material facts needed for intelligent prosecution. If the plaintiff succeeded in that proof, the defendant then had to prove that plaintiff could nevertheless have discovered the necessary facts within three years of the accrual of the right of action through the exercise of due diligence. See Richards v. Mileski, supra, 662 F.2d at 69-72. Defendants in their motions for a new trial assert that the instructions on the statute of limitations were defective in two respects. First, defendants insist that the jury should have been told that “mere silence by a defendant is not fraudulent or deliberate concealment.” Second, defendants argue that the Court erred in instructing the jury that deliberate concealment to serve “law enforcement considerations” defined by the FBI or MPD might — or might not — be the type of concealment against which the equitable doctrine could provide relief. According to defendants, the Court’s instruction on that point contradicted “the principle that concealment by a third party may not be attributed to the defendant” and “the principle that the concealment must have been wrongful.” Turning to the second objection first, the instructions did not violate either of the “principles” that defendants recite. The Court did instruct the jury that the defendant or (with respect to conspiracy claims) the defendant’s co-conspirators must be proved to have engaged in concealment of the relevant facts. The Court then defined “deliberate concealment” in these terms: “By deliberate concealment, I mean that defendant or a conspiracy to which a defendant belonged deliberately kept information away from a plaintiff which was material to that plaintiff’s claim. It is immaterial whether the defendant or conspiracy kept the material [sic] from plaintiff because the agency employing the defendant or the conspirators believed that law enforcement considerations required concealment, or whether the material facts were concealed for the purpose of impeding plaintiffs’ prosecution of their claims.” Such an instruction seemed essential in avoiding unnecessary complexities of motive in cases of this type. Defendants were alleged to have engaged, over a long period of time, in clandestine disruptive activities; at the time they did so, defendants assumed their efforts would remain covert. The secrecy of their operations obviously would have been violated by civil litigation as surely as it would have been by publicity of any other sort. Defendants, if they did engage in deliberate concealment, could thus have rationalized their conduct either as required for a “law enforcement purpose,” or to protect themselves from liability in damages. Indeed, because secrecy was so important to their missions, it could have seemed to defendants that “law enforcement considerations” themselves required concealment “for the purpose of impeding ... prosecution” of civil complaints. Like the schemes in Smith v. Nixon, supra, and Fitzgerald v. Seamans, supra, concealment of defendants’ activities in this case was of the essence; it would be impossible for a trier of fact in this case to have determined that the official wrongdoers concealed their operations, not in furtherance of their disruptive objectives, but exclusively to protect themselves from litigation. If, as defendants appear to argue, no concealment for such a “law enforcement” purpose as that they invoked in this case can ever be “wrongful,” then there would have been no basis for the determinations in Smith v. Nixon and Fitzgerald v. Seamans that the plaintiffs in those cases might have been entitled to equitable relief from the statute of limitations. Accepting as true the general proposition that concealment must be “wrongful,” see General Aircraft Corp. v. Air America, 482 F.Supp. 3 (D.D.C.1979), the “wrongfulness” in this case, like that in the Nixon and Fitzgerald cases, consisted of defendants’ effort to conceal COINTELPRO and the MPD activities from the public despite the unlawfulness of the FBI and MPD programs. Defendants’ other objection, that the Court erred in not instructing the jury that “mere silence” is not fraudulent or deliberate concealment, is also off the mark. To have instructed the jury in this case that “mere silence” might not be “concealment” for purposes of the limitations defense would have risked confusion. The bare concept of silence is inherently difficult to apply. What matters is not some distinction, always difficult to draw, between action and inaction (or “silence”) but the deliberateness of a defendant’s conduct in foreclosing discovery of the facts a plaintiff would need to prosecute his claim against that defendant. See Smith v. Nixon, supra, 196 U.S.App.D.C. at 283, 606 F.2d at 1190. In Richards, it was enough that the defendants had published the false reports and then held their peace, knowing the reports to have been false. See 662 F.2d at 69-70. In this case, defendants assumed false identities as protesters, as students, and as parade coordinators, or they conducted their operations in a manner otherwise calculated to conceal their official status. They maintained, as far as they were able, secrecy about their undertakings. Such conduct is functionally indistinguishable from that in Smith v. Nixon, supra. The jury had to be given an opportunity to decide whether what transpired here was not “mere silence” (as defendants characterize it), but instead was “silence” observed by defendants as a strategy for concealment that prevented a timely claim. Finally, defendants object to the placement of the limitations issue on the special verdict form as the third principal issue for the jury’s decision. According to defendants, since the statutory defense bars ■ a claim, it should have been placed first on the special-verdict form, ahead of the questions that required the jury to determine whether any plaintiff had been injured. The Court placed the limitations issue after the injury issues in order to ensure that the jury could make its findings on the statutory defense in the manner contemplated by Fitzgerald v. Seamans and Richards v. Mileski without undue confusion. The entitlement to equitable relief may, with respect to a particular plaintiff, vary among the plaintiffs’ different claims — as in Richards —or among different defendants — as in Fitzgerald. It would thus have been difficult for the jury to determine which claims were barred, and against which defendants, until it had first isolated for itself the specific allegations each of the nine plaintiffs made. It was therefore better practice to confront the jury with the basic questions of injury vel non first, inasmuch as those questions would, once framed and answered, provide the context for the questions posed by the statute of limitations. In any event, assuming the instructions were not erroneous, there is no indication that the verdicts were affected by the order in which the special form presented the questions for the jury’s decision. B. The proof regarding the limitations defense Defendants also argue, in their motions for judgment n.o.v., that the proof adduced at trial was insufficient to entitle plaintiffs to relief from the statute of limitations. According to defendants, there was conclusive evidence that plaintiffs knew of the existence of their rights of action prior to July 16, 1973. Defendants also assert that plaintiffs failed to provide adequate evidence of fraudulent or deliberate concealment, and that the evidence showed that the plaintiffs might through the exercise of due diligence have discovered whatever information they needed to commence suit within three years of their injuries. The Court has concluded, however, that the evidence on the relevant issues of fact was not so clearly in defendants’ favor as to entitle them to relief under Rule 50. See Vander Zee v. Karabatsos, supra; see also Pan America Petroleum Corp. v. Orr, 319 F.2d 612, 614-15 (5th Cir.1963). If a plaintiff has actual knowledge of facts that would have permitted him intelligently to have prosecuted a given claim against a defendant more than three years before he actually filed suit, the claim based on those facts is barred. Fitzgerald v. Seamans, supra; cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259. (1979). In this case there was highly credible evidence, much of it drawn from depositions of plaintiffs at the earliest stages of the litigation, that plaintiffs strongly suspected official misconduct long before they commenced suit. Certain plaintiffs even admitted that they had discussed among themselves the possibility of suing the government, long before July 16, 1973, and prior to the Church Committee hearings or the D.C. City Council investigations. Certain plaintiffs admitted having read articles published in New York and Washington on “secret” FBI efforts to disrupt protest organizations. The articles specifically mentioned the “Head Tax” scheme, one of the COINTELPRO programs that some plaintiffs alleged injured them. Other plaintiffs admitted to strong suspicions, sometimes confirmed by conclusive information obtained by them prior to July 1973, that some of their anti-war associates were in fact undercover police officers. On the other hand, the evidence did not establish precisely how much the plaintiffs who suspected that they were victims of official interference knew about COINTELPRO or the MPD’s activities. Plaintiffs’ suspicions were, it appeared, more often vague than specific. • They seem to have had more knowledge of official surveillance — itself perhaps not unlawful — than of concerted efforts to disrupt their protest activities. And there was ample evidence from which the jury could find that most of the Church Committee’s findings provided plaintiffs their first credible account of the conspiracies they alleged. The jury apparently segregated some claims that it deemed statute-barred from others that it considered not to be barred in a way that lends strong credibility to its overall findings on the statute of limitations issues. See Richards v. Mileski, supra; Fitzgerald v. Seamans, supra. The jury found, for example, that any otherwise valid claims against two of the defendants, the undercover officers Bynum and Markovich, were barred by the statute of limitations. There was considerable support in the evidence for those findings. By virtue of those two defendants’ infiltration of the protest organizations, the plaintiffs who might have been injured by those two defendants associated closely with Bynum and Markovich. The jury could reasonably have concluded that those plaintiffs either had actual knowledge of the two undercover officers’ roles, or could through the exercise of due diligence have discovered their roles, long before July 16, 1973. Indeed, there was evidence that at least one plaintiff had positive evidence that Markovich was a police officer prior to July 1973. But the jury’s finding that the claims against Bynum and Markovich were statute-barred did not require a finding that claims against the other defendants, even for the same injuries, were statute-barred. The jury could have determined, under the rule in Fitzgerald v. Seamans, supra, that the plaintiffs’ actual knowledge of the undercover officers’ activity could not reasonably have been expected to give them an awareness of misconduct elsewhere within the Intelligence Division or within the FBI. Far from being evidence (as the MPD defendants argue) of “inconsistent verdicts,” the jury’s distinction between claims against the undercover officers and the other MPD Intelligence Division defendants thus suggests a careful judgment that should not be disturbed. Finally, it bears noting, in connection with the verdicts against the other defendants, that the jury may well have found certain claims against them to be statute-barred while it found others not to be barred. See Richards v. Mileski, supra. The Court’s present task is at an end if it appears from the verdicts and the evidence that the jury could have reasonably found that some claims against a particular defendant were not statute-barred, and that question is easily answered in the affirmative. The jury was entitled to credit the evidence that prior to the spring of 1976 plaintiffs had no awareness, nor could they be expected to have had awareness, of the central connections among the various attacks upon them. Defendants’ challenge to the proof regarding concealment and due diligence is even less powerful than their assertion that plaintiffs had actual knowledge of the material facts more than three years before the commencement of suit. Plaintiffs had the burden of proving concealment of the material facts and they offered considerable evidence in support. There was evidence of the scope and intensity of the FBI’s attempts to ensure that COINTELPRO remained secret. There was evidence that the District of Columbia had destroyed a body of Intelligence Division documents in the 1970’s and thereby virtually obliterated much of the record of the activities of the Division. The evidence, taken as a whole, thus supported the jury’s findings that plaintiffs could not have discovered the material facts needed to prosecute particular claims. Here, too, the jury may have found that, as to particular claims — the “Head Tax” program, for example — a person could through the exercise of due diligence have discovered the facts needed for suit. But even if the evidence required such a finding on the due-diligence issue as to a particular claim, other claims could survive. Assuredly, the evidence did not compel the jury to find that all the claims a plaintiff had against a particular defendant were discoverable through the exercise of due diligence. The jury’s ultimate resolution of the due-diligence issues presented to them therefore will stand. IV. Limited Official Immunity All of the individual defendants sought benefit of the limited official immunity for law-enforcement personnel recognized in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and later decisions. In their present motion the MPD defendants assert that the evidence compelled a verdict that many of them were immune. The FBI defendants seek relief on the immunity issue only in their motion for a new trial, in which they suggest that the terms the Court used on the special-verdict form to state the immunity question were “inadequate.” The FBI defendants’ objection to the special-verdict form’s statement of the immunity issue borders on the frivolous. In lengthy instructions that apparently are not now challenged by any defendant, the Court explained to the jury the criteria for qualified official immunity, and indicated how the jury should record the verdict they reached on the immunity claims. Defendants argue, however, that the Court should have included on the special-verdict form a description of “the concept of good faith immunity.” Asserting that “[t]he concept of immunity from liability is not one which a jury of laymen could be expected readily to understand,” defendants insist that the special-verdict form should have asked: “Did the defendant believe reasonably and in good faith that his actions were proper?” The purpose of the special-verdict form was to provide a mechanism for the jury to record its findings on the question put to it by the Court; the purpose of the instructions, in whose formulation defendants participated, was inter alia to explain the concept of immunity. The criteria for official immunity would, moreover, have required a summary on the special verdict form different from that proposed by defendants. A belief that one’s actions were “proper,” even if reasonable and characterized by “good faith,” obviously will not avail a defendant who does not act within the scope of his authority. See Procunier v. Navarette, 434 U.S. 555, 571, 98 S.Ct. 855, 864, 55 L.Ed.2d 24 (1978) (Stevens, J., dissenting); Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975). Of course, the issue of whether these defendants acted beyond the scope of their authority — that is, “for reasons unrelated to the performance of their duties,” see 434 U.S. at 571, 98 S.Ct. at 864 — was clearly not as important in this case as the question whether they acted with a reasonable and good-faith belief in the propriety of their actions. But the Court had no basis in this case for withdrawing that issue from the jury in the wording of the special-verdict form. Defendants’ proposed formulation might have had that consequence and, in any event, their statement of the immunity issue does not appear to the Court to possess any material advantage for a properly-instructed jury over the formulation the Court employed. The MPD defendants argue that, because many of their activities were lawful and specifically authorized by the regulations governing the work of the Intelligence Division, and because they did not know about COINTELPRO, the jury was required to grant them immunity for any injuries they inflicted on plaintiffs in the exercise of plaintiffs’ First-Amendment rights. See Procunier v. Navarette, supra. There was considerable evidence at trial touching upon the immunity issue. Plaintiffs offered evidence tending to show that MPD officers, some of them defendants or officers acting in concert with defendants, burglarized offices of organizations in which plaintiffs were active, attempted to disrupt peaceful protest meetings, and destroyed machinery used by plaintiffs’ organizations to reproduce political leaflets. Plaintiffs also offered evidence of regular contacts between Intelligence Division personnel and FBI officials participating in design and execution of COINTELPRO schemes; such evidence could have provided a basis for a finding that the MPD defendants knew enough about COINTELPRO to know that the information they gave the FBI would be used to disrupt and discredit plaintiffs’ political activities. Defendants, however, denied any involvement in any activity not specifically authorized by law or Intelligence Division practice, and denied any knowledge of any aspect of COINTELPRO. Based upon that evidence, the jury found some defendants to be immune on certain claims of various plaintiffs, and denied immunity on other claims. The Court cannot say that the evidence that all defendants believed their conduct to be lawful, and that such a belief was reasonable under the circumstances confronting defendants, was so decisive that it would permit the Court to overturn the verdicts. In particular, the strong evidence of burglary committed by MPD officers, and the evidence that various defendants knew of the burglary, contradicted defendants’ claims that they believed in good faith and with good reason that their conduct was lawful: no regulation of the MPD relieved the Intelligence Division from the requirement of search warrants. The jury did, on the other hand, find some MPD defendants to be immune from liability for injuries they inflicted on some plaintiffs. The jury’s findings that certain defendants should be immune from liability on certain claims was not, as the other MPD defendants now argue, inconsistent with the jury’s other findings that different defendants were not immune. Defendants like Bynum and Markovich, the two defendants whom the jury found most often to be immune from liability in damages, offered detailed justifications for their conduct during their testimony. It was not unreasonable for the jury to see a difference in the belief those officers maintained concerning the lawfulness of their work, and in the reasonableness of that belief, from the belief the other, higher-ranking defendants within MPD may have possessed. Moreover, the jury also found the other MPD defendants, with the exception of defendants Wilson and Herlihy, to be immune from at least some of the claims against them by particular plaintiffs. Wilson and Herlihy were the highest-ranking officers in the MPD group of defendants. Wilson and Herlihy may also have been in the best position to know the law and the facts that might have indicated that the- MPD’s activities were violating plaintiffs’ First-Amendment rights. The Court cannot say that the jury’s possible recognition of such a hierarchy of responsibility was insupportable on the evidence adduced at trial. The plausibility of a defendant’s claim that he did not know and should not have known about the MPD’s involvement in COINTELPRO, or that he reasonably and in good faith believed his own conduct and that of the Department to be lawful, might well depend on the defendant’s position with the MPD and within the Intelligence Division. V. Admissibility of plaintiff’s exhibits Portions of plaintiffs’ proof of their claims against the FBI and MPD defendants came from FBI documents obtained either in discovery in this case or through invocation of plaintiffs’ rights under the Freedom of Informat