Sullivan v. Murphy (478 F.2d 938, 1973)

LEVENTHAL, Circuit Judge:

This case arises from the civil disturbances in Washington, D. C., between April 22 and May 6, 1971, in connection with the “May Day” demonstrations protesting American military involvement in Southeast Asia. During this period a total of 14,517 persons were arrested on a variety of charges, the most common of which were disorderly conduct, violation of police lines, unlawful assembly, and unlawful entry onto public property. The vast majority of those arrested were required to post collateral bond to obtain their, release from custody. Approximately 3,749 of the resulting cases were terminated administratively and never entered judicial channels. Another 9,666 cases came to final disposition in the Superior Court of the District of Columbia, but only 871 of these proceeded to a full trial on the merits. The present controversy centers around the procedures used by police in effecting these arrests, the disposition of criminal charges, and the continued maintenance of arrest records.

I. BACKGROUND

On May 24, 1971, this class action was brought in the United States District Court by the Plaintiffs on behalf of themselves and all other persons “arrested, in the District of Columbia during the week of May 3, 1971, for whom the authorities lack a contemporary field arrest form, [Pjolaroid photograph or other evidence of probable cause to support the charges [then] pending against them.” Defendants (appellees) were the Corporation Counsel, Chief of Police, Mayor, and Clerk of the Superior Court. Plaintiffs requested, inter alia, that certain acts of the Defendants with respect to the arrests and ensuing prosecutions be declared unconstitutional, that further prosecution of the Plaintiffs be enjoined, and that all sums posted as collateral bond to secure the release from detention of members of the plaintiff class be deposited in the District Court to be refunded to the Plaintiffs.

Plaintiffs accompanied their complaint with motions for a preliminary injunction and temporary restraining order barring the Defendants from prosecuting members of the plaintiff class or from causing their bond to be forfeited. The motions were denied by an order of the District Court (filed May 25, 1971) on the ground that Plaintiffs had failed to demonstrate either irreparable injury, or that the prosecution was rooted in harassment or bad faith. On May 26, on interlocutory appeal, 28 U.S.C. § 1292(a)(1), the motions panel of this court, after hearing argument, reversed the District Court’s ruling, and entered an order enjoining Defendants from the further prosecution of any cases against members of the plaintiff class in which the Defendants “do not reasonably believe they have in their files and records adequate evidence to support probable cause for arrest and charge” and requiring Defendants to take all reasonable steps to assure that members of the plaintiff class received timely notice of the. dismissal of any charge so as to avoid unnecessary court appearances. The order was entered pending disposition of Plaintiffs’ motion for a preliminary injunction. Sullivan v. Murphy, 143 U.S.App.D.C. 382, 444 F.2d 840 (1971).

On June. 10, 1971, Plaintiffs amended the complaint to enlarge the plaintiff class to include all persons arrested dur-' ing the week of May 3 with respect to whom, “irrespective of alleged contemporaneous field arrest forms, photographs or other evidence, the . . . authorities could not, after an adequate personal consultation with the witness or witnesses, establish a prima facie case. . . .” The prayer for relief was also expanded by adding requests that the Defendants be enjoined from prosecuting any case that had not previously been screened to determine the existence of probable cause for arrest and prosecution, that all forfeitures of collateral bond be set aside except in eases for which adequate probable cause exists and in which the accused had knowingly and intelligently waived his right to a trial on the merits, that a judgment issue declaring the rights of the Plaintiffs to the expungement of all arrest records pertaining to members of the plaintiff class, and that, pending determination of the Plaintiff’s right to expungement, an order issue prohibiting the dissemination of these arrest records.

The District Court entered its findings and order with respect to Plaintiffs’ motion for a preliminary injunction on June 23, 1971. Judge Corcoran concluded that Plaintiffs’ suit was maintainable as a class action; that no modification of our order of May 26, 1971, was necessary to prevent irreparable injury to the plaintiff class, and that consideration of Plaintiffs’ request to expunge arrest records was premature. He therefore directed that the May 26 order continue in effect for an indefinite period of time but denied the Plaintiffs’ prayers in all other respects.

On August 3, 1971, the District Court denied Plaintiffs’ written motion, filed July 2, to expand relief and also denied a motion made during oral argument for an order directing the expungement of all arrest records in the Superior Court relating to members of the plaintiff class.

This appeal followed.

On September 22, 1971 the then-sitting motions panel of this court heard oral argument on Plaintiffs’ motion, filed August 19, 1971, for summary reversal of the order denying the preliminary. injunction, and Defendants’ cross-motion of September 9, 1971, for summary affirmance.

On October 1 1971, this court entered an order (unreported) that granted most of the relief Plaintiffs had sought. The matter of expunging arrest records was reserved. Defendants filed a petition for rehearing; we heard argument thereon on December 13, 1971; received additional memoranda; and heard rear-gument on July 12,1972.

II. THE FACTUAL SETTING

The case is before us on interlocutory appeal from denial of a preliminary injunction, and the facts may be subject to amplification and refinement upon entry of a final judgment on a full record. A heft of the pertinent facts, sufficient for interlocutory purposes, is available not only from affidavits filed in District Court with the motion papers, including Superior Court transcripts incorporated therein, and files of the District Court and this court in related cases, but also information supplied by Defendants to this court at our request.

Both the Metropolitan Police and the Clerk of the Superior Court maintain systems of computerized files. This court was furnished with a computer print-out listing each case processed by the Superior Court pertaining to a member of the plaintiff class, together with its ultimate disposition. It developed, however, that these records were, at the same time, both voluminous and fragmentary. We directed the Defendants to provide additional statistical data relating to the arrests of members of the plaintiff class and to the disposition of the criminal charges that were lodged against them. We appreciate the diligent efforts of the Corporation Counsel and the Clerk of the Superior Court in securing these data. We now present the shape of the circumstances of the fateful period as they may fairly be discerned from the record before us.

A. Arrests.

One of the Plaintiffs’ chief grievances is addressed to the way arrests were made during the May Day period. We shall first outline the arrest procedures customarily employed by the Metropolitan Police Department, and then consider the facts surrounding the arrests put at issue in the instant case.

1. District of Columbia arrest procedures

Customary procedures

A police officer in the District of Columbia has authority to arrest without a warrant any person whom he has probable cause to believe has committed an offense in his presence. When the arresting officer does not proceed by way of mere citation to appear at a later date, he ordinarily escorts his prisoner to the local precinct stationhouse, where the arrest is recorded and the defendant booked. Customarily, the evidence shows, .persons arrested for violating municipal ordinances or other petty offenses of the disorderly conduct type are not fingerprinted or photographed, although this is subject to the booking officer’s discretion. During the booking process, the arresting officer fills out a complaint form, identifying the person taken into custody and describing both the circumstances of the apprehension and the precise nature of the charge; the information so recorded is later used by the Corporation Counsel as the basis for preparing a formal information charging the defendant.

Following completion of the booking procedures, the person arrested is given an opportunity to secure his release by posting collateral bond at the station-house in accordance with a schedule prescribed by the Superior Court. In the case of petty offenses, the accused may elect to waive trial altogether by forfeiting the collateral security.

The District of Columbia Code prescribes that every person taken into custody, whether with or without a warrant, shall be brought before a judicial officer “without unnecessary delay.”

Massive disorder procedures

During the widespread rioting and looting that followed the 1968 assassination of Dr. Martin Luther King, it became obvious that the customary arrest, booking, and arraignment procedures were too cumbersome to be used in periods of massive civil disorder. Specifically, the requirement that arresting officers escort their prisoners through the booking process and be available to testify at pretrial hearings severely depleted the number of policemen present for street duty at a time when they were most urgently needed.

In response to the recommendations of various committees appointed in the aftermath of the 1968 riots, new procedures were adopted by the Superior Court and by the Police Department to expedite the processing of persons arrested during large scale disorders. Under this plan, arresting officers were to complete a Field Arrest Form on the scene, recording the identity of the arrestee, the circumstances of the apprehension — including the charge and material elements of the specification — the name, unit and badge number of the arresting officer, and the identity of any other officer who had witnessed the arrest. As a further means of supporting the validity of the apprehension, a Polaroid photograph was to be taken showing “the arresting officer and his prisoner together.” Once these field procedures had been completed, the officer who made the arrest was free to transfer the arrestee to other police personnel for transportation and booking, thus enabling him to remain at the scene of the disorder.

Bookings were to be accomplished at central locations on the basis of the information set forth in the arrest forms. It was also contemplated that the Corporation Counsel would use these data to prepare informations against the accused, obviating the need to interview each arresting officer. Finally, and significantly, the Superior Court agreed to accept the completed arrest forms and Polaroid photos, in lieu of direct testimony by the arresting officer at the presentment, as evidence of probable cause, to support an order holding the accused to answer.

2. Protest Activity Through Sunday, May 2, 1971

Beginning in late April, 1971, Washington became the scene of numerous demonstrations, marches, and protest activities designed to focus national attention upon the continuing U. S. military presence in Southeast Asia. In their early stages, these took the form of sporadic and isolated encounters involving only a handful of demonstrators. But by May 3 they had grown to immense proportions, culminating in a massive confrontation with police, which saw thousands arrested and which taxed the District’s criminal justice system to the breaking point.

Into this vortex tens of thousands of people were drawn. They came from all parts of the nation, many of them traveling long distances to participate in the demonstrations planned for the Nation’s capítol. Their ranks spanned American society; and although college undergraduates predominated, people from many different stations in life were also involved.

They represented a broad spectrum of philosophy and goals. Some were from the outset dedicated to provoking direct, and indeed violent, confrontations with public authority. Others, though committed to nonviolence, espoused the tactics of civil disobedience. Still others were determined to carry out their protest activity by entirely lawful means. Finally there were the bystanders and observers — thousands who were not participating in the anti-war movement, but were pulled by the magnet of viewing first hand the events of great moment they sensed were about to unfold.

Several minor demonstrations took place during the week of April 11. The first large scale protests were scheduled for the week of April 18 through 24. By Monday, April 18, several thousand members of the Vietnam Veterans Against the War had arrived in the city. A series of demonstrations was conducted at the Capitol, and a delegation of these veterans attending a meeting of the Senate Foreign Relations Committee. Principally, however, the activities of these, veterans took the form of buttonholing individual members of Congress in an effort to gain support for end-the-war legislation.

On Friday, April 23, demonstrators numbering in the tens of thousands began to assemble at a campsite that had been established, with Justice Department permission, in West Potomac Park. The following day more than 175,000 persons, according to final police estimates, participated in a march from the Ellipse to the Capitol. It culminated in a rally lasting some five hours, which featured speeches by leaders of the anti-war movement and by several members of Congress.

Throughout the week of April 18, protest activities had been nonviolent and generally well-disciplined. There were no serious encounters with police, and arrests were few. But following the march and rally of Saturday, April 24, a more militant faction gained control of the protest, and some of the initial groups withdrew. The new demonstration leaders announced a program of mass civil disobedience A program was developed to conduct protest activities at specific Government offices during the week of April 26, apparently with the hope of inducing Federal employees to join the protest by absenting themselves from work, and, if this should fail, to threaten a blockade May 3 of highways leading into the capital. The demands were for an immediate withdrawal of troops from Southeast Asia.

Demonstrations were held at Selective Service Headquarters on Tuesday, April 27th and Wednesday the 28th. In all, there were more than 255 arrests, and most of those apprehended were charged with disorderly conduct.

The following day, the focus of the protest shifted to the Department of Health, Education and Welfare, where 243 persons were taken into custody for parading without a permit.

On Friday, April 30, an effort was made to block entrances to the Department of Justice and to interfere with employees going to and from work. A total of 385 persons were arrested, primarily on charges of disorderly conduct and obstructing building exits.

Saturday, May 1, was a day of relative calm, and only two arrests took place in connection with protest activity. That evening, however, the demonstrators' permit to use West Potomac Park was revoked on the ground that its conditions had repeatedly been violated.

Sunday morning, May 2, a formal order was issued by the Government directing all persons to vacate the Potomac Park campsite. After waiting several hours for compliance, the police proceeded to clear the area. A confrontation followed; and 403 persons were taken into custody, most of them on charges of unlawful entry or disorderly conduct.

As to all arrests made prior to May 3 in connection with protest activity, it appears that the Metropolitan Police adhered to the field procedures established for massive disorder situations. Field Arrest Forms were duly prepared, and photographs were taken contemporaneous with apprehension. It also appears that the police followed a policy of refusing to accept stationhouse collateral from those who had been taken into custody. Instead, the Corporation Counsel filed informations, and the persons arrested were then brought before the Superior Court, whose judges, sitting in continuous session, conducted preliminary hearings and fixed bail.

3. The Events of Monday, May S, 1971.

Some 7,926 arrests took place on Monday, May 3, 1971. These resulted in disorderly conduct charges lodged against 7,599 persons. The resulting strains on the criminal justice system were unparalleled. Police resources were stretched to the limit; detention facilities were filled to overflowing; the prosecutor’s office was inundated with complaints; and the Superior Court’s calendar was ■ choked for months.

a. Protest activities.

During the weekend of April 30 through May 2, protest leaders announced the specifics of their plan to block access to the city in the midst of Monday’s rush hour. Key points were selected for obstruction: the Roosevelt, Key, Memorial, and 14th Street Bridges, Dupont, Washington, and Scott Circles, Mount Vernon Square, and the intersections of Constitution and Pennsylvania Avenues. Most Federal employees live in the Maryland and Virginia suburbs and use these arteries daily in commuting to their offices. If the demonstrators’ program had become effective, the result would have been a massive blockage of the operation of the Government.

In preparation, some Federal offices asked volunteer employees to report for work in the early morning hours and to prepare for a protracted stay. Others permitted workers to remain at home but announced that their absence would be charged against accrued leave time. All available police reserves were ordered to duty. The District of Columbia National Guard was called up for annual training. Some 4,000 Federal troops were deployed in the city at the request of Police Chief Jerry; Wilson.

The authorities were generally able to anticipate the movements that the demonstrators planned. Many protesters arrived at the designated target locations only to find ample numbers of police and support personnel already in position. Several attempts were made to block the critical intersections with disabled vehicles and makeshift barriers, but the police removed these in short order. Police, fire and sanitation personnel also counteracted efforts to set trash containers afire and to strew the streets with nails 'and broken glass. At Key Bridge and the 14th Street Bridges, demonstrators charged police lines en masse, but were repulsed by police with truncheons and barrages of tear gas. For the most part, the police succeeded in frustrating the planned disruptions; and the traffic snarls that did ensue were limited to delays of from eight to ten minutes. Some Federal employees were late in reporting for work. But absences, reported officials at the close of the day, had in fact been lower than on an average workday.

b. Arrest procedures.

The authorities were confronted on May 3 with the need to prevent any build-up of large numbers of persons at the focal points of the demonstration. There was a danger that the police ranks would themselves be overwhelmed. There was also the possibility that crowds of people would, by the mere fact of their presence, thwart efforts to keep the highways open.

The police responded to the situation by making mass arrests. In so doing, however, they swept up innocent persons along with the lawbreakers. The Washington Star quoted Assistant Police Chief Hughes as saying: “We had them and we had to do something right away. Someone can judge the rightness of it later.” This is, of course, not evidence as such, but it vividly summarizes the situation fairly apprehended from the record.

The crux of the question that comes to focus in the case at bar is whether the police judgment, in coping with the problem on the streets, to take detention action that impeded the liberty of some innocent along with the guilty, was accompanied by post-arrest procedures which, at least in the context of the mass arrests, operated to deny constitutional rights.

The record indicates that a few of the May 3 arrests — apparently those taking place in the early morning hours — were effected pursuant to the established field arrest procedures. The Corporation Counsel states that his office prepared approximately 275 informations “on the basis of data reflected in field arrest forms” and some additional 60 in-formations “on the basis of papers forwarded by the Police Department which, although not as informative as field arrest forms” might nevertheless be regarded as their substantial equivalent.

The pivotal moment was 6:23 a. m., when Police Chief Jerry Wilson issued an order suspending normal field arrest procedures. According to Chief Wilson’s sworn testimony in another action, incorporated into the record of this case, his decision was motivated by reports that demonstrators were in the process of damaging automobiles and blocking traffic at a number of locations. He also testified as to his apprehension of “serious property damage or death or serious injury to innocent persons if the city were closed or if the demonstrators should decide to do something more than simply block traffic, as, for example, loot or engage in acts of trashing or arson,” and his conclusion that “it is not practical for the police to rapidly arrest hundreds of individuals who are blocking traffic and process them through the field arrest process.”

This suspension remained in effect throughout the day, and for the vast majority of the nearly eight thousand persons taken into custody neither field arrest forms nor Polaroid photographs were prepared at the time of apprehension. Instead, the arrestees were simply loaded aboard vehicles and taken to various detention areas that had been established, principally Robert F. Kennedy Stadium and the District of Columbia Jail. Arresting officers did not accompany their prisoners. Indeed, in many instances, the arrestee had no way of even becoming aware of the identity of the officer making the arrest, because many policemen wore neither badges nor name tags.

While no final evaluation or determination is made at this time, Plaintiffs have presented evidence that many persons were deprived of their liberty without a scintilla of evidence tending to show that they had committed an offense. The following, relating to different areas of the city of significant import on this day, are illustrative:

The record incorporates testimony of a professor of law at George Washington University that, while standing on a sidewalk near the University precincts (approximately 20th and G St. N.W.) wearing a “Legal Observer” armband, he was arrested without justification by a police officer who accused the professor of bumping into him. He stated that the officer was not wearing a badge or name tag and that the policeman did not inform him of the charge he intended to lodge.

A resident of Georgetown relates that he was arrested on M Street, N.W., in the vicinity of 28th Street while attempting to obey the instructions of another police officer who had told him to return to his home.

An observer in the area of Mount Vernon Square (7th and K Streets, N. W.) stated under oath:

Then there were several other people who were just traveling through the area. These people looked to be demonstrators, but they were simply marching — they were simply walking down the street, and the police officers would say, “get those two” and they were arrested.

A member of the District of Columbia bar, who was a legal observer in the Du-pont Circle area (approximately 19th and 0 Streets, N.W.) swears that he was “arrested for no apparent cause. He was not demonstrating and not blocking traffic.” H