TATUM v. MORTON

LEVENTHAL, Circuit Judge:

This is an appeal from the ruling of the district court on plaintiffs' motion for determination of appropriate damages, expungement of arrest records and other relief.

On Sunday, April 25, 1971, plaintiffs participated in a peaceful Quaker vigil of prayer on the White House sidewalk. The purpose of the vigil was "to hold Richard Nixon in the light" in the hope that the government's war policies in Vietnam would thereby be altered. The vigil had been scheduled to continue from noon until midnight. When persons thought to be "outsiders" joined the vigil, police lines were established, and the vigil participants were ordered to disperse. When the plaintiffs refused, they were arrested. The vigil was thus terminated approximately 2 1/2 hours after its start.

Each plaintiff was arrested, photographed with the arresting officer, in accordance with standard field arrest procedures, and placed on a bus for transportation to the station house. A crowd of spectators had gathered. All plaintiffs were subject to the police booking process, including fingerprinting and mug shots and, although the time span varied among individual plaintiffs, approximately three to four hours of confinement went by before any plaintiffs were offered the opportunity to post collateral.

Thereafter, all plaintiffs except one were offered the opportunity to post $10 collateral and be released. Seventeen of the 28 adult plaintiffs refused to post collateral,

because, as some of them testified in substance on deposition, (1) they believed that their arrests were unjustified and that posting collateral would somehow give an air of legitimacy to the arrests; and (2) they held the conviction as a matter of conscience that they could not participate in the bail system which discriminated against persons without sufficient money to "buy" their release.

These plaintiffs complain of a variety of indignities before being released the next morning.

On March 13, 1974, the district court held the arrests were unlawful and that Inspector William Trussell of the Metropolitan Police Department who ordered the arrests was individually liable and that the District of Columbia was liable for the actions of Inspector Trussell. The court accepted Inspector Trussell's subjective good faith in establishing the police lines and ordering dispersal, but on an objective standard found this action unreasonable. Defendants have not contested this ruling on liability. On December 14, 1974, the district court entered its rulings on damages. Plaintiffs sought approximately $775,000 as compensatory damages, identified as: $10,000 per plaintiff for the disruption of the vigil demonstration, $10,000 per plaintiff for the arrest without cause, attendant indignities and four hour incarceration; $10,000 for each of the 17 plaintiffs who refused to post collateral and incurred longer confinement and additional indignities; and lesser amounts for plaintiffs who suffered particular injuries.

The plaintiffs are mostly older, mature individuals. At the hearing on damages, eight plaintiffs testified on a stipulation that their testimony was "typical or representative of the various types of injuries suffered by plaintiffs . . . ." Plaintiffs also sought punitive damages of $100 per plaintiff against Inspector Trussell, and $1000 per plaintiff against the District of Columbia.

The district court awarded $100 damages to each plaintiff, plus an additional $64 to plaintiff Miles Day for loss of wages. It ordered Inspector Trussell to pay $500 damages personally, the rest of damages being awarded against the District of Columbia. It denied punitive damages. On December 12, 1975, the district court held defendant Wilson, formerly Chief of Police, not liable.

The district court concluded that plaintiffs were entitled to only "limited" damages. These three paragraphs are the core of its opinion:

In seeking damages of over $775,000.00, plaintiffs have stressed the importance of their constitutional rights to them, the outrage they felt at having those rights violated, their humiliation in being arrested and briefly incarcerated, and the adverse effect of the publicity attendant to their arrest. The Court does not believe the facts of this case warrant such a massive recovery. Indeed, in fixing damages there are two facts which the Court finds to be controlling in this case. Both of these facts indicate the appropriateness of a limited recovery.

The first of these is that plaintiffs were participating in a demonstration. Their purpose in conducting their prayer vigil publicly in front of the White House rather than privately in a meeting house was to receive publicity. Plaintiffs contend they congregated in response to a newspaper story in which President Nixon on had attributed his Vietnam war policy to his Quaker background. These plaintiffs wanted "to hold him in the light" not only to influence him to change his war policy but also to publicly proclaim the Quaker heritage of pacifism. Therefore the publicity incident to their arrest was one of the objectives sought by them. This Court is unable to find that plaintiffs were greatly aggrieved because the light of publicity which they were seeking to have shine on their demonstration shone more brightly than they had anticipated. Louisiana Sulphur Car. v. Gulf Resources Chem. Corp., 53 F.R.D. 458, 461 (D.Del. 1971).

The second fact which the Court finds controlling in this case is that most of the plaintiffs chose not to post collateral and be released from custody when they were given the opportunity to do so. Instead they chose to remain in jail to protest their arrest and the bail system. Despite plaintiffs' protestations of great mental suffering, the reasonable inference the Court draws from their actions is that whatever humiliation and outrage they suffered from the disruption of their vigil and their arrests, it was not so much as to dampen their enthusiasm for demonstrating. The Court does not characterize this opportunity for further witness as a benefit to the plaintiffs. But it does perceive their refusal to post collateral as an indication that their mental distress was not unduly severe. It might be characterized as a sort of self-inflicted mini-martyrdom.

In our view, the district court's approach was in error in various respects. First, and perhaps foremost, is the conception that the recovery should be "limited" because the plaintiffs were participating in a demonstration. The right to demonstrate is a significant strand of the cluster of First Amendment rights. The vindication of these rights warrants more than token acknowledgment. If men and women come to Washington, D.C. to make a considered protest at the seat of the government, the aborting or impairment of the protest or petition for redress of grievances is a matter of concern to them. At a minimum the monetary importance of this right is indicated by the expenditures they devote to their trip, and their willingness to forego a day of their own time at home, whether at work or in recreation. Compensatory damages embrace more than recompense for monetary injury, however, as is evident from amounts for pain, suffering and humiliation. Compensation for denial of First Amendment rights should not be extravagant, say to the point of awarding the equivalent of what would be a year's, or even six month's compensation for the average person. Correspondingly such a compensation award should not be approached in a niggardly spirit. It is in the public interest that there be a reasonably spacious approach to a fair compensatory award for denial or curtailment of the right to demonstrate. The district court's "limited" approach cannot stand.

The district court continued its analysis by saying that since plaintiff's purpose was to conduct their prayer vigil publicly rather than privately in a meeting house, they in effect attained their objective by the publicity incident to their arrest. It is one thing to court publicity for a group vigil or meeting, an entirely proper exercise of First Amendment rights. It is quite another to be subject in addition to publicity of an individual arrest. These plaintiffs had duly sought and obtained a National Park Service permit for their demonstration. Their gathering was intended to be peaceful and was peaceful. They did not prevent persons outside their group from joining them, as Inspector Trussell requested. But there was no indication in the record that the persons who joined them were violent in their presence, or that plaintiffs permitted their vigil meeting to be transformed into rowdiness or rout. It may well be, as the district court observed, that their arrest helped them to achieve public awareness of their vigil. However, it cannot be said that they had the objective of an arrest or the publicity of an arrest. Their objective of publicity for a dignified vigil held under authority of a permit is not to be equated with the publicity of arrest for disobedience. Such publicity cannot fairly undercut plaintiff's entitlement to damages for an unreasonable arrest, and we cannot approve such use of concepts of offset or credit for benefits.

We turn to the fact that most of the plaintiffs chose not to post $10 collateral when they were given the opportunity to do so. The district court drew the inference that their humiliation and outrage from disruption of their vigil and arrests could not have been substantial since they retained a continued "enthusiasm for demonstrating."

Insofar as the refusal of 17 plaintiffs to post collateral was taken as a limitation on the recovery accorded for injuries sustained prior to that action we cannot accept the district court's conclusion. Their willingness to endure further confinement for reasons of principle is in no way a negation of the substantiality of the injuries already suffered. Their stoicism in being willing to suffer more later does not mean that they suffered less previously. Their willingness to suffer in what they deemed a higher cause does not undercut their right to damages for injuries suffered for a reason that has no standing either in their conscience or before the law.

There is some materiality in the district court's reference to the refusal of some plaintiffs to post collateral — especially when the amount involved is as small as $10. It bears on damages for any continuing detention. Yet the district court's per se approach — of imposing an absolute duty to mitigate — was not sound. It is not unreasonable for a plaintiff who has been arrested wholly without cause to insist that the process that is due him must include provision for reasonably prompt review of the situation by responsible persons in the criminal justice system other than the police — by prosecutors in the first instance, and then by judges. In Sullivan v. Murphy we referred to the problem presented when bail is "automatically imposed," without any provision for intervening inquiry. And the record of another case stemming from the events of spring, 1971, presents the stark reality of a Justice Department official who insisted on a collateral procedure even as to those for whom there was palpably no probable cause for arrest, hence no possibility of prosecution and no justification for further detention. On the other hand, we cannot blink the possibility of a problem of defendants who may have been subjected to what is later held to be an unlawful arrest but who deliberately presented a challenge to the authorities, and used the device of refusal to post collateral as a means of straining the community's resources.

In the last analysis, we cannot do more than say that the problem is one of reasonableness; there is no absolute rule that a defendant terminates his legal remedy by protesting the bail requirement, and yet the action has some bearing on the money value of the right involved. We can do no more in the end than say the district court had hold of a point that was material yet pushed it too far. The matter calls for more sensitive treatment on remand.

Plaintiffs claim the prolonged detention involved more than mere "indignities". They say that one man was beaten by the police and several women were required to undergo strip searches, in which they had to remove their bras and panties and squat so that their genitals could be examined by a matron. They also allege being kept overnight in such crowded confinement in cells and a corridor that, at some times, there was not even enough room for every one to sit down.

The district court did not specifically consider these allegations, or determine whether such incidents were reasonably foreseeable.

The District of Columbia Metropolitan Police Department has, since these events, issued an order which precludes strip searches unless concealment is suspected, and in any event would have precluded the conduct of strip searches in the manner plaintiffs have alleged — in view of passing policemen. This subsequent change does not obviate the possibility that the strip searches in the absence of any basis for suspicion of concealment of weapons, contraband or evidence was an unforeseeable Fourth Amendment violation independent of the original arrest and decision not to put up the collateral. We give no explicit direction on the matter but believe the district court should consider the issue afresh in the light of our guidance.

Finally, it is urged that the district court erred in giving loss of pay to only one plaintiff when there are others who also lost their pay. The district court will consider the problem on the remand and act in accordance with just disposition.

We affirm the district court's determination to deny punitive damages, and to deny individual liability in regard to defendant Wilson.

The district court was willing to grant the full relief of expungement of plaintiffs' central arrest records, rather than the more limited relief suggested by the city. Plaintiffs now contend that the district court erred, when without explanation, it failed to insert in its order a requested provision declaring that the seizures of plaintiffs shall be deemed not to have been "arrests," as was ordered in Sullivan v. Murphy, 380 F. Supp. 867, 869 (D.D.C. 1974). No petition for reconsideration was filed. This was likely a happenstance omission. The need for a fully adequate remedy is clear. Counsel for the District indicated at oral argument that it does not seriously object to this full effectuation of the expungement decree.

The case is remanded for further proceedings in accordance with this opinion.

So ordered.