First Amendment Rights and Police Standards Act of 2004, Bill 15-968
General Counsel's memorandum
January 24, 2005

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Memorandum

TO:   The Honorable Kathy Patterson
FROM:   Charlotte Brookins-Hudson, General Counsel
DATE:   January 24, 2005
SUBJECT: Statutory construction of provision in the First Amendment Rights and Police Standards Act of 2004 (Bill 15-968) that provides guidance as to how the provisions of the bill are to be construed.

QUESTION:

You have asked for an opinion on whether concerns of the Executive Branch that the First Amendment Rights and Police Standards Act of 2004 (Bill 15-968) creates a private right of action and an exception to the public duty doctrine are valid.

ANSWER:

I do not believe a court would construe the legislation as creating a private right of action. An amendment adopted on 1 s` reading removed a provision that expressly created a private right of action, replacing it with the language now in question. If the intent of the Council were to create a private right of action, it would not have struck a provision that did exactly that from the bill.

I do not believe a court would construe the legislation as creating an exception to the public duty doctrine. That doctrine provides immunity from tort liability to the District and individual police officers when the police are protecting individual members of the public from harm from third parties or other independent sources. It does not apply in situations where the police directly cause the harm, in violation of statutory or common law rights. Therefore, the issue of whether an exception to the public duty doctrine is created is irrelevant.

ANALYSIS:

It is my understanding that the Executive Branch has raised concerns that the provision governing how Bill 15-968 is to be construed (1) may create a private right of action; and (2) may create an exception to the public duty doctrine, which immunizes the District from liability for certain torts when providing services to the general public.

The provision in question states as follows:

Sec. 117. Construction.

The provisions of this title are intended to protect persons who are exercising First Amendment rights in the District of Columbia, and the standards for police conduct set forth in this title may be relied upon by such persons in any action alleging violations of statutory or common law rights.¹

Section 117 of the First Amendment Rights and Police Standards Act of 2004, passed on 2nd reading on December 21, 2004 (Enrolled version of Bill 15-968).

This provision was added by an amendment adopted at 1st reading of the legislation on December 7, 2004.² The amended language replaced the following provision:

Sec. 321. Private right of action.

Any person who is harmed by the failure of any District of Columbia employee, agent, or officer to comply with any provision of this Act may file suit in the Superior Court against the District of Columbia, which shall be liable for appropriate legal and equitable relief and for reasonable attorneys fees and costs. If a person shows that the failure to comply with this Act caused him or her to be arrested, detained, restrained, or unreasonably denied access to food, water, or toilet facilities, he or she shall be entitled to compensatory damages or $5,000, whichever is greater.

Section 321 of the First Amendment Rights and Police Standards Act of 2004, as approved by the Committee on the Judiciary on December 1, 2004 (Committee print of Bill 15-968).

I. The provision does not create a private right of action.

I do not believe a court would construe the construction provision as creating a private right of action. The amendment adopted on 1st reading removed a provision that expressly created a private right of action, replacing it with the language now in question. If the intent of the Council were to create a private right of action, it would not have struck a provision that did exactly that from the bill. See Consumer Federation of America v. Upjohn Company, 346 A.2d 725, 731 (D.C. 1975) (Logical construction of amendment that eliminated express provision for a private right of action is that Congress did not intend to create a private right of action).

The articulated rationale for the amendment adopted on lst reading explains that the Council was striking the provision creating a private right of action because there already were available remedies for violations of the First and Fourth Amendment rights of protesters. The rationale stated:

This is a compromise amendment that clarifies that courts may use the act in resolving suits filed under the First or Fourth Amendments. During the drafting process, concerns were raised that codification of a private right of action within the act would be overly broad, leading to voluminous frivolous litigation related to procedural and de minimus harm. Plaintiffs already may allege, without limitation, negligence, false arrest, false imprisonment, and excessive use of force. Those injured may seek recourse under federal causes of action for allegations of civil rights violations.

This rationale appears to have been based upon written comments provided by the Office of the Attorney General on the legislation as introduced, which contained the express provision creating a private right of action:

This provision is objectionable because it expressly creates a formal statutory remedy that would expose the City to virtually unlimited financial exposure without any corresponding benefit. There are a number of adequate remedies at common law and under federal civil rights statutes currently available to someone claiming to be aggrieved by the District of Columbia in the context of mass protests and demonstrations. For example, putative plaintiffs have a common-law remedy of negligence, false arrest, false imprisonment, malicious prosecution, excessive use of force (assault and battery) or the negligent/intentional infliction of mental or emotion distress which can be the basis for damages against the District and individual police officers.

Likewise, in cases where the police officer's conduct violates federal civil rights, there is also a remedy in place for a civil rights lawsuit for damages and injunctive relief against the District and individual officers for damages and reasonable attorney's fees. These federal claims can already be filed in either federal or Superior Court. Therefore, OAG strongly believes that there is no need for the new Section 305 as any alleged wrongful actions by MPD officers are already subject to both local and federal remedies.

Written Comments of Robert Spagnoletti, Attorney General of the District of Columbia, for D.C. Council Committee on the Judiciary Hearing on "First Amendment Rights and Police Standards Act of 2004," October 7, 2004, at 11-12.

For a court to construe the construction provision as creating a private right of action, it would have to ignore this legislative history. This is unlikely because one of the three necessary factors that a court must analyze in determining whether a statute creates an implied private right of action is whether there is "any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one." Kelly v. Parents United for the District of Columbia Pub. Sch., 641 A.2d 159, 164 (D.C. 1994), quoting Cort v. Ash, 422 U.S. 66, 78 (1975). Not only is it one of the factors that must be considered by a court, it is the "most important" factor. Id. Here, the amendment adopted on IS` reading that eliminated the express creation of a private right of action is an explicit indication that the Council elected not to create a private right of action under this statute.

For similar reasons, the intent of the amendment adopted on lst reading would make it unlikely that a court would determine that the language of the construction provision expressly creates a private right *of action. Although canons of statutory construction require a court, where possible, to construe a statute based on the plain meaning of its language, the language of the construction provision is not unambiguous and the rule itself is not absolute. Courts properly "look beyond the plain meaning of statutory language" in the following situations:

First, even where the words of a statute have a superficial clarity, a review of the legislative history or an in-depth consideration of alternative constructions that could be ascribed to statutory language may reveal ambiguities that the court must resolve ...

Second, the literal meaning of a statute will not be followed when it produces absurd results ...

Third, whenever possible, the words of a statute are to be construed to avoid obvious injustice.

Finally, a court may refuse to adhere strictly to the plain wording of a statute in order to effectuate the legislative purpose, ... as determined by a reading of the legislative history or by an examination of the statute as a whole ...

In re M.M.D. & B.H.M, 662 A.2d 837, 845-846 (D.C. 1995).

The central ambiguity to be resolved is whether the language of the construction provision stating that "the standards for police conduct set forth in this title may be relied upon by such persons in any action alleging violations of statutory or common law rights" is meant to include the provisions of Bill 15-968 as creating a statutory right for which a cause of action shall lie, independent of causes of actions already in existence, or whether it is meant to refer to any actions alleging violations of these existing statutory or common law rights. As previously stated, this ambiguity is resolved by the legislative history in favor of the latter construction.

II.   The public duty doctrine does not apply.

I also do not believe a court would construe the legislation as creating an exception to the public duty doctrine. That doctrine provides immunity from tort liability to the District and individual police officers when the police are protecting individual members of the general public against harm from third parties or other independent sources. It does not apply in situations where the police directly cause the harm, in violation of statutory or common law rights:

In places, the record alludes to the "public duty doctrine" as a defense against both the § 1983 claim and the negligence claims. This doctrine deals with the question whether public officials have a duty to protect individual members of the general public against harm from third parties or other independent sources. It stands for the proposition that a simple call for help to the police or to other officials does not establish a special relationship sufficient to create an actionable duty of the official to protect the specific person who made the call. In this case, the harm to Virtus Evans was caused directly by the officers at the scene. There is no allegation of failure to protect. The public duty doctrine, therefore, has no relevance to this case.

District of Columbia v. Evans, 644 A.2d 1008, 1017 n. 8 (D.C. 1994) (citations omitted).

Evans involved police shooting and killing the son of a mother who had called 911 to report that she needed help because her son was acting erratically. The principal claim addressed by the appellate court, brought under 42 U.S.C. § 1983, was that the decedent's Fourth Amendment right against unreasonable seizures had been violated. Plaintiff also brought claims under wrongful death, infliction of emotional distress, excessive use of force, and various negligence theories. Evans, 644 A.2d 1008.

The purpose of Bill 15-968 is to provide the police with clear guidelines to follow in handling First Amendment assemblies. The intent of the Council in enacting this legislation was to ensure that the First Amendment rights, and, correspondingly, the Fourth Amendment rights, of those assembling in the District were not compromised by the police. It follows, a fortiori, that the guidelines established for police conduct during these First Amendment assemblies could be relied upon by plaintiffs who believe their constitutional or statutory rights have been violated to bolster their claims under already existing causes of action. The construction provision expresses this intent.

The concern of the Executive Branch is that the construction provision may be construed under the precedent of Turner v. District of Columbia, 532 A.2d 662 (D.C. 1987) as creating an exception to the public duty doctrine. The public duty doctrine provides that when the District of Columbia is sued for failure to provide public services, its duty of care is "owed ... to the public, and absent a special relationship, the District of Columbia cannot be held liable." Turner, 532 A.2d at 667, quoting Platt v. District of Columbia, 467 A.2d 149, 151 (D.C. 1983).

As previously stated, the public duty doctrine itself does not apply to situations where the police directly cause the harm through actions that violate common law or statutory rights, as opposed to situations where the police are unable to fulfill their duty to protect the public from harm from third parties or independent sources. Evans, 644 A.2d at 1017, n. 8; see Morgan v. District of Columbia, 468 A.2d 1306, 1316 (D.C. 1983) (en banc) ("The duty of the Metropolitan Police Department to protect the citizens of the District of Columbia from crime is a public duty, unenforceable by any one individual."). Therefore, the issue of whether an exception to the public duty doctrine is created is irrelevant.

The Turner case stands for the proposition that a "special relationship" between a particular class of individuals and the District government may be created by statute, thereby converting what otherwise would be a general public duty into an individual duty. Prior to Turner, to convert a duty owed to the general public into a special duty, a plaintiff had to prove "(1) a direct contact or continuing contact between the victim and the governmental agency or official; and (2) a justifiable reliance on the part of the victim." Turner, 532 A.2d at 667.

The Turner court held that the required "special relationship" may be established by a statute that prescribes "mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole." Turner, 532 A.2d at 667, quoting Morgan v. District of Columbia, 468 A.2d 1306, 1314 (D.C. 1983)(en banc). However, to convert what otherwise is a general duty into a special duty, it still is necessary to prove the second element of the test - a justifiable reliance on the part of the victim. Turner, 532 A.2d at 667.

In Turner, the court found an exception to the public duty doctrine applied to a situation where the then Child Protective Services agency failed to properly investigate a situation of child abuse after receiving notification of it and children were injured as a result of that failure. The court held that the Prevention of Child Abuse and Neglect Act of 1978 created a special relationship between the District and "abused and neglected children who have been individually identified by the government agency charged with their protection." Turner, 532 A.2d at 673. The court further stated that "(w)e emphasize that this is an exceptional case, and that our holding is based on a statute, the Child Abuse Prevention Act, which imposes a special duty on a particular agency of the District of Columbia government to take certain action - set forth in detail in the statute - for the benefit of a specifically identifiable class." Turner, 532 A.2d at 675, n. 11.

Neither of the requisite elements necessary to create an exception to the public duty doctrine is established by Bill 15-968. Although the construction provision of Bill 15-968 does carve out a particular class of persons to which the protections of the bill are directed - those persons exercising their First Amendment rights - Bill 15-968 does not set forth mandatory acts for the protection of a particular class of persons rather than the public as a whole. Instead, Bill 15-968 sets forth guidelines for the police to follow when handling First Amendment assemblies or undertaking First Amendment investigations so as to safeguard the First Amendment rights of those choosing to exercise those rights. The intent of the statute is not to require police to perform certain mandatory acts to protect those exercising First Amendment rights from harm from third parties or independent sources. Rather, the intent is to ensure that the police themselves do not directly violate the First Amendment rights of those choosing to exercise them. Finally, to the extent that there is a mandatory duty to protect against harm to individuals or property during a First Amendment assembly, that duty is to the general public, not just to the persons participating in the First Amendment assembly. Therefore, the first element of the test is not met, for much the same reasons that the public duty doctrine itself does not apply to actions that would arise from violation of the First Amendment, and Fourth Amendment, rights of individuals participating in First Amendment assemblies.

It is the element of reliance that further confines the application of the public duty exception to situations where the District is obligated to provide certain services for the protection of a particular class from harm. This typically arises in a rescue situation - e.g., a person eschews taking alternative actions based on a belief that the police or fire departments will provide the necessary relief. Reliance can also be found in situations where the police "affirmatively act to protect a specific individual or a specific group of individuals from harm, in such a way as to engender particularized and justifiable reliance." Morgan, 468 A.2d. at 13131314. To illustrate this principle, the Morgan court cited to the case of Florence v. Goldberg, 44 N.Y.2d 189, 375 N.E.,2d 763, 404 N.Y.S.2d 583 (1978), in which the New York Court of Appeals held that the city could be held liable for failing to provide a substitute crossing guard at a busy intersection when the regular guard was unable to report for duty because the mother of a child who was struck by a car in the unguarded intersection had reason to rely upon the presence of a crossing guard and, based upon that reliance, allowed her child to walk to school alone. Id.

The Morgan court explained the utility of the reliance element as follows:

The second element required to establish a special relationship is justifiable reliance, by the plaintiff, upon the actions of the police. Justifiable reliance, in this context, means particular or special reliance. The definition could not be otherwise. In a civilized society, every citizen at least tacitly relies upon the constable for protection from crime. Hence, more than general reliance is needed to require the police to act on behalf of a particular individual. The plaintiff must specifically act, or refrain from acting, in such a way as to exhibit particular reliance upon the actions of the police in providing personal protection. Liability is established, therefore, if the police have specifically undertaken to protect a particular individual and the individual has specifically relied upon the undertaking.

Morgan, 468 A.2d at 1315 (citations omitted).

Here, because the intent of the statute is to provide the police with clear guidelines to govern their conduct during the handling of First Amendment assemblies and the investigation of First Amendment activities so as to prevent the police from infringing upon the First Amendment and Fourth Amendment rights of participants, the element of reliance is missing. This is not a situation where the police have an affirmative duty to act to protect those exercising First Amendment rights from harm. Rather, it is a situation where the statute is setting forth guidelines so that the police will not interfere with individuals exercising their First Amendment rights. For these reasons, those exercising their First Amendment rights would not be in a position to justifiably rely upon the police to protect them from harm in a manner different than members of the general public. Therefore, the statute does not create an exception to the public duty doctrine. 

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1. An identical provision appears as section 213 in Title II of the legislation. 

2. The amendment was moved by Councilmember Kathy Patterson.