United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 2000 Decided December 1, 2000
No. 00-7108
Hullon Griggs,
Appellee
v.
Washington Metropolitan Area Transit Authority and
District of Columbia Metropolitan Police,
Appellees
Douglas S. Haymans,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 99cv01552)
Gerard J. Stief, Associate General Counsel, Washington
Metropolitan Area Transit Authority, argued the cause for
appellant. With him on the briefs were Cheryl C. Burke,
General Counsel, and Robert J. Kniaz, Deputy General Coun-
sel.
Kim M. DiGiovanni argued the cause and filed the brief
for appellee Hullon Griggs.
Before: Edwards, Chief Judge, Rogers and Garland,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: In this interlocutory appeal, the
court addresses whether an employee of the Washington
Metropolitan Area Transit Authority ("WMATA") is absolute-
ly immune from suit for negligent conduct arising during the
course of making an arrest. As a result of his arrest, Hullon
Griggs sued WMATA and Metro Transit Police Officer Doug-
las Haymans, as well as the D.C. Metropolitan Police Depart-
ment, alleging in part that Officer Haymans negligently failed
to control his police dog in the course of arresting Griggs.
The district court denied Officer Haymans' motion to dismiss
the complaint on the ground of absolute immunity, and,
alternatively, for summary judgment on the ground that the
complaint was barred by the one-year statute of limitations
for assault and battery. Because the WMATA Compact, D.C.
Code s 1-2431 et seq. (1981), provides that Officer Haymans'
conduct in arresting Griggs was subject to the laws applicable
to a member of the D.C. Metropolitan Police Department, and
because Officer Haymans' statute of limitations defense is
meritless, we affirm.
I.
According to the complaint,1 the D.C. Metropolitan Police
Department contacted the WMATA Transit Police in the
early morning hours of May 26, 1996, for the assistance of a
canine unit in responding to a "burglary two in progress" at
__________
1 In reviewing the denial of a motion to dismiss on the ground
of immunity, the court must treat the allegations of the complaint as
true. See United States v. Gaubert, 499 U.S. 315, 327 (1991) (citing
Berkovitz v. United States, 486 U.S. 531, 540 (1988)); Schuler v.
United States, 617 F.2d 605, 608 (D.C. Cir. 1979).
the Madison Grocery store in Northwest, Washington, D.C.
Metro Transit Police Officer Douglas Haymans and a police
dog named "Buddy" responded to the scene. Upon their
arrival, Officer Haymans released the dog into the Madison
Grocery to search for the suspect. The dog located Hullon
Griggs, who was asleep. When Griggs awoke, the dog's paws
were on his head. As Griggs attempted to push the dog
away, the dog began biting Griggs' right arm.
At this point, Officer Haymans entered the grocery store
and ordered Griggs to stand and place his hands on his head.
Griggs explained to Officer Haymans that the dog was biting
him while he was on the ground, and that his efforts to push
the dog away had failed. Officer Haymans pulled the dog
away from Griggs and again ordered him to stand and place
his hands over his head. Griggs complied immediately. Offi-
cer Haymans then released the dog and commanded him to
attack Griggs. Griggs again made attempts to push the dog
away, but the dog continued to attack him, inflicting multiple,
serious wounds on Griggs' arms, legs, and torso. Instead of
commanding the dog to stop, Officer Haymans ordered
Griggs to stay still and allowed the dog to continue to attack
him. Then, Officer Haymans ordered Griggs to drop to his
knees and place his hands on his head. Griggs complied, and
Officer Haymans handcuffed him and pushed his head to the
ground, during which time the dog continued to attack
Griggs. Officer Haymans finally commanded the dog to stop
his attacks. As Officer Haymans picked up Griggs, Griggs
complained that the dog had injured him.
Officer Haymans then took Griggs outside of the grocery
store, at which point a D.C. Metropolitan Police officer asked
what had occurred inside. Officer Haymans responded that
the dog "had not worked out in a while" and "he needed it."
Griggs was transported to the Fourth District Headquarters
by D.C. Metropolitan Police where Officer Haymans photo-
graphed Griggs' injuries and commented that the dog "got a
good workout." Griggs was thereafter taken to D.C. General
Hospital for treatment of the dog bites and then to the D.C.
Jail for processing for unlawful entry, attempted theft, and
burglary. Later, on two separate occasions while on his way
to court, Griggs fainted and was transported to D.C. General
Hospital. After his arraignment and release, Griggs contin-
ued to suffer from the injuries inflicted by the dog. On May
31, 1996, he called "911" and was transported to Howard
County General Hospital where he was admitted for "infected
hematoma secondary to dog bite" and where he remained
hospitalized until June 5, 1996.
On May 24, 1999, almost three years later, Griggs filed a
complaint in the D.C. Superior Court alleging negligence by
WMATA and Officer Haymans for failure to control the police
dog and by the D.C. Metropolitan Police Department for
improper supervision. On June 15, 1999, the case was re-
moved to the United States district court pursuant to s 81 of
the Compact. See D.C. Code s 1-2431(81) (1981). As rele-
vant here, WMATA and Officer Haymans moved to dismiss
the complaint on the ground of absolute immunity under s 80
of the Compact for claims involving governmental functions,
see id. s 1-2431(80), and alternatively, for summary judgment
on the ground that the complaint was barred by the one-year
statute of limitations for assault and battery. See id.
s 12-301(4). The district court denied the motion. On re-
consideration, the district court granted WMATA's motion on
the ground of absolute immunity, citing Burkhart v. WMA-
TA, 112 F.3d 1207, 1216-17 (D.C. Cir. 1997), but denied
Officer Haymans' motion for reconsideration.
II.
On appeal, Officer Haymans contends that the district
court erred in rejecting his claim of absolute immunity be-
cause he was acting at all times within the scope of his
employment and because his police activity constituted a
"quintessentially governmental" function. He relies on the
statement in Beebe v. WMATA, 129 F.3d 1283 (D.C. Cir.
1997), that WMATA employees "enjoy absolute immunity
from state-law tort actions when the conduct at issue falls
'within the scope of their official duties and the conduct is
discretionary in nature.' " Id. at 1289. Officer Haymans also
contends that the district court erred in ruling that the
complaint was not barred under D.C. Code s 12-301(4),
which provides a one-year statute of limitations for excessive
force claims. Because Officer Haymans' statute of limitations
contention is meritless inasmuch as Griggs' complaint sounds
in negligence for which there is a three-year statute of
limitations, see id. s 12-301(8), as well as in intentional tort
for which there is a one-year statute of limitations, see
McCracken v. Walls-Kaufman, 717 A.2d 346, 350-53 (D.C.
1998); Etheredge v. District of Columbia, 635 A.2d 908, 918
(D.C. 1993),2 we turn to Officer Haymans' immunity claim.
In Beebe, the court addressed whether WMATA employees
have immunity when WMATA itself is immune because the
alleged tort occurred during the exercise of governmental or
discretionary functions. See Beebe, 129 F.3d at 1288. Beebe,
a former WMATA employee, filed suit against his former
supervisors for, among other things, breach of contract and
constructive discharge, fraud, gross negligence, and defama-
tion, in connection with their implementation of an office
reorganization that expanded Beebe's responsibilities. See
id. at 1286. As a result of his unsatisfactory performance in
the new position, his supervisors eliminated that position and
created a new equally-ranked position. See id. Beebe was
not selected for that position, however, but was instead
selected for a lesser position, causing his office ranking to
drop. See id. Because s 80 of the Compact, which provides
immunity to WMATA only where torts are committed in the
course of governmental functions, is silent on the scope of
WMATA employees' immunity when WMATA itself is im-
mune, the court looked to the federal common law. See id. at
1288. Applying the distinction between discretionary and
ministerial functions, as articulated in Westfall v. Erwin, 484
U.S. 292 (1988), the court held that the WMATA supervisors,
whom Beebe did not allege had acted outside the scope of
their duties, were immune from suit insofar as their actions in
__________
2 The statute of limitations contention is properly before the court
in this interlocutory appeal. See Kiska Constr. Corp.-U.S.A. v.
WMATA, 167 F.3d 608, 611 (D.C. Cir. 1999); Gilda Marx, Inc. v.
Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C. Cir. 1996).
implementing the office reorganization, "lying at the core of
[their] official responsibilities," were discretionary in nature.
Beebe, 129 F.3d at 1289. The court also observed that:
not all intentional or malicious torts committed in the
normal course of employment necessarily fall within the
scope of official duties. Officials "exceed the outer pe-
rimeters of their responsibilities, and act manifestly be-
yond their line of duty," for example, "when they resort
to physical force to compel the obedience of their mana-
gerial subordinates ... or when they use false threats of
criminal charges to coerce an employee into resigning.
Id. (quoting McKinney v. Whitfield, 736 F.2d 766, 771-72
(D.C. Cir. 1984), and citing Bishop v. Tice, 622 F.2d 349, 359
(8th Cir. 1980)).
The district court applied Beebe's instruction to look to
federal common law when it concluded, under Westfall, that
although Griggs conceded that Officer Haymans was acting
within the scope of his employment, an individual transit
officer's conduct in making an arrest is a ministerial function
for which he may be held liable. The district court also
looked to Dellums v. Powell, 566 F.2d 216 (D.C. Cir. 1977).
In Dellums the court observed that Carter v. Carlson, 447
F.2d 358, 366 (D.C. Cir. 1971), rev'd in part on other grounds
sub nom. District of Columbia v. Carter, 409 U.S. 418 (1973),
as well as Wade v. District of Columbia, 310 A.2d 857, 860
(D.C. 1973), "recognized that the arrest function involved
discretion in the ordinary sense but not discretion in the
policymaking sense, which is the interest protected by munici-
pal immunity." Dellums, 566 F.2d at 223 n.25. The court
had explained in Carter, that "the law is clear that an
arresting officer has no immunity from suit for torts commit-
ted in the course of making an arrest", 447 F.2d at 362-63,
even though "a high degree of discretion is clearly involved in
deciding when and how to make an arrest...."3 Id. at 363
__________
3 In Carter, the plaintiff sued a member of the D.C. Metropoli-
tan Police Department for assault and battery when the officer
allegedly beat him after arresting him without probable cause. See
447 F.2d at 360-61.
n.9. Accordingly, the district court reasoned that, absent
federal common law dictating otherwise, "it is inappropriate
to conflate discretionary police activity, from which liability
WMATA is shielded, with ministerial arrest activity, from
which liability individual police officers are not necessarily
shielded." The district court ruled that "[t]he facts as alleged
[in the complaint] support the inference that [Officer Hay-
mans] may have crossed the line from official duty to illicit
brutality or otherwise performed negligently in his supervi-
sion and use of [the dog]," and thus Officer Haymans was not
entitled to absolute immunity.4
The correctness of the district court's legal conclusion is
demonstrated upon consideration of the WMATA Compact
itself. That Compact, executed by Virginia, Maryland, and
the District of Columbia, and approved by Congress in 1966,
originally gave the WMATA transit police very limited police
powers, reserving the vast majority of police work for each
member jurisdictions' own police forces. See D.C. Code
s 1-1431(76) (1967); see also Hall v. WMATA, 468 A.2d 970,
971 (D.C. 1983). However, in 1976 Congress amended s 76,
expanding the police powers of the transit police so that they
supplemented area police forces and supervised bus and rail
service. Section 76(b) provides in relevant part that:
[a] member of the Metro Transit Police shall have the
same powers, including the power of arrest, and shall be
subject to the same limitations, including regulatory limi-
tations, in performance of his or her duties as a member
of the duly constituted police force of the political subdi-
vision in which the Metro Transit Police member is
engaged in the performance of his or her duties.
__________
4 In originally denying the motion to dismiss on the ground of
immunity, the district court noted that "the parties have not prof-
fered evidence of the standard of permissible police action for the
court to determine, as a matter of law, whether Officer Haymans
acted beyond the bounds of his official duties." Assuming the
parties had done so, the district court concluded that the allegations
in the complaint, if true, would "preclude dismissal at this phase [of
the case]."
D.C. Code s 1-2431(76(b)) (1981). Thus, in the District of
Columbia, a Metro Transit Police officer engaged in a crimi-
nal investigation and an arrest has the same powers and
limitations as a member of the District of Columbia Metropol-
itan Police Department, and consequently has only qualified
immunity for his torts.
The court explained in Biscoe v. Arlington County, 738
F.2d 1352, 1362 (D.C. Cir. 1984), that in the District of
Columbia, "both official and governmental immunity depend
on the ministerial-discretionary dichotomy." A ministerial
function is one that "connotes the execution of policy as
distinct from its formulation." Id. (quoting Elgin v. District
of Columbia, 337 F.2d 152, 154-55 (D.C. Cir. 1964)). Thus,
conducting felony stops and felony pursuits are ministerial,
not discretionary, acts because they are day-to-day operation-
al matters, not matters related to planning and policy. See
id. A police officer's conduct in connection with conducting
an investigation with an eye toward making an arrest is
ministerial, even if his on-the-scene decision to act originally,
e.g., to stop a car, is discretionary. See id. In reaching this
conclusion, the court noted that a police officer is constrained
by both regulations and clearly established policies and stan-
dards such that there is no need to be concerned that tort
liability for such actions would "pose threats to the quality
and efficiency of government." Id. (quoting Spencer v. Gen-
eral Hosp. of D.C., 425 F.2d 479, 482 (D.C. Cir. 1969)). In
contrast, a discretionary act is one for which an officer is
immune: "If policy considerations were involved and no stat-
utory or regulatory requirements limited the exercise of
policy discretion, ... immunity would bar suit." Id. at 1362
(quoting Chandler v. District of Columbia, 404 A.2d 964, 966
(D.C. 1979)). Finally, the court explained that:
there are certain decisions made in the exercise of the
discretionary functions of government for which there is
no reason to believe a jury would render a sounder
decision than those officials chosen, qualified, and pre-
pared to make them. It is these that are labeled "discre-
tionary" and which constitute policy decisions deemed
immune from suit because there is no legal standard by
which a judge or jury could gauge their arbitrariness and
capriciousness or lack thereof.
Id. at 1363 (quoting Chandler v. District of Columbia, 404
A.2d at 966).
A member of the D.C. Metropolitan Police Department,
therefore, is not absolutely immune from suit for his tortious
conduct. See McCarthy v. Kliendeinst, 741 F.2d 1406, 1409
(D.C. Cir. 1984) (citing Apton v. Wilson, 506 F.2d 83, 90-95
(D.C. Cir. 1974)). It necessarily follows that while s 80 of the
Compact cloaks WMATA itself with absolute immunity for
torts arising in the exercise of governmental functions, under
s 76(b) of the Compact, WMATA's Metro Transit Police
officers, like members of the D.C. Metropolitan Police De-
partment, are not able to invoke such absolute immunity as a
bar to suit for their torts in the District of Columbia. Officer
Haymans can find no solace in cases allowing a Metro Transit
Police officer to invoke absolute immunity for alleged false
arrest, false imprisonment, and malicious prosecution when
the officer had probable cause to make the arrest and acted
with "a good faith, reasonable belief" that the arrestee had
violated the law. Stebbins v. WMATA, 495 A.2d 741, 743
(D.C. 1985) (quoting Gabrou v. May Dep't Stores Co., 462
A.2d 1102, 1104 (D.C. 1983)); see also Dant v. District of
Columbia, 829 F.2d 69, 75 (D.C. Cir. 1987); McCarthy, 741
F.2d at 1413. Even though an officer in that circumstance is
engaged in governmental functions and is acting within the
scope of his responsibilities, the right to invoke absolute
immunity evaporates when the conduct is "manifestly exces-
sive," using means to accomplish one's responsibilities that
are "beyond the outer perimeter of [one's] authority."
McKinney, 736 F.2d at 770-71 (and cases cited therein).
While Griggs' complaint does not expressly allege in haec
verba that Officer Haymans' conduct exceeded the "outer
perimeters" of his official duties, Beebe, 129 F.3d at 1289, as
the district court noted, the factual allegations in the com-
plaint are to the same effect. Griggs has alleged that Officer
Haymans not only failed properly to train his "vicious" dog,
but he failed to control his dog, instead commanding the dog
to attack Griggs after Griggs had complied with Officer
Haymans' order to stand and place his hands on his head, and
failing to command the dog to cease its attack. The use of a
police dog to locate a suspected burglar is far different from
the use of a police dog to attack a suspected burglar who has
submitted to police authority.
Officer Haymans has two responses, neither of which is
availing. First, he contends that reliance on Dellums and
Carter is misplaced because those cases involved "the discre-
tionary standard associated with both the Federal Tort
Claims Act and District of Columbia law, and not the broader
governmental/proprietary standard mandated by s 80." Offi-
cer Haymans, however, misreads the court's recent decision
in Beebe. Although the Federal Tort Claims Act was not at
issue, the court in Beebe drew upon the precedent established
by the Act in addressing s 80 of the WMATA Compact and
endorsed the discretionary/ministerial dichotomy employed in
Dellums and Carter. See Beebe, 129 F.3d at 1287 (citing
Burkhart, 112 F.3d at 1216). The district court, therefore,
could properly invoke the distinction long-recognized by the
court, see McKinney, 736 F.2d at 769-71, between discretion-
ary activity illustrated in Beebe, that cannot result in tort
liability for WMATA, and ministerial arrest activity illustrat-
ed in Carter, that may result in tort liability for a Metro
Transit Police officer. Moreover, unlike the situation con-
fronting the court in Beebe, where the Compact was silent as
to the immunity of the WMATA employees being sued, the
district court was instructed by Congress in s 76(b) of the
Compact to look to the law applicable to D.C. Metropolitan
Police officers in determining whether Officer Haymans was
cloaked with the same immunity as WMATA.
Second, contrary to Officer Haymans' contention at oral
argument, United States v. Gaubert, 499 U.S. 315 (1991), does
not undermine the propriety of drawing distinctions between
types of discretionary conduct. In Gaubert, the Supreme
Court held that for purposes of the Federal Tort Claims Act,
discretionary activity can include operational activities and is
"not confined to the policy or planning level." 499 U.S. at
325. Thus, a suit against federal bank officials for negligently
advising and overseeing the operations of a thrift institution
was barred by immunity. See id. at 333. This result fol-
lowed, the Court said, because the bank officials were autho-
rized by statute to provide advice and oversight in a manner
that left room for the exercise of political, social, or economic
choice. See id. at 324-26. While the determination of the
nature of an activity under the Compact is a question "of
federal law," Burkhart, 112 F.3d at 1216 (quoting Sanders v.
WMATA, 819 F.2d 1151, 1154 (D.C. Cir. 1987)), under s 76(b)
of the Compact Officer Haymans was vested only with the
powers and limitations of a D.C. Metropolitan Police officer
when he responded to a call for assistance from the D.C.
Metropolitan Police Department, and thus the discretion-
ary/ministerial distinctions noted in Biscoe, 738 F.2d at 1363,
continue to apply.
Accordingly, we affirm the district court's order denying
Officer Haymans' motion to dismiss the complaint on absolute
immunity and statute of limitations grounds.5
__________
5 Because the appeal involves only the issue of Officer Hay-
mans' entitlement to absolute immunity, we do not reach the issue
of any claim that he may have to qualified immunity.