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09/10/82 Remola Boykin, Et Al., v. the District of Columbia

September 10, 1982





Appeal from the United States District Court for the District of Columbia.


Tamm, Circuit Judge, Robb, Senior Circuit Judge, and Howard T. Markey,* Chief Judge, United States Court of Customs and Patent Appeals. Opinion for the court filed by Circuit Judge Tamm.


In late July of 1979, Jefferson Boykin, Jr., was shot and killed by an officer of the District of Columbia's Metropolitan Police Department following a chase that commenced when Boykin was questioned regarding his alleged involvement in an armed robbery. In the case at bar, appellants Remola and Jeff Boykin, the parents of Jefferson Boykin, have brought a multifacted action alleging that the shooting of their son was tortious and in violation of his civil and constitutional rights. The only defendant named by the appellants in the district court, and the appellee here, is the District of Columbia. The district judge, after reviewing the pleadings and other pretrial memoranda submitted by the parties, concluded that appellants raised no cognizable federal claims in their action but rather sought recovery solely on the basis of common law torts; accordingly, the judge dismissed sua sponte the litigation without prejudice on jurisdictional grounds. We agree that appellants' suit was properly dismissed by the district judge, although we express no view on the validity of his jurisdictional analysis. Rather, recent decisions of this and other appellate courts have made it clear that municipalities such as appellee are not subject to respondeat superior liability in so-called Bivens actions. Thus, since appellants' only federal claims on appeal involve precisely such vicarious liability, it is clear that their complaint failed to state any federal claim for which relief could be granted and was properly dismissed in the district court. I. THE PROCEEDINGS BELOW

A. The Complaint

On June 17, 1980, appellants filed this action for 4.5 million dollars in compensatory and punitive damages against the District of Columbia, alleging that a police officer employed by the District had wrongfully shot and killed their son the preceding year. The two police officers involved in Jefferson Boykin's apprehension and shooting were not made parties to the suit. Appellants' complaint presented six claims for relief, five of which were pendent "state" common law claims. *fn1 The only federal claims asserted by appellants were found in their first count, which alleged that appellee had deprived their son of rights secured by 42 U.S.C. §§ 1983, 1985, and 1986 (1976 and Supp. IV 1980), and by the Fourth and Fifth Amendments to the United States Constitution. *fn2 Jurisdiction was asserted under 28 U.S.C. § 1331 (1976) (federal question jurisdiction) and under 28 U.S.C. § 1343 (1976) (civil rights actions jurisdiction).

B. The Incident at Issue

The parties' respective characterizations of the events that transpired during the late hours of July 24 and the early morning hours of July 25, 1979, could hardly be more divergent. Appellants contend that on the evening of July 24, two MPD officers were patrolling the area near the intersection of Vermont Avenue and Fourteenth Street, N.W., looking for suspects in connection with a street robbery that had been reported in that area earlier in the evening. At some point during the evening, appellants allege, the two officers approached Jefferson Boykin and several unidentified youths who were standing near the corner of Fourteenth Street and Rhode Island Avenue, N.W. When questioned about the robbery, the youths ran in different directions; Boykin ran into a parking lot located at 1313 Fourteenth Street, N.W. The MPD officers pursued Boykin, appellants submit, and found him hiding under a parked vehicle in the lot. Thereafter, appellants contend, Boykin ran again and was subsequently caught from behind by one of the officers.

Appellants allege that the second MPD officer deliberately fired his weapon at Boykin from only a few feet away after the first officer apprehended him. Indeed, appellants contend that Boykin was in fact falling forward toward the shooting officer at the time of the shot as a result of the first officer's handling. Appellants deny that Boykin possessed any weapon at the time he was shot and contend that the officer who fired the shot had approached the scene with his pistol drawn.

In response, appellee in its pretrial statement proffered the following statement of facts. While driving along Fourteenth Street, N.W., on the evening in question, two MPD officers were flagged down by two individuals who reported that they had just been robbed at gunpoint. As the officers and victims cruised the area, appellee contends, the perpetrators of the crime were spotted, and the two officers left their vehicle and chased the suspects on foot. A short time later, after failing to apprehend any of the suspects, the officers reentered their car and renewed their search, spotting Boykin -- one of the individuals originally identified -- hiding in the parking lot at 1313 Fourteenth Street, N.W.

After a brief chase on foot, appellee contends, one of the officers caught Boykin and began to spin him around; as this action occurred, the second officer allegedly observed that Boykin had pulled a pistol from his waist and was poised to shoot the officer who had placed him in custody. Upon seeing the gun, the second officer allegedly shouted to draw his partner's attention to the threat and then drew his revolver and shot Boykin once in the chest. The combined force of the spinning movement and the impact of the bullet, appellee submits, propelled the weapon Boykin was allegedly carrying some forty feet from the locus of the shooting.

The most significant divergence between the parties' versions of the facts is, of course, appellee's contention that the decedent was carrying and had drawn a weapon at the time he was shot. As we must on review of a trial court ruling dismissing a complaint, however, we shall accept the allegations made by appellants as true. See Harper ...

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