Dale B. Menard, Appellant, v. John N. Mitchell and John Edgar Hoover, 430 F.2d 486 (D.C. Cir. 1970)

According to appellees' answers to interrogatories propounded by appellant, the files originally contained a card bearing appellant's name and fingerprints and the following notation:

Date Arrested or Received — 8-10-65

Charge or Offense — 459 PC Burglary

Disposition or Sentence — 8-12-65 — Released — Unable to connect with any felony or misdemeanor at this time.

Occupation — Student

Residence of Person Fingerprinted — Saticoy & Canoga Canoga Park

After the present complaint was filed, the entry under "Disposition or Sentence" was changed to read

8-12-65 — Released — Unable to connect with any felony or misdemeanor — in accordance with 849b(1) — not deemed an arrest but detention only.

Surprisingly, according to appellees' answers the card appears to contain no indication of the source of the information or the state in which the incident took place.

Appellees have admitted that their files contain a record of appellant's detention; the contents of the file, as set forth in note 1 supra; and that they know of no crime committed by appellant or incident to his detention. The remaining allegations of appellant's complaint were denied, and have not been the subject of affidavits filed by either side in the case.

Language in appellees' brief could be read to suggest that, since the incident underlying the present suit took place in California, transfer of this litigation to a federal district court in that state might be appropriate See 28 U.S.C. § 1404(a) (1964). Whatever might be the situation in other circumstances, the present record does not indicate that transfer would be appropriate. It appears that the only witnesses present when appellant was taken into custody were appellant and the two arresting officers. Although the officers are presumably still in California, appellant, who has the burden of proof, presently resides in Silver Spring, Maryland. Furthermore, also relevant at trial will be information regarding the practices of the FBI in disseminating its criminal identification records, see notes 33-36 infra and accompanying text, and witnesses regarding these matters would presumably be more accessible in the District of Columbia than in California. Appellant's choice of forum is itself entitled to some weight. And finally, it might well be thaat appellant, who appeared pro se in the District Court, would be unable to prosecute his suit were it transferred to the West Coast. See generally Van Dusen v. Barrack, 376 U.S. 612, 643-646, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947) (prior law; doctrine of forum non conveniens); 1 J. Moore, Federal Practice § 0.145(6) (2d ed. 1964).

Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever:

(1) He is satisfied that there is no ground for making a criminal complaint against the person arrested. Any record of such arrest shall include a record of the release hereunder and thereafter shall not be deemed an arrest but a detention only.

Calif.Penal Code, § 849(b) (1) (West Supp.1970). A like procedure is proper if the arrest was only for intoxication, or if the arrest was for a misdemeanor and the person arrested has signed an agreement to appear in court at a designated time. Id. § 849(b) (2), (3).

Calif.Penal Code, § 849(b) (1) (West. Supp.1970)

Cf. Wheeler v. Goodman, 306 F. Supp. 58, 65 (W.D.N.C. 1969).

Appellant does not question the authority of the FBI to maintain a record of his detention for other purposes — for example, with an eye towards investigation of the arresting officers under 18 U.S.C. § 242 (1964). The FBI does not, however, seek to justify retention of the record on this ground

When the FBI was first explicitly authorized to maintain a system of criminal records in 1930, the Division of Identification and Information was specifically limited to the acquisition and preservation of "criminal identification and other crime records." 5 U.S.C. § 340 (1964),repealed, Pub. L. No. 89-554, § 8(a), 80 Stat. 632, 648 (1966). Present authority is grounded upon 28 U.S.C. § 534(a) (1) (Supp. IV, 1969), which simply directs the Attorney General to "acquire, collect, classify, and preserve identification, criminal identification, crime, and other records." That section, however, was enacted by Pub. L. No. 89-554, § 4(c), 80 Stat. 611, 616 (1966). Section 7(a) of the Act, 80 Stat. 631, states that "The legislative purpose in enacting sections 1-6 of this Act is to restate, without substantive change, the laws replaced by those sections on the effective date of this Act."

All that was established for that purpose was that appellant had been detained for two days by the California police and released without a judicial hearing; that the FBI maintained a record of his detention; the contents of the record,see note 1, supra; and that appellees had no knowledge of any crime committed by appellant or incident to his detention.

See, e. g., W. LaFave, Arrest 63-164, 300-318 (1965); J. Skolnik, Justice Without Trial 71-90 (1966); Goldstein, Police Discretion not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 Yale L.J. 543 (1960); Note, Prosecutor's Discretion, 103 U. Pa. L. Rev. 1057 (1955); cf. Dixon v. District of Columbia, 129 U.S.App.D.C. 341, 394 F.2d 966 (1966).

Calif.Penal Code, § 11115 (West Supp. 1970)

Except perhaps for consequences under California law, it is questionable whether the statute's command that such incidents shall be deemed "detentions" only has a significant effect in practice. Appellant's FBI file did not originally differentiate what had happened to him from an ordinary arrest,see note 1 supra. A letter from the California Department of Justice, attached as an exhibit to appellant's motion for summary judgment, refers in the first paragraph to "your arrest" before stating, in the second paragraph, that "you were * * * not deemed to have been arrested." Finally, appellees' brief refers to appellant's "local arrest record" (p. 1) and "his arrest" (p. 16 n. 24), and justifies retention of the material at issue because of the "need to permit retention of arrest and identification data." (p. 17).

United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962);see Adickes v. S. H. Kress & Co., 398 U.S. 144, 153, 90 S. Ct. 1598, 1606-1610, 25 L. Ed. 2d 142 (1970).

Appellant also argues that Calif.Penal Code, § 849(b) (1) (West Supp.1970) was intended to prohibit the sending of "detention" records by the California authorities to the FBI, and that the state policy expressed thereby should be enforced by a federal court against federal officials. Even if California law could control the FBI's authority to maintain arrest records,compare United States v. Georgia Public Service Commission, 371 U.S. 285, 292-293, 83 S. Ct. 397, 9 L. Ed. 2d 317 (1963), this argument overlooks Calif.Penal Code, § 11115 (West Supp. 1970), which clearly contemplates that such records may be sent to the FBI: for § 11115 requires that, if such a record has been sent, certain followup information must be transmitted as well.

Appellees also argue that the instant suit must be dismissed as an unconsented suit against the United States See note 36 infra.

At common law, the accusation that an individual has been arrested for crime is actionable per se. Hanson v. Krehbiel, 68 Kan. 670, 75 P. 1041 (1904); Brewer v. Chase, 121 Mich. 526, 80 N.W. 575 (1899). And see, e. g., N. Y. Times, July 17, 1966, at 54, col. 7, referring generally to persons whose fingerprints are sent to the FBI after arrest as "criminals."

A survey by the New York Civil Liberties Union indicated that 75% of New York area employment agencies would not accept for referral an applicant with an arrest record. Sparer, Employability and the Juvenile Arrest Record 5 (Center for the Study of Unemployed Youth, New York University) (pamphlet). Another survey of 75 employers indicated that 66 of them would not consider employing a man who had been arrested for assault and acquitted. Schwartz & Skolnik, Two Studies of Legal Stigma, 10 Social Prob. 133 (1962). At the very least, an arrest record is likely to lead to further investigation; and if it is convenient to fill the job before the investigation is complete, the applicant is effectively denied employment because of his record See Hess & Le Poole, Abuse of the Record of Arrest Not Leading to Conviction, 13 Crime & Delinquency 494, 496 (1967).

LaFave,supra note 10, at 287-289.

Id. at 141-142.

Cf. Suggs v. United States, 132 U.S. App.D.C. 337, 340, 407 F.2d 1272, 1275 (1969).

Russell v. United States, 131 U.S.App. D.C. 44, 45, 402 F.2d 185, 186 (1968); Rhodes v. United States, 275 F.2d 78, 81-82 (4th Cir. 1960) (Sobeloff, C. J.)

See, e. g., the sentencing transcript in United States v. Isaac, 299 F. Supp. 380 (D.D.C. 1969).

This may be so more often than we would like to think. The American Bar Association's Advisory Committee on Sentencing and Review strongly recommended the exclusion from presentence reports of any mention of charges not leading to conviction:

Arrests, juvenile dispositions short of an adjudication, and the like, can be extremely misleading and damaging if presented to the court as part of a section of the report which deals with past convictions. If such items should be included at all — and the Advisory Committee would not provide for their inclusion — at the very least a detailed effort should be undertaken to assure that the reader of the report cannot possibly mistake an arrest for a conviction.

American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Probation § 2.3, at 37 (Tent. draft 1970).

Even if the assumptions are accurate, an arrest record may be used in ways that should be difficult if not impossible to tolerate. Presumably the fact of arrest indicates some possibility that the individual concerned engaged in the criminal activity with which he was charged. Investigation may disclose whether he has or not. Yet so long as there exists an employable pool of persons who have not been arrested, employers will find it cheaper to make an arrest an automatic disqualification for employment See Hess & Le Poole, supra note 17, at 496.

Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920). Needless to say, federal officials may not escape this principle by reliance on the fact that the unlawful arrest was made by state officials. Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960)

For example, even if no probable cause existed at the time of arrest, one is not generally entitled to release if probable cause has subsequently been developed. Albrecht v. United States, 273 U.S. 1, 5-6, 47 S. Ct. 250, 71 L. Ed. 505 (1927) (Brandeis, J.). Similarly, a suit for false arrest may not normally be maintained if the arrest was followed by conviction, regardless of the validity of the arrest at the time it was made See Restatement (Second), Torts §§ 119, 121; Restatement, Torts §§ 653, 658.

Appellant claims that he was originally picked up simply for proximity to evidence indicating that a crime might have been committed. The investigation which followed, he says, did not merely exonerate him from commission of a crime that had actually occurred, but in fact showed that the crime for which he was arrested had never taken place

And that probable cause was not later developed. This qualification may not be necessary to obtain deletion of appellant's fingerprints. Davis v. Mississippi,supra note 25.

Under Calif.Penal Code, § 11115 (West Supp.1970), if appellant's record was sent to the FBI by California authorities, those same authorities are responsible for informing the FBI of the reason for appellant's discharge. However, although appellees appear in their brief to represent that the information came to them from the California police, they denied this allegation in appellant's complaint, and a letter to appellant from the California Department of Justice, attached as an exhibit to his motion for summary judgment, denies that California officials forwarded his fingerprints to the FBI

That is, although the FBI may be under no duty in the first instance to go beyond the information sent them by local police departments, if they have done so it may be incumbent upon them to make use of the information so acquired Cf. Cafeteria and Restaurant Workers Union, etc. v. McElroy, 367 U.S. 886, 898, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961). The extent of the FBI's knowledge of the incident should be examined on remand.

Watkins v. United States, 354 U.S. 178, 187, 77 S. Ct. 1173, 1 L. Ed. 2d 1273 (1967); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 153, 71 S. Ct. 624, 95 L. Ed. 817 (1951)

Compare Boorda v. Subversive Activities Control Board, 137 U.S.App.D.C. 653, 421 F.2d 1142 (1969), cert. denied, 397 U.S. 1042, 90 S. Ct. 1365, 25 L. Ed. 2d 653 (1970).

By statute, appellant's record is subject to dissemination to "authorized officials of the Federal Government, the States, cities, and penal and other institutions." 28 U.S.C. § 534(a) (2) (Supp. IV, 1969). The Attorney General has issued a regulation making clear that, in his view, dissemination is not limited even to government officials of one kind or another; the list of authorized recipients includes government agencies in general; most banks; insurance companies; and railroad police. 28 C.F.R. § 0.85(b) (1970)

A government agency may not escape responsibility for improper use of material disseminated by it simply because the improper use is not mandatory and is in fact made by a third party. National Student Ass'n v. Hershey, 134 U.S.App. D.C. 56, 412 F.2d 1103 (1969)

It may even be that this information would be released to the press were appellant subsequently to be charged with crime. 28 C.F.R. § 50.2(b) (3) (i) specifically authorizes release of age, employment, marital status, and "similar background information" regarding defendants, and § 50.2(b) (4) explicitly authorizes release of federal criminal conviction records. Arrest records are nowhere mentioned; their release is neither explicitly authorized nor banned

Appellees' final contention is that the present suit must be dismissed as an unconsented suit against the United States, Dugan v. Rank, 372 U.S. 609, 83 S. Ct. 999, 10 L. Ed. 2d 15 (1963); Malone v. Bowdoin, 369 U.S. 643, 82 S. Ct. 980, 8 L. Ed. 2d 168 (1962); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949). These cases, however, make clear that an action against a government officer is not a suit against the United States if the action complained of is "not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void."Malone, supra, 369 U.S. at 647, 82 S. Ct. at 983, quotingLarson, supra, 337 U.S. at 702, 69 S. Ct. at 1467. Such is precisely the claim made in the present case.

See, e. g., Hinton v. United States, 137 U.S.App.D.C. 388, 390-391, 424 F.2d 876, 878-879 (1969) and cases cited.

Presumably, the guilty are more likely to be prosecuted than the innocent. In consequence, one would expect that the class of individuals arrested but not prosecuted would contain a substantially lower proportion of guilty persons than the class of all persons arrested

During the years 1961 and 1962, more than 6800 persons in the District of Columbia were arrested "for investigation." About 6000 of those arrested were released without being charged with any offense whatsoever. Report and Recommendations of the Commissioners' Committee on Police Arrests for Investigation 97-102 (1962)

Id. at 67-68. We have no information with respect to the extent to which records of such arrests were transmitted to, and retained by, the Federal Bureau of Investigation.

As recently as 1958, police seeking three "stocky" young blacks who had robbed a restaurant rounded up some ninety suspects; sixty-seven of these were held overnight before being released. The one man finally charged with the offense was not among those originally rounded up See Trilling v. United States, 104 U.S. App.D.C. 159, 172 n. 11, 260 F.2d 677, 690 n. 11 (1958) (opinion of Bazelon, J.).

See, e. g., LaFave, supra note 10, at 146-147, 149-150, 471-482.

Wheeler v. Goodman, 298 F. Supp. 935 (W.D.N.C. 1969); Hughes v. Rizzo, 282 F. Supp. 881 (E.D. Pa. 1968)

E. g., Dombrowski v. Pfister, 380 U.S. 479, 80 S. Ct. 1116, 14 L. Ed. 2d 22 (1965); United States v. McLeod, 385 F.2d 734 (5th Cir. 1967); McSurely v. Ratliff, 282 F. Supp. 848 (E.D. Ky. 1967) (three-judge court).

Wheeler v. Goodman,supra note 43.

E. g., Dombrowski v. Pfister, supra note 44; Wheeler v. Goodman, 306 F. Supp. 58 (W.D.N.C. 1969) (three-judge court).

See, e. g., Report of the National Advisory Commission on Civil Disorders 72 (1968); Report of the Chicago Riot Study Committee 43 (1968); D. Walker, Rights in Conflict (1968); Comment, The Administration of Justice in the Wake of the Detroit Civil Disorder of July 1967, 66 Mich. L. Rev. 1542, 1628-1629 n. 411 (1968); Comment, Criminal Justice in Extremis: Administration of Justice During the April 1968 Chicago Disorder, 36 U. Chi. L. Rev. 455, 479-483 (1969). See also the fact situations disclosed by, e. g., Brown v. Louisiana, 383 U.S. 131, 86 S. Ct. 719, 15 L. Ed. 2d 637 (1966); Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965); Edwards v. South Carolina, 372 U.S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963).

Recently, a protest march on the Watergate Apartments in the District of Columbia resulted in the arrest of over 140 persons. On subsequently reviewing the evidence, Assistant Corporation Counsel Robert H. Campbell concluded that many of the persons arrested were guilty of nothing and in fact were "trying to move on" when they were arrested. Assistant Corporation Counsel Thomas Johnson noted that in several cases, the persons arrested were students on the campus of George Washington University who were "doing nothing and got arrested." Washington Post, February 20, 1970, at A1, col. 7; Feb. 21, 1970, at B4, col. 1; Feb. 28, 1970, at A7, cols. 1, 2.

United States v. Price, 383 U.S. 787, 799, 86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966)

Cf. Hill v. United States, 135 U.S.App. D.C. 233, 418 F.2d 449 (1968); Hutcherson v. United States, 120 U.S.App.D.C. 274, 281, 345 F.2d 964, 971 (Bazelon, C. J., concurring), cert. denied, 382 U.S. 894, 86 S. Ct. 188, 15 L. Ed. 2d 151 (1965).

United Public Workers of America (CIO) v. Mitchell, 330 U.S. 75, 86-91, 67 S. Ct. 556, 91 L. Ed. 754 (1947)

Obviously, those responsible for investigating and prosecuting criminal activity should have the primary responsibility for determining what information will be most helpful in carrying out their task; and so long as they do not infringe the rights of individuals, the courts may not interfere. Similarly, those responsible for maintaining a system of information must bear the responsibility in the first instance for assuring that inaccurate or misleading information is not used to an individual's detriment. Appellant here alleged that prior to filing the instant suit he had sought relief from appellees but had been told that they had "no authority" to do as he requested. We would urge the Department of Justice to clarify and make public its views regarding its own authority to correct or delete information in its files; and should it find that it has such authority, to devise procedures whereby complaints such as the present one may be handled at an administrative level

Any such procedure would be a substantial improvement over a remedy that required any individual anticipating adverse consequences from an inaccurate record to bring a lawsuit in order to protect himself. But we must recognize that, without more, even a full system of administrative remedies cannot be the final answer. Realistically, the FBI cannot be expected to investigate the facts underlying every arrest or detention reported to it; the most it can do is examine the report on its face and, perhaps, investigate further if a complaint is received from the individual concerned. For most of those arrested — too poor, too ignorant, and often too disheartened to complain — the only adequate remedy may lie either in severely curtailing any use of records of arrest, or in eliminating altogether their maintenance in a file associated with the individual's name.

For example, New York State recently passed a statute requiring all employees of securities firms to be fingerprinted, and providing that the fingerprints so obtained be transmitted to the state's Attorney General "for appropriate processing." New York State Laws 1969, ch. 1071, codified as N.Y.General Business Law, § 359-e(12) (McKinney's Consol.Laws, c. 20, Supp.1969). As a result of this statute, several hundred employees have been found to have "criminal records" and dismissed from their employment; half of those fired had no record of convictions, but only of arrests. New York Times, February 5, 1970, at 1, col. 2; Wall Street Journal, February 5, 1970, at 17

It appears that the "appropriate processing" is carried out by the New York State Identification and Intelligence System, which is apparently one of those state agencies authorized to receive information from the FBI's files. 28 U.S.C. § 534(a) (2) (Supp. IV, 1969). Since no New York statute provides for automatic dismissal of a securities employee with a past arrest record, presumably the information must be passed on to the employer before an individual may be fired. Although 28 U.S.C. § 534(b) (Supp. IV, 1969), provides that the exchange of records authorized by § (a) (2) is "subject to cancellation if dissemination is made outside the receiving departments or related agencies," we have no indication that this provision is regarded as mandatory or whether it is in fact ever enforced.