District of Columbia v. Hudson , 1982 D.C. App. LEXIS 404 ( 1982 )

KERN, Associate Judge,

with whom YEAGLEY and GALLAGHER, Associate Judges, Retired, join:

A majority of this court in District of Columbia v. Hudson, D.C.App., 404 A.2d 175 (1979), agreed upon the equitable relief to which a citizen was entitled when he was arrested but not subsequently prosecuted.¹ If he showed by clear and convincing evidence that the crime for which he had been arrested either did not occur or that he did not commit it, then the trial court was to seal all records of his arrest and thereafter such sealed records could be opened only by further order of the court upon a showing of compelling need.

We also directed the trial court in all cases, where the citizen arrested demonstrated under the test outlined above that the arrest had been in error, to prepare an order containing findings and conclusions. In this way there would be “an official, and hence authoritative, explanation of the erroneous basis for the arrest” in order thereby to “eliminate the risk of an adverse inference that might be drawn in the future by third persons upon learning the fact of” that arrest.

Thus, in the case of an arrest but no subsequent prosecution, Hudson established (1) the relief to be granted, i.e., an official declaration by the court that the arrest had been erroneous and the sealing of all records of that arrest and (2) the burden of proof to be met by a citizen in order to obtain relief, i.e., proving by clear and convincing evidence that the crime for which he had been arrested did not occur or that he did not commit it.

The court in Hudson encountered a technical difficulty: how to ensure that all the records of the citizen’s arrest made in the ordinary course of business by the Metropolitan Police Department (and thereafter routinely transmitted to and recorded by other law enforcement agencies), and by the trial court could be identified and sealed. The problem existed because of several factors. First, there is a proliferation of records created and maintained by reason of the interlocking of law enforcement agencies and their exchange routinely of the fact of an arrest. Secondly, the trial court itself creates records of an arrest which it is obliged to maintain as a matter of historical fact. Third, the technique of record keeping and records transmission has developed significantly in this age of computers and word-processors.

Accordingly, the court in its opinion requested the parties to set forth in a supplemental filing “a proposed plan for carrying out the sealing of arrest records in MPD and court files.”² Unfortunately, some of the parties to the appeal in Hudson did not even respond and such responses as were filed were directed to substantive issues rather than the practical problem which had been the concern of the court of making certain that all MPD and court records be sealed. Thus, the supplemental filing of appellee Hudson was directed primarily to substantive matters of the hearing and determination of his own action in the future to obtain equitable relief. Appellee Hudson cast the substantive procedures he urged to be followed by the trial court in the form of rules for the trial court. The United States responded in kind to appellee Hudson with proposed rules of its own for the trial court.

The submission of trial court rules by the parties responding to this court go considerably beyond this court’s concern over how “the sealing of arrests records in MPD and court files” was to be effected. It is not the business of this court to promulgate rules of procedure for the trial court to follow when a judge of the trial court hears and determines a suit for equitable relief by one who was arrested but never prosecuted. This is best left to the trial court to determine and promulgate. For example, it is surely best left to the trial court itself, or at least its Rules Committee, to address the propriety and practicability of a rule, such as proposed by the parties, that mandates the Clerk of the Superior Court to purge from the Superior Court’s files any computerized record “of the criminal prosecution of the movant as a result of the challenged arrest.”

The orders entered by the trial court concerning the records of arrest of appellees Hudson, Matthews, Mack and Naughton are reversed and their cases remanded for further proceedings consistent with our opinion in District of Columbia v. Hudson. The order entered by the trial court concerning the records of arrest of appellee Jones should be reversed and his case remanded to the trial court to dismiss his motion for equitable relief since it is clear that there was no prosecution of Jones solely because witnesses could not be located by the government.

So ordered ^*

1 . Thus, a citizen who is prosecuted but for any reason not convicted would be ineligible for the equitable relief available to one who is arrested but never even prosecuted.

2 . Obviously, the parties and amicus curiae had been entirely concerned in their voluminous briefs with the nature of the relief to be granted and by whom and under what circumstances it should be granted.

* Judge Ferren in his dissent asserts my opinion is “unfair” by simply stating what is in the record before us: that some of the parties to this appeal did not file a response to the court’s “request” of “the parties” for a proposed plan. He seeks, for some reason, to explain away this omission by supposing without any basis whatsoever that counsel for Hudson “spoke for the other appellees” when he filed a response on behalf of his client.