¶1Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on appellee District of Columbia’s motion for reconsideration.
¶2Before McGOWAN, Chief Judge, GINSBURG, Circuit Judge, and JOYCE HENS GREEN *, United States District Judge for the District of Columbia.
¶4Opinion PER CURIAM.
¶6The District of Columbia has moved that we reconsider our decision to publish the per curiam opinion in the above-captioned case. Local Rule 8(f) provides that unpublished opinions may not be cited in briefs or memoranda as precedents. The District asserts that our decision should not be published and become precedent because “it resolves an important question concerning which there is disagreement in this Circuit, but which was not briefed in this case” —whether, punitive damages may be received in actions brought to redress deprivations of constitutional rights. We do not view our decision as resolving this issue and therefore deny the motion.
¶7In his separate opinion in Payne v. District of Columbia, 559 F.2d 809, 827 (D.C. Cir.1977), Judge Tamm noted the apparent conflict in this Circuit’s expressions on the availability of punitive damages in constitutional tort actions.… Our per curiam opin*514ion here states no more than our inability to agree that “to a legal certainty” the assault claim based on defendant Finkelberg’s conduct must fail on amount-in-controversy grounds. The very disagreement to which movant refers indicates the uncertainty. Cf. Columbia Pictures Corp. v. Grengs, 257 F.2d 45, 47 (7th Cir. 1958); Calhoun v. Kentucky-West Virginia Gas Co., 166 F.2d 530 (6th Cir. 1948). We therefore do not regard our reference to “the possibility of exemplary damages” as resolving that such damages may be recovered.
¶8The District further asserts that in no event could punitive damages be claimed in this case because the officers’ conduct was not intentional. Movant has confused the Fourth Amendment claim pressed by the Loves, as to which no amount-in-controversy issue was presented on appeal, with the assault charge asserted against defendant Finkelberg, and alleged to deprive Pearl Love of her Fifth Amendment rights. We cannot characterize an assault charge as a claim based on carelessness or mistake.
¶9Motion denied.