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June 22, 1983

WANDA ALEXANDER HOSTON, et al., Plaintiffs,

The opinion of the court was delivered by: GREEN

 Curtis E. Hoston, Jr., 28 years old, died on October 27, 1976, as a result of injuries received during a struggle with deputy United States marshals who held him in custody while he awaited arraignment before the Superior Court of the District of Columbia.

 Contending that the United States is liable vicariously for the tortious conduct of its employees, members of the United States Marshals Service, plaintiffs have asserted that the deputy marshals, by use of excessive force, and without justification or excuse, intentionally battered Hoston causing his death. The allegation that the deputy marshals were negligent in not providing him prompt medical attention was abandoned at pre-trial.

 Bringing their action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), plaintiffs seek damages from the United States under provisions of the District of Columbia Wrongful Death Act, 16 D.C. Code § 2701. The plaintiffs are the widow (also Administratrix of the estate) and children of the decedent. While the Wrongful Death Act *fn1" was the only statutory basis of recovery referenced in plaintiffs' pretrial brief filed fourteen days prior to trial, plaintiffs, through counsel, now urge the District of Columbia Survival Act, 12 D.C. Code § 101, *fn2" as another basis for damages, although not pled in the cause. Intentional infliction of emotional distress, *fn3" concededly not pled, is also asserted as an additional claim.

 The United States contends that the deputy marshals did not commit any tortious act against Curtis E. Hoston, Jr., that the marshals were justified in exercising such force as was reasonably necessary to subdue Hoston in their attempt to prevent injury or death to themselves and others, and that Hoston assumed the risk of force being used against him.

 The matter was tried to the court, without a jury.

 The facts of this cause, now detailed, are vital to a full understanding of the conclusions reached, resulting in judgment for the defendant.

 On October 27, 1976, at approximately 8:00 a.m., officers of the Metropolitan Police Department, responding to an outstanding fugitive warrant arising out of a pending narcotics offense in Prince Georges County, Maryland, appeared at the District of Columbia home of Rosa May Hoston to arrest her son, Curtis. Hoston's brother, Ulysses, and the mother, screaming profanely, joined Curtis Hoston's recalcitrant position as he defiantly refused to accompany the officers; a fracas ensued and other police arrived to "a policeman in trouble" radio summons. Hoston "swung" at the arresting officer, they struggled on the floor, it took several officers to subdue him and he was removed to police headquarters. At headquarters Hoston was oriented, lucid and cooperative, responding appropriately to inquiries during the 30- to 40-minute processing.

 Prior to the presentment and sometime between 1:00 p.m. -- 3:00 p.m., Hoston was sent to the Building A office of Dr. Leonardo C. Maguidad, a psychiatrist with the Forensic Psychiatry Division, for a 10- to 20-minute psychiatric screening to determine his competency to stand trial. Dr. Maguidad's examination made no determination as to whether Hoston was, or could become, violent. *fn4" While responding rationally to some questions, oriented as to time, place and person, and aware of the charges against him, Hoston still appeared to be "rather preoccupied". His behavior was withdrawn and "flat" (emotionally unresponsive to various situations). Dr. Maguidad concluded that he was not competent to stand trial at that time, that he appeared to be psychotic (which could be a temporary status), and recommended in a brief written report that Hoston be treated at the District of Columbia Jail Infirmary. While this report was to be delivered to the courtroom for the purpose of apprising the presiding judge of this evaluation, there is no evidence that Judge Burka or any other court personnel were aware of these findings prior to the significant events which soon thereafter transpired in Courtroom 17.

 Paul B. Tierney, an attorney appointed by the Court under the Criminal Justice Act to represent Hoston on the fugitive warrant, interviewed Hoston for ten minutes at the office of the Forensic Psychiatry Division between 3:30 p.m. and 3:40 p.m. Hoston stared straight ahead and made no response to the inquiries as to what Hoston wanted Tierney to do as his attorney. Uncertain as to whether he was unwilling or unable to respond -- "I had no way of knowing if Hoston understood what I said" -- Tierney found no need then to bring his client's silence to the attention of Judge Burka or to discuss Hoston's attitude with anyone else.

 Shortly after 4:00 p.m., deputy United States marshals took Hoston to Courtroom 17, located on the third floor, west side of Building A, where arraignments/presentments were held daily. The judge's bench was on the north side of the courtroom. To the right of the bench was the "green door" through which prisoners entered the courtroom from one of the two cellblocks situated behind the courtroom. The door opened into the cellblock area; it could be pushed open by the mere exertion of leaning against the door. The prisoners awaiting arraignment sat in two reserved rows of chairs to the right of the judge's bench. There were six chairs in the back row (next to the windows on the west side of the courtroom) and five chairs in the front row. As prisoners, one by one, completed the process before the judge, other prisoners would be brought in from behind the green door to fill the vacant chairs.

 Curtis Hoston was seated in the first or second seat nearest the green door in the front row, awaiting his turn to appear before Judge Burka. Several of the other chairs in the two rows were occupied by prisoners who, by practice and with approval of the judges, were not handcuffed while in the courtroom. Deputy United States marshals were on duty in Courtroom 17 to guard the prisoners, protect the judge and maintain security. As approved by the judges, the deputies carried loaded weapons in the performance of their duties in this large, "heavy volume" courtroom, which, on the average, handled more than fifty arraignments daily. Although the majority of prisoners had already been processed by 4:00 p.m., a number of spectators, lawyers and court personnel remained in the courtroom.

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