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June 12, 1985

DISTRICT OF COLUMBIA, et al., Defendants

The opinion of the court was delivered by: JACKSON

 Plaintiff Alonzo James complains that he was assaulted and beaten by an officer of the Washington, D.C., Metropolitan Police Department ("MPD") in the course of his allegedly illegal arrest for larceny in January of 1982, from which he received both transient injuries and permanent loss of hearing in his right ear secondary to the concussion of a gunshot report. He demands compensatory and punitive damages from the District of Columbia, its Chief of Police, the offending police officer, and the officer's Precinct Captain, on various theories, both compatible with and alternative to one another.

 The case has proceeded through the discovery and pretrial conference stages, and is now awaiting jury trial. Upon the record as developed through discovery, however, all defendants have moved to dismiss or for summary judgment. For the reasons hereinafter set forth, the motions must be denied.


 All parties acknowledge that most of the facts, material and otherwise, remain very much in dispute. From those few which are not, however, it appears that at approximately 2:30 p.m., January 29, 1982, police received a telephone report from a private citizen of several individuals observed tampering with a parked automobile in the 4900 block of Ames Street, N.E. Shortly thereafter defendant MPD Officer Lewis White, responding, encountered plaintiff James in the 400 block of 51st street, N.E., in circumstances leading White to suspect him of criminal activity. An altercation ensued, in the course of which Officer White's service revolver discharged in close proximity to James' right ear. James was taken into custody, physically restrained, transported to MPD Sixth District Headquarters (and thereafter to D.C. General Hospital for emergency room treatment), and released later the same day. The larceny charges lodged against him were reduced from a felony to a misdemeanor and later dismissed.

 James alleges that while engaged in innocent conversation with "acquaintances" on the street near his home, he was accosted by Officer White, dressed in dishevelled civilian clothes and giving signs of inebriation, and questioned about an automobile tire in his possession. Apparently dissatisfied with plaintiff's response, according to James, White "grabbed" him, and then placed his hand on his service revolver and threatened to make James "another statistic." Next he drew the revolver and menaced James with it (although James, standing motionless, with his hands raised above his head, gave no provocation) and, without warning, struck him "repeatedly in his mouth and head" with the gun. The gun discharged during the beating, James alleges, and he was "bleeding profusely from his mouth, ear and head" by the time other police officers arrived to assist in "pushing" him into a police cruiser.


 The complaint charges common law torts of assault and battery, false arrest, false imprisonment, intentional infliction of emotional distress, and negligence. It also alleges constitutional torts under the Fourth, Fifth, Sixth, and Eighth Amendments to the U.S. Constitution and civil rights violations under 42 U.S.C. § 1983. Defendants realize that, were the case pending in D.C. Superior Court, at this stage of the case summary judgment on at least the common law claims would probably be foreclosed by the uncertain state of the evidence. *fn1" Since, however, the jurisdiction of this Court rests entirely upon the claims based upon federal law, *fn2" i.e., the constitutional torts and civil rights deprivations alleged, there being no other apparent source of federal subject matter jurisdiction, defendants contend that even the most charitable view of plaintiff's case does not permit a federal cause of action to be discerned, and with the demise of the federal claims, the common law claims are no longer "pendent" to anything and should also be dismissed. See Financial General Bankshares, Inc. v. Metzger, 220 U.S. App. D.C. 219, 680 F.2d 768, 772 (D.C. Cir. 1982); Network Project v. Corporation for Public Broadcasting, 183 U.S. App. D.C. 70, 561 F.2d 963, 970 (D.C. Cir. 1977), cert. denied, 434 U.S. 1068, 55 L. Ed. 2d 770, 98 S. Ct. 1247 (1978). Alternatively, defendants say, they are entitled to summary judgments of dismissal on the basis of various affirmative defenses in the nature of confession and avoidance: qualified immunity for the police officials, and absence of statutory notice as to the District.

 Not every actionable assault by a police officer upon a citizen, of course, becomes a constitutional tort or a § 1983 violation solely by virtue of the identities of tortfeasor and victim. See generally, Screws v. U.S., 325 U.S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945). Nevertheless, when such an assault occurs in circumstances in which the participants confront one another as policeman and suspect, multiple subtle, and quintessentially factual, distinctions determine" whether the constitutional line has been crossed" and make it particularly insusceptible to summary disposition. Norris v. District of Columbia, 238 U.S. App. D.C. 1, 737 F.2d 1148, 1150-51 (D.C. Cir. 1984).

 It may well be that if the incident giving rise to this action is no more fully developed at the close of plaintiff's evidence than it is at present, defendants will obtain by jury verdict what they now seek by way of dismissal on jurisdictional grounds in advance of trial. The more likely interpretation of the events of January 29, 1982, on the present record would make it appear a street brawl or a forcible arrest (depending upon the version credited), without constitutional implications. But it may also bear the construction plaintiff puts upon it, viz., Officer White's extemporaneous attempt at summary punishment of a criminal suspect. And if it remains ambiguous at the end of the case, it is nevertheless for the jury to give it definitive meaning, unless even the prima facie proof fails to materialize.

 As for the common law claims, it is well-established that the District of Columbia may be liable on a theory of respondeat superior for common law torts committed by its agents acting within the course and scope of their employment. See, e.g., District of Columbia v. White, 442 A.2d 159, 162 (D.C. 1982); District of Columbia v. Davis, 386 A.2d 1195, 1202 (D.C. 1978). See also, Wade v. District of Columbia, 310 A.2d 857 (D.C. 1973); Carter v. Carlson, 144 U.S. App. D.C. 388, 447 F.2d 358 (D.C. Cir. 1971), rev'd on other grounds, 409 U.S. 418, 93 S. Ct. 602, 34 L. Ed. 2d 613 (1973). And the imposition of vicarious liability upon the principal does not absolve the agents of the consequences of their own unlawful acts. Clark v. Atlantic Coast Line R.R., 100 U.S. App. D.C. 279, 244 F.2d 368, 372-73 (D.C. Cir. 1957). *fn3"

 There is evidence upon which negligence (or worse) could be found on the part of each of the individual defendants for which the District could be vicariously, and the individual defendants directly, liable to plaintiff. Whether the evidence will be sufficient to take the case to the jury on the issues of culpable municipal apathy or the senior officers' failure to train or supervise - the theories upon which plaintiff is proceeding against defendants other than White - is, once again, largely dependent upon ...

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