Officer White, however, asserts that he encountered James and several others gathered about a truck bearing the license tags of the one reported to have been used by the automobile tamperers on Ames Street. He approached James first, because James was unloading a tire from the truck. His inquiries about the tire elicited "inconsistent responses," and the others, informed by White that he wanted to take them all to Ames Street to be seen by witnesses there, "fled" separately. As White radioed for assistance James, too, began to "flee," ignored an order to stop despite White's drawn gun, and "became belligerent" as White overtook and attempted to restrain him, revolver still in hand. In the course of the struggle, White admits, he did strike James on the head with the gun, and the gun did discharge.
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.
Since, however, the jurisdiction of this Court rests entirely upon the claims based upon federal law,
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).
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 how the facts develop at trial.
As the Second Circuit has noted:
. . . Where senior personnel have knowledge of a pattern of constitutionally offensive acts by their subordinates but failed to take remedial steps, the municipality may be held liable for a subsequent violation if the superior's inaction amounts to deliberate indifference or to tacit authorization of the offensive acts. Although that standard is undoubtedly difficult to meet, we cannot say as a matter of law that failure to act may never give rise to an official policy within the meaning of Monell.
Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S. Ct. 577, 66 L. Ed. 2d 475 (1980). The fact that neither defendants Collins nor Turner were in their respective supervisory positions at the time of earlier incidents involving Officer White's misuse of his service revolver is irrelevant if, as plaintiff contends, in 1982 they failed in a duty to acquaint themselves with his record and take the appropriate steps to protect the public from a rogue police officer. The issue is, in any event, to be determined by the jury. See Sims v. Adams, 537 F.2d 829, 831-32 (5th Cir. 1976).
The District also argues that plaintiff's claims based on its alleged negligent supervision, training and discipline of its police officers must be dismissed as a result of plaintiff's failure to comply with the notice requirements of D.C. Code § 12-309.
In Pitts v. District of Columbia, 391 A.2d 803, 809 (D.C. 1978), however, the D.C. Court of Appeals held that failure to give formal statutory notice does not automatically lead to dismissal, and that the particular facts of a case, including the nature of such reports as were received, must be weighed against the statutory objective, i.e., timely notice to the District to enable it to protect itself against groundless suits and ascertain the facts of those of substance before evidence is lost. See also, Braxton v. National Capital Housing Authority, 396 A.2d 215 (D.C. 1978).
In the instant case the police had in hand a completed "Arrestee's Injury or Illness Report and Request for Examination and Treatment" as of the night of plaintiff's arrest. They also shortly acquired witnesses' statements regarding Officer White's conduct and the police report of the arrest itself, and, ultimately, obtained the results of the police department investigation which officially found White guilty of using excessive force and improperly handling his service revolver. The District thus was fully apprised in ample time of all it needed to know to anticipate and prepare to defend against an obviously substantial claim. Formal notice from James or his lawyer would have been superfluous.
It is, therefore, for the foregoing reasons, this 22nd day of May, 1985,
ORDERED, that defendant Lewis White's motion for summary judgment is denied; and it is
FURTHER ORDERED, that the motions of defendants District of Columbia, John Collins, and Maurice Turner to dismiss or, in the alternative, for summary judgment of dismissal are denied.