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April 26, 1993

THE DISTRICT OF COLUMBIA, et al., Defendants.

The opinion of the court was delivered by: GREEN


 On August 9, 1991, plaintiff James Douglas Cox ("Cox") initiated this action against the District of Columbia ("the District"), Officer Barry Goodwin ("Goodwin"), Officer William Brady ("Brady"), and unknown police officers and supervisors, alleging, inter alia, that he was assaulted by the above-mentioned police officers, all of whom were employed by the Metropolitan Police Department ("MPD"). Although the summons and complaint were served on both Goodwin and Brady on September 13, 1991, neither officer responded to the complaint within the time provided by the Federal Rules of Civil Procedure. As a consequence, on October 23, 1991, the Clerk's Office entered default against each officer. Upon hearing Cox's motion for entry of judgment by default on February 18, 1992, the Court entered default judgments against Brady in the amount of $ 10,000 compensatory damages and $ 100,000 exemplary damages, and against Goodwin in the amount of $ 100,000 compensatory damages and $ 250,000 exemplary damages. Accordingly, only Cox's claim against the District remains outstanding.

 In September 1992, Cox and the District advised the Court that in light of their agreement to submit a joint stipulation of facts, individual statements of evidence, and individual proposed findings of fact and conclusions of law, trial would not be necessary. Thereafter, the Court approved the parties' agreement and established a briefing schedule. Presently pending are a Joint Stipulation of Facts, individual statements of evidence, the Proposed Findings of Fact and Conclusions of Law, and each parties' reply thereto. Upon consideration of all of the pleadings and for the reasons stated below, judgment is entered in favor of plaintiff, James Douglas Cox and against defendant, the District of Columbia.


 A. The December 30, 1990 Incident.

 By affidavit and in sworn testimony presented to the Court during the February 28, 1992 default hearing, Cox alleges the following: On December 30, 1990, at approximately 3:00 a.m., he was driving on M Street between 21st and 22nd Streets, N.W. While in the far left lane, Cox began to execute a lane change; he did so, however, without using his turn signal. Because Cox observed a car in his blind spot, he did not change lanes, but remained in the far left lane. Immediately after this aborted attempt to change lanes, a paddywagon that had been following Cox turned on its emergency lights, signalling Cox to pull his car over to the side of the street. Cox responded by promptly stopping his vehicle in a parking lot on the corner of M Street and New Hampshire Avenue.

 Once stopped, Cox unbuckled his seatbelt, rolled down his window, and began to look for his automobile registration. When Goodwin approached the vehicle, Cox handed him his driver's license and car registration. After receiving the license and registration, Goodwin questioned Cox, asking, inter alia, whether he had been drinking. Cox answered in the negative, adding that he had not had anything to drink "in hours." Then, Goodwin reached into plaintiff's car through the window, turned off the ignition, removed Cox's car keys from the ignition, and threw them over his shoulder onto the pavement. Goodwin proceeded to verbally abuse Cox, ordering Cox not to leave the car and at the same time inviting him to exit his car so that the officer could fight him. This verbal abuse culminated in a threat to shoot Cox. Meanwhile, Goodwin had kicked Cox's car keys from the pavement onto the grass.

 By this time, two other back-up patrol cars had arrived on the scene. Goodwin returned to the paddywagon to write Cox a ticket, which he later he threw onto the passenger seat of Cox's car while taunting Cox. At some point during the interchange, Goodwin threw Cox's driver's license into the grass. In order to retrieve his driver's license, Cox exited his car and while he was out of his car, he asked Goodwin for his badge number. As he pointed his finger towards Goodwin's badge, at the same time attempting to look at the officer's nameplate (which he could not see clearly because it was partly obscured), Goodwin struck Cox in the head with his night stick and declared that Cox was under arrest. Next, Goodwin slammed Cox against the paddywagon and other officers present hit and beat Cox, knocking him to the ground. The officers then handcuffed Cox and, once cuffed, rolled him onto his back. One officer (unknown, but not Officer Brady) told Cox not to look at the officers and then stepped on him, grinding his boot into Cox's face. Eventually, the officers brought Cox to a standing position and instructed him to get into the back of the paddywagon. Cox complied. For the next twenty to thirty minutes, the officers drove around with Cox, handcuffed, but not seatbelted. Thus, each time the officer driving the paddywagon maneuvered abruptly or suddenly applied the brakes, Cox was tossed against the interior wall of the paddywagon. The paddywagon finally arrived at the police station at 4:10 a.m.

 Once at the station, Goodwin grabbed Cox by the upper left arm, which caused four round bruises from the officer's fingers. Upon entering the station, another officer told Goodwin and his partner to bring Cox over to her. At this point, Cox's injuries consisted of lumps on his head, two splits above his eye, a black and blue eye, a swollen chin, and a large bruise under his buttocks. In addition, he complained of paralysis from the left elbow down to the left thumb and a sharp pain in his neck. Upon examining Cox, the officer expressed her opinion that Cox should be taken to the hospital.

 At the station, Goodwin processed plaintiff on a charge of disorderly conduct. When Cox asked if he could make a telephone call, Goodwin failed to respond. Cox persisted by asking other officers if he could make a call, and they in turn responded that it was up to the arresting officer. When Cox later was asked to sign some forms, he indicated on the forms that he had not been permitted to make a telephone call or to seek counsel. Officer Goodwin tore up those forms. In order to expedite his release, Cox ultimately signed identical forms without commenting upon his inability to make a telephone call or consult with an attorney.

 Also while at the police station, a supervisor, Sergeant Cook, interviewed Cox and asked him how he had received his injuries. Cox informed Sergeant Cook that he had been assaulted by Goodwin, and described the events outlined in this opinion, however, while Cox was present, Sergeant Cook took no further action concerning the use of force allegations.

 Later, during the booking process at the police station, Goodwin advised Cox to refuse treatment at the hospital, ostensibly so that Cox could be released sooner. When Cox asked Brady why he was being treated in the manner that he was, Brady responded "slow night." Although another officer finally did take Cox to the hospital, he was told by a nurse that he had arrived too late for the wounds above his eye to be properly stitched. While at the hospital, Cox again asked the officers on several different occasions whether he could make a telephone call. Eventually, at 6:20 a.m., one officer made a call on Cox's behalf. Several hours later, Cox was driven back to the police station where he was released after posting the required $ 25 bond.

 The citation Cox received for disorderly conduct required him to appear in court at a later date. In accordance with the citation, he duly presented himself in court on the appointed date, however, no police officer appeared. As a result, the charge against him was dropped. The traffic citation he received for his turn signal violation was also dropped.

 Cox received three permanent scars from the incident; one from the handcuffs on his right wrist and two above his left eye. In addition, he still suffers recurring pain in his neck area.

 B. History of the Civilian Complaint Review Board

 As one would expect, District of Columbia law prohibits the use of unnecessary or wanton force by a police officer and supporting regulations similarly require that police officers act constitutionally. D.C. Code § 4-176 (1988); Joint Stipulation of Facts ("Stipulation"), P 1. Police recruits are told that they may use reasonable force, the reasonableness of which depends on the circumstances with which the recruit is faced. Similarly, recruits are instructed that excessive force may result in removal from the police force, criminal charges, and/or civil damages. Id., P 2. If, at any time while an officer is on probation during his or her first year of employment, the officer's conduct is deemed unsatisfactory, the officer must be terminated. D.C. Code § 4-106.

 Prior to 1982, citizen complaints regarding police misconduct were handled directly by the MPD. *fn1" Stipulation, P 3. In 1980, however, the District of Columbia Council ("the Council") promulgated the Civilian Complaint Review Board Act of 1980 ("the Act"). D.C. Code §§ 4-901 to 4-911 (1988 & Supp. 1992). The Act created the Civilian Complaint Review Board ("the CCRB"), consisting of seven part-time members, charged with making findings and recommendations with respect to citizen complaints concerning misconduct by officers of the Metropolitan Police Department. Id. § 4-902. *fn2" The CCRB was created to provide "a formal mechanism for public participation and public review of allegations of misconduct which undermine community respect for and cooperation with the police." Stipulation, P 4.

 The Act granted the CCRB exclusive jurisdiction over citizen complaints of police harassment, use of excessive force, and use of demeaning language, except for complaints in which there is "any probability that the alleged misconduct was criminal in nature." Id. § 4-903(d). *fn3" If the CCRB concludes that there is any probability of criminal misconduct, the complaint must be referred to the United States Attorney's Office ("the USAO") for investigation. Once referral has occurred, the CCRB loses jurisdiction over the investigation and only regains jurisdiction if the USAO decides not to prosecute the officer. CCRB Rule 300.8. Similarly, while a citizen complaint is pending before the CCRB, the MPD is divested of authority to investigate or otherwise discipline any officer on the basis of the complaint except in the following discrete group of cases: any citizen complaint submitted to the MPD regarding the use of service weapons, including police batons, is reviewed by the MPD's Weapon's Review Board; *fn4" citizen complaints involving criminal conduct by police officers which appear well founded are referred to the USAO for potential prosecution; and, the MPD may conduct investigations expressly recommended by the CCRB or by the USAO. Stipulation, P 4.

 Once a complaint is submitted to the CCRB, the CCRB is required by statute to schedule a hearing date within thirty days. D.C. Code § 4-905(a). The statute also requires that the accused officer be given "sufficient opportunity to respond to the allegations in any complaint" and the results of any investigation are to be "written in an investigative report, filed with the Board, and served on every party." Id. Moreover, "absent unusual circumstance, . . . investigation shall be completed within 90 days." CCRB Rule 100.2; Stipulation, P 7. After the investigation has been completed and the statutorily required hearing has been held, the CCRB must make findings on the merits. *fn5" No complaint may be disposed of except on the vote of the CCRB. If, after voting, the CCRB sustains a complaint, it also recommends a sanction which may either be accepted or rejected by the Chief of Police within thirty days. D.C. Code § 4-903(c). Then, even if the Chief of Police accepts the CCRB's decision, the Mayor retains the authority to overrule that decision. Stipulation, P 7. Furthermore, any remedy recommended by the CCRB is "cumulative of any others provided by statute or at common law." D.C. Code. § 4-909(e). The number of complaints filed from 1982 when the CCRB was first established until 1991, when this case was initiated, generally increased from year to year. Only in 1985, did the number of complaints filed fall from the number filed the previous year: Year Number of complaints filed 1982 137 1983 299 1984 369 1985 299 1986 348 1987 353 1988 358 1989 381 1990 415 1991 499


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