Appeal from the Superior Court of the District of Columbia; (Hon. Colleen Kollar-Kotelly, Trial Judge)
Before Ferren, Steadman, and Farrell, Associate Judges.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: Appellees Quentin Porter and his wife, Georgianna Porter, filed this suit against the District of Columbia, Isaac Fulwood, Jr., then Chief of the Metropolitan Police Department (MPD), and two MPD officers, Benavidez and Lambert. The case originated in the arrest of Mr. Porter on April 9, 1990; for disorderly conduct; his arm was allegedly broken during the arrest. This interlocutory appeal by Chief Fulwood, which presents solely the issue of whether he is immune from liability under Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), relates to appellees' claim under 42 U.S.C. § 1983 that, "through improper training and supervision of his police force, and through indifference to a widespread pattern of police brutality and unlawful arrest among his police force, [Chief Fulwood] caused the assault and injury of Mr. Porter." The trial Judge denied Fulwood's motion to dismiss or for summary judgment on this claim based upon the defense of qualified immunity. *fn1 We hold that, since appellees have failed to demonstrate a triable issue of fact as to whether Fulwood "violated clearly established statutory or constitutional rights of which a reasonable person would have known," Harlow, 457 U.S. at 818; Durso, supra note 1, 624 A.2d at 453, Fulwood should have been granted summary judgment. We therefore reverse.
Mr. Porter was arrested on April 9, 1990, at the corner of 14th and P Streets, N.W. Officers Benavidez and Lambert had responded to a complaint of public drinking at a nearby bus stop. Porter alleged in his complaint that when the officers arrived, they demanded to know who owned a cup that lay near him; he denied possessing it. Benavidez refused Porter's offer of identification and ushered him to a police cruiser, then grabbed him and twisted his arm while swinging him against the car. Porter's arm broke with an audible crack. Benavidez then handcuffed him and placed him in the police car. Porter denied that he had engaged in any illegal activity or aggressive behavior at the time of his arrest. *fn2
On March 22, 1991, appellees filed a multi-count complaint against the District of Columbia, Chief Fulwood, Officers Benavidez and Lambert, and D.C. General Hospital (this count arising from alleged post-arrest injuries). Later amended, the complaint alleged -- as relevant here -- that Fulwood in his capacity as Chief of the MPD "knew or had reason to know that officers of the were engaged in a widespread and persistent pattern of using excessive force against individuals, unlawfully arresting and detaining individuals and otherwise abusing their authority as police officers"; that the "outrageous misconduct by the officers shows that their training and supervision by Chief Fulwood and the has been grossly inadequate"; that "by failing to act to correct this widespread and persistent practice among officers, Chief Fulwood . . . followed a policy of deliberate indifference and reckless disregard for the constitutional rights of persons within the District of Columbia"; and that as a result of this "policy and failure to act, Mr. Porter has been severely injured, in violation of the United States Constitution . . . ."
Fulwood moved to dismiss on October 2, 1991, without, however, mentioning appellees' claim under 42 U.S.C. § 1983. Judge Kollar-Kotelly dismissed a separate count alleging negligent training on Fulwood's part, *fn3 but recognized that this dismissal "does not affect plaintiffs' claim under § 1983." Fulwood then moved either to dismiss the complaint or for summary judgment on the § 1983 count. He argued that under Harlow v. Fitzgerald, supra, he was entitled to qualified immunity and that appellees had failed to "meet a heightened standard of specificity" in their complaint as required for § 1983 claims against public officials. To a similar motion filed later on behalf of all defendants, including Fulwood, the District government attached additional materials, viz., a syllabus of the police academy training program for MPD officers; a portion of Mr. Porter's responses to interrogatories; and a portion of Porter's and his wife's depositions. Appellees opposed Fulwood's motion, asserting first that they had met any "heightened pleading" standard and that Fulwood had waived the defense of qualified immunity by not pleading it in his answer. *fn4 Appellees also attached five exhibits to their opposition: (1) a list of court judgments entered against the District of Columbia from 1987-1991 for § 1983 claims or alleged torts by MPD officers; (2) a list of pending suits alleging misconduct by MPD officers; (3) Mr. Porter's answers to interrogatories; (4) a written opinion of appellees' proposed expert witness that Porter's arrest involved the use of improper police procedures and excessive force, and reflected a lack of training and supervision of the officers involved; and (5) a press release describing the results of a survey of members of the D.C. Fraternal Order of Police concerning, inter alia, the adequacy of their training. Appellees later submitted, in addition, a 1990 U.S. General Accounting Office study of the MPD academy training program which, in appellees' words, "showed a considerable inconsistency in the education of new police officers." *fn5 Chief Fulwood responded with an affidavit summarizing MPD arrest policy and the training received by MPD officers in matters such as use of unnecessary force. He pointed out that he had become Chief of Police on August 1, 1989, slightly more than eight months before the arrest in this case, and acknowledged that one of his responsibilities as Chief was "to order and direct instruction and training for members."
On July 21, 1992, Judge Kollar-Kotelly denied Fulwood's motion to dismiss or for summary judgment. She concluded, inter alia, that appellees had "provided a list of previous lawsuits which, in conjunction with the survey of police officers regarding training, raises a factual dispute as to whether or not defendant had notice of the alleged [widespread pattern of] incidents of misconduct." She rejected Fulwood's reliance both on departmental (and statutory) prohibitions on use of excessive force and on the training afforded officers as set forth in the police academy syllabus, explaining:
Notably absent from this list [i.e., the District's enumeration of training areas] is any program on the use of excessive force. Also absent are affidavits as to whether or not such training on the use of excessive force is provided under the title of some other area. Provisions prohibiting the use of excessive force do not address whether or not the police officers received any training.
In short, the Judge concluded that appellees, through their complaint and supporting documents, had created triable issues of fact on whether "the need for more or different training so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city [including Fulwood] can reasonably be said to have been deliberately indifferent to the need," quoting City of Canton v. Harris, 489 U.S. 378, 390, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989).
"Government officials performing discretionary functions" -- a class of which Chief Fulwood is concededly a member -- "generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818. This standard "is intended to provide government officials with the ability 'reasonably anticipate when their conduct may give rise to liability for damages."' Anderson v. Creighton, 483 U.S. 635, 646, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987) (quoting Davis v. Scherer, 468 U.S. 183, 195, 82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984)). More particularly, it is designed "to 'permit the resolution of many insubstantial claims on summary judgment' and to avoid 'subjecting government officials either to the costs of trial or to the burdens of broad-reaching discovery' in cases where the legal norms the officials are alleged to have violated were not clearly established at the time." Mitchell, supra note 1, 472 U.S. at 526 (quoting Harlow, 457 U.S. at 817-18).
In keeping with this purpose, Chief Fulwood first argues that this court should adopt a "heightened pleading standard" where qualified immunity is likely to be imposed as a defense. Under this standard, as articulated by the United States Court of Appeals for the District of Columbia Circuit, plaintiffs alleging conduct by a government official performing a discretionary function "generally must put forward, in their complaints or other supporting materials, greater factual specificity and 'particularity' than is usually required." Martin v. Malhoyt, 265 U.S. App. D.C. 89, 109, 830 F.2d 237, 257 (1987). Recently, however, the Supreme Court has thrown a cloud over the continued viability of this doctrine even as applied to the qualified immunity defense. In Leatherman v. Tarrant County Narcotics Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993), the Court rejected a heightened pleading requirement in cases alleging municipal liability under 42 U.S.C. § 1983, finding it inconsistent "with the liberal system of 'notice pleading' set up by the Federal Rules [of Civil Procedure]." 113 S.ct. at 1163. *fn6 Although the Court had "no occasion to consider whether our qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials," 113 S.ct. at 1162 (emphasis added), its reasoning leaves room for considerable skepticism about the validity of the doctrine even in immunity cases. See, e.g., Branch v. Tunnell, 14 F.3d 449, 455 (9th Cir. 1994); Kimberlin v. Quinlan, 303 U.S. App. D.C. 330, , 6 F.3d 789, 799 (1993) (Edwards, J., Dissenting).
Fortunately, we need not decide whether this court should, or permissibly could, *fn7 adopt a heightened pleading requirement in § 1983 cases. The purpose of such a rule is to spare the official the burden of protracted discovery, e.g., Martin, 265 U.S. App. D.C. at 109, 830 F.2d at 257; yet Chief Fulwood has undergone extensive discovery already because of his failure to plead qualified immunity on the § 1983 count until he asked leave to amend his answer while moving to dismiss or for summary judgment on immunity grounds. Moreover, both Fulwood and appellees filed exhibits in connection with the District's later motion to dismiss on his behalf. Judge Kollar-Kotelly was therefore required to treat Fulwood's motion as one for summary judgment. E.g., American Ins. Co. v. Smith, 472 A.2d 872, 874 (D.C. 1984) ("If ...