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District of Columbia v. Evans

July 21, 1994


Appeals from the Superior Court of the District of Columbia; (Hon. Herbert B. Dixon, Trial Judge)

Before Ferren* and Terry, Associates Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: This is a police shooting case which resulted in a $612,828 judgment against the two police officers involved, Eric Winer and Joyce Powell, and against the District of Columbia. The principal basis for this award was a 42 U.S.C. § 1983 (1993) claim that the officers and the District violated the decedent's Fourth Amendment right against unreasonable seizures. The jury also found for the plaintiff -- the mother of the victim, Virtus Evans, and the personal representative of his estate -- on wrongful death, survival, and negligent infliction of emotional distress claims. The jury found for the defendants on the assault and battery claim. The trial Judge dismissed plaintiff's other claims, which were all based on negligence.

We conclude that the officers are entitled to immunity from the § 1983 suit and that, as a result, the District is not subject to § 1983 liability. Accordingly, we must reverse the judgments totaling $562,828 in plaintiff's favor on that claim, as well as on the wrongful death and survival claims, which were predicated on the § 1983 claim. We uphold, however, the jury's verdict awarding $50,000 to plaintiff for negligent infliction of emotional distress. We also conclude that the trial court erred in dismissing plaintiff's negligence claims. We therefore reverse and remand for a new trial on those claims alone.


Metropolitan Police Department Officers Eric Winer and Joyce Powell shot and killed Virtus Evans after a confrontation at his home. The facts were hotly contested at trial; the dispute centered on whether the victim possessed a butcher knife at the time he was shot.


The plaintiff's version of what happened, based primarily on the testimony of the plaintiff-appellee herself, Indiana Evans, the victim's mother, is as follows. Virtus Evans, who was 37 years old at the time of the shooting, had a long history of epileptic seizures. He lived with his mother, who had been accustomed to dealing with her son's seizures since he was two years old. On May 24, 1986, Ms. Evans returned home to find her son attempting to get out of the locked back door of their home without using a key, in spite of the fact that he had the key with him. Ms. Evans asked her son what was wrong and inquired whether he had taken the medicine he used to control his epilepsy. He did not respond, and in the next few moments he twice fell down attempting to walk across the kitchen floor. At this point, Ms. Evans, feeling that she needed assistance, went to a neighbor's house to dial 911. She testified that she told the emergency operator, "My son is having a seizure. I'm home alone and need some help." Ms. Evans then returned to her own home to check on her son, whom she found sitting in the kitchen, apparently "a little better."

Approximately five minutes later, a fire truck with five firefighters arrived at the scene. Ms. Evans told them that she had requested an ambulance to give medical help because her son was "having a seizure." Two firefighters followed Ms. Evans to the kitchen to check on her son. According to Ms. Evans, upon seeing Virtus Evans, one of the firefighters said, "He's on drugs." At this point Virtus Evans was not out of the seizure, but he had calmed down.

When the firefighters entered the house with Ms. Evans, they encountered Virtus Evans trying to eat a watermelon. He had a large knife, and watermelon pieces and juice were scattered all over the counter and the floor. The firefighters continued to exclaim that Virtus Evans was on drugs, "probably PCP." After about five minutes, fearing Evans would hurt himself, one of the firefighters took the knife away from him and gave it to his mother, who placed it behind a chair in the living room. According to Ms. Evans, her son never entered the living room during the entire incident.

Virtus Evans then left the kitchen and stepped into an alley behind the house. According to his mother, he had nothing in his hands at this time. After another couple of minutes had passed, Ms. Evans heard sirens and decided to wait outside her house for more help to arrive. She testified that she next saw a police officer, later identified as defendant Joyce Powell, running through the alley, "moving very fast," with her gun drawn. Officer Powell passed Ms. Evans without speaking, although Ms. Evans testified that she had told the officer her son was an epileptic. Ms. Evans testified that, upon hearing this, Officer Powell looked directly at Ms. Evans, as if to acknowledge the statement.

Ms. Evans further testified that she then followed Officer Powell into the back yard, where she saw her son approaching. She heard Officer Powell say "Drop it" twice. Virtus Evans stumbled toward Officer Powell, who backed up and raised her gun. Ms. Evans testified that her son's hands were hanging loosely at his side at the time, and that he held nothing. She said that her son was at least ten feet away from Officer Powell when the officer fired her weapon at him. Just before Officer Powell fired, Ms. Evans saw Officer Winer for the first time. At that point, before the actual shooting, fearing for her own safety, Ms. Evans placed her hands over her eyes, screamed, and either fell or was knocked to the ground. She heard a number of shots and later learned that her son had been killed by shots fired by both Officer Winer and Officer Powell.

In addition to Ms. Evans' testimony, the plaintiff presented two other eyewitnesses who testified that events outside the house occurred much as Ms. Evans had described. They, too, testified that Virtus Evans had nothing in his hands before he was shot. These other eyewitnesses also testified that Virtus Evans never threatened Officer Powell in any way.

Plaintiff also called Daniel Beach, one of the firefighters who was on the scene, as a witness in her case-in-chief. Unlike plaintiff's other witnesses, Beach testified that Virtus Evans did have a knife at the time he was shot. Beach added, however, that Evans never acted in a threatening way toward any other person present, but that he had "jabbed at himself" with the knife several times. Beach also testified that Officer Winer had told Evans to drop the knife.


The District of Columbia defendants-appellants presented a much different version of the facts through the testimony of firefighters at the scene and of Officers Winer and Powell. Allan Russell, one of the firefighters, testified that Ms. Evans had told him that her son was "acting crazy" and that she was afraid to go into the house. According to the testimony of defendants' witnesses, when the firefighters first entered the house, encountering Virtus Evans with the knife and the watermelon, they attempted to take his vital signs but Evans would not cooperate. The firefighters spoke with Evans for about 15 minutes without getting a response. During this time, they were able to get the knife from him and give it to his mother. Eventually, Evans told the firefighters to "get away from him."

At this point, according to the firefighters' testimony, Evans pulled another butcher knife from his shirt and told everyone to back off. Evans then left the kitchen and went into the back yard, where he "lunged" at firefighters Lee Mason and Allen Russell with this second knife. Russell hopped over a fence to avoid the knife thrust. While this was occurring, firefighter Beach called for police assistance, sending over the radio a "firemen in trouble" dispatch which said they were dealing with a person with an "altered mental status."

Shortly thereafter, Officer Eric Winer arrived at the scene. According to Winer's testimony, the firefighters told him that a man in the alley with a knife had acted threateningly toward them. Officer Winer then proceeded to the alley, where he saw a man later identified as Virtus Evans with a butcher knife. Officer Winer kept a short fence between himself and Evans and used the radio to call for a taser (stun gun). Evans continued to act strangely and did not respond to the officer's pleas to drop the knife. At one point, Evans jabbed himself in the stomach with the knife. Shortly after that, Evans started to climb the fence that separated him from Officer Winer. At that point Winer aimed his gun and yelled, "Stop, it's not worth it. Don't do it this way." According to Winer, Evans backed off of the fence and retreated down the alley, heading toward a young girl. Winer distracted Evans by shaking the fence. Evans then approached Winer and fell to the ground, seemingly onto the knife. Winer holstered his weapon and jumped the fence to approach Evans. Suddenly, according to Winer, Evans stood up and brandished the knife. Officer Winer backed away and continued to plead with Evans to drop the knife.

This was the time when Officer Joyce Powell arrived at the scene. She knew another officer was there. Firefighters also told her a man was there armed with a knife. The officer testified that she ran to the back of the house holding her baton. Officer Powell added that she did not remove her gun from its holster until she reached a point where Evans was standing in front of her. At that point, she jumped back and to the left, pulling her weapon.

According to the officers' testimony, Virtus Evans approached Officer Winer for a moment, then moved toward Officer Powell, bringing the knife up into a striking position. Powell jumped back, telling Evans to drop the knife. When Evans started to move toward her more quickly, both she and Officer Winer opened fire, killing Evans. Throughout the time Officer Powell was at the scene, Officer Winer and the firefighters were pleading with Evans to drop the knife. Both officers testified that they feared for Officer Powell's life when they fired on Evans.

The main factual dispute between the parties, therefore, is whether Virtus Evans had a knife and was threatening others, including the two police officers, when Officers Powell and Winer shot him. It is important to note in this connection that counsel for plaintiff Evans conceded in closing argument that both officers believed that Virtus Evans had a knife.


As a result of this shooting, Indiana Evans filed a ten-count complaint against Officer Winer, Officer Powell, and the District of Columbia stating several theories of liability. At least six of the counts alleged various types of negligence, including the District Columbia's failure to properly "train, manage, and supervise" 911 staff, the firefighters, and the police. The complaint also alleged that the firefighters had been negligent in failing to get immediate medical help for Virtus Evans, and that the police had been negligent in their approach to the scene, especially in their actions that allegedly resulted in further agitating Virtus Evans, rather than calming him down. The complaint also included an assault and battery count, filed on behalf of Virtus Evans' estate, a wrongful death action pursuant to D.C. Code § 16-2701 (1989), and a survival action pursuant to D.C. Code § 12-101 (1989). Further, Ms. Evans sued for "negligent and/or intentional infliction of emotional distress." Lastly, Ms. Evans filed a 42 U.S.C. § 1983 *fn1 claim against all defendants, alleging that the officers and the District had violated Virtus Evans' Fourth Amendment right to be free from unreasonable seizures.

At trial, Judge Dixon granted the defendants' *fn2 motion for directed verdict on all the negligence counts. He allowed the jury to hear all the other counts, namely, the wrongful death and survival actions, the assault and battery claim, and the § 1983 claim.

The jury returned a verdict in plaintiff's favor on all counts it heard except for assault and battery, for which it found in the defendants' favor. By means of a special verdict form, the jury awarded Ms. Evans $500,000 to cover both the § 1983 claim and the survival action, $50,000 on the infliction of emotion distress claim, and $62,828 on the wrongful death action. This verdict form did not list the three defendants separately; the verdict was assumed to award damages collectively against all three defendants: Officer Powell, Officer Winer, and the District of Columbia.

Judge Dixon then granted the District's Motion to Alter or Amend Judgment, concluding that, as a matter of law under District of Columbia v. Carter, 409 U.S. 418, 34 L. Ed. 2d 613, 93 S. Ct. 602 (1973), the District of Columbia could not be held liable for damages under § 1983 because the District was not a "state or territory." *fn3 Judge Dixon, however, did not undo the § 1983 award against the two officers; he rejected the officers' claim that they were entitled to immunity from a § 1983 claim under the doctrine of Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).

Officers Powell and Winer appeal the denial of their defense of immunity under Harlow; they contend that the judgment against them under § 1983 cannot stand as a matter of law. Further, all appellants argue that, if the officers are immune from the § 1983 claim, all appellants, including the District, are entitled to reversal of the judgments on all the remaining counts because those judgments were premised solely on the validity of the § 1983 claim against the officers.

Ms. Evans filed a cross-appeal challenging Judge Dixon's ruling that the District could not be held liable under § 1983. She also has cross-appealed the directed verdict against her negligence claims. Finally, she challenges another Judge's earlier ruling that vacated default judgments against the police officers and thereby allowed this case to proceed to trial.


Appellants contend that Officers Powell and Winer, as well as the District of Columbia, are entitled to immunity from 42 U.S.C. § 1983 liability. See (supra) note 1. In Harlow, plaintiff brought suit for damages based on his allegedly unlawful discharge from employment in the Department of Air Force. Defendant, a senior aide to former President Nixon, argued that he was entitled to immunity from civil suit. The Supreme Court concluded that presidential aides were not entitled to absolute immunity; rather, they were entitled to "qualified immunity." Governmental officials performing discretionary functions, accordingly, are shielded from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known about. See Harlow, 457 U.S. at 818.


The Supreme Court built on Harlow's "qualified immunity" doctrine, as applied to police conduct, in Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987), a ยง 1983 case where the Court attempted to clarify what Harlow meant by a "clearly established" constitutional right. Anderson was a warrantless search and seizure case, based on "exigent circumstances," in which the Court held that a police officer is entitled to summary judgment on qualified immunity grounds if the officer can establish, as a matter of law, that he or she reasonably could have believed that the search comported with the Fourth Amendment, even though it actually did not. The Court did not question the proposition that freedom from illegal searches and ...

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