Appeals from the Superior Court of the District of Columbia (CA-6505-95) (Hon. Joan Zeldon, Trial Judge)
Before Wagner, Chief Judge, and Farrell and Reid, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Argued September 24, 2002
Terrence Hicks was shot to death by police officers who had responded to the home of his mother and found him holding her hostage at knifepoint. In subsequent wrongful death and survival actions brought against the District of Columbia and individual police officers by the estates of Hicks and his mother (who died of natural causes before trial), *fn1 liability turned essentially on whether the officers had used excessive force to immobilize Hicks -- ultimately by killing him -- after they saw him wield the knife as though about to stab his mother in the chest. The jury found in favor of Hicks's estate as to the District, acting through three police officers, on each of three counts: violation of Hicks's Fourth Amendment rights under 42 U.S.C. § 1983, assault and battery, and negligence per se. *fn2 The jury awarded the plaintiff $2,149,998 in compensatory damages and $3,999,000 in punitive damages, both apportioned equally among the three officer-defendants. On a post-trial motion by the District, the trial judge remitted the compensatory damages to a total of $180,000, *fn3 but otherwise left the jury verdicts intact. On appeal, the District assigns error with respect to each count on liability and contests any award of punitive damages in this case. On cross-appeal, the plaintiff challenges the decision to remit the compensatory damages.
We hold that the evidence fairly permitted the jury to find, over the officers' defense of qualified privilege, that they committed assault and battery against Hicks by engaging in the use of excessive force. That being so, we find it unnecessary to resolve the District's claims challenging the separate verdicts for the § 1983 violation and negligence because the jury returned a single award of compensatory damages, and because we further hold that no award of punitive damages was legally permissible in the circumstances of this case. Finally, we sustain as a proper exercise of discretion the trial judge's decision to remit the compensatory damages.
On August 16, 1994, Metropolitan Police officers were alerted to the fact that Terrence Hicks was at the home of his mother, Mary Haley, threatening to kill her with a knife unless his former girlfriend, Kimberly Johnson, was brought to see him. *fn4 The police went to Haley's residence in an apartment building and, standing outside the door, held repeated conversations with Hicks in which he refused to open the door and threatened to kill his mother. Hicks had told the police he would "shoot" his mother. When they spoke with Mrs. Haley, she stated that he did not have a gun but had a knife and was restraining her physically. Negotiations continued for more than an hour during which Hicks gave differing "time lines" as to when he would kill Mrs. Haley with the knife unless Johnson was brought to see him. To the police he sounded "angry, almost irrational." Eventually a decision was made for the Emergency Response Team (ERT) to force entry into the apartment.
The plan was for the ERT, consisting of Sergeant Jackson (in charge), Lieutenant Durham, and Officers DeSantis, Henderson, Stewart, and Powell to enter the apartment and rescue Mrs. Haley without causing loss of life if possible. At a point when Hicks had effectively "broke[n] off all negotiations," the team members forced the apartment door open and entered, each armed. According to their uniform testimony, they saw Mrs. Haley seated and appellant crouching behind her with his left arm around her neck and a knife in his right hand. They ordered him several times to drop the knife. But when Hicks rubbed the knife across Mrs. Haley's chest and then raised it as if to stab her there, DeSantis fired a shot which cut off two of her fingers, grazed her ear, and struck Hicks on the chin or left side of his face, though not fatally. DeSantis fired a second shot as Hicks "was spinning down to the ground." Officers testified that Hicks "[i]mmediately came back up" or "jumped back up," and three officers began firing their weapons at him. As Durham and DeSantis pulled Mrs. Haley all the way or partly into the adjoining kitchen, Henderson, Stewart and Powell fired a total of some twenty-one shots at Hicks from a distance of nine feet or closer. Thirteen bullets struck Hicks, approximately seven of them in the back; two shots, including one to the left back of the head, were "very likely" fatal, and others were possibly so.
At trial, the plaintiff's theory in substantial part was that Hicks had never threatened his mother with a knife -- in effect that the police had fabricated the claim of an immediate threat to her safety or their own. *fn5 The jury rejected this theory by exonerating Officer DeSantis on all counts, implicitly finding that the two shots he fired were necessary to eliminate the threat Hicks posed to his mother's safety. Alternatively, however, the plaintiff contended that Officers Henderson, Powell, and Stewart used excessive force when they repeatedly shot and finally killed Hicks after DeSantis had effectively disabled him as a threat to anyone's safety. The jury apparently accepted this theory over the testimony of the officers that they began firing and continued to do so -- for a period of no more than eight seconds -- because Hicks still held the knife in his hand or was reaching toward it on the ground while trying to regain his feet. *fn6
The District contends, for different reasons, that the damage award cannot be sustained as to any of the three counts. It argues that as a matter of law: the officers were entitled to immunity on the excessive force (§ 1983) claim; the force they used was privileged with respect to the claim of assault and battery; and the plaintiff failed to prove negligence per se by presenting no expert testimony on the standard of care or deviation from it. *fn7 We consider first the challenge to the verdict on assault and battery because, as will appear in part II.B., infra, resolution of that challenge moots the District's other two attacks on the compensatory damage award.
In Holder v. District of Columbia, 700 A.2d 738 (D.C. 1997), the court stated:
Although assault and battery are technically distinct intentional torts, in cases like this one they are often pled in conjunction as a single count. An assault is an intentional and unlawful attempt or threat, either by words or acts, to do physical harm to the plaintiff. A battery is an intentional act that causes a harmful or offensive bodily contact. In most cases involving intentional shootings by police officers the technical ...