United States District Court for the District of Columbia
March 30, 2004.
BRUCE AND MARY ANN FEIRSON, Plaintiff's,
DISTRICT OF COLUMBIA, et al., Defendants
The opinion of the court was delivered by: JOHN BATES, District Judge
Presently before the Court in this civil rights action brought by
plaintiffs Bruce and Mary Ann Feirson pursuant to 42 U.S.C. § 1983 and
under the common law of the District of Columbia is the motion of
defendant District of Columbia ("the District") for summary judgment.*fn1
The District moves for summary judgment on Sgt. Feirson's common law and
§ 1983 claims, and on Mary Ann Feirson's common law claim for loss of
consortium. For the reasons that follow, the Court will grant in part and
deny in part the District's motion.
This case arises out of Sgt. Bruce Feirson's participation in an
Armament Systems Proficiency ("ASP") training session conducted by the
Metropolitan Police Department ("MPD") on April 27, 2000. The ASP
training, which instructs MPD officers in the use of the ASP baton,
consists of classroom instruction and testing, physical conditioning
exercises and drills, and a
"combat" or "attack" exercise. The combat exercise portion of the ASP
training requires a trainee to engage his training instructor, who plays
the role of a violent suspect, in physical combat and to use the ASP
baton to defend himself. Bruce Feirson was injured while participating in
the combat exercise portion of ASP training.
The Feirsons filed suit against the District, inter alia, on April 26,
2001. Sgt. Bruce Feirson brings two counts against the District, the
first for violating his constitutional rights, privileges, and immunities
under the Fourth, Fifth, and Fourteenth Amendments by intentionally
causing the use of excessive and objectively unreasonable force against
him (Count I, seeking relief under 42 U.S.C. § 1983), and the second
for common law liability for the injuries he sustained from the ASP
training (Count II, brought under the laws of the District of Columbia).
Mary Ann Feirson brings a claim for loss of consortium against the
District (Count III).
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings and the evidence
demonstrate that "there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial
responsibility of demonstrating the absence of a genuine dispute of
material fact. See Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986).
The moving party may successfully support its motion by "informing the
district court of the basis for its motion, and identifying those
portions of'the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of material fact."
Id (quoting Fed.R.Civ.P. 56(c)).
In determining whether there exists a genuine issue of material fact
sufficient to preclude summary judgment, the court must regard the
non-movant's statements as true and accept all evidence and make all
inferences in the non-movant's favor. See Anderson v. Liberty Lobby.
Inc. 477 U.S. 242, 255 (1986). A non-moving party, however, must
establish more than the "mere existence of a scintilla of evidence" in
support of its position. Id. at 252. By pointing to the absence of
evidence proffered by the non-moving party, a moving party may succeed on
summary judgment. Celotex. 477 U.S. at 322. "If the evidence is merely
colorable, or is not significantly probative, summary judgment may be
granted." Anderson. 477 U.S. at 249-50 (internal citations omitted).
Summary judgment is appropriate if the non-movant fails to offer
"evidence on which the jury could reasonably find for the [non-movant]."
Id. at 252.
I. Common Law Claims: Notice Under D.C. Code § 12-309
In order to maintain a common law tort claim against the District, a
plaintiff must satisfy the mandatory notice requirement set forth in D.C.
Code § 12-309 (2001), which states:
An action may not be maintained against the District
of Columbia for unliquidated damages to person or
property unless, within six months after the injury or
damage was sustained, the claimant, his agent, or
[his] attorney has given notice in writing to the
Mayor of the District of Columbia of the approximate
time, place, cause, and circumstances of the injury or
damage. A report in writing by the Metropolitan Police
Department, in regular course of duty, is a sufficient
notice under this section.
The primary purpose of § 12-309 is to provide the District with
sufficient notice to allow it to quickly investigate before evidence
becomes lost or witnesses unavailable; correct hazardous or potentially
hazardous conditions; and settle meritorious claims. See Gwinn v.
Columbia. 434 A.2d 1376
, 1378 (D.C. 1981): see generally H.R. Rep. No.
2010, 72d Cong., 2d Sess. (1933) (describing purposes of statute). The
District asserts that Sgt. Feirson failed to provide the requisite notice
under § 12-309. Sgt. Feirson concedes that he never gave notice to
the Mayor directly, but contends that he provided sufficient notice
through written reports by or to MPD, including his filing of a PD 42
injury report on April 28, 2000, and the cumulative collection of police
reports that include Sgt. Feirson's New Injury Questionnaire (April 28,
2000), Lt. Rodman's Supervisor's Report of Accident (PD 839) dated May
2, 2000, and Lt. Rodman's May 4, 2000 Memorandum to the Commander,
Seventh District, concerning the event.
Sgt. Feirson filed a PD 42 report, the Metropolitan Police Department's
Injury or Illness Report, on the day after the ASP training. In order to
provide sufficient notice to the District under § 12-309, the police
report must contain the same information that is required in any other
notice given under the statute; it must include the approximate time,
place, cause, and circumstances of the injury or damage. See Doe v.
District of Columbia. 697 A.2d 23, 27 (D.C. 1997). The parties do
not dispute that the PD 42 is a report in writing by the Metropolitan
Police Department in the regular course of duty. The District argues,
however, that the PD 42 does not provide the District with sufficient
notice as to the cause and circumstances of the injury.
The District of Columbia Court of Appeals has explained that, under
a written notice or police report must disclose both
the factual cause of the injury and a reasonable basis
for anticipating legal action as a consequence. Such
notice would suffice, therefore, if it either
characterized the injury and asserted the right to
recovery, or without asserting a claim described the
injuring event with sufficient detail to reveal, in
itself, a basis for the District's potential
Washington v. District of Columbia. 429 A.2d 1362, 1366 (D.C. 1981) (en
banc). Furthermore, police reports satisfy the § 12-309 requirement
only if they actually notify the District of the injury claimed. See
Powell v. District of Columbia. 645 F. Supp. 66, 70 (D.D.C. 1986)
(quoting Jenkins v. District of Columbia. 379 A.2d 1177, 1178 (D.C.
Certainly, the PD 42 injury report contains sufficient information on
the time, place, cause and circumstances of Sgt. Feirson's injury. The PD
42 does not expressly assert a right to recovery, however, and whether it
serves as sufficient notice to the District therefore depends on whether
its description of the injuring event is sufficiently detailed to
indicate a basis for the District's potential liability for the tort
claim that plaintiff now asserts against the District. The District of
Columbia Court of Appeals has instructed that "§ 12-309's
requirements with respect to the content of the notice . . . are to be
interpreted liberally, and in close cases we resolve doubts in favor of
finding compliance with the statute." Wharton v. District of Columbia.
666 A.2d 1227, 1230 (D.C. 1995).
In Count II of his Complaint, Sgt. Feirson asserts a claim against the
District "[u]nder the statutes, common law and/or case law of the
District of Columbia . . . for the injuries he has sustained, and for all
his resulting damages." Compl. ¶ 42. With respect to a description
of the factual cause of those injuries, Sgt. Feirson's PD 42 report
clearly states: "While fighting during the combat phase of training I
sustained an injury to my lower back and neck." Pl Opp., Ex. U at 1. The
report then details the effects of the injury: "I have numbing and
weakness in my right hand and pain in my lower back and buttocks running
down to my left leg." Id. With respect to revealing a basis for the
District's liability, Sgt. Feirson states in the PD 42 that he "was
assigned" to the ASP training, indicating that the MPD was responsible
for his participation in the training.
The report also states that "[d]uring the ASP training, Sergeant
Yarborough [sic], of the training staff, stated to the class, Those of
you that can't pass this course need to retire from the police
department. You need to find something else to do.'" Id. This reported
statement certainly intimates potential liability on the part of the
District to the extent that it suggests that the ASP training and
fighting, in which Sgt. Feirson was injured, was a condition of his
continued employment by the MPD.
Upon review of Sgt. Feirson's PD 42 report, generated in the regular
course of his MPD duty, and in light of the controlling law, the Court
concludes that the PD 42 is, by itself, sufficient notice under §
12-309 because it describes the injuring event with sufficient detail to
reveal a basis for the District's potential liability for the physical
injuries which Sgt. Feirson allegedly sustained in the ASP training.
Here, moreover, that conclusion is bolstered by the additional MPD
reports, including the description of the cause of injury as "Assault
Intentional" in the New Injury Questionnaire,*fn2 Lt. Rodman's
reference to other serious injuries in the ASP training and the need
for change, and Lt. Rodman's stated concern over Sgt. Yarbaugh's "pass
the course or retire" comment. The Court will therefore deny the
District's motion for summary judgment on Sgt. Feirson's common law
claim (Count II), and will accordingly also
deny summary judgment on Mary Ann Feirson's common law claim for
loss of consortium (Count III).
II. Availability of Punitive Damages
The Feirsons seek punitive damages from the District. See Compl. at
12. The District argues that punitive damages are not available against
it. It is well established that, under § 1983, municipalities are
immune from punitive damages. See City of Newport v. Fact Concerts. Inc.
453 U.S. 247, 271 (1981); Butera v. District of Columbia. 235 F.3d 637,
658 (D.C. Cir. 2001). Because the District is a municipal corporation,
see D.C. Code § 1-102 (2001), there is no question that punitive
damages are not available on Sgt. Feirson's § 1983 claim against the
Although punitive damages are generally not available against the
District under District of Columbia law, they may be awarded when
warranted by "extraordinary circumstances." See Smith v. District of
Columbia. 336 A.2d 831. 832 (D.C. 1975); Butera, 235 F.3d at 658. The
District of Columbia Court of Appeals has explained that allowing
punitive damages against the District makes little sense given that the
justification for a punitive award is to punish the offender, and that
the people who would bear the burden of the punishment of a municipality
would be its citizens, the same group expected to benefit from the
punishment of the wrongdoer. Smith. 336 A.2d at 832. Illustrative
instances of "extraordinary circumstances" where punitive damages might
be warranted against a municipality, therefore, include circumstances
"where a jurisdiction's taxpayers are directly responsible for
perpetrating the policies that caused the plaintiff's injuries" or "where
a municipality or its policymakers have intentionally adopted the
unconstitutional policy that caused the damages in question." Butera. 235
F.3d at 658, quoting Daskalea v. District of Columbia. 227 F.3d 433, 447
(D.C. Cir. 2000).
The Feirsons argue that the facts they have presented to the Court
demonstrate that "a reasonable jury could conclude that the District
intentionally adopted and maintained and/or was deliberately indifferent
to a policy and practice of intentionally, unreasonably, and
unconstitutionally assaulting officers, including Sgt. Feirson, during
ASP training", PL Opp. at 33 (emphasis in original), and that therefore
punitive damages could be awarded in this case. The District contends that
the Feirsons have failed to show extraordinary circumstances entitling
them to punitive damages and that "[n]o trier of fact could reasonably
find an intentional adoption of an unconstitutional policy on the record
in this case." Def. Reply at 11. The Court concludes infra that the
alleged assault on Sgt. Feirson does not rise to the level of a
constitutional violation. It follows inexorably, then, that the Court
must also conclude that the Feirsons have failed to make a showing of the
requisite extraordinary circumstances warranting the availability of
punitive damages in this case. The record simply will not support a
conclusion by a reasonable jury that the District intentionally or with
deliberate indifference adopted an unconstitutional policy of
intentional, unreasonable assaults on officers as part of the ASP
training, and hence punitive damages are not available.
III. Constitutional Claims Under 42 U.S.C. § 1983
In addition to his state law claim, Sgt. Feirson brings a claim against
the District pursuant to 42 U.S.C. § 1983 for violations of his
constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of
any rights, privileges or immunities secured by
the Constitution and laws, shall be liable to the
party injured in an action at law. . . .
In order to state a claim against the District of Columbia under §
1983 for the unconstitutional conduct of its employees, a plaintiff must
allege that he was deprived of his constitutional rights, and that this
deprivation was caused by a policy, custom or practice of the District of
Columbia, or that a single "municipal decision reflects deliberate
indifference to the risk that a violation of a particular constitutional
or statutory right will follow the decision." See Bd. of County Comm'rs
v. Brown. 520 U.S. 397
, 403, 411 (1997); Monell v. New York City Dep't of
Soc. Servs., 436 U.S. 658
Here, Sgt. Feirson claims violations of his Fourth Amendment right to
be free from unreasonable seizures and his Fifth Amendment substantive
due process right to be free from the use of excessive force. He further
claims that these constitutional violations either were the product of a
policy or practice of the District or were a result of the District's
deliberate indifference to the unconstitutional conduct and its obvious
consequences. The District responds that Sgt. Feirson's Fourth and Fifth
Amendment rights were not violated, and that even if they were, the
District should not be held liable for the violations.
A. Unconstitutional Seizure Under the Fourth Amendment
The Fourth Amendment protects the "right of the people to be secure in
their persons . . . against unreasonable . . . seizures. . . ." U.S.
Const. Amend. IV. The Fourth Amendment applies in situations outside the
criminal law context. See O'Connor v. Ortega, 480 U.S. 709,
715 (1987) ("Searches and seizures by government employers or supervisors
. . . are subject to the restraints of the Fourth Amendment."). A person
is "seized" within the meaning of the Fourth Amendment "only if, in view
of all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave." Michigan v.
Chesternut 486 U.S. 567, 573 (1988)(quoting United States v. Mendenhall.
446 U.S. 544, 554 (1980)).
Plaintiff avers that Sgt. Feirson's person was effectively "seized" by
the District in violation of the Fourth Amendment when he was given
multiple, direct instructions to attend the ASP training; required to
enter a ring formed by other officers; surrounded and restrained by those
officers; and, while so restrained, intentionally and severely battered
by another officer. PL Opp. at 38-39. The District contends that given
the facts, a reasonable person in Sgt. Feirson's circumstance could not
have believed that he was not free to leave the ASP training exercise and
that the District's actions thus do not constitute an unreasonable
seizure in violation of the Fourth Amendment.
According to his deposition testimony, Sgt. Feirson asked to be excused
from the ASP training when he learned that he had been scheduled to
participate in it. Feirson Dep. (Pl. Opp., Ex. 24) at 36-42, 94-103. Sgt.
Feirson had two prior back surgeries as a result of injuries sustained in
the performance of duty. Id. at 9. His request was refused by his
commanding officer Lt. Thomas Rodman ("Lt. Rodman"), who gave Sgt.
Feirson a direct oral and written order, from an Assistant Chief of
Police, to attend the ASP training. Id. at 36-42, 94-103.
Sgt. Feirson argues that an order that is given by a superior officer
in the MPD is an imperative because the MPD is a paramilitary
organization in which orders are commands that must be followed. Sgt.
Feirson testified that "[i]t is a serious offense to disobey a direct
and it could include termination or very stern disciplinary action." Id.
at 38-39; see also Cockett Dep. (Pl. Opp., Ex. 19) at 258-60. The
District notes, however, that Sgt. Feirson has testified that he knows of
no member of the MPD who was fired for not participating in ASP
training. Def. Mot. Summ. J., St. of Mat. Fact ¶ 35, referencing
Feirson Dep. at 109.
Sgt. Feirson also proffers evidence that, at the training session on
April 27, 2000, he was forced to enter a ring of fellow officers during
the combat phase of training, where he was hit, punched, and kicked by an
ASP trainer. Feirson Dep. at 44-61, 114-116. While attempting to survive
the exercise, Sgt. Feirson tried to clutch the attacking trainer to avoid
being beaten. When he tried to do this, however, Sgt. Yarbaugh, the
supervisor for the training, would stop the training, including the
stopwatch used to time the exercise, separate Sgt. Feirson from his
assailant, and then re-start the combat session. Id. at 51-52, 116. When
Sgt. Feirson attempted to move away from the attacker to avoid the
blows, the officers forming the ring around him would push him back into
the exercise with the rubber shields that they were holding. Id. at
51-52. The combat session with Sgt. Feirson concluded after more than a
minute when Officer DeOleo, the attack instructor, said "you can't take
any more, you've had enough." Id. at 52-53.
In considering whether Sgt. Feirson was seized in violation of the
Fourth Amendment, the Court must look at all the circumstances
surrounding the incident to determine whether a reasonable person in
Sgt. Feirson's circumstances would have believed that he was not free to
leave. See Chesternut. 486 U.S. 567, 573 (1988). In Fournier v. Reardon,
160 F.3d 754, 757 (1st Cir. 1998), the plaintiff was a ten-year veteran
of the county sheriffs department who claimed that his Fourth Amendment
rights had been violated when he was punished for violating protocol
while attending a basic training academy run by the sheriff's
department. The plaintiff's
punishment included being handcuffed, placed under house arrest, having
his written reports placed in his mouth, and being ordered to return to
the classroom while still in handcuffs. In finding against the
plaintiff, the First Circuit reasoned that although there could have been
negative consequences for the plaintiff's continued employment as a
corrections officer had he objected to being handcuffed, "the possible
effect that refusing to be handcuffed may have had on his employment
status is not an issue for us to consider." 160 F.3d at 757. The First
Circuit noted that the plaintiff had submitted to being handcuffed and
that, while the record may have reflected that he "was the subject of
improper hazing, which might give rise to a state law claim based on tort
or employment theories," a reasonable person would not believe that the
plaintiff was not free to call an end to the house arrest and have the
handcuffs removed. Id.
Likewise, here, Sgt. Feirson submitted to attending the ASP training
session and submitted to entering the combat ring. Although his refusal
to do so could have resulted in negative consequences for his continued
employment, as the First Circuit observed in Founder. that is a concern
that does not impact whether he was subjected to an unconstitutional
seizure in violation of the Fourth Amendment. "The Fourth Amendment, like
the other central provisions of the Bill of Rights that loom large in our
modern jurisprudence, was designed, not to prescribe with `precision'
permissible and impermissible activities, but to identify a fundamental
human liberty that should be shielded forever from government intrusion."
Oliver v. United States. 466 U.S. 170, 186 (1984). With respect to the
argument that Sgt. Feirson was restrained and effectively "seized" during
the time that he spent in the combat ring, the Court concludes that, like
the plaintiff in Fournier who was forcibly restrained by being
handcuffed, a reasonable person would have believed that he was free to
call an end to the combat even though he might
very well have understood that doing so would lead to embarrassment
or "losing face" before his peers, or to employment consequences for
failure to complete mandatory training.
Viewing the facts proffered by Sgt. Feirson in the light most favorable
to him, the Court concludes that a reasonable person would not believe
that Sgt. Feirson was not at liberty, setting aside the possible
consequences for his employment with the MPD and his social standing
among his peers, to refuse to participate in the ASP training, to refuse
to enter the combat ring, or to demand an end to the combat exercise. A
contrary conclusion might logically mean that many public employees who
preferred not to attend mandatory training despite being ordered to do
so, could claim a Fourth Amendment violation when they were "forced,"
reluctantly, to attend over their objections. The Court does not believe
that the scope of the Fourth Amendment's protection against unreasonable
seizures is that broad.
B. Use of Excessive Force Under the Fifth Amendment
Sgt. Feirson also advances a separate claim that the District violated
his substantive due process right to be free from excessive and
unconscionable uses of force by state actors, even if the Court concludes
that no seizure in violation of the Fourth Amendment occurred. See Petta
v. Rivera, 143 F.3d 895, 901 (5th Cir. 1998) (". . . we conclude, as have
all of the courts of appeals that have addressed the issue, that a
plaintiff whose claim is not susceptible to proper analysis with reference
to a specific constitutional right may still state a claim under §
1983 for a violation of his or her . . . substantive due process right,
and have the claim judged by the constitutional standard that governs
that right")(citing cases from the First, Sixth, Ninth, and Eleventh
With respect to substantive due process doctrine, the Supreme Court has
We have emphasized time and again that the
touchstone of due process is protection of the
individual against arbitrary action of government. .
Our cases dealing with abusive executive action have
repeatedly emphasized that only the most egregious
official conduct can be said to be arbitrary in the
. . . [F]or half a century now we have spoken of
the cognizable level of executive abuse of power
as that which shocks the conscience. . . .
County of Sacramento v. Lewis. 523 U.S. 833
, 845-47 (1998) (internal
citations and quotations omitted). The substantive due process analysis
that applies in this case, then, requires the Court to closely examine
the circumstances surrounding the use of force to assess whether it
constitutes an abuse of power that is shocking to the conscience. See
Lewis. 523 U.S. at 850 ("Rules of due process are not, however, subject
to mechanical application. . . . [O]ur concern with preserving the
constitutional proportions of substantive due process demands an exact
analysis of circumstances before any abuse of power is condemned as
conscience shocking."). Sgt. Feirson claims that the force used against
him in the ASP combat training violated his substantive due process
rights because it was grossly excessive in the context of a supposed
training exercise. The District counters that the circumstances justified
the use and level of force that Sgt. Feirson experienced in the combat
Sgt. Feirson urges the Court to apply the guidelines originally
articulated by Judge Friendly in Johnson v. Glick. 481 F.2d 1028, 1033
(2d Cir.), cert denied, 414 U.S. 1033 (1973), and regarded favorably by
the D.C. Circuit as "sensible guidelines, widely adopted by other courts"
in Norris v. District of Columbia. 737 F.2d 1148, 1150 (D.C. Cir. 1984):
[i]n determining whether the constitutional line has
been crossed, a court must look to such factors as the
need for the application of force, the relationship
between the need and the amount of force that was
used, the extent of injury inflicted, and whether
force was applied in a good faith effort to maintain
or restore discipline or maliciously and sadistically
for the very purpose of causing harm.
Sgt. Feirson testified in his deposition that the force used against
him included repeated punching and kicking, being kneed, and taking blows
all over his body, including his head. Feirson Dep. at 44-61, 114-116. He
also proffers the testimony of a training expert that establishes that
"the speed, intensity and level of force applied against Bruce Feirson on
April 27, 2000 was . . . outside the scope of reasonable and effective
training practices given the limited amount of training he received, his
level of experience (with the ASP), his age and overall physical and
mental condition." Exp. Rep. of Michael Krivka (Pl. Opp., Ex. 37) at 3.
The force used against Sgt. Feirson in the training attack exercise
caused injuries that are "anything be de minimis". PL Opp. at 41, and
required spinal surgery, left him with permanent disabilities, and forced
him to retire. PL Opp., Ex. 9 and Ex. 32. As a result of the injuries
Sgt. Feirson sustained in the ASP exercise, he will suffer permanent,
intermittent pain. Id. Furthermore, Sgt. Feirson asserts that the
evidence shows that he was attacked with malice; when he complained to
the instructors about the level of force being used against the
trainees, the instructor laughed in response, Feirson Dep. at 58; Sgt.
Yarbaugh continued to permit Sgt. Feirson's combat session to go on
despite Sgt. Feirson's attempts to avoid being hit, Id at 51-52; and not
only did Sgt. Yarbaugh comment that officers who could not withstand the
ASP combat exercise should find another job, PL Opp., Ex. 5 at U, but the
District's training staff endorses and takes pride in Sgt. Yarbaugh's
statements, Washington Dep. (Pl. Opp., Ex. 22) at 57-58.
The District contends that the record evidence establishes that Sgt.
Feirson's substantive due process rights were not violated by the
District in the ASP combat training. The District notes that Sgt. Feirson
was a twenty-year veteran of the MPD who, two months prior to attending
the training session, received a complete physical examination that
determined that he was fit for duty, Def. Stmt. Mat. Facts ¶¶ 30-31,
Feirson Dep. at 23-25, 27, and who considered himself fit for duty at the
time of the training, id. ¶ 34, Feirson Dep. at 23. During the
training, Sgt. Feirson was wearing protective gear. id. ¶ 36,
Feirson Dep. at 45-46. Sgt. Feirson himself did not believe that his
instructors were personally trying to hurt him, id. ¶ 37, Feirson
Dep. at 50, and when Sgt. Feirson appeared dazed during the combat, the
instructor stopped the session, id. ¶ 39, Feirson Dep. at 54, 116.
The District also notes that the ASP training was not designed to injure
or hurt, but to teach the proper use of the ASP as a defensive weapon.
Def. Reply at 15.
Based on a review of the evidence proffered, and viewing it in the
light most favorable to Sgt. Feirson as the Court must on a Rule 56
motion for summary judgment, the Court concludes that there is no genuine
issue of material fact on the excessive force issue. The force used on
Sgt. Feirson during the combat phase of the ASP training session on April
27, 2000, even though it caused Sgt. Feirson serious injuries, did not
rise to the level of a conscience-shocking constitutional violation of
his substantive due process rights.
The Supreme Court first articulated the "shocks the conscience"
standard in Rochin v. California. 342 U.S. 165 (1952), where it found
that the forced pumping of a suspect's stomach in an attempt to retrieve
evidence offended due process as an act violative of the "decencies of
civilized conduct." 342 U.S. at 173. The justification for a particular
instance of the use of force is important in considering whether it
constitutes an abuse of power that shocks the conscience.
In Lewis, the Court held that in the context of the fatal use of force
resulting from a high speed police car chase aimed at apprehending a
suspect, "only a purpose to cause harm unrelated to the legitimate object
of arrest will satisfy the element of arbitrary conduct shocking to the
conscience, necessary for a due process violation." 523 U.S. at 836. In
Norris, the D.C. Circuit held that "the amount of force required to state
a constitutional claim for prison officer battery varies with the
justification for that force." 737 F.2d at 1152.
There is no question that the MPD has an important interest in training
its officers to use the tools and weapons with which they are equipped in
order to carry out their law enforcement duties effectively. While the
amount of force used in the ASP combat training and the fact that it
caused Sgt. Feirson to suffer serious injuries certainly raises valid
questions about the design and execution of the ASP training program and
the conduct and sensibilities of the instructors, the evidence fails to
raise a genuine issue of material fact with respect to the malice or
sadism that Sgt. Feirson argues motivated the use of force against him.
See Norris, 737 F.2d at 1151 ("The application of force `maliciously and
sadistically for the very purpose of causing harm,' can serve no
legitimate governmental objective.")(quoting Johnson v. Glick, 482 F.2d
at 1033). Indeed, Sgt. Feirson has effectively conceded that there was no
intent to injure him and that the exercise was stopped when he appeared
dazed. The Court therefore concludes that the force, while it may seem
excessive as applied against Sgt. Feirson, still does not rise to a level
that "shocks the conscience" when viewed in the context of a combat
exercise for MPD officers who were in protective gear. Because the Court
concludes that Sgt. Feirson did not experience any violations rising to
the level of a deprivation of his constitutional rights, it does not
reach the question of the District's liability for the unconstitutional
conduct of its employees.
For the foregoing reasons, the Court will deny the District's motion
for summary judgment on Sgt. Feirson's common law tort claim against the
District (Count II), but concludes that punitive damages are not
available against the District for this claim. The Court will also deny
the District's motion for summary judgment on Mary Ann Feirson's common
law claim for loss of consortium (Count III). The Court will grant,
however, the District's summary judgment motion with respect to Sgt.
Feirson's § 1983 claims for violations of his constitutional rights
(Count I). A separate order accompanies this memorandum opinion.