Appeal from the Superior Court of the District of Columbia. (No. CA6989-02). (Hon. Melvin R. Wright, Trial Judge).
Before Schwelb and Washington, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Kern, Senior Judge.
Shortly after midnight on August 5, 2001, appellee Marcus Scales approached the driver's side of a parked auto (not a police vehicle) in which appellant Eric Young, a police officer off duty and out of uniform, was seated behind the steering wheel with his window open. Scales did not know Young but did know the woman (the other occupant of the car) sitting in the front passenger seat. He knew her to be a prostitute. Scales spoke to the woman and told her to get out of the car. Then, without speaking a word to Young, he commenced to stab him with a pocket knife which had a blade four to five inches long. Scales stabbed Officer Young several times, wounding him in the neck/face and leg.*fn1 Nevertheless, Young was able to get out of the car and chase Scales around the auto. During the chase, he then called out to a passing motorist that he was an off-duty police officer and asked that person to contact 911. Young ordered Scales to drop his knife and "stay right there," showing his badge and drawing his pistol. Scales dropped his knife but advised Young that he had caught him with a prostitute.*fn2 Therefore, he said he was going his way and suggested Young go his way. Young again ordered Scales to stay where he was, but Scales cursed Young and recounted later in his pretrial deposition: "I told him . . . kill me -- not you're going to have to kill me, kill me. . . . I turned my back on him and walked away and that's when I felt the shot in my right buttocks." Young had fired twice, striking Scales once. Scales was then placed under arrest.
Scales filed a complaint in the trial court, asserting, inter alia, a claim under 42 U.S.C. § 1983 that Young had used excessive force in effecting his arrest in violation of the Fourth Amendment.*fn3 Young sought judgment summarily on the ground that he had qualified immunity from this § 1983 claim because he arrested Scales after the latter had committed an assault with a dangerous weapon on his person and hence in his presence. The trial court, after discovery has been completed, rejected Officer Young's claim of qualified immunity, concluding that "a reasonable officer would have known that it was unlawful to shoot an unarmed suspect, who posed no threat to the community and no continuing threat to the officer." Now before us is Officer Young's interlocutory appeal from the order denying his motion for summary judgment on the § 1983 claim. See Fulwood v. Porter, 639 A.2d 594, 595 n.1 (D.C. 1994).
The defense of qualified immunity shields government officials performing discretionary functions from liability for damages in actions brought under 42 U.S.C. § 1983 provided their conduct does not violate clearly established federal constitutional or statutory rights of which a reasonable person would have known. Wilson v. Layne, 526 U.S. 603, 609 (1999); Sabir v. District of Columbia, 755 A.2d 449, 453 (D.C. 2000).
Qualified immunity intends to strike "a balance between compensating those who have been injured by official conduct and protecting government's ability to perform its traditional functions." Wyatt v. Cole, 504 U.S. 158, 167 (1992). Qualified immunity "seeks to ensure that defendants reasonably can anticipate when their conduct may give rise to liability, by attaching liability only if the contours of the right violated are sufficiently clear that a reasonable official would understand that what he is doing violates that right." United States v. Lanier, 520 U.S. 259, 270 (1997) (internal quotation marks and citation omitted). Police officers "should not be hindered by the threat of civil liability from attempting to perform their duties to the best of their abilities," as long as they are not violating clearly established constitutional or statutory rights. District of Columbia v. Evans, 644 A.2d 1008, 1016 (D.C. 1994).
The Supreme Court has defined qualified immunity as "an entitlement not to stand trial or face the other burdens of litigation." Saucier v. Katz, 533 U.S. 194, 200 (2001). The Court noted that the privilege is "an immunity from suit rather than a mere defense to liability." Id. Thus, it is important to resolve the immunity question at the earliest possible stage in litigation. Otherwise, the privilege "is effectively lost if a case is erroneously permitted to go to trial." Id. at 200-01.
The issue of whether an officer is entitled to qualified immunity is a question of law to be determined by the trial court. District of Columbia v. Jackson, 810 A.2d 388, 393-94 (D.C. 2002). On appeal, we review it de novo. See Anderson v. Abidoye, 824 A.2d 42, 44 (D.C. 2003).
Determining whether the government officer has qualified immunity requires a two-fold inquiry. Jackson, 810 A.2d at 394 (quoting Saucier, 533 U.S. at 201-02). The threshold inquiry is whether the plaintiff's allegations, if true, show that the officer's conduct violated a constitutional or statutory right. Id. If so, then a court should decide whether the right that had been violated was clearly established at the time the alleged violation occurred. Id.; see also Sabir, 755 A.2d at 454; Fulwood, 639 A.2d at 598. Thus, the plaintiff must prove that the defendant violated his constitutional or statutory right, which was clearly established at the time of the violation, in order to withstand a motion for summary judgment on the ground that a defendant had qualified immunity. See Fulwood, 639 A.2d at 600 (because appellees claiming injury would have the burden at trial of proving injury, they have burden to establish that officer violated their clearly established rights).
This court has suggested that a trial court in so-called "qualified immunity" cases should inquire whether "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Jackson, 810 A.2d at 394 (quoting Saucier, 533 U.S. at 201-02). In other words, "if the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier, 533 U.S. at 202; see also District of Columbia v. Minor, 740 A.2d 523, 530 (D.C. 1999) (official must intentionally, or with reckless disregard, violate clearly established right before § 1983 claim is justified).
The Supreme Court has emphasized that the inquiry of whether a right was clearly established "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201. Thus, to overcome qualified immunity, the right allegedly violated "must have been 'clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Scales argues that Young violated his Fourth Amendment right to be free from unreasonable seizures. Scales urges two grounds to support this argument. First, Scales argues that Young had no probable cause to arrest him because he had stabbed Young only to defend himself. Second, Scales contends that even if Young had probable cause to arrest him, it was unreasonable for Young to use deadly force to effect his arrest because Scales, after dropping his knife and walking away from Young, posed no immediate danger to Young or to any others. We are not so persuaded under the particular circumstances in this case.
Generally speaking, a party asserting self-defense as an affirmative defense has no burden to establish that he acted in self-defense. Rather, the opposing party needs to prove that the party claiming self-defense did not act in that way. See Lopez v. United States, 801 A.2d 39, 47-50 (D.C. 2002). However, in the instant case, the issue of self-defense arises in the context of qualified immunity, where Scales asserts self-defense in order to prove that he had a constitutional right to be free from arrest by Young. Therefore, Scales has the burden to establish that when he advanced on the parked car and, without a word, ...