United States District Court for the District of Columbia
June 9, 2005.
GRACE HUDSON, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants.
The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
Grace Hudson and her grandson, Karim Clayton, sue the District
of Columbia and Metropolitan Police Department ("MPD") officers
John Hackley and Richard Merritt ("Defendant Officers") for
police brutality, assault and battery, deprivation of civil
rights, negligent or intentional infliction of emotional
distress, false arrest, and malicious prosecution. Plaintiffs sue
the officers in their individual and official capacities. A
single motion for summary judgment on two different sets of
allegations has been filed by the Defendants. See Defendants
Merritt and Hackley's Motion for Summary Judgment as to Plaintiff
Hudson's Constitutional Claims and Defendants' Motion for Summary
Judgment as to Plaintiffs' Negligent Tort Claims and Plaintiff
Clayton's False Arrest Claim ("Defs.' Mem."). Defendant Officers
move for summary judgment as to Ms. Hudson's claim of an
"unreasonable seizure" in violation of the Fourth Amendment to
the United States Constitution and all Defendants move for
summary judgment on Plaintiffs' negligence claims and Mr.
Clayton's false arrest claim. The motion for summary judgment
will be granted in part and denied in part. BACKGROUND
On the night of November 8, 2001, Officers Merritt and Hackley
arrived at the 600 block of Keefer Street N.W., Washington, D.C.
The officers were in uniform and drove a marked MPD vehicle.
Defs.' Mem. Exh. 1, Deposition of Karim Clayton ("Clayton Dep.")
at 26. Finding "quite a few people on the street," Clayton Dep.
at 24, the officers ordered the crowd to disperse. Defendants'
Statement of Undisputed Material Facts ("Defs.' Facts") ¶ 3.
While clearing the area of people and debris, Officer Merritt
discovered a paper bag containing a video game console on a lawn
across the street from Ms. Hudson's home. Clayton Dep. at 26-27.
Officer Merritt asked to whom it belonged. Id. at 27. Tamar
Madison, a friend of Mr. Clayton, claimed the bag and attempted
to snatch it away from Officer Merritt. Id. at 27, 30. See
Defs.' Mem. Exh. 4, Clayton's Answer to Interrogatory No. 19
("Then [Tamar] grabbed the bag that the Play Station 2 was in.").
Officer Merritt allegedly responded by striking Mr. Madison with
his fist. Clayton Dep. at 30. Gad Doreous, another friend of Mr.
Clayton, who had been sitting on a car across the street, got up
and "asked the officer what was going on." Id. at 31. In
response, Officer Merritt allegedly struck Mr. Doreous twice with
his fists. Id. at 31-32.*fn1
Mr. Clayton watched the altercation between his friends and the
officers from the front porch of Ms. Hudson's home. He called to
Mr. Doreous to retreat to the porch. Mr. Doreous broke away from
Officer Merritt, who gave chase. Id. at 32-33. Upon reaching
the porch, Officer Merritt allegedly produced a metal baton and
repeatedly struck Messrs. Doreous and Clayton. Id. at 33. The two men backed into the house, closing and locking the
door behind them and shutting out Officer Merritt and the other
police officers. See id. at 34-35 (Mr. Clayton "pulled Gad into
According to Mr. Clayton, as he stood inside the house with his
foot against the locked door, Ms. Hudson descended the stairs and
joined him behind the front door. Id. at 35; Defs.' Mem. Exh.
6, Deposition of Grace Hudson ("Hudson Dep.") at 13. Soon
thereafter, a police officer allegedly kicked the door open,
knocking Ms. Hudson to the floor. See Defs.' Mem. Exh. 4,
Clayton's Answer to Interrogatory No. 19 ("The police officer
kicked the door open. The door hit my grandmother, and my
grandmother fell to the ground.").*fn2
Ms. Hudson is not certain what caused her fall and described
the event variously. See Hudson Dep. at 14-17. "It was like,
you know, two people coming in the door and just hit by me . . .
he is coming in and I am going out." Id. at 14. "He came in the
door and I was going to the door to find out what the disturbance
was." Id. at 15. "But all I know, when I saw this tall big
policeman coming in the door, and I was going to find out what
was happening, the next thing I know I was down on the floor with
my head hitting the frame of the door." Id. at 15-16. "I don't
know whether he pushed me or his coming in with the force to get
to the boys or whatever. All I know I was down on the floor." Id. at 16. "Like he hit me coming in the door. I
didn't say he hit me with his fist." Id. at 13.
An officer called an ambulance to take Ms. Hudson to the
hospital emergency room and the police arrested Messrs. Clayton
and Doreous. Mr. Clayton was found not guilty of simple assault
and possession of a prohibited weapon.
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995).
To determine which facts are "material," a court must look to the
substantive law on which each claim rests. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one
that "might affect the outcome of the suit," id., and "can be
resolved only by a finder of fact because [it] may reasonably be
resolved in favor of either party," id. at 250.
In ruling on a motion for summary judgment, the court must draw
all justifiable inferences in the nonmoving party's favor and
accept the nonmoving party's evidence as true. Anderson,
477 U.S. at 255. A nonmoving party, however, must establish more than
"the mere existence of a scintilla of evidence" in support of its
position. Id. at 252. To prevail on a motion for summary
judgment, the moving party must show that the nonmoving party
"fail[ed] to make a showing sufficient to establish the existence
of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex,
477 U.S. at 322. ANALYSIS
The Court is not asked to rule on the accuracy of Plaintiffs'
recollection of the events of November 8, 2001. Rather,
Defendants argue that Plaintiffs' own descriptions of those
events demonstrate, as a matter of law, that Ms. Hudson's
constitutional claim is without merit and that they are also
entitled to summary judgment on the negligence claims and
A. Ms. Hudson's Constitutional Claim
Ms. Hudson asserts that the MPD officers violated her
constitutional right, enforceable under 42 U.S.C. § 1983, to be
free from unreasonable seizure by law enforcement
officials.*fn3 The question raised is whether the officers'
forcible entry into her home, during which she was knocked to the
ground, constitutes an unreasonable seizure.*fn4
Section 1983 creates a civil cause of action against any person
who violates the Constitution or laws of the United States while
acting under color of law. See 42 U.S.C. § 1983 ("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,
suit in equity, or other proper proceeding for redress."). The
Fourth Amendment to the United States Constitution protects the
citizenry from "unreasonable search and seizure." U.S. CONST.
amend. IV ("The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause.").
The Supreme Court has instructed that a "seizure" occurs
whenever police officers "restrain? the freedom of a person to
walk away," Tennessee v. Garner, 471 U.S. 1, 7 (1985) (citing
U.S. v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)), through the
"intentional acquisition of physical control," Brower v. County
of Inyo, 489 U.S. 593, 596 (1989). The First Circuit has most
persuasively refused to find the requisite intent behind an
officer's intentional act unless the officer also intended its
result. In Landol-Rivera v. Cruz Cosme, 906 F.2d 791 (1st Cir.
1990), an armed robber took a fast-food worker hostage and
attempted to flee in a commandeered car. The police fired on the
car and a bullet struck the hostage in the jaw. The hostage sued
the police officers for damages under Section 1983. Relying on
Brower, the First Circuit found that no Fourth Amendment
seizure had occurred. It distinguished between an action that was
"directed toward producing a particular result" and an action
that "simply causes" that result. Id. at 795 (emphasis
omitted). See also Rucker v. Harford County, 946 F.2d 278, 281
(4th Cir. 1991) (holding that a wounded bystander was not the
"intended object of a physical restraint," and therefore not
"seized" for purposes of the Fourth Amendment); Medeiros v.
O'Connell, 150 F.3d 164, 169 (2d Cir. 1998) (finding that the
deflection of a bullet intended for the suspect that struck a
hostage did not transform the officers' rescue effort into a
seizure). Although the innocent bystander cases are arguably
distinguishable because the hostages' injuries resulted from
government action on their behalf, the legal principle of
Brower nonetheless applies to Ms. Hudson's claim. Under
Brower, to maintain a Fourth Amendment seizure claim, "the
detention or taking itself must be willful. . . . This is
implicit in the word `seizure,' which can hardly be applied to an
unknowing act." 489 U.S. at 596. It is undisputed that Ms. Hudson
was not the intended subject of Defendant Officers' actions here
but was, rather, an innocent bystander who was accidentally
affected by those actions. As a victim of an accident, she cannot
maintain a Fourth Amendment "seizure" claim and summary judgment
will be granted for Defendant Officers.
B. Negligence Claims
Defendants suggest that summary judgment on Plaintiffs'
negligence claims is appropriate because Plaintiffs, by failing
to proffer expert testimony, are not able to establish the
applicable standard of care. They also argue that Plaintiffs do
not allege sufficient facts to establish negligence as required
by District of Columbia v. Chinn, 839 A.2d 701, 710 (D.C.
2003).*fn5 The second point resolves the matter.*fn6
The law of the District of Columbia is clear that "[t]here is
no such thing as a negligent assault." Sabir v. District of
Columbia, 755 A.2d 449, 452 (D.C. 2000) (quoting1FOWLER HARPER & FLEMING JAMES, THELAW OF TORTS § 3.5 at 3:19 (3d ed.
1996)). "A police officer has a qualified privilege to use
reasonable force to effect an arrest, provided that the means
employed are not `in excess of those which the actor reasonably
believes to be necessary.'" Holder v. District of Columbia,
700 A.2d 738, 741 (D.C. 1997) (quoting RESTATEMENT (SECOND) OF
TORTS § 132 (1965)). Chinn explored these legal concepts at
length. Chinn involved a traffic stop for tinted windows that
escalated into an arrest and the use of police force that broke
the plaintiff's arm. The case was "hardly the first time that
[the D.C. Court of Appeals] ha[d] encountered confusion regarding
negligence and battery claims in alleged police brutality suits."
Chinn, 839 A.2d at 706. To be precise, the D.C. Court of
Battery is an intentional tort. "Intent and
negligence are regarded as mutually exclusive grounds
for liability. As the saying goes, there is no such
thing as a negligent battery." 1 DOBBS, LAW OF TORTS
§ 26 at 51 (2001). Strictly speaking, a police
officer effecting an arrest commits a battery. If the
officer does not use force beyond that which the
officer reasonably believes is necessary, given the
conditions apparent to the officer at the time of the
arrest, he is clothed with privilege. Otherwise, he
has no defense to the battery, at least insofar as it
involves the use of excessive force.
Id. at 706. Because a police officer clearly touches the
plaintiff during an arrest, the "battery" itself is not at issue
in many cases. Instead, the only question is whether the
officer's conduct was privileged. The use of excessive force
during an arrest is "the precise boundary line of the privilege
itself," and its use alone does not bootstrap a negligence action
from an unprivileged battery. Id. at 711, 710. Whether a
plaintiff can also plead negligence in addition to battery
depends on whether he or she has made "a separate and distinct
claim for negligence apart from the battery allegations." Id.
at 711. Plaintiffs liken their situation to the facts of District of
Columbia v. White, 442 A.2d 159
(D.C. 1982), where the
complainants in a wrongful death action based on a police
shooting were allowed to submit both a negligence claim and an
assault and battery claim to the jury. The D.C. Court of Appeals
in Chinn, though, delineated two lines of cases, one
represented by Sabir, where separate negligence and battery
claims were precluded because the plaintiffs did not plead
separate and distinct claims, and the other represented by
White, where the court "upheld submitting both negligence and
battery counts to a jury." Chinn, 839 A.2d at 710. The cases in
the White line, the court noted, share common characteristics,
first among them being the use of deadly force. Id.
A review of the complaint's allegations here makes clear that
Plaintiffs neither advance a separate and distinct claim for
negligence nor allege the use of deadly force but, instead, base
their negligence claims entirely on the alleged battery. Count I,
labeled Excessive Force/Police Brutality, asserts that the MPD
officers "used excessive and unreasonable force" despite a "duty
to employ only reasonable measures in their interaction and
treatment of both plaintiffs." Compl. ¶¶ 19, 18. Count IV,
labeled Intentional/Negligent Infliction of Emotional Distress,
accuses Defendants Merritt and Hackley of "extremely negligent,
reckless, malicious and indifferent conduct, including but not
limited to beating them." Id. ¶ 29. Ms. Hudson and Mr. Clayton
rely on D.C. Code § 4-176 for the applicable standard of care and
allege that the District of Columbia is liable on a theory of
respondeat superior. Plaintiff's [sic] Opposition to
Defendants' Motion for Summary Judgment ("Pltfs.' Opp.") at 6.
These allegations mirror those in Mr. Chinn's complaint, where he
alleged "that the defendants committed negligence by violating
D.C. Code § 4-176 in using `unnecessary and wanton severity' . . .
and they `breached their duty as they were negligent in their
excessive use of force' and `knowingly and maliciously acted in
manner that would cause injury to Plaintiff's person.'" Chinn, 839 A.2d at 711. The D.C. Court of Appeals has
clearly held that such allegations "neither establish a claim
separate and distinct from the alleged battery, nor demonstrate
the essential elements of a negligence claim. The allegations do
not reflect negligence, but rather an intentional tort with a
conclusory allegation of negligence." Id.*fn7 Under these
circumstances, the logic of Chinn ineluctably applies here.
Count I of the complaint constitutes only an allegation of an
intentional tort of battery with a conclusory allegation of
negligence. As in Chinn, this claim fails. Similarly, summary
judgment must also be granted on Count IV's allegation of
Negligent Infliction of Emotional Distress.
C. False Arrest Claim
Finally, Defendants move for summary judgment on Mr. Clayton's
false arrest claim, arguing that Mr. Clayton's interference with
the arrest of Mr. Doreous was itself an arrestable offense.
Defendants rely on D.C. Code § 22-405(a), which makes it a crime
to interfere with an officer making an arrest.
Whoever without justifiable and excusable cause,
assaults, resists, opposes, impedes, intimidates, or
interferes with any officer or member of any police
force operating in the District of Columbia . . .,
while engaged in or on account of the performance of
his or her official duties, shall be fined not more than $5,000 or imprisoned not more than 5 years,
or both. It is neither justifiable nor excusable
cause for a person to use force to resist an arrest
when such arrest is made by an individual he or she
has reason to believe is a law enforcement officer,
whether or not such arrest is lawful.
D.C. CODE § 22-405(a). Mr. Clayton argues that Section 22-405(a)
is inapplicable because "[t]here is no prohibition on opposing an
arrest without the use of force." Pltfs.' Opp. at 11. This
reading of the statute is inexplicable to the Court. Section
22-405(a) makes it illegal to "resist?, oppose?, impede? . . .
or interfere? with any officer." While the last sentence of this
section makes it unlawful for a person being arrested to resist
with force, that sentence does not relate back to those who
resist, oppose, impede or interfere with an officer carrying out
Still, the Court cannot grant Defendants' motion for summary
judgment on this count. The details of the events of the evening
of November 8, 2001 are very much in dispute. At this point, it
is impossible to rule on whether there was any "justifiable or
excusable cause" for Mr. Clayton to assist Mr. Doreous and
interfere with police arrest efforts. The District of Columbia
worries that third-party observers believe they may judge the
actions of police officers and then intercede whenever they feel
police have used excessive force. Defs.' Reply at 4. While there
is legitimacy to this concern, because the Court does not want to
"escalate already dangerous situations further endangering the
police, interlopers and the public," id., two factors require
the matter to proceed. First, the D.C. Code plainly admits an
exception to its prohibitions. Plaintiffs argue that Mr. Clayton
had "justifiable and excusable cause" for his actions, and the
D.C. Council clearly intended that exception to excuse liability.
The evidence is insufficient at this stage to decide that point
and the question must be presented to a jury. Second, it cannot
be said that there are never appropriate times for the
citizenry to halt police misconduct; whether this was one such
occasion can only be resolved with a fuller evidentiary record.
For the reasons stated, the motion for summary judgment will be
granted in part and denied in part. Summary judgment for
Defendants will be granted for Count I (Excessive Force/Police
Brutality), Count III as brought by Ms. Hudson (Deprivation of
Civil Rights, 42 U.S.C. § 1983), and the negligence component of
Count IV (Negligent Infliction of Emotional Distress). Summary
judgment will be denied as to Count V (False Arrest
Imprisonment) without prejudice and, failing settlement, Count V
will proceed to trial together with Counts II (Assault and
Battery), Count III as brought by Mr. Clayton, the intentional
aspect of Count IV (Intentional Infliction of Emotional Distress)
and Count VI (Malicious Prosecution). A separate order
accompanies this memorandum opinion.