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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 [his] house").

  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 false-arrest claim.

  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 Appeals explained:

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 his duties.

  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.


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