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Kotsch v. District of Columbia

May 24, 2007

ED KOTSCH, APPELLANT,
v.
DISTRICT OF COLUMBIA, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CA-7109-01) (Hon. Zoe Bush, Trial Judge).

The opinion of the court was delivered by: Ruiz, Associate Judge

Argued June 21, 2004

Before FARRELL and RUIZ, Associate Judges, and TERRY, Senior Judge.*fn1

This litigation stems from the arrest of appellant by officers of the Metropolitan Police Department at a McDonald's restaurant. When criminal charges were dismissed for lack of evidence, appellant filed a civil action against the District of Columbia and the officers alleging that they had violated his civil rights under 42 U.S.C. § 1983 and committed various torts including assault and battery; intentional infliction of emotional distress; false arrest/false imprisonment, and negligence.*fn2 He also claimed that the District of Columbia negligently hired, trained, and supervised the officers and was also liable on the theory of negligence per se. The trial court granted summary judgment for the defendants on all claims. After considering the record and arguments on appeal, we reverse and remand the case for further proceedings as to the assault and battery and excessive force claims, and affirm the trial court's dismissal of all the other claims.

I. BACKGROUND

Appellant and the two police officers who arrested him presented the trial court with very different accounts of the relevant events. Because we are reviewing the grant of summary judgment in favor of the appellees, "we first view the evidence in a light most favorable to the party opposing the motion (the appellant)." See Truitt v. Miller, 407 A.2d 1073, 1077 (D.C. 1979) (citing Yasuna v. Miller, 399 A.2d 68, 71 (D.C. 1979) and Bennett v. Kiggins, 377 A.2d 57, 59 (D.C. 1977)).

A. Appellant's Account

On September 23, 2000, at about 2:30 a.m., appellant entered a McDonald's restaurant on "I" Street, S.E. Officers James Fields and Kenneth Boone, in full uniform, were sitting inside the restaurant while working as private security officers for the McDonald's franchise restaurant owner. According to appellant, he tossed some napkins on the lid of a trash receptacle, where used trays are placed, while walking towards the line to order food. The officers approached appellant and instructed him to place the napkins inside the trash bin. Appellant asked if he could first place his order, but the officers refused his request. As appellant was placing the napkins in the trash, one napkin fell on the ground.

Appellant asserts that Officer Fields came toward him with his nightstick drawn and ordered appellant to pick up the napkin and put it in the trash can. Appellant complied with the officer's request, complaining that "I'm not your bitch, but I'll pick it up," and walked back to the line to place his order. The officers then ordered appellant to leave, telling him to "get the hell out of here." In response, appellant asked to speak with the manager. After refusing his request, Officer Fields, with assistance from Officer Boone, grabbed appellant and dragged him out of the restaurant while striking him several times with the nightstick. Appellant was taken into custody, spent a night in jail, and was charged with unlawful entry. As a result of his encounter with the officers, appellant claimed, he sustained multiple physical injuries including a bloodied and swollen lip and injuries to his eye and arms.*fn3 As mentioned, the unlawful entry charge against appellant was subsequently dismissed by the United States Attorney's Office for lack of evidence.

Appellant's friend, Lonnie Fisher, witnessed the incident and substantially corroborated appellant's version of the events. Mr. Fisher stated that he saw the officers push appellant to the ground and that he "saw the tall officer's fist raised at least two times and come down on [appellant's brow]." He added that when the officers pushed appellant to the ground, they were not attempting to place him under arrest. Rather, Mr. Fisher testified, he saw two "blows" to appellant's face and "at least two more times [he saw the] tall officer's hand raise and come down . . . as the scuffle was moving to the ground." According to Mr. Fisher, appellant offered no resistance, but he conceded that once appellant was on the ground, Fisher could not see what appellant was doing.

B. Appellees' Account

The officers' version of the events is significantly different. In his deposition, Officer Boone stated that he observed appellant walk into the restaurant and throw several pieces of paper over his shoulder onto the floor. At that time, Officers Fields and Boone approached appellant and asked him to pick up the papers he had thrown on the floor. Appellant did not respond. Officer Fields then asked appellant to pick up the papers "a few more times," but appellant still did not respond or comply. Eventually, appellant turned around and told Officer Fields "[o]kay, but I'm not going to be your bitch." Officer Boone testified that, as appellant picked up the trash, Officer Fields advised him that profanity was prohibited in a family restaurant, and he was going to have to leave after he threw away the papers. Appellant refused, saying that he was not going anywhere, and that he intended to place his food order. Officer Fields advised him that he would have to leave without ordering his food. According to Officer Boone, appellant then became loud and started using profanity. Again, Officer Fields asked appellant to leave and advised him that if he refused, he would be placed under arrest. Upon hearing this, appellant said that he would not leave until he could speak with a manager and order his food. When Officer Fields tried to arrest him, appellant resisted. In Officer Boone's words, appellant "pushed off of Officer Fields. He didn't actually push him with a lot of power. He pushed Officer Fields. He then fell to the ground and started kicking, hollering, screaming." Officer Fields told appellant several times that he was being placed under arrest and that he should stop resisting. Appellant, however, continued to resist arrest. Officer Boone attempted to restrain appellant by grabbing his arm, but was unable to do so. Appellant "managed to kick his way basically out of the establishment and into the like doorway area, and he couldn't go any further." It was then that Officer Fields detained him, placed him in handcuffs, and called for a transport vehicle. Officer Boone testified that he did not notice any injuries to appellant after he was arrested.

In his deposition, Officer Fields stated that after he placed appellant under arrest "[h]e started resisting, pushing off, kicking -- kicking me about the leg area, at which time I tried to grab control, get a hold of him. He fell to the ground in the store. He got up, tried to run to the door. I grabbed him again. He fell right by the counter. Then I got control of him, picked him up, took him to the west side doors. It's like a foyer. You go out one door, you turn and there's another door. I got him in the foyer area, put him up against the wall, placed handcuffs on him, called for a transport." Officer Fields denied hitting appellant in the face.

Officer Fields also testified that the day after he arrested appellant, he received a phone call from precinct Sergeant Regina Funk to inquire about "a guy in the station . . . [who] looks like somebody beat the hell out of him." In response to Sergeant Funk's questioning, Officer Fields responded: "Yeah. I lo[c]ked a guy up [last night], didn't touch him though." According to Officer Fields, "she seemed pretty worried about it," especially the injuries to his face. However, Officer Fields told her "to calm down" and that he was not going to "get upset ...


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