Appeal from the Superior Court of the District of Columbia (CAB584-03) (Hon. Ronna Lee Beck, Trial Judge).
The opinion of the court was delivered by: Steadman, Senior Judge
Submitted November 17, 2009
Before GLICKMAN and FISHER, Associate Judges, and STEADMAN, Senior Judge.
Michael Enders sued the District of Columbia for false arrest following a traffic incident. He appeals from a jury verdict in the District's favor. He asserts, inter alia, that the trial court's instructions misled the jury into believing the arrest could be justified on a lesser showing than was actually required. Specifically, he challenges the instruction that a warrantless arrest is justified if a law enforcement officer has probable cause to believe that "a crime" has been or is about to be committed. In fact, he argues, citing D.C. Code § 23-581 (2001), that an officer may lawfully arrest without a warrant only for a felony or for a misdemeanor committed either in the officer's presence or under certain other, limited, circumstances.
The District does not squarely address this or any of Enders' other arguments, but instead asserts that we should affirm the judgment on the basis of two alternative grounds. First, the District argues that Enders did not comply with the mandatory pre-litigation notice requirement of D.C. Code § 12-309. Second, the District argues that on this record, as a matter of law, the officers had probable cause to arrest for the felony of malicious destruction of property exceeding $200. We take the case as it is thus presented to us. Because we agree with Enders that the trial court's jury instructions were prejudicially in error and because we are not persuaded by either of the District's proposed alternative grounds for affirmance, we vacate the judgment in the District's favor and remand the case for a new trial.
I. The Incident and Arrest
The arrest came as a result of an impact between Enders' car and a car driven by Kathleen Cravedi. Both parties testified as to their versions of the incident, and the jury was made to understand that these versions, to the extent they differed from each other, were recounted to the police officers who arrived later at the scene.*fn1 Enders, who represented himself at trial as he does on appeal, testified that he saw Cravedi sitting in a car that he believed was parked too far from the curb, near the intersection of Forty-Fourth and Jenifer Streets, Northwest. He pulled up next to Cravedi's car -- which was facing the opposite direction from his -- rolled down his window, and asked her why she was parked so far into the street. Cravedi dismissed him, returning to a conversation on her cell phone. Enders made a U-turn and pulled his car behind Cravedi's, testifying he was planning to honk his horn from that position to indicate how far she had parked from the curb. He testified that he pulled up too close to Cravedi's car and inadvertently "tapped" her bumper, as one would if one were parallel parking. Embarrassed, and feeling as though he no longer had a right to chastise Cravedi about her parking, Enders pulled away, turned his car around, and drove home, which was on nearby Harrison Street. As he was walking to his door, Officer Sylvania Davis approached him, asked him if he had been involved in a collision on Forty-Fourth Street, and, when he said he had, asked him if he would accompany Officer Davis back to the scene.
Cravedi testified that when Enders asked her why she was parked so far from the curb, she thought it was strange because she was, in her opinion, right next to the curb. When she went back to her cell phone conversation, she noticed Enders turn around and begin to head towards her car from behind. She "started to get scared," thinking, "he's going to hit me." Then, she felt her car being hit with a force that caused her to drop her cell phone. She described the hit as "a big bang," and said it "was not a tap." Once she had been hit, she ran to Officer Davis' nearby police cruiser and told her what had happened. Officer Davis then departed and returned a few minutes later with Enders.
After Enders returned to the scene, several other officers arrived, and after an hour of discussion among the officers and the two motorists, Enders was placed under arrest. Enders was told he was being charged with assault with a deadly or dangerous weapon (ADW); namely, his car.*fn2 He also received a notice of infraction charging him with fleeing the scene of an accident after causing personal injury or substantial property damage.*fn3
No police officer who remembered anything about the incident testified at trial.*fn4 A police report, filed the same day as the accident, identified the location of the arrest, the charges, and the circumstances underlying the arrest. Accompanying the police report was an affidavit written by Officer Davis, and an accident report, providing more details of the event. These written documents generally set forth the version of events as recounted by Cravedi. However, they were almost completely silent concerning a major difference in the testimony of the two parties relating to the question of visible damage to Cravedi's car, both as to cause and as to extent, as will be further discussed infra in Part III. B.
II. The Jury Instructions
We first address Enders' argument that the jury instructions were erroneous. Throughout the trial, he pressed the trial court to give an instruction that limited justified warrantless arrests to felonies and misdemeanors committed in an officer's presence. The trial court disagreed with this view of the law. On the contrary, the trial court repeatedly emphasized that as long as the District could show that the officers had probable cause to believe that a "crime," including simple assault and misdemeanor destruction of property, had been committed, the arrest was legally justified and the District was not liable. Accordingly, in the final instructions to the jury, the trial court included language taken from, and substantially identical to, the Standardized Civil Jury Instructions for the District of Columbia § 18.03 (2002 rev. ed):
The issue for you to determine is whether the arrest was legally justified. For an arrest without a warrant[,] there are a couple of ways the defendant may prove the arrest was legally justified. One way the defendant may prove the arrest was legally justified is to show that the officer had probable cause. An officer has probable cause to arrest if he or she has reason to believe that a crime has been or is about to be committed. Thus, in this case if you find that the officer had reason to believe and did believe that the plaintiff had committed a crime then the officer had probable cause to arrest the plaintiff. . . . If the officer was legally justified in making the arrest then defendant is not liable for false arrest.
In further emphasis of the point that any "crime" would suffice, the trial court continued the instruction: "If you find that the police had probable cause to arrest plaintiff for destruction of property, simple assault, assault with a dangerous weapon, car, or fleeing from the scene then defendant is not liable for false arrest." The trial court then instructed the jury on the elements of each of these four offenses, generally following the standard criminal instructions, but, significantly for present purposes, making no mention of any dollar amount for malicious destruction of property or distinguishing between a misdemeanor or felony violation of that statute.
Of these listed crimes, the only felonies are assault with a dangerous weapon and malicious destruction of property if the damage exceeded $200.*fn5 Otherwise, the offenses are all misdemeanors.*fn6 Thus, if appellant was correct in his view of the law, as we conclude he was, the instruction was demonstrably erroneous and prejudicial.*fn7
In evaluating Enders' claim, it is instructive to examine the tort of false arrest and its defenses at common law. "False arrest" is indistinguishable as a practical matter from the common law tort of "false imprisonment." Dent v. May Dep't Stores Co., 459 A.2d 1042, 1044 n.2 (D.C. 1982); see also Great Atlantic & Pacific Tea Co. v. Paul, 261 A.2d 731, 738 (Md. 1970) (noting that the two are "torts that apparently differ only in terminology"). The gravamen of a complaint for false arrest or false imprisonment is an unlawful detention. See Clarke v. District of Columbia, 311 A.2d 508, 511 (D.C. 1973); 32 AM. JUR. 2D False Imprisonment § 7 (2007) ("[t]he essential elements of false imprisonment are: (1) the detention or restraint of one against his or her will, and (2) the unlawfulness of the detention or restraint"). Therefore, "[i]n actions for false arrest and false imprisonment, the central issue is 'whether the arresting officer was justified in ordering the arrest of the plaintiff . . . ...