The opinion of the court was delivered by: Signed by Royce C. Lamberth, Chief Judge,
On March 25, 2011 the jury returned a verdict in favor of Lindsay Huthnance, the plaintiff in this case. Specifically, the jury found that Metropolitan Police Department Officers Liliana Acebal and James Antonio falsely arrested Huthnance; that Acebal committed the tort of assault and battery against Huthnance; that Acebal and Antonio violated Huthnance's First, Fourth, and Fifth Amendment rights under the United States Constitution; that the District of Columbia violated Huthnance's Fifth Amendment rights; that the District of Columbia was deliberately indifferent to the constitutional First, Fourth, and Fifth Amendment rights of citizens and that this deliberate indifference was a proximate cause of Huthnance's injuries. Verdict Form, Mar. 25, 2011, ECF No. 229. The jury awarded Huthnance $90,000 compensatory damages and $7,500 punitive damages-$5,000 punitive damages against Acebal and $2,500 against Antonio. Currently before the Court is Defendants' District of Columbia, Liliana Acebal, and James Antonio's Motion for Judgment As a Matter of Law, or for a New Trial, or for Remittitur ("Motion for Judgment As a Matter of Law"). Apr. 28, 2011, ECF No. 241. Having considered the Motion, the Opposition, the Reply, the record in this case-including the evidence produced at trial-and the applicable law at length, the Court will grant the motion for judgment as a matter of law in part and deny it in part, and it will deny the motion for a new trial or remittitur for the reasons that follow.
Officers Acebal and Antonio arrested Huthnance on November 16, 2005*fn1 for disorderly conduct, loud and boisterous. Huthnance claims that she was a victim of "contempt of cop," meaning the officers didn't have probable cause to believe she had committed any crime and instead arrested her merely because she had criticized the police. After her arrest, officers transported her to the station and locked her in a cell while her arrest was processed. She resolved her arrest through the District's "post and forfeiture" procedure, meaning she posted $25 collateral and was released from custody several hours later. After posting and forfeiting, no criminal charges were ever brought against Huthnance, so no one ever reviewed her arrest. As a result of her arrest, Huthnance spent several hours in jail, paid $25 to secure her release, claims she experienced mental anguish, fear, and humiliation, and was saddled with a permanent arrest record she claims she didn't deserve.
Huthnance filed suit against Officers Acebal and Antonio*fn2
and the district of Columbia asserting claims of false
imprisonment, intentional infliction of emotional distress, assault
and battery, violations of her constitutional First, Fourth, Fifth,
and Eighth Amendment rights, andviolations of the Code of the District of Columbia, arising from her
arrest and detention on November 15th and 16th, 2005. Am. Compl. 2,
May 7, 2007, ECF No. 13. By the time the case went to the jury,
several of Huthnance's original claims had been dismissed or
abandoned, leaving the lay of the land at the time the jury was
- Claims against Officer Acebal: assault and battery; false arrest; and violations of Huthnance's constitutional First, Fourth, and Fifth Amendment Rights. Jury Instructions 7, Mar. 24, 2011, ECF No. 222.
- Claims against Officer Antonio: false arrest and violations of her First, Fourth, and Fifth Amendment rights. Id.
- Claims against the District of Columbia: violation of her Fifth Amendment rights associated with differential treatment in its official policy regarding whether or not to offer citizens citation release; violation of her First, Fourth, and Fifth Amendment rights due to inadequate training and supervision. Id. at 13--17.
Huthnance testified that on the night of her arrest, she was having friends over for dinner at her apartment at around 8:00 p.m. Mar. 7, 2011 P.M. Trial Tr. 49. She testified that she and her three dinner companions split a bottle of wine between the four of them and that dinner ended at 10:00 p.m. Id. After dinner, she and her guests decided to take a ten-minute walk to a local bar called the Raven for drinks. Id. at 49--50. Huthnance testified that she had "a couple of beers" at the Raven and later clarified her testimony to specify that she had exactly two beers. Id. at 50. As midnight approached, Huthnance felt that it was time to return home because she had to go to work the next morning. Id. She and her boyfriend, Adrien Marsoni, left the Raven at around 11:45 p.m. Id. On their way home, Huthnance and Marsoni stopped at a 7-Eleven convenience store about half a block away from the Raven to buy cigarettes and noticed a slew of police officers and police vehicles outside the 7-Eleven. Id. at 51. She testified that she said nothing to the police officers outside the 7-Eleven and proceeded inside to make her purchase. Id.
Once inside the store, Huthnance saw more police officers inside and asked "what was going on." Id. at 52. She testified that the police officers told her it was "none of [her] business and to move on." Id. at 52. What she didn't know was that MPD had recently made that 7-Eleven into a police substation in response to a rash of robberies in the Mount Pleasant neighborhood. There was a sign posted on the door to alert citizens and brigands alike to the convenience store's substation status, but Huthnance never noticed the sign. Id.
This is where, according to Huthnance, things get dicey. She testified that after being told to mind her own business, she turned to her boyfriend and said, "Wow, nice use of my tax dollars." Id. That observation prompted one of the officers-according to Huthnance-to respond confrontationally, demanding that she repeat what she had just said. Id. Huthnance declined that invitation and simply said, "I wasn't talking to you," and left the store. Id.
Huthnance claims her tax-dollars comment wasn't meant to goad the officers. She explained that this was her neighborhood, and she was naturally concerned to see such a heavy police presence there. She only asked why they were there out of that natural concern. Id. at 53. Huthnance testified that she didn't know which officer told her to mind her own business because she wasn't looking in their direction at the time that they said it. Id. Although she didn't take note of the officer's identity, she did testify that she was "quite shocked . . . and frustrated that they would talk to [her] that way." Id. at 54. Nevertheless, despite that frustration, she "didn't respond" and left. Id.
After exiting the 7-Eleven, Huthnance heard her boyfriend talking to someone and turned around just in time to hear him say "fuck off" to a police officer. Id. at 55. She testified that she and Marsoni continued to walk up the street until they realized they were being followed and two officers told them to stop. Id. The officers asked for identification, and Huthnance asked why she was being stopped and whether she was under arrest. Id. at 54--55. The officers never responded to her questions. Huthnance testified that after continuously asking why they were being stopped and receiving no answer, she demanded one of the officer's badge numbers. Id. at 55. Huthnance testified that immediately after she requested the officer's badge number, she was "told to place [her] hands up against the wall and put in handcuffs." Id.
Huthnance testified that the officer her boyfriend had told to "fuck off" was Antonio. Id. at 57. She testified that she heard Marsoni say nothing else to Antonio and that it was her intention to continue walking home and not to have any more interactions with the police that night. They didn't get far, however, before they realized they were being followed and were told to stop by Officers Antonio and Acebal. Id. at 58. Acebal asked the couple for their identification. Id. at 59. Huthnance didn't give Acebal her license and instead asked why she was being stopped. Id. at 60. Officer Acebal didn't respond to Huthnance's questions, and after several rounds of this to-and-fro, Huthnance asked for Officer Acebal's badge number. Id. "That's when [she] was told to place [her] hands against the wall and [she] was put in handcuffs." Id.
Although Huthnance testified that she refused to hand over her identification, she also testified that she didn't refuse to place her hands against the wall when Officer Acebal ordered her to do so. Id. After Huthnance was told to place her hands against the wall, Officer Acebal patted her down. Id. at 61. Huthnance testified that she continued to ask why she had been stopped and if she was being arrested, but to no avail. Id. In fact, she testified that "at no time during any of this that happened was I told that I was arrested." Id. She testified that virtually all of her interactions were with Officer Acebal. Id. Importantly, Huthnance concedes that she was "upset," and described her tone of voice throughout the encounter as follows:
At first it was probably close to a normal tone of voice, but as I asked questions and got absolutely no answer or even was told that I was being arrested, I did raise my voice when I asked for the officer's badge number. . . . At no time was I screaming at the top of my lungs.
Huthnance testified that while she "can't be a hundred percent sure" because her head was against a brick wall and Marsoni was behind her "in [her] peripheral vision," she believed he was talking with Officer Antonio and had given him his identification. Id. at 62--63. She testified that she was not deferential to the officers, but Marsoni-who wasn't arrested that night-was. Id. at 63. After being placed in handcuffs, Huthnance was led to a police car and was driven to the station. Id. at 64.
Huthnance testified that although she did raise her voice when she demanded Officer Acebal's badge number, she neither yelled at nor cursed any of the officers at any point from the time she left the 7-Eleven until she was put into the squad car. Id. She also testified that she never saw any lights coming on in the apartment buildings across the street, people peering out of windows, or anyone gathering on the street to see what all the hubbub was about. Id. at 65.
Huthnance also testified to several problems with the narrative of her arrest contained in the PD-163 filled out at the station afterwards. She testified that it was inaccurate in several respects, including the following:
- The PD-163 said she was arrested at 1:45 a.m. on November 16, 2005, but she claims she was arrested around midnight. Id. at 69.
- The PD-163 claims she was yelling while inside the 7-Eleven, which she denies. Id. at 69.
- The PD-163 says that after she exited the 7-Eleven, she turned around, faced the store, extended her middle finger, and yelled to the officers: "Fuck you, mother fuckers!" Huthnance denies (1) turning around, (2) extending her middle finger, and (3) saying-much less yelling-any of those words. Id. at 70. - The PD-163 says that after officers told Huthnance to move along, she continued to curse at officers. She denies that she cursed at any point. Id. - The PD-163 says that Huthnance was stopped for identification purposes so she could be issued a 61D citation, but she claims that no one ever told her that she would get a ticket that night. Id. - The PD-163 says that Huthnance turned around and yelled at the officer: "I want your fucking badge number." Huthnance concedes that she demanded the badge number but insists that she never yelled in anyone's face and never cursed. Id. - The PD-163 says that the officer told her to place her hands on the wall and refrain from screaming, but Huthnance says she was never told to refrain from screaming because she never screamed. Id. at 72. - The PD-163 says that Huthnance refused the officer's commands, yelled again in the officer's face, and refused to place her hands on the wall for safety. Huthnance, though, contends that she didn't yell in the officer's face and did put her hands on the wall when she was told to do so. That said, she admits that she didn't hand over her identification when it was requested. Id. - The PD-163 says that the officer advised Huthnance for a third time to refrain from screaming, and her response was: "Fuck you, little bitch." Huthnance denies screaming, being told to stop screaming, and using the referenced abusive language. Id. - The PD-163 says that Huthnance said several things that she denies ever saying, including: "Fuck you, bitch"; "I'm a citizen of this country"; and "What are you going to arrest me for, being drunk with a burrito?" She admits to saying "What a waste of my tax dollars" and "I know my rights." Id. at 72--73. - The PD-163 also says that Huthnance was unemployed but (1) she wasn't, and (2) she never said she was. Id. - The PD-163 misspelled Marsoni's name and gave an incorrect address for him. Id. - The PD-163 reported that Huthnance hadn't made a telephone call, but she says that she did. Id. - The PD-163 reported her telephone number incorrectly. Id. at 75.
- The PD-163 said Huthnance was a "female impersonator." Huthnance says she wasn't a female impersonator and was offended that the PD-163 said so. Id.
Huthnance was placed in a squad car in handcuffs and driven to the police station. Id. at
78. She testified that once she arrived at the station, she was handcuffed to a chair and left by herself. Id. at 79. She remained there for forty-five minutes, asking everyone she saw if she had been arrested. Id. Eventually, she needed to use the bathroom and was handed a roll of toilet paper, led to a cell, and told she could use a toilet in the cell. Id. The door was then closed and she was locked in the cell. Id. About an hour later Officer Antonio came back and offered her a phone call. Id. After that officer left, she was alone in the cell for another hour before she finally saw Officer Acebal. Id. at 80. Huthnance testified that Officer Acebal returned her identification and handed her a piece of paper. Id. Officer Acebal told Huthnance that if she signed it, she was free to go. Id.
Huthnance testified that she didn't read the piece of paper (nor was she told anything else about it) before she signed it because she "just wanted to get out of jail." Id. After she signed the form, she put it in her pocket thinking she was about to be released from jail, but she wasn't actually released until 7:00 a.m. Id. at 87. Huthnance testified that she never read the entire form and instead only read the part that said what she was charged with. Id. She testified that she "didn't know what it meant, to be honest." Id. She testified that she never told anyone that she wanted to pay a fine and have her case dropped, never asked for post and forfeit, never paid a fine, neither told nor asked anyone to pay a fine for her, and was never offered any alternative to the way she was released. Id. at 88. She testified that she wasn't offered citation release and didn't know what that was. Id. at 88--89. When asked if she would have preferred an option like citation release had it been offered, she testified that she would have. Id. at 89.
After Huthnance finished testifying, she called Philip Eure, the Executive Director of the D.C. Government's Office of Police Complaints. Mar. 8, 2011 A.M. Trial Tr. 14. He described the OPC's role as an independent agency tasked with advising MPD on identifying problems based on the complaints that come into its office and making new policy recommendations, id. at 19, and one of those recommendations in particular-the 2003 CCRB Report (technically titled "Disorderly Conduct Arrests Made by Metropolitan Police Department Officers"), which dealt with MPD disorderly conduct arrests. Id. at 42. He testified that this report described OPC's extensive study of disorderly conduct arrests in the District and made policy recommendations that went to the Mayor and the City Council. Id. at 43. The purpose of the study and the report was to bring primarily to MPD's attention the fact that [OPC] had received a number of complaints from citizens believing they had been wrongfully arrested for disorderly conduct, and [OPC] wanted to cite some of this anecdotal evidence, and really let MPD-bring to their attention and let them know that there was a problem that needed to be addressed.
Id. at 58. After extensive study, the OPC had concluded that a significant number of improper or unlawful disorderly conduct arrests might be going unnoticed and recommended several policy changes for MPD to address the problem. See, e.g., id. at 101; Mar. 8, 2011 P.M. Trial Tr. 6.
Next, Huthnance's boyfriend, Adrien Marsoni, testified and corroborated much of her story. Mar. 8, 2011 P.M. Trial Tr. 63. Then Huthnance called Lieutenant Ralph A. Neal, who had served as an MPD officer for 32 years, to testify regarding MPD's training and supervision policies regarding disorderly conduct arrests and about Huthnance's arrest. Mar. 9, 2011 P.M. Trial Tr. 5. He was the supervising officer who had signed off on Huthnance's PD-163, and he testified as to why he believed that her arrest was based on probable cause.
After Lieutenant Neal's testimony, Huthnance called Inspector Michael I. Eldridge, the Director of MPD's Disciplinary Review Branch. Id. at 73. His office reviews and processes officer misconduct cases and proposes and carries out the disciplinary actions against officers, up to and including termination. Id. He testified about how complaints are filed and processed and discussed Huthnance's arrest and its documentation specifically. He testified that if he were the supervising officer reviewing Huthnance's PD-163, he wouldn't have found that it stated probable cause for a disorderly conduct arrest. Id. at 83.
Next, Sergeant Michael Smith testified by deposition designation. Id. at 114. He testified about his training on disorderly conduct arrests, how MPD higher-ups review PD-163s, and about his memory of what happened at the 7-Eleven the night of Huthnance's arrest. He recalled arriving at the 7-Eleven at approximately midnight and seeing officers Acebal and Antonio talking with a man and a woman about fifty feet away from the store. Id. at 128. He purchased a cup of coffee and left, but remembered that the woman wasn't in handcuffs when he saw her and wasn't screaming. Id. at 129. He testified that he was about fifty feet from them and couldn't hear their voices. Id. He also testified that at the time that he left, no crowd had formed on the street, and he didn't remember any cars slowing down to see what was going on. Id. at 130. He confirmed Inspector Eldridge's testimony that Huthnance's PD-163 was insufficient and too vague to state probable cause for a disorderly conduct arrest. Id. at 131--34.
Finally, Huthnance called Timothy J. Longo, her expert witness. Mar. 10, 2011 A.M. Trial Tr. 4. Mr. Longo is the Chief of Police for the City of Charlottesville, Virginia, but Huthnance called him to testify as her police practices expert. Id. at 5. Like Eldridge and Smith, Longo testified that there wasn't sufficient evidence for an officer to reasonably believe there was probable cause to arrest Huthnance for disorderly conduct. Id. at 49. Instead, he testified that she was actually arrested "for challenging the police." Id. He also testified that the District was on notice of a potential problem with disorderly conduct arrests. Id. at 50. He went on to testify that "the post and forfeit process allows for potentially bad disorderly conduct arrests going undetected. They are not being reviewed for judicial scrutiny, if nothing else. A determination is not being made by a prosecutor to determine whether something is viable for prosecution. So I think that leads to a foreseeable risk of constitutional violations." Id. at 52. He also testified that MPD's response to this problem was inadequate. Id. at 52--53. Moreover, he testified that MPD has a practice of conducting and condoning unlawful contempt of cop arrests under the guise of disorderly conduct arrests. Id. at 53.
Longo explained that he felt that MPD was inadequately training its officers and cited Lieutenant Neal's testimony as proof of that opinion. Id. at 53--54. Specifically, he testified that Lieutenant Neal "failed to notice . . . glaring deficiencies in a document that is supposed to set out probable cause for arrest." Id. at 54. In fact, Longo testified that it was hard for him to believe Neal-the supervisor who signed off on Huthnance's PD-163-"had any training whatsoever in supervising PD 163s or in understanding the applicable rule of law as it pertains to disorderly conduct." Id. He even testified that "there is a tremendous possibility that had there been adequate training, that had supervision been in place, that not only would [Huthnance's] arrest been avoided, but this procedure." Id. at 55. He went on to testify in detail about exactly how he came to the conclusions discussed above. Once Longo's testimony finished, Huthnance rested her case.
With Huthnance's case complete, the District and the officer defendants orally moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a).*fn3 Mar. 11, 2011 P.M.
Trial Tr. 138. Defense counsel's first argument was that "[t]hese individual officers, Acebal and Antonio and Morales, are shielded from liability because their alleged actions, or in the case of Officer Morales, lack thereof, were objectively reasonable." Id. at 139.*fn4 Huthnance testified that she was unaware whether Antonio actually did anything with respect to her arrest. Thus, there was no evidence upon which a jury could conclude that he should be held liable on any of Huthnance's allegations. Id. at 140. Also, defense counsel argued, with regard to the First Amendment claim, "there's a lack of evidence with respect to Officers Antonio and Acebal, that they were inside the 7-Eleven when she made these alleged provocative claims. . . . They can't be held liable for arresting her for something that they did not hear." Id.
As to Acebal, defense counsel argued:
The arrest by Officer Acebal was reasonable, even if later determined to be incorrect, given the facts that we've heard, the time of the occurrence, the proximity to the residential apartment buildings across the street, testimony that spectators were observed outside the 7-Eleven, Mr. Marsoni testified to that. And also to Mr. Marsoni's testimony that Ms. Huthnance was loud, that she was yelling, that she was argumentative. That he told her to calm down repeatedly. And her own admission that she did not present her ID when instructed to do so. Id. at 140--41.
Regarding Huthnance's claims of post-arrest deprivations, "There's been no evidence that she had a constitutional right to citation release, which appears to be one of her claims or a claim central to her due process claim." Id. at 141. Moreover, defense counsel insisted that there was no evidence to suggest that Officers Acebal or Antonio were obligated to advise her of her right to citation release or to any other type of release. Id. Officer Antonio wasn't even placed at the police station by any of the witnesses presented during Huthnance's case in chief, according to defense counsel. Id.
Defense counsel went on to request judgment as a matter of law for the District on Huthnance's First, Fourth, and Fifth Amendment claims. First, defense counsel argued that Huthnance had failed to establish that a custom, policy, or practice of the District was the motivating force behind the alleged impingement of her constitutional right. Id. Defense counsel went on to argue that the district couldn't have been placed on notice by the CCRB report and cited case law as support. Id. at 141--42.
Next, defense counsel argued that Longo's testimony regarding the adequacy of the District's post-and-forfeit training was anecdotal and insufficient. He was required to come forward with "some study, some report, something that shows that he's looked cross-jurisdictionally at what others are doing with respect to training for disorderly conduct." Id. at 151.
Regarding respondeat superior liability against the District for the false arrest claim, defense counsel argued that "[t]here was 12-309 notice filed by the plaintiff so that any claim resounding in tort of this sort is improper." Id. at 152. This Court denied the Rule 50(a) motion, and the defendants put on their case. Once all the evidence was in,*fn5 defense counsel moved for judgment as a matter of law under Rule 50(a) once again. Counsel repeated most of the arguments they had made after Huthnance rested but did raise a few additional arguments that must be addressed.
First, defense counsel insisted that qualified immunity shielded Officers Antonio and Acebal from liability for Huthnance's allegations. Mar. 23, 2011 A.M. Trial Tr. 129. Earlier, defense counsel had argued that Officer Acebal's probable cause determination was reasonable and extended that argument here, contending that Officer Antonio's probable cause determination was similarly reasonable. Id. at 132. Next, defense counsel argued that the officers are "entitled to judgment as to the common law claim, the false arrest, based on the partially subjective test, her false arrest claim fails as a matter of law because the officers' testimony that they operated in good faith remains unrebutted." Id. They argued that this "good faith" defense extends to the assault and battery claim against Officer Acebal. Id. Finally, defense counsel argued that neither Officer Antonio nor Officer Acebal was involved in the decision to determine Huthnance's eligibility for various release options. Id.
Counsel also expounded upon their Rule 50(a) motion in favor of the District. First, they argued that Longo's testimony should be rejected because he didn't consider much of the evidence in the defendants' case in drawing his conclusions. Id. at 134--35. But because all inferences must be drawn in Huthnance's favor, and because the defense testimony at issue was contradicted, impeached, or from an interested witness, this argument is a non-starter. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) ("[A]lthough the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the non-movant as well as that ...