Arrington, Derreck v. United States

fees under FOIA clients.”).4 Moreover, Kay’s attorney’s based light of work, a its I would follow Circuit judgment, members’ independent legal upon focus holding well as precedent of counsel awards that authorizes “rule —as ineligi- litigants Kay ... are mem- find & Hostetler who Baker pro fees to se —and attorney’s create disincen- fees under FOIA. Ac- of the bar —would ble bers respectfully counsel whenever such from Part employ cordingly, I dissent tive competent himself majority considered plaintiff opinion. V the Kay, 499 U.S. litigate on his own behalf.” Blum, 1435; 438,

at S.Ct. of. likely, it Finally, possible, is

at 400. representing Baker

that the firm members action in the FOIA

& Hostetler fees, there- seeking attorney’s

witnesses concerns voiced

by implicating ethical 437, at 111 S.Ct. 1435. Kay. See 499 U.S. ARRINGTON, Appellant Derrek E. reaffirmed, recently Court Supreme v. context, the decision different err side of caution” circuit “to on the sister America, UNITED STATES of “imprecision in facing [the Court’s] when al., Appellees. et forcing] ... nor prior cases” “neither No. 05-5263. by “fol- issue” but instead bur[ying] the holding] until precise lowing] Court’s [the Appeals, United States Court of Supreme expressly overruled District of Circuit. Columbia Court,” since been holding if the has even Argued Sept. 2006. precedent. by intervening undermined States, 12,126 v. 546 U.S. Eberhart United 29, 2006. Decided Dec. (2005) 403, 404, 407, 163 L.Ed.2d 14 S.Ct. between earlier (noting tension Court’s filing “jurisdic-

holding that deadlines intervening precedent finding

tional” and non-jurisdiction- prescriptions

other time

al). more apt caution is even here. Such HMO, Moran, Inc. v.

See Rusk Prudential 355, 377, 122

536 U.S. (2002) (declining “to turn dic-

L.Ed.2d 375 holding”); Bancorp into U.S. Mort-

tum P’ship, Mall

gage Co. Bonner

18, 24, L.Ed.2d 233 115 S.Ct.

(1994) customary (“invoking our refusal to dicta”). relying Rather than

be bound to “force” a Kay’s footnote dictum litigant eligible firm

holding that a law Kay, Kay Kay.Compare at 434 n. Court in did not use Fal- While the Falcone, 647) analysis, (quoting 's interest the Court described 714 F.2d cone S.Ct. 1435 requiring the same "detached and Falcone as id. S.Ct. 1435. lacking objective perspective" that found Frankel,

Richard H. appointed by the court, argued the cause as amicus curiae support of appellant. With him on the Goldblatt, Director, briefs were Steven H. and Ariana Torchin and Elizabeth Glas- gow, Student Counsel. se, failure to by appellant’s file time- Arrington, pro E. filed barred

Derrek (2001) § notice ly D.C. CODE 12-309 brief. Appellant sue. does not chal- intent Russell, At- Assistant U.S. Beverly M. judgment on lenge appeal. appellees. torney, argued cause acknowledges Appellant inappro- that he L. were Kenneth her on the brief With priately engaged police by fleeing Wainstein, Attorney at the time the U.S. claims, stop. a He from lawful traffic how- Lawrence, filed, Craig and Assis- brief was ever, officers, pursued by was that after he Ryan, Attorney. Michael J. As- tant U.S. restrained, eventually captured, and dis- Attorney, appear- entered an sistant U.S. armed, handcuffed, Murray and and mem- ance. severely of the USPP beat him for bers Anderson, Attorney L. Stacy Assistant minutes, approximately ten violation of General, Attorney Office of General for District of Columbia law and his constitu- Columbia, for argued the cause District dispute do rights. Appellees tional her on the brief were Rob- appellees. With using exceptional against appellant, force General, Attorney Todd Spagnoletti, ert J. necessary justify their to actions General, Kim, E. and Edward S. Solicitor appellant, they who believed had disarm Schwab, Mary Deputy Attorney General. just shot a USPP officer. Wilson, General, Attorney en- L. Assistant granted The sum- District Court also appearance. tered an mary judgment in favor of the United States, finding undisputed “the that mate- BROWN, TATEL Circuit Before: and rial facts establish officers’ EDWARDS, Judges, Senior Circuit and circum- was reasonable under the conduct Judge. Police, Arrington Park stances.” filed Opinion by for the Court Senior 01-1391, 1076186, at No. Civ. A. 2005 WL Judge EDWARDS. Circuit 2005). (D.D.C. And, May 6, finally, *1 granted summary judgment District Court dissenting filed Concurring opinion Sergeant Murray, holding that in favor of Judge Circuit BROWN. immunity. Ar- qualified was he entitled EDWARDS, Judge: Police, Senior Circuit Park Civ. A. rington v. U.S. No. 2005). (D.D.C. 26,May 01-1391 Arrington, appellant, E. a filed Derrek case is principal question un- The seeking lawsuit in Court relief District bodily inflicted Act the officers who der the Federal Tort Claims whether 1846(b), (“FTCA”), employed more force §§ 2671- harm 28 U.S.C. (2000), (2000), reasonably necessary. We find § 1983 than was U.S.C. District brutality. the evidence before the alleged police The District Court, most favorable in fa- viewed granted judgments Court States, issue of appellant, genuine creates appellees vor United —the appellant was material fact as to whether Park Police behalf the United States (“USPP”), severely by the officers he Sergeant Murray of beaten Rick after restrained, disarmed, captured, Metropolitan Po- had been the District of Columbia (“MPD”) Obviously, handcuffed. Department lice —and detained rendered alleged completely com- was appeals. Appellant now beaten, brutally then being against helpless mon tort the District before law violations a verdict reasonable could return Court held that of Columbia. District issue of mate- for him. There is against the District were these claims Then, according fact ground. appellant, rial on this matter. And because the credibility of this the officers him resolution issue involves threw face down on the determinations, weighing ground, evi- handcuffed him with his hands dence, legitimate back, drawing proceeded infer- behind his beat ribs, facts, back, from him inappropriate Ap- ences about the and head. summary judgment. pellant says We absolutely help- therefore re- being verse and remand. less while several beaten officers. beating He also claims that the inflicted on Background I. sowas severe that it caused him to drift in and out consciousness. He al- April appel- vehicle driven legedly pain awoke of a dog biting to stopped by lant was USPP officers John account, leg. By appellant’s his the offi- Daniels Martin they Yates when no- nonstop cers beat him for approximately displayed ticed that car no front li- ten minutes. Appellant shooting disclaims plate. appellant stopped, cense After was Rather, weapon his at officer Daniels. he cellophane “ziplock” the officers saw a bag gun carrying maintains that he was passenger on the side floorboard and accidently discharged, resulting in the offi- thought might bag that the contain narcot- gunshot cer’s wound. passenger ics. asked in appel- Yates car bag. lant’s to hand him the After the a Appellees offer different account of the passenger complied, Yates confirmed that According events issue. to appellees, bag contained cocaine. Daniels then pulled Daniels appellant off the fence ordered appellant to exit the vehicle. In- Murray punched appellant in the ribs following instruction, stead of the officer’s two or three to times order restrain and appellant away drove the car from the handcuff him. Before the officers could stop, dragging scene ap- Daniels appellant, allegedly handcuff he raised his proximately yards before the officer arm weapon, toward Daniels and fired his free, could himself. free Once Daniels was shooting Murray Daniels the face. joined Yates in pur- their vehicle and appellant claims that he then tackled to appellant. driving high sued While at a ground held him a hug in bear speed, appellant lost control of his vehicle dislodge could not the weapon. Yates ar- Appellant and collided with a median. rived at the scene to find slumped Daniels quickly abandoned the disabled vehicle and against a Murray fence and struggling officers, ran from pursuing armed with with appellant. Murray allegedly told a .380 caliber firearm. to appellant, Yates shoot appellant because Sergeant Murray, Rick heading who was gun. had a Yates claims instead car, home a marked MPD saw shooting appellant, him he struck on the run, appellant crash his then vehicle and head a number of times with his service Daniels, followed by Murray foot. weapon but still not disarm him. joined stopped his pursuit. vehicle and USPP Officer Russell then Kidd arrived at caught The chase ended when ap- Daniels allegedly the scene and lying saw pellant a trying to fence into a climb resi- Murray face down with both and Yates on backyard. point, dential At this the sto- top of him. Yates claims that he told Kidd diverge. ries that appellant gun Kidd, yet had a Appellant caught claims that Daniels alleged another disarm attempt appel- to against fence, lant, him and him slammed struck on the a head with causing appellant drop weapon compressed telescopic to his to baton. Appellees that, continuous beat- moving party these is entitled to a despite claim and ... to surrender still refused ings, appellant law.” Fed. matter 56(c); Liberty Lobby, Peer Michael R.Civ.P. Anderson weapon. Officer Inc., 242, 247, joined the four officers S.Ct. USPP Canine Unit (1986). a patrol dog. with dispute on the scene A over ma- already L.Ed.2d apply dog instructed the if “the allegedly “genuine” Peer fact is evidence is terial Appel- appellant’s leg. controlled bites could return a such that reasonable minutes it took almost ten say nonmoving party.” lees Id. at for the verdict appellant. And, could disarm respect before materiality, “the law will iden- substantive indict- May “On Only tify are material. dis- which facts violating federal law. counts ed on four might affect the out- putes over facts vehi- using charged [his Count governing law come of the suit under forcibly weapon dangerous cle as] entry of sum- preclude will properly intimidate, assault, resist, oppose, impede, disputes that mary judgment. Factual officers en- three federal or interfere with unnecessary or will irrelevant duties, their gaged performance counted.” Id. (b). 111(a) § and in of 18 U.S.C. violation attempting charged 2 Count Although jury ultimately decide might officer, of in 18 violation murder federal of the events de- to credit the version § accused 1114. Count 3 U.S.C. over that offered scribed defendants during firearm a crime of discharging a of upon the “this is not a basis which plaintiff, violence, in of 18 U.S.C. violation granting in a motion for a court rest 924(c)(1)(A)(iii). charged 4 § And Count George, 407 F.3d at judgment.” unlawfully a firearm possessing him with summary judgment stage 413. the “[A]t felon, in of 18 violation as a convicted weigh is not himself to judge’s function 924(a)(2).” §§ United 922(g) and U.S.C. truth of the evidence determine 40, F.3d 42 Arrington, v. 309 States but to whether there matter determine (D.C.Cir.2002). “The convicted Ar- Anderson, trial.” genuine is a issue for 4, 1 rington but deadlocked on Counts 249, 106 2505. “Credibil- S.Ct. attempted murder and 3—the Counts determinations, weighing of the ity counts. The discharging-a-firearm evidence, drawing legitimate of (along retried twice counts were latter two jury func- from the facts are inferences new, count), each trial with a additional tions, judge” ruling on a not those of a trial, After the third in deadlock. ending 255, Id. at judgment. for motion outstanding dismissed government And, a motion assessing 106 S.Ct. 2505. Id. at 43. counts.” must summary judgment, a court view most favor- all evidence Analysis

II. party. Adickes v. nonmoving to the able 158-59, Co., Kress S.H. & A. of Review Standard (1970); 26 L.Ed.2d a district court’s de novo We review at 965. Kaempe, 367 F.3d summary judgment. decision Leavitt, 405, 410 v. 407 F.3d George Regarding Juris- B. Issues Threshold v. (D.C.Cir.2005); Kaempe Myers, 367 Scope of Review diction (D.C.Cir.2004). Summary appel- review of undertaking our only if “there is Before judgment may granted be summary judgments challenge to the any material fact lant’s no as to genuine issue of appellees, favor we must first consid- ments of Appellate Federal Rule of Proce- First, er two threshold issues. the Dis- dure 3. Sergeant Murray trict Columbia and Prisons, Martinez Bureau argue jurisdiction court this lacks (D.C.Cir.2006), ju- F.3d 620 we recognized May consider the District Court’s reasonably risdiction where we could dis- favor, because,

judgment in their in his cern that a would-be appellant wished to of appeal, appellant only notice challenged multiple although orders his notice appeal in favor of the United States. appeal referred to a single order. Second, that, argues United States court, cognizant the fact “ap- provided because never Dis- se,” pellant proceeding pro held that trict Court statement of appeal his “intention to from rulings both support opposition issues to sum- fairly of the district court in- [could] mary judgment required by Civil Local appeal ferred from his notice and no 7(h), presented by Rule the facts as appel- appellee prejudiced.” [was] lees stand uncontroverted. For the rea- The appeal, same is true On here. Ser- below, reject noted sons we each of these geant Murray represented by the Attor- claims turn. ney Columbia, General District presented arguments

“who has [his] no prej- shown evidence that would be [he] 1. This Court’s Jurisdiction Re- To udiced if appellant’s challenges [May to the Judgment view the Rendered 2005] order were addressed Sergeant Murrag Favor of court.” Id. ap dismissal of seeks here, easily the record can On we infer peal against jurisdictional grounds, appellant’s intent to both appeal orders of claiming appellant timely that to failed file the District Court to respect with both R.App. of appeal. notice See Fed. P. 3. appellees, current so of Ap- Federal Rule particular, appellant he contends that filed 3(c)(1)(B) pellate Procedure does not bar appeal, two notices of of neither which appeal. See also 16A Charles Alan purported to appeal the District Court’s Arthur R. Wright, Edward H. Miller, May grant summary of judgment Cooper, Federal Practice Procedure Therefore, in his favor. according to Mur (3d 1999) (“Defects § ed. in 3949.4 the ray, jurisdiction, this court lacks because wording of appeal gener- the notice of are “designate failed to judg the if ally overlooked the true of intentions the ment, order, or part being thereof appeal ascertained, fairly appellant can if the App. ed.” Fed. R. P. 3(c)(1)(B). misled, courts not have been the parties other have se, prejudice.”). suffered no Appellant, acting pro filed two docu- titled of Appeal,” ap- ments “Notice one Applicabilitg 2. The of Local Rule parently using self-created other 7(h) Defíning Scope in of Re- (“J.A.”) template. court Joint Appendix view 113-15. The second notice refers to of judgment date of order in The United States that argues “Appel- States, favor of the lan- United but provided genu- its lant neither a statement of guage appeals from an “in support order favor of in opposition ine issues of his to United of [the] States America and the judgment required by as Local 7(h), District Columbia.” J.A. This was Rule nor urged Civil a different stan- clearly adequate to satisfy require- Accordingly, given Appellant’s dard. in pre- light requirements” omission, [the] was not the District Court in Rule Civil id. at properly factual issues Federal Procedure any sented And, reject failed to claim Appellant 519-20. We therefore dispute. because should be argue pre- that a different standard that the facts as United States argument this new applied, by appellees he waived stand uncontroverted. sented Appellee Br. United States at appeal.” Dispute C. Because There Is a Genuine omitted). (internal is This citation Fact, Appellees aAs to Material Are argument. The United States

specious Summary Judgment Entitled to Not readily that “the District Court concedes not treat United States’ state- Appellee did de novo the District We review dispute facts in ment of material summary judgment Court’s instead, conceded, Appel- reviewed [but] all appellees, viewing of the evidence light lant’s on the merits claims To appellant. most favorable to sur presented by parties.” evidence summary judgment, vive a motion for says it all. 17. This concession party bearing proof the burden of tri case, appellant provide al—in this 7(h) —must not re permits, Rule does showing there evidence is triable quire, the District Court to “assume issue as an element essential moving party facts identified its Catrett, party’s Corp. claim. See Celotex admitted, of material facts statement 106 S.Ct. unless a fact is controverted such (1986). principal legal L.Ed.2d The opposi genuine issues filed statement in this case is whether the officers issue 7(h). Appellant tion to the motion.” LCVR bodily inflicted harm on appel who severe opposition filed a memorandum rights more by using lant violated his force summary judgment, but motion for necessary. ques reasonably than filing did not conform to standards has tion that we face whether Court, however, The District did the rule. provided sufficient evidence to show that to, its or treat as not limit consideration of material fact is a issue there admitted, appellees’ the facts contained in claim. respect legal to this assessing of material facts. statement summary judgment, appellees’ motions appellant’s parties agree The FTCA its discre the District Court acted within battery governed claim is assault reviewing tion in the entire record. They agree of law. also District Columbia controlling govern- legal that the standard com long upheld circuit has “This strict officers for as- ing against police a claim pliance district court’s local rules with the battery Etheredge is forth in sault and set judgment when invoked (D.C. Columbia, 635 A.2d 908 v. District Gould, v. court.” Burke of district 1993): (D.C.Cir.2002); see also Farabow, Henderson, privi- qualified has a police A officer Finnegan, v. Jackson Dunner, force to effect an lege to use reasonable & 101 F.3d ISO- rrett Ga (D.C.Cir.1996) 7(h)’s arrest, provided that means em- (discussing Rule rule). in which when, here, those ployed are not excess predecessor But as reasonably actor believes be nec- require the district local rule “does Moreover, any person, includ- essary. court to enter because officer, justified using in rea- in an is nonmoving party’s complying ing default assault, Burke, rule,” repel an actual F.3d at sonable force with the local reasonably or if he believes is “we review contends, danger bodily “deadly Use of by police harm. lant he was beaten however, force,” restrained, only is lawful if the user officers after he was captured, disarmed, believes, If actually reasonably appellant’s at the and handcuffed. used, force hands were behind back time such is that he or she handcuffed (or bodily before the officers person) peril a third inflicted harm is imminent him, claims, it bodily as to rea- death or harm.9 stands serious son that was disarmed before he 9. "Deadly likely force” is force which is Appellees beaten. not suggest do oth- bodily to cause death or serious harm. materiality erwise. And the factual (internal 635 A.2d at & n. 9 citations dispute is obvious. omitted). quotation Etheredge marks appellant’s accepted If version of facts is approval pas- cites following true, jury as there is little doubt Connor, sage from Graham could find that he satisfies “excessive L.Ed.2d 443 Etheredge. force” standard under In oth- (1989): words, if police severely er several The of a particular “reasonableness” continuously up beat an unarmed and use of judged force must be from the virtually minutes, defenseless man for ten perspective of a reasonable officer on “deadly this would constitute unlawful scene, rather than with the 20/20 Etheredge, force.” A 635 A.2d at 916 n. 9. hindsight.... vision The calculus of beating severe for ten long minutes is a embody reasonableness must allowance A single boxing, involving time. round of for the fact that officers are often combatants, equally two unrestrained split-second forced to make judgments— A jury certainly three minutes. could tense, in circumstances that are uncer- find that no “reasonable officer” would be- tain, rapidly evolving —about brutality lieve nec- here would be necessary amount of force that is essary under the alleged by circumstances particular situation. appellant. (internal 396-97, 109 S.Ct. 1865 cita- depositions of the officers involved omitted). tions appellant’s arrest degree confirm the mind, legal With this standard we force used. One officer admits repeatedly must consider whether the evidence before striking appellant on the head with com- Court, District viewed most telescopic pressed baton “with much appellant, favorable to creates a muster,” force as Dep. [he] Kidd any issue as to material fact such that a 21:15-22:11, 27, 2004, 227-28, J.A. Oct. reasonable could return a verdict striking appellant another describes appellant. find that We it does. handgun the side of a “violent” and that, Appellees not dispute manner, 69:12-15, do in pursu- Dep. “fast” Yates Nov. 2004, ing subduing appellant, 10, the officers 309. J.A. On the basis of these fists, facts, telescopic struck with their a a jury reasonably find that the baton, pistol grip, and a and also a ordered officers District of violated Columbia law police dog trained appellant’s leg. by exercising bite more they force than reason- parties dispute The facts that the do ably believed necessary, Etheredge, see —and whether, are they central —are appel- as A.2d at appellant’s violated contend, lees force used against was to subdue right Fourth Amendment unrea- appellant “objec- while was armed and before sonable using seizure force not handcuffs, whether, tively he was or appel- of reasonable the facts and Graham, them,” ing party’s affidavit sufficient to defeat confronting [is] circumstances (internal summary judgment face of contra- [the] 109 S.Ct. 1865 omitted). Appellant’s Br. dicting testimony.” Reply marks quotation at 25. court, Appellee Unit- In its to this brief argument implausible makes the ed States duel, of Appellant has better handcuffed,

that, was if even clearly plain- states that a because Greene indicates that nothing in the record summary tiff a defeat Br. of that fact. for knowledge had officers parties’ a if granted to defendant At at 18 n. 20. oral States Appellee United materially sworn statements are different. however, counsel for the United argument, point, On this the court stated: readily agreed that at least one States granting summary judgment In for handcuffed allegedly one who officer—the Navy claim for Greene’s sexual appel- have known that appellant —would harassment, quite the district court if in while beaten fact lant handcuffed clearly jury. invaded the of the province Tr. story Argu- is true. of Oral appellant’s a Greene submitted sworn affidavit stat- Likewise, for at 16. counsel ment ing raped that Clause had harassed and beating “it’s a that obvious that conceded her, proffered diary sug- and that very diffi- presents very, man handcuffed If forgery. otherwise was a gesting Id. at [Sergeant Murray].” for cult case true, allegations indisputably these are Indeed, candidly acknowl- counsel to support against sufficient a verdict Murray’s “rise[s] case edged Title Navy allega- under VII. [appel- of question on the whether fall[s] course, may, tions of be false. That is agree. was handcuffed.” We lant] court, however, question not other officers also knew that Whether jury. for the handcuffed is a matter appellant was per- of by a finder fact. determined moving judg party summary As

forming Court’s our review of District ment, initial Navy bears the burden need judgment, of we identifying evidence demon materiality alleged fact decide the any genuine issue strates the absence handcuffed be- Corp. See material fact. Celotex We find fore the administration force. Catrett, 106 S.Ct. unquestionably material. (1986). 91 L.Ed.2d On here, inquiry does not end Our however, us, we can deter record before Having disput however. found material point at which mine neither the Clause’s fact, uphold the ed we must nonetheless pervasive or harassment became severe judgments there is grants person nor when a reasonable would genuine dispute no as to material fact. jury may A reported his behavior. have appellees argue that point, “[c]on On this in favor both these issues resolve clusory, unsubstantiated statements an resolving Navy, improperly but without opposing party unsupported which are fact, issues of we cannot. disputed specific facts insufficient to overcome (internal motion,” Greene, 674, cita- Br. for 164 F.3d at 675 summary judgment Ap omitted). opinion, Later in the 21, citing at v. tion pellee Murray Greene Dal (D.C.Cir.1999). ton, “[although, as Greene decision notes that 164 F.3d Inter Greene, rule, party op- by made estingly, also for statements appellant cites summary judgment for posing a motion accepted proposition “non-mov- as accepted purpose must true for The same true in this case. See (7th motion, ruling 767, on that Payne Pauley, of some statements Cir.2003) that, as to within conclusory (holding are so come an the mate- “[w]here rule.” Id. at 675. exception specifically rial party facts averred one point in rejecting court made this aby party contradict the facts averred summary plaintiffs challenge judg- moving summary judgment, motion granted denied.”); Jones, in of ment favor the defendant on must be Johnson v. cf. claim of court 307-08, her retaliation. The found 515 “conclusory,” (1995) (In the retaliation claim because L.Ed.2d 238 rejecting an inter- plaintiff nothing than a “rep- appeal offered more locutory officers’ claim of in ap- resentation her affidavit that she qualified immunity, pointed the Court jobs plied in plaintiffs summer 1996 and 1997 in “deposition, which he swore although and was not hired ‘another stu- (though he did name not dent, them) experience who had less and edu- had used force ar- excessive when and, cation was in later, hired back’ 1996.” Id. The in resting booking room house.”). court’s of the judg- affirmance at the station unsurpris- ment the retaliation claim is hand, On record neither the Dis- because, notes, ing, as the decision “a jury trict nor can Court this court conclude that be in position would no to assess [her] appellees’ story appellant’s is truthful and [superior qualifications].” claim of story fabrication, is a at least if all not of The evidence offered in the evidence is in viewed most easily distinguishable case is from the con- to appellant required by favorable Fed- clusory representations offered 56(c). eral of Rule Civil Procedure As in in plaintiff support her Greene of retali- above, “[c]redibility determinations, noted claim. Appellant’s ation claim here that he evidence, weighing of the ..., ground was “thrown to the immedi- legitimate drawing of inferences from the ately dropped gun,” his and “was then functions, jury facts are not those of a handcuffed and then beaten while face judge” ruling on a motion for down,” Plaintiffs Statement Material Anderson, judgment. 477 U.S. at ¶ 1, Dispute Facts J.A. finds S.Ct. 2505. There ais issue of deposition support testimony sworn filed material fact in this case which makes it Court, the District Dep. appellees clear that not entitled to a 88:14-95:25, 16, 2004, Nov. J.A. 190-92. judgment as a matter law.

Thus, plaintiffs unlike the retaliation Greene,

charge provides Qualified Murray’s here D. Officer Claims of direct Immunity testimonial evidence of the violations alleges. he now Possessed of this testimo- Appellee seeks affirmance ny, jury validity can appel- assess the of the District Court’s claims. lant’s grounds qualified favor on the immuni reversing ty. As the court noted in applicable, “[qualified the sum- When immuni mary judgment ty for the defendant re- under section 1983 shields a state or spect to the charge sexual harassment in local from personal liability.” official Es Greene, Columbia, resolve Phillips “[a] [the issue] tate v. District [defendant], (D.C.Cir.2006). favor without im- 455 F.3d Howev fact, er, properly resolving disputed qualified immunity gov issues does shield Greene, we cannot.” 164 F.3d at clearly ernment officials “violate who es-

339 35:18-36:9, rights Murray Id. 265. statutory constitutional J.A. made or tablished describing struggle have these a person a reasonable would statements of which 603, However, appellant. v. Layne, 526 U.S. to disarm ac- known.” Wilson we 1692, 609, testimony 143 cept appellant’s 119 L.Ed.2d 818 sworn that he S.Ct. Katz, (1999). 194, handcuffed, a reviewing v. was grant Saucier (2001), must, 272 summary judgment 150 L.Ed.2d we v. 121 S.Ct. Salazar Auth., two-step enunciated a Supreme Court Wash. Metro. Transit F.3d (D.C.Cir.2005), determining qualified analysis for whether we find that the actions First, immunity applies. by Murray persuade court must taken a reason- alleges complainant Murray able that committed determine whether constitu- Id. rights. sufficiently significant of constitutional at tional to violations violations 201,121 immunity 2151. If constitutional viola- the qualified S.Ct. overcome bar set sum, alleged, are the court must next de- forth in Katz. In a tions Saucier v. there is right allegedly violat- genuine termine whether the issue of material fact which makes clearly Murray ed is established. it clear that is not to entitled summary judgment on claim of quali- his Qualified immunity granted cannot be immunity. fied however, summary if there judgment, is to of fact. genuine issue as a material issue III. Conclusion in cases in point frequently This is made claim, supported by makes the Appellant seek to file an interlocu- which defendants disarmed, testimony, that he was sworn tory appeal challenging district court’s handcuffed, ground, to the and se- thrown judg- of their motions for denial by appellees for ten minutes. verely beaten qualified immunity. on grounds ment maintain, Thomas, See, 338, Appellees by sworn testimo- e.g., Elliott Cir.1991) (7th (“[T]he ny, appellant, order to disarm who a court of reason they just believed had shot a USPP officer examines facts is appeals to determine face, necessary it in the hold ‘clearly whether was established’ minutes, using down and beat him ten defendants’] time deeds were for- [the fists, baton, telescopic grip their qualified [the bidden. It would extend handgun, patrol of a and then instruct immunity beyond doctrine] well its ratio- If dog leg. all of the evidence is to bite accept containing nothing nale to an appeal issue.”) (internal ap- most favorable to viewed a factual citation but 56(c), omitted); Johnson, required by appel- Rule pellant, as U.S. cf. surely are lees not entitled (holding 132 L.Ed.2d judg- a matter of law. “[A]t insufficiency” “evidence claims pretrial him- stage judge’s ment function not by public made official defendants who weigh self to the evidence determine qualified immunity assert defenses matter to determine truth immediately appealable). for trial.” whether there is a issue Murray appellant testified that he held Anderson, 106 S.Ct. 2505. ground down and ordered another genuine dispute con- Because we find a and, appellant point, at one officer beat fact, hold that this cerning a material we Murray to shoot in the head. disposition by case is unsuitable 31.T3-35.T4, 4, 2004, Dep. Nov. J.A. 264- summary judgment. also testified that re- may dissenting colleague or another officer or- Our strained while in her characterization of leg. right bite not be patrol dog appellant’s dered his record, following finding hap- facts. But fact is not the role of the the is what court. That the appellate pened. Arrington stopped by dissent Park mightily misplaced display strains this fact find- Police for failure to a front license license, ing tag. Arrington presented highlight regis- effort serves exis- tration, genuine tags. tence of a issue of material fact. In temporary and officers, noteworthy contact, It is also that three criminal course of that one juries Yates, Martin charging spotted plastic bag have deadlocked counts a clear Arrington attempting appeared with murder a to contain cocaine residue. discharging Daniels, federal partner, officer and firearm Yates’s John then asked during Arrington, Arrington step a crime violence. See out of the vehicle. Ar- 42. Obviously, testimony rington F.3d at refused. When Daniels reached of the police officers is not as clear cut as inside physically the vehicle to extract Ar- event, any would In rington, Arrington put dissent have it. car in his “drive” off, the trier of fact case will sped dragging seventy-five civil have and Daniels opportunity an to sort yards through this out. an intersection. The offi- cer’s with pavement contact was so reasons, foregoing For grants gouge violent that his left handcuffs marks summary judgments in favor the United pavement and were torn from his Sergeant Murray hereby States and are Mercifully, finally belt. Daniels tumbled reversed and remanded. free. picked up He himself and hurried So ordered. cruiser, back police to his in which he and his partner gave then chase. BROWN, Circuit Judge, concurring and dissenting: Fleeing speed, the scene at high Arring- agree

I majority with the that we should ton during lost control a left turn and affirm grant Arrington, crashed into median. the District that appellate of Columbia and carrying thrice-convicted felon a .380 cali- jurisdiction proper despite defects in the pistol clip, ber a full climbed out of However, notice of I appeal. agree do not his car wrecked and ran into a residential majority’s with the view that Derrek Ar- yard. Daniels and Yates exited their rington’s deposition testimony creates a pursued cruiser An off-duty on foot. fact which pre- officer, issue material Sergeant Murray, Rick saw summary judgment. Maj. cludes Op. 335- joined crash the chase. majority acknowledges 38. The that Ar- easily over vaulted two fences but then rington’s testimony credibility lacks third, failed to surmount a taller fence. As concludes it is to determine its Arrington again tried to climb the third I disagree. truthfulness. This is not fence, tes- up Officer Daniels with him caught timony which about reasonable minds fence, pulled from the and a differ; this is a confabulation Can- struggle Murray, off-duty ensued. of- suspect. dide would find ficer, joined Murray the melee. Both Yates reported seeing Arrington push

I away Daniels with his hand left and then In important; this case the facts fire a point are so shot blank into Daniels’s face of physics. the laws Here both right hand extended. physics flash, facts support the district from the muzzle shiny Yates saw the court’s judgment. gun. grabbed Arrington’s right any remotely Based on arm reading wrapped reasonable him in bear hug, vibration, the merely fell or felt he ground. to Daniels cock men fell the both to a few His stopped moving He went down seconds. against the fence. back rise, he knees, him, and to his tried to discovered arms remained beneath close his slumped against very Arrington He body, tight. stopped not. remained had could moving violently, fence. but he continued to re- Murray Arrington Because and were sist. much there surprisingly, was Not not settled entangled, Yates did shoot and and commotion. Officers screaming using weapon side of his to strike heard report having alike civilian witnesses Arrington. Arrington repeated- hit Yates screams, commands, curses. repeated “fast,” It was he ly. “violent” go the damn go gun; of the let “Let Ar- gain Arrington’s compliance. failed to fucking gun, get the gun.”1 “Drop the unconscious”; rather, rington “never went gun? Drop the gun.”2 “Where’s the time,”7 “fought rolling and he the whole I strong. get “He’s can’t gun.”3 too moving. why Arrington he hit re- Asked me, I gun away from him.” “Don’t leave clear: “I deter- peatedly, Yates was was gun, gotta come back you have don’t position in a where put myself mined to here, gun kill us.”5 guy will “Get [Arrington uncon- going go either to was] hands; gun of his get his out out I going or to have to shoot scious was hands.”6 ” Arrington him.... He reasoned that just that dark yard Yates had entered armed, feet, to his get was allowed to still his his shot. He drew partner time to see n witha used, weapon had “that already he Arrington crashed Murray and weapon. just him to again.” would invite shoot Arrington “trying ground, but was to the Kidd thrusting officers arrived. Officer ground, off the Other to raise [himself] his joined fray, using police Mur- baton. around and his shoulders.” hips his Peer, police dog He his Lazer Arrington. to Officer with ray urged Yates shoot lead, repeatedly Arrington “give told to death[] to his explained he was “scared gun going dog or I’m to just [Arrington] got up put ... that if knew so the [you].” Arrington respond, kill Yates did going was one of us.” up, he perform controlled dog head was instructed placed gun against Arrington’s it exposed leg, which Arrington mech- up trigger and took slack bites work, went to Ser- gun Soon after Lazer anism. Whether heard did. "pop” He out and Ellerby, heard a sound. looked Civilian Runako resident 1. witness Street, thought police was officer apartment Mr. what he a back on 13th NW. saw struggling ground. sus- The Ellerby said the officers surrounded the a man on the gun go appeared trying he off.” He retrieve pect after "heard officers to be "struggling something see several man. from the They [Arrington] trying to disarm him.” said, they go gun,” drop it the damn as "Let Murray what 4. Officer Yates's recollection of get "repeatedly attempted] to to release Yates, According Murray was excited said. Moser, summarizing weapon.” Sergeant yelling. debriefing and Mur- statements Yates ray, recalled the same words. Sergeant Murray's plea to 5. Officer Yates. what he 2. Officer Daniels's recollection of Smith, reports Tiyon Civilian witness who 6. slumped against lay the fence. heard as immediately hearing police say this after gunshot. single he heard Price, 3. Civilian Louis resident witness Ave., # 4. was awak- 1223 Missouri NW He 37:4-5, Murray's Dep. then Nov. 2004. voices outside his window and ened gun. announced he had the II geant Murray pulled right Arrington’s hand out majority identifies one is- material it, from stripped gun tossing “whether, in dispute: appellees sue con- away or five from Arrington. four feet tend, force was used to subdue appellant Then, releasing a scream of adrenalin-in- while he armed and before he was exultation, Murray duced walked a few handcuffs, whether, or as con- away. Officer Kidd was able to paces get tends, he was beaten Arrington’s control of left arm. Together, captured, restrained, after he was dis- Arrington. and he Yates handcuffed armed, Maj. Op. and handcuffed.” Given the nature the confrontation —a insists, majority respect with struggle frantic and in desperate the issue, that the court not determine sequence dark —the of events emerges credibility, and that therefore Arrington’s clarity, physical with remarkable testimony sworn that the officers contin- right gouge down to the marks evidence— handcuffed, ued to attack him he was after Officer from Daniels’s handcuffs—is com- no self-serving implausi- matter how and pletely consistent the officers’ de- ble, jury him a Maj. Op. entitles trial. scriptions happened, of what as well as judge’s 338. But in deciding the role provided with radio that transmissions vir- summary judgment motion for is more ro- tually a moment-by-moment commentary. bust and than majority flexible the con- rip There is but one this seamless ceives. Arrington’s web: version events. Ac- summary To judgment, defeat nonmov- cording sped he off Arrington, from the ing parties do simply “must more than initial traffic stop because the officers had (or show that there is some metaphysical drawn their looked weapons they like facts,” doubt as to the material might). Matsushita possession He was also of a Elec. Indus. Co. v. Zenith Radio gun Corp., and parole. knew this violated his 574, 586, 1348, U.S. 106 S.Ct. car, Officer Daniels near 89 L.Ed.2d was nowhere the (1986); Arrington asserts, party the “must certainly offer some was not being hard dragged showing evidence that its through streets. Ar- version rington wholly fanciful,” scaling claims he events is not was the fence D’Amico York, (2d v. gun City his hand order New to dis- Cir.1998). that pose gun, when mere Daniels “The existence of a scin- him pulled off support the fence then slammed tilla of plaintiffs evidence of the him, it, first, position insufficient; face back into he dropped the will be there must be gun. Officers then took down jury to the evidence on which could reason- Next, ground ably and handcuffed him. plaintiff.” he find for the Anderson v. Inc., a “pop” Liberty heard sound. When he Lobby, heard the gun already (1986). on pop, ground; was 91 L.Ed.2d 202 While dropped “way claims he it is admittedly duty be- not the of district fore” he pop. heard the He also courts weigh credibility saw a par- flash, and he he thought had been shot. ties’ testimony at the judgment that, lay He contends ground stage, as he “in the rare circumstance where handcuffed, disarmed, helpless, plaintiff the of- almost exclusively relies on his him, pistol-whipped ficers beat him testimony, with a own much of which is contradic- baton, him, punched tory kicked and and finally incomplete, it will impossible dog leg. released the to attack his for a district court to determine whether dropped If Arrington gun find for the face. before reasonably jury could ‘the handcuffed, then, claims, any he was thus there are plaintiff,’ and whether fact, handcuffed, gun after fired without he was ‘genuine’ issues material lying while it plaintiffs spontaneously of the assessment making some York, turned ground, New the bullet not have Jeffreys City account.” Cir.2005) (citation (2d degree angle a 90 to strike Daniels 426 F.3d omitted). Thus, Therefore, face. in order for the to rule in we have held favor, likely Arrington’s it would have to con- most when “is solely Arrington’s gun clude claim is enchanted plaintiffs supported own testimony, un- fires of its volition but fires plaintiffs self-serving own evidence, can magical turn somersaults by corroborating bullets supported Bullets behave in this fashion by other credible evi- midair. either undermined life, cartoons; though, in real bullets do dence, impossibility per- or other physical start, and stop, change de- not directions. plaintiff that the has suasive evidence physics, question v. This is a law of not a liberately perjury.” committed Johnson Auth., credibility. Area Transit Wash. Metro. (D.C.Cir.1989) (emphasis Moreover, not officer it is clear which Lines, added); Stage see Laio Va. could have handcuffed the (D.C.Cir.1971).

444 F.2d 990 he he Officer time claims was handcuffed. events, possess means to to Daniels did not the do sequence according The duty rig from had account, with an so. The handcuffs his Arrington’s began officer fence, his he into him been torn from belt when slamming causing the car, they re- carrying. dragged by Arrington’s An gun to the he was drop in the The ground lying mained street. second forced him to the officer then case, set, Next, a still in its was recovered from “pop,” him. he heard handcuffed belongings Finally, personal him. he Daniels’s when was which officers beat after Murray, dog hospital. Sergeant taken to the dog “ripping” leg; “[t]he the his felt person the involved initial tearing leg up.” No other other my was like confrontation, duty, wearing was off Arrington’s ac- witnesses corroborated sweats, police equipment had no seeing the reported count. Two officers Arring- did Arrington’s the him. Other officers not reach flash at end of ex- muzzle Daniels was shot. ton until after arm. These officers others tended efforts to di- subsequent their described no in the rec- simply evidence There is unre- Arrington, sarm who remained self- Arrington’s ord corroborates descriptions corroborated strained — fact, serving everything account. transmissions and contemporaneous radio record, physical evidence and including a reported strug- civilian witnesses who witnesses, testimony of several civilian to gle during police sought which “disarm” a Arrington’s account. When contradicts Arrington. or from” something “retrieve entirely on his own self- plaintiff relies any corrob- serving testimony, which lacks physical support Nor does the evidence by all the avail- is contradicted gun some- oration and Arrington’s assertion that evidence, is not obli- a court physical from the able spontaneously ground fired how plaintiff jury a gated had it. tests to reward long dropped after he No Johnson, Rather, 883 F.2d at 128. gun trial. on the were able cause conducted alleged are so contradicto- being “when the facts trigger pulled. without fire upon plausibili- cast their ry that doubt is significantly, Daniels was shot in the More ty, may] court the veil of some evidence has been pierce [the introduced ... complaint’s allegations factual party having dis- burden Jeffreys, miss claim.” 426 F.3d at 555 proof.... question [The is] whether (internal (alterations quotation in original) no literally [supporting there is evidence omitted) Pico, (quoting marks Shabazz v. nonmoving party], but whether there (S.D.N.Y.1998)). F.Supp. To any jury is a upon properly which hold otherwise is to license the mendacious proceed party to find verdict for the litigation to seek lottery. windfalls it, producing whom upon the onus rule, the majority’s plaintiff Under can proof imposed. jury simply by testifying obtain trial (internal quota- allegations complaint, no matter omitted) (quoting tion marks Improvement implausible they might how be. The un- (14 Wall.) Munson, Co. v. certainty of a expense trial will (1872)). 20 L.Ed. 867 frequently then lead nuisance settle- ments claims that should be defeated on Dalton, majority relies Greene v. summary judgment. Arrington’s suit is (D.C.Cir.1999), 164 F.3d propo- for the in point. Considering case what occurred summary judgment sition that is improper here, Arrington should be thankful parties’ sworn statements are life; instead, spared he has Greene, however, I material conflict. read sued, majority thinks his odd and as staking ground: out a more limited persuasive fanciful assertions are enough a court motion for sum- be a jury. heard mary minds judgment when reasonable majority The apparently posi- takes the import could differ as evi- of the any tion there is evidence in the dence. The sexual harassment allegations record, source, any from from which some in Greene were claims which a reasonable tenuous inference can be drawn in favor of jury way could have resolved either —a nonmoving party, quintessential Here, jury question. Anderson, improper. The import Jef- contrast, only runaway jury could return freys, and clearly Johnson is otherwise. verdict for based on his testi- question any is not whether evidence mony occurred, as to what if a did supports assertions; nonmoving party’s verdict, return appellees such a be would rather, there must evidence on be which a entitled to a I directed verdict. Because jury find in that reasonably party’s agree with trial court that appellees Anderson, 248-49, favor. at 106 are prevail summary judg- entitled to 2505; Jeffreys, 554; S.Ct. ment, I respectfully dissent. Johnson, inquiry 883 F.2d at 128. “The performed inquiry is the threshold of de-

termining whether is the there need for a -whether, words, in other there are

trial-—

any genuine properly factual issues that

can resolved finder of fact they may reasonably

because be resolved ” Anderson, party. either favor of 2505 (emphasis add-

ed). Therefore:

[Judges longer required no] sub- question jury merely

mit a to a because

Case Details

Case Name: Arrington, Derreck v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 29, 2006

Citation: 473 F.3d 329

Docket Number: 05-5263

Court Abbreviation: D.C. Cir.