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 *459 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 prejudi-cially 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. 1 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 Sylva-nia 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. 2 He also received a notice of infraction charging him with fleeing the scene of an *460 accident after causing personal injury or substantial property damage. 3
No police officer who remembered anything about the incident testified at trial. 4 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 warranty 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. 5 Otherwise, the *461 offenses are all misdemeanors. 6 Thus, if appellant was correct in his view of the law, as we conclude he was, the instruction was demonstrably erroneous and prejudicial. 7
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.,
At common law, as at present, an important distinction existed between the justification for effecting an arrest with a valid warrant and the justification for effecting an arrest without a valid warrant. An arrest made “pursuant to legal authority,” such as “a warrant properly issued and facially valid and fair,” provides no basis for an action for false arrest. Stuart M. Speiser, Charles F. Krause & Alfred W. Gans, 7 American Law of Torts § 27:15 (1990);
see also Woodward v. District of Columbia,
The authority of officers to effect war-rantless arrests for offenses other than felonies or breaches of the peace was subsequently expanded to varying degrees by individual state statutes. Restatement, supra, § 121 cmt. e (“in many states peace officers are given by statute a broader privilege to arrest than is given by common law”); Speiser et al., supra, at 1005 (“many states statutorily extended war-rantless arrest authority to include any misdemeanor committed or attempted in the officer’s presence”); 7 Am.Jur.2d’, supra, § 43 (no liability for warrantless arrest where officer has probable cause to believe a misdemeanor was committed in officer’s presence). “The rationale underlying the in-presence requirement [for misdemeanors] is that in view of the less serious nature of the offense, the probable-cause determination should be left to a magistrate....” Id.
Our jurisprudence has reflected this traditional approach. We have stated that where, as here, the plaintiff in a false arrest case shows he was arrested without a warrant, a presumption arises that the arrest was unlawful, and the burden shifts to the government to justify the arrest.
Karriem v. District of Columbia,
(a)(1) A law enforcement officer may arrest, without a warrant having previously been issued therefor—
(A) a person who he has probable cause to believe has committed or is committing a felony;
(B) a person who he has probable cause to believe has committed or is committing an offense in his presence;
(C) a person who he has probable cause to believe has committed or is about to commit any offense listed in paragraph (2) and, unless immediately arrested, may not be apprehended, may cause injury to others, or may tamper with, dispose of, or destroy evidence; and
(D) a person whom he has probable cause to believe has committed any offense which is listed in paragraph (3) of this section, if the officer has reasonable grounds to believe that, unless the person is immediately arrested, reliable evidence of alcohol or drug use may become unavailable or the person may cause personal injury or property damage.[ 9 ]
*463
Reflecting the statutory provision and the common law, this jurisdiction has long observed that a warrantless arrest for a misdemeanor not committed in an officer’s presence is, absent an exception, contrary to law.
District of Columbia v. Tulin,
As far back as
Maghan,
for example, a woman brought a false arrest claim based on her arrest on suspicion that she stole a pocketbook, not in the presence of any officers, whose contents were worth “about $30.00.”
In
Schram, Bond,
and
Perry,
this court applied the same principle to motions to suppress evidence obtained as a result of an unlawful arrest. In
Schram,
we relied on § 23-581(a)(1)(B) in holding that “Schram’s arrest was valid only if the police had probable cause to believe a misdemeanor was being committed in their presence.”
Supra
note 8,
In
(Gerry) Scott,
the circuit court held that even though a particular officer had probable cause to believe that appellant Scott had committed a DUI, he lacked authority to make an arrest under District of Columbia law because the offense was not committed in his presence, pursuant to § 23-581(a)(1)(B).
Despite this long line of cases recognizing the “in the presence” requirement, broad language we have used in some cases may suggest that an officer cannot be held liable for false arrest as long as the officer had “constitutional” probable cause to arrest.
See, e.g., District of Columbia v. Minor,
Allowing such a sweeping defense to a false arrest action would appear to be in conflict with our holdings in
Schrarn, Perry,
and
Bond.
In this regard, a recent decision from the Supreme Court may be informative. In
Virginia v. Moore,
We think our language purporting to equate probable cause with a privilege against false arrest must be read in context. To define the concept of “probable cause” by reference to the federal standard is useful and appropriate in giving substance to the concept of what constitutes a “reasonable belief’ that a partieu-lar offense has been committed. We see no indication, however, that the cases intended to extend the definition of the specific offenses or crimes for which an arrest may be made under our statute. It appears that the cases suggesting an equation between the constitutional probable cause standard and the defense of privilege in a false arrest suit typically involved arrests for a clear felony or for a misdemeanor for which an arrest might be made under our statute and, in any event, in none of them was any issue raised that the arrest violated the statute.
See, e.g., Murphy,
Other jurisdictions have construed local laws similar to the District’s and held that an action for false arrest will lie if the arrest was made in contravention of the local law, despite the presence of probable cause.
See Bailey v. Kennedy,
In
Collins,
the Georgia Court of Appeals reversed an award of summary judgment for the defendant officer in a false arrest case where the arrest was made without a warrant, for a crime not committed in the officer’s presence.
Section 23-581, and our cases construing it, compel a conclusion that a warrantless arrest for a misdemeanor not committed in the officer’s presence constitutes a common-law false arrest, unless the defendant can show that the requirements listed in § 23-581(a)(1)(C), (a)(1)(D), or (a-1)-(a-5), have been met. Language in pri- or decisions of this court that suggests a defendant may defeat a common-law false arrest claim merely by showing “probable cause” existed must be read to incorporate the common-law requirements for a lawful arrest. We reaffirm that, as our cases have said, probable cause will defeat a claim of false arrest, but we clarify that this is only true to the extent that “probable cause” is synonymous with legal justification to effect the particular arrest in question. This is because in actions for false arrest and false imprisonment, the “central issue” has always been “whether the arresting officer was justified in ordering the arrest of the plaintiff.”
Moorehead
*467
v. District of Columbia,
In the present case, where the arrest was effected without a warrant, the court was obligated to instruct the jury that a defendant can defeat a false arrest claim by showing the arrest was legally justified. Legal justification to effect a warrantless arrest, in turn, means either probable cause to believe a felony has been committed or probable cause to believe a misdemeanor has been committed in a manner specified in § 23-581. 13 Because the court’s instructions in the present case instead allowed the jury to find the District had defeated the claim on a lesser showing, the instructions were erroneous and prejudicial. 14
III. The District’s Arguments
It is, of course, true that we may affirm a judgment on any valid ground, even one not relied on by the trial court, provided the appellant will suffer no procedural unfairness.
Randolph v. United States,
A. Adequacy of the § 12-309 Notice
Five months after the collision, Enders sent a letter to the Mayor of the District of Columbia, stating his intent to file a false arrest claim against the District “in connection with a false arrest made of [him] on 1/27/2002 by an officer of the Metropolitan Police Department.” This letter was apparently an attempt to comply with the requirements of D.C.Code § 12-309, which states:
An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.
D.C.Code § 12-309 (2001). After sending the letter, Enders filed his complaint for false arrest in the Superior Court.
The District moved in the trial court to dismiss, arguing that the letter was insufficient notice under § 12-309 because it did not state the place of the injury or the underlying circumstances. The trial court denied the motion, stating, “While the notice letter did not explicitly state the ‘circumstances’ and ‘place’ of the injury, the *468 police record of the arrest provided that information.” We think the trial judge was correct.
Section 12-309 was designed to “(1) protect the District of Columbia against unreasonable claims and (2) to give reasonable notice to the District of Columbia so that the facts may be ascertained and, if possible, deserving claims adjusted and meritless claims resisted.”
Gaskins v. District of Columbia,
This court has long held that “although strict compliance with § 12-309’s requirement that timely notice be given to the District is mandatory, greater liberality is appropriate with respect to the content of the notice.”
Wharton v. District of Columbia,
Contrary to the District’s argument, this jurisdiction has not required that the District be given notice of an impending suit in a single document.
See Hurd v. District of Columbia,
B. Judgment as a Matter of Law
The District alternatively contends as a ground for affirmance that as a matter of law, there was no false arrest in this case. It argues that, even viewing the evidence in the light most favorable to Enders, it must be concluded that the officers had probable cause to arrest for malicious destruction of property in excess of $200, a felony offense.
15
Although End-ers was never charged with this offense, the District correctly asserts that in defending against a claim of false arrest, the District can prevail if it can show that probable cause existed to arrest for any offense, even if it differs from the offense for which the arrest was actually made, provided that the consequences for the plaintiff probably would have been substantially as unfavorable.
16
Etheredge v. District of Columbia,
The issue of probable cause in a false arrest case is a mixed question of law and fact that the trial court should ordinarily leave to the jury.
Murphy,
The determination of whether probable cause existed must be made based on the information known to the arresting officers.
See Murphy,
*470 The difficulty we have in coming to such a conclusion as a matter of law is the paucity of evidence as to the damage to Cravedi’s car that was visible at the scene. The testimony of Enders and of Cravedi were starkly at odds on this issue, both as to cause and as to extent. The only visual evidence of damage was provided by End-ers, through a photo that he obtained from police records. The photo, which is part of the record on appeal, only shows a small white mark on the far left side of Cravedi’s bumper area. Cravedi’s car was blue; Enders’ car was red. While Cravedi testified that the mark was a scratch or dent several inches long that contained a bit of red paint, she admitted that none of these details were revealed by the photograph. Enders asserted that the marking was minimal at best and may even have preexisted the incident. Cravedi also testified that the repair to the scratch cost her $220, but no receipt for the repairs or other supporting evidence was presented; and, of course, the officers did not have any such information at the time of the arrest. Moreover, with the burden of proof on the government, the jury had no obligation to credit all the testimony of the possibly biased Cravedi as to what the scene itself presented. 17
As already mentioned, the District did not present the testimony of any officer who had any recollection of the investigation, although about a half-dozen officers eventually became involved. 18 The several police documents submitted into evidence were totally silent on the matter, save a single notation that the impact caused “minor damage.” Although it is not determinative, it is noteworthy that no charge of malicious destruction of property was brought against Enders. 19 Indeed, Enders testified that during the hour or so when the officers were trying to figure out what to do, “one after another, the officers that were there came over and looked at the cars, looked at the bumpers, just peered high and low, looking all around the back bumper of her car, the front bumper of mine, looking for damage.... Eventually they gave up and went back to the coffee and conversation on the other side of the street.” Also in evidence was Enders’ statement that he only lightly tapped Cravedi’s rear bumper, as one would if one were parallel parking. Even if the jury believed the white mark on Cravedi’s bumper was caused by Enders’ actions that day, the jury could certainly see the size of this mark as consistent with End-ers’ account of how light the contact was.
To be sure, as already noted, the relevant inquiry in a false arrest defense is not what the actual facts may be but rath
*471
er what the officers could reasonably conclude from what they were told and what they saw on the scene.
Murphy,
Accordingly, we vacate the judgment in favor of the District and remand for a new trial.
So ordered.
Notes
. Cravedi explicitly testified that she told the officers "about exactly what happened as I just told you.” Enders also testified that he talked to an officer “about what had happened."
. D.C.Code § 22-402 (2001).
. D.C.Code§ 50-2201.05 (2001).
. The sole officer who testified simply confirmed the authenticity of the several police exhibits, and stated he had no independent memory of the incident.
.D.C.Code § 22-303 (2001).
. See, e.g., D.C.Code § 22-404(a)(l) (2001) (simple assault).
. This conclusion is in no way altered by the fact that in the final instruction the trial court also included a reference to the limiting provisions in D.C.Code § 23-581(a)(1). The reference did not state that (as we conclude) a warrantless arrest made in violation of the statute lacks legal justification by definition. Further, the impact of the reference was effectively negated by the subsequent instructions quoted above. Indeed, when Enders attempted in closing to mention the "in the presence” provision, the trial court cut him off, stated that the language was included merely to explain an argument of Enders’ that the arrest was contrived, and reemphasized the provision of its instructions quoted above. As mentioned, the District makes no real attempt to defend the trial court’s position, merely pointing out what it sees as two differing lines of cases in our jurisprudence, as discussed infra.
. We have referred to this statute as “a codification of the common law of arrest,”
Schram v. District of Columbia,
. No contention is made that the officers could have arrested Enders based on authority from § 23-5 81(a)(1)(C) or (a)(1)(D), which cross-reference a series of offenses listed in § 23-581(a)(2) and (a)(3). No evidence was presented at trial that the officers had any reason to suspect Enders would flee, destroy evidence, or cause personal injury or property damage if not immediately arrested, as re *463 quired for those subsections to be applicable. The section also contains provisions authorizing arrest without a warrant for intrafamily offenses, panhandling, and certain other specifically enumerated offenses. D.C.Code § 23-581(a-l)-(a-5) (2001).
. These cases also expound the correct principle that an alternate legal justification for an arrest, employing a lesser standard, exists on a showing that the officer reasonably believed, in good faith, that his conduct toward the plaintiff was lawful.
E.g., Murphy,
. A somewhat similar issue may arise when a plaintiff brings an action under both 42 U.S.C. § 1983 and the common law. We have held that a judgment in favor of the defendant under the federal statute is not necessarily controlling on liability under a common law cause of action.
See Scales v. District of Columbia,
. The language of the standard jury instruction for justification for arrest by a law enforcement officer, now § 18.03, has differed markedly over the years. The original instruction in 1968 permitted warrantless arrests only for felonies and for misdemeanors specified in the statute. The 1981 edition also was limited to the statutory crimes. In the 1988 revision, the instruction was extensively expanded and language included that stated that an arrest is justified if the officer had probable cause, defined as reason to believe that a "crime” has been or is about to be committed, apparently based on what we conclude to be a misreading of Murphy and like cases, as discussed above.
. The instructions may also properly inform the jury that, as our cases have said, a defendant may defeat a false arrest claim by showing the defendant had a reasonable, good-faith belief in the legality of the arrest. See supra note 10.
. We cannot say, with fair assurance, that the error in the present context was harmless.
See Kotteakos v. United States,
. More precisely, the damage must be “$200 or more.” D.C.Code § 22-303 (2001).
. And provided that, in a warrantless arrest context, the offense was arrestable pursuant to D.C.Code § 23-581. See, supra, Part II.
. Enders in cross-examination raised issues of Cravedi’s complete credibility by showing inconsistencies between her account of the incident as reflected in the police documents and her testimony at trial, particularly as to whether Enders' car hit her bumper squarely from behind or more to the side, where the white mark was located.
. The limited nature of the evidence at trial, the evidentiary portion of which occupied only a single afternoon, may have been affected by the pretrial ruling of the trial court that probable cause to arrest for any crime or offense would suffice to insulate the District from liability.
.A citation was issued for leaving the scene of an accident, which is an offense only if the accident caused “substantial” damage. D.C.Code § 50-2201.05(a)(1) (2001). We do not think this aspect can tip the balance to a finding of probable cause of $200 damage as a matter of law, and the District makes no argument to this effect. Precisely what the word means in context and whether “minor damage” qualifies may be debated. Moreover, there was testimony by the sole police officer that indicated that he had no understanding that such damage was required as part of the offense.
. In
Maghan,
as already recounted, the required value for a felony was $35. The court noted that it was undisputed that the purse contained $30 and that the purse itself must have had some value. It thus characterized the issue as a '‘border-line” case.
. We decline to consider the District's contention, made only in passing, that probable cause existed as a matter of law for ADW (car). The District does not make any arguments or cite any authority in support of this contention. Rather, after briefing the issue of probable cause of malicious destruction of property in excess of $200, the District simply asserts in a footnote that probable cause also existed for ADW but that "the Court need not reach this issue.” While the principle may not apply to appellees with the same force as appellants, we have noted that "[¡Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”
McFarland v. George Washington Univ.,