Holder v. District of Columbia

HOLDER, Appellant, Michael E. COLUMBIA, Appellee.

DISTRICT OF

No. 94-CV-1383. Appeals.

District of Columbia Court

Argued Oct. Aug.

Decided Stein, Long, Cheryl E. whom

Viсtor with DC, brief, appel- Washington, was on the for lant. Corporation Murasky,

Donna M. Assistant Ruff, Counsel, whom with Charles F.C. Cor- poration Counsel at the time brief was filed, Reischel, Deputy Charles L. Cor- brief, Counsel, poration ap- pellee. WAGNER, Judge, and

Before Chief KING, Judges. STEADMAN and Associate STEADMAN, Judge: Associate This case from arises off-duty po appellant Michael Holder brought against lice suit officer. Columbia, appellee District of the case gun, a of club. He did not have liability: rear the to the on two theories went stop, to and order battery. not hear Officer Walker’s negligence and assault and Follow- running with a crowd in was down the street partial favor the ing a in claim, was the back. people the other when he shot on the trial District into front judgment helped by of law a friend the as matter He was court entered to the seat a car and driven passenger on assault and for the District the giv- hospital. unique on the claim. Based

en in this case we affirm.1 position at trial that Holder’s was District was liable for either I. argued battery. Holder that assault and by off-duty Metropolitan shot Holder was because he hable for District was Department Walk- Johnny Officer Ben Police night on gun did not er, Jr., closing August on around wrong had shooting and Walker shot East in time outside the Side Club Southwest alternatively, person. argued, He also Washington. shooting took place almost gun, District was even if he did have a immediately shot after someone another East battery because Officer hable for assault and patron named Bush in the Side Nate crowd- apprehending in Walker used excessive force Just how Holder ed street outside club. him. subject of two was shot was distinct and trial, plaintiff’s case at Midway through presented competing accounts at stipulate the District offered to trial. Holder did not have concluded that version, Officer Walker’s corroborated gun, hable Holder’s dam- was for scene, part by police other officers on the ages. colloquy, an the trial After extensive shortly shooting, after the Bush he was agreed to this court and Holder’s counsel “Walker, heard someone shout there he stipulation. The obviated goes.” carry- Walker looked saw and Holder expert an need for Holder to call witness running ing gun rear of and toward the care, but necessitatеd standard club. When Walker himself as a identified special neghgence drafting of a instruction on stop officer and ordered Holder to and longer no as standard instructions were drop gun, pointed his Holder turned and his apphcable. gun at two gun Walker.2 Walker fired his out, on liabili- As it turned the instructions times, three and Holder turned and fled ty actually given jury, which were empty gun. an carrying down street objection after much debate and without and pursued gun his Walker Holder and fired counsel, compromise between were follows times, hitting this eleven additional time (we paragraph numbers for ease have added the back. Holder stumbled into reference): on the side a car the rear door driver’s away. car drove (1) Now, you will there are counts version, They considеring dis- part by in this case. are Holder’s corroborated very separate. evening, who with him that tinct and clear friends was give each following just you he I will the instructions on the Bush fled along with crowd others toward Byers abuse of discretion. v. United contends that the trial court erred dence for States,

1. Holder also (D.C.1994). by admitting $1300 evidence he had in his Here pocket night shooting. This on the evi- opened door his own examina- Holder tions, after counsel dence admitted Holder’s evidence was admitted for a limited testimony evidence techni- elicited from limiting appropriate purpose, instruction money in was no mention of his cian there we no given. Under the circumstances testimony report and Holder that he had from abuse of discretion. fifty sixty night. The evi- dollars purpose the limited dence admitted for testified that Holder fired 2. Another officer testimony, impeaching Holder’s court gun Walker when he turned. jury to instructed the that effect. We review the impeachment decision admit evi- trial court's (2) One is called the must find the defendant the other is injuries the assault and any or damage liable suffered count. Those are claims theories by the Plaintiff as a result thereof. The of liability on which the Plaintiff will ask there is acting through defendant Officer you to make a decision. Walker. On the the follow- (12) count, On following the assault ing applies. instruction applies. (4) If you find that the Plaintiff was not (13) An assault is an un- intentional and that Officer Walker intended attempt lawful threat or or either word shoot, to then in the circumstances of this physically acts to harm the victim. It case, you must find the defendant District appear person must to the victim that the of Columbia liable. making attempt pres- the threat or has the (5) hand, you If on the other find that ability carry ent to it out. Officer Walker intended to did shoot (14) Also, display there must a be Plaintiff, that at the time of the shoot- causing force the victim to fear immediate ing the reasonably Officer believed But, bodily harm. actual contact is not Plaintiff fleeing a commission of necessary. felony, deadly the use of force was (15) The threat does be not have to di- necessary escape, to and that at the victim. An if rected assault occurs a probable ‍‌​​‌‌​​‌​‌​​‌​​‌​​‌‌​​‌‌‌​​​​​‌‌‌‌‌​​​‌‌‌​‌‌‌‌‌‌‍the Officer had to cause believe person threat is directed at a and as third suspect posed thаt the significant a threat consequence, a put the victim is in fear of physical death or injury the Officer or to bodily harm. others, then circumstance (16) Now, battery is an intentional and case, you defendant, must find for the touching harmful or unlawful offensive or District of Columbia. physical use of force person (6) You are a instructed that offi- another. required by attempt cer is law to to arrest (17) Touching intentionally put- includes person when the believes Officer ting any object into motion which touches person has committed crime his person another or which touches some- presence. thing is connected with in contact (7) try If an Officer fails to arrest person. with another individual, an guilty such then the officer (18) touching A is harmful if it causes punished by of misdemeanor and can be pain physical injury A or illness.

being prison up sentenced to 2to if touching person’s offensive it offends a years. personal dignity. reasonable sense of (8) You are instructed that force battery really go That’s assault and with which an Officer of the law use to together. person person arrest and to maintain though A can occur even so arrested is that force which is reason- person committing it ably intend necessary. touch the victim. if is sufficient (9) You are further instructed touching is aimed at or directed at another city person in this being law is that a person consequence, and as a victim arrested cannot resist Officer either was touched. legal justi- when there is no sufficient [sic] fication for the arrest. returned a verdict for (10) Howevеr, an Officer is not allowed count, on deadlocked any beyond to use force Following the assault and accomplish pur- his lawful judgment District moved for pose. of law asserting as a matter that the

(11) Therefore, de- verdict for District on the greater necessarily fendant used than was force rea- count meant the District was sonably necessary in the circumstances of the assault and be- liable on involving inten- Id. In most cases was ac- contact.” force instruction cause excessive by police the techni- shootings officers tually given part instruc- tional granted motion requirements The trial court cal of assault tion. instruction, “perhaps ease turns

because the outcome satisfied Plaintiffs inadvertently, encompassed privilege. both on the defense theories,” tort negligence and intentional privilege to qualified A officer has jury indicated that it found “when the arrest, to effect use force reasonable favor of Defendant on the are not employed provided that the means rejected necessarily the contentions that the actor reason- “in of those which excess man, wrong negligently shot the the officer Moreover, necessary.” ably believes intentionally used exces- officer, justified any including an person, appeal This followed. sive force.” repel an actual force using reasonable assault, reasonably he is if he believes or II. “deadly of bodily harm. Use danger of by shot a District of When an individual is however, force,” lawful user officer, he and or his succes Columbia believes, at actually and lawsuit, bring a sors interest decide (or used, she a that he or time such force is they may proceed one or more differ under peril of death is in imminent person) third legal liability. of ent common law theories bodily or harm. serious they may example, For sue the common (citations omitted). The is liable District Id. battery. assault law intentional torts of and by a for an assault and committed Columbia, Etheredge v. District 635 of of re- police officer under doctrine D.C. 908, (D.C.1993); District Colum A.2d 916 of acting superior if the officer was spondeat (D.C. White, 159, v. 442 bia A.2d 162-64 White, scope employment. within the of his Downs, 1982); v. District Columbia 357 of Davis, 7; supra, 162 n. supra, 442 A.2d at (D.C.1976). 857, may also A.2d 859-60 Suit 1202. 386 A.2d at predicated upon or of one more theories negligent negligenсe, including the officer’s prevail in a In order to of act victim. See District of action, applica prove “the plaintiff must Evans, 1008, v. 644 A.2d 1019-21 Columbia care, from of a deviation ble standard (D.C.1994); supra, A.2d Etheredge, 635 at defendant, care and standard of 162-64; 918; White, at supra, 442 A.2d Dis that deviation relationship between causal Davis, v. A.2d trict Columbia 386 of (D.C.1978); injury.” Etheredge, supra, plaintiff’s Downs, supra, A.2d 1198 357 at applicable at Because the 635 A.2d 917. of 859-60. Each these theories of this kind is of care cases of standard defenses, proof, has distinct of elements lay juror average beyond ken of the rules on vicarious but bear substan at testimony required. Id. 917. expert tial similarities at the same time. negli proceed under Plaintiffs also the offi theory, such as when Although gence per se assault are § torts, 4-176 violates D.C.Code technically see cer’s conduct distinct intentional W. (1994).3 White, Page supra, 442 A.2d at 163-64. al, et and Keeton on Keeton Prosser (5th ed.1984), place in Dis shooting takes §§ in Where the 9-10 The Law of Torts Columbia, of the affirmative defenses pled in trict of this one often cases like contributory neg risk and assumption conjunction single as a count. An District Colum attempt ligence are available. unlawful “an intentional and (D.C. Coleman, acts, 815-16 threat, v. 667 A.2d physical bia words or to do either Peters, 1995); 527 supra, District Columbia plaintiff.” Etheredge, harm to 635 (D.C.1987). The District is A.2d at “A is an intentional act A.2d its negligent acts of liable for the bodily vicariously or offensive that causes a harmful battery, guilty of assault provides: § shall be deemed 4-176 3. D.C.Code conviction, and, punished therefor. Any using unnecessary and wanton se- any person verity arresting imprisoning within acting scope officers of their em duties.” Columbia v. Tink- White, ployment respondeat er, (D.C.1997). superior. under A.2d The trial Davis, supra, 7; supra, 442 A.2d at 162 n. court and case used this “excessive 386 A.2d at 1202. interchangeably force” with assault and bat- tery.

Although we have at times remarked on similarities and differences these action, precisely causes of we have never III. from delineated them one another. For ex ample, repeatedly background perhaps we have that a held With some- finding of no assault and confusing overlapping legal princi- does as what preclude negli force, matter of law ples relating use of we turn to Evans, 1020; gence. supra, 644 A.2d at the instructions in this case. Here White, 162-63; Downs, supra, A.2d at legal two causes of action went to the supra, also indi We have jury: nеgligence battery. and assault and cated that where there is sufficient evidence above, argued specific As noted to submit question to a of assault supported liability factual scenarios under be, battery, there facts of theory. position each It was Holder’s particular sufficient evidence submit the District was liable in if Holder question Ether well. was unarmed when Walker shot Officer him. edge, supra, A.2d at 635 918. That we have position It Holder’s alternate that the previously remarked the similarities of battery District was liable for assault and if these unsurprising causes of action is be armed, Holder was fact but Officer Walker fundamentally inqui cause all an involve shooting used excessive force in him. ry into police the reasonableness of the offi negligence parties On the the elect- battery cer’s For actions. assault and the give ed not to the standard instructions be- inquiry is whether the officer’s conduct was of that the District cause reasonably necessary privileged; thereby Instead, if liable Holder was not armed. for negligence inquiry is whether the parties trial paragraph court and the drafted officer’s conduct violated ‍‌​​‌‌​​‌​‌​​‌​​‌​​‌‌​​‌‌‌​​​​​‌‌‌‌‌​​​‌‌‌​‌‌‌‌‌‌‍the of standard care simply you 4 which stated “[i]f find that prudent reasonably police of a officer. Plaintiff was not the that Officer recognition In another of the similarities of shoot, intended to then in Walker the circum- action, these causes of we advert- have often case, you of this must stances find the defen- prohibition ed to the on the use of “excessive dant District of hable.” Columbia variety force.” We used the term in of contexts. At times we have indicated that' parties agreed give para also to proscribed by “excessive force” is what is part, negligence 5 as graph of instruc (1994).4 Coleman, § 4-176 D.C.Code See su- provided tions. 817; Peters, pra, 667 supra, A.2d at White, hand, 1274; you [i]f on other that Officer supra, at 442 A.2d at 163-64. Walker intended to did shoot appear At equated other we times to have Plaintiff, that at the time negligence. “excessive force” with See Ev- ans, Peters, 1023; supra, supra, the Officer believed the Plain- 644 A.2d at 1271-72; White, fleeing felony, 527 442 tiff was the commission of a supra, A.2d at A.2d 161; Downs, supra, deadly at the use of 357 A.2d at 858. At force was appear escape, least once to we have used “excessive and that the Officеr probable force” to both and bat- reference assault had cause to believe that tery negligence. Etheredge, suspect posed 635 significant threat of death others, A.2d at Most recently physical injury 916-18. we stated to the Officer or art “excessive force” “is a term of denot- then that circumstance of this defendant, ing an act of assault or law en- find for must District of forcement officials committed in course of Columbia. supra.

4. See note 3

743 Instead, instruc- the next language an Paragraph adaptation 5 is 1, 12, simply a detailed Garner, given, paragraph tion 471 U.S. 105 of Tennessee met, which, if 1694, 1701-02, special set of circumstances L.Ed.2d S.Ct. But for the District. required a verdict forth the constitutional limitation which sets state this is again, the attempting court does on use of fоrce under which the felon, say, only circumstance fleeing is to the cir seize a liable, say nor does which, will not be under as a constitutional cumstances met, then a 5 are not matter, deadly paragraph use force.5 conditions plaintiff. verdict must be entered negli The inclusion words, paragraphs 4 and after gence puz somewhat other instructions time, understandably waiting for because, parties would be zling, the same liability. on the issue of equated court further instructions apparently and the trial force” “excessive instruction now to the assault and We turn battery count. with the assault and Never para- agreed give parties count. The theless, trial court indicated both 13-19, ver- graphs were taken almost which replace the paragraphs 4 and 5 were to stan Civil Instruc- batim from Standardized instructions, para and both dard No. 19-2 to tions for the District Columbia part, graphs 4 and 5 in fact (1981),6 on 19-4 the basic instructions part, but instruc say nothing about tions. qualified privilege officers. 6-11, face, however, give paragraphs agreed also On these two together entirely it is clear whether these paragraphs not constitute the could apply intended to totality on a theo instructions were or the assault and ry. Paragraph states one circumstance hable; instruc- held count or both. Discussion on these under which District must be immediately followed a discussion namely, that Holder was not tions finds instructions, gunman that Officer Walker to the standard assault intended (as contrary that the specifically requested It but the shoot. does state the 4 given following paragraphs apparently light special instructions be intended here); apparently 6 and 7 were namely, Paragraphs that unless the and 5. jury gunman, designed convey the essence of D.C.Code finds that Holder was not (1994),7dealing police § with officer’s jury must find District on 4-142 unlawful, In addition to law theories of A is intentional common offensive, by police bring touching a individual shot officer or use of force harmful or Rights person the Civil 42 physical suit under Act U.S.C. "Touch- another. (1996), deprivation § intentionally 1983 Fourth ing" putting into motion includes right to Amendment be free from unreasonable any object person, or touches another Garner, supra, seizures. See Tennessee v. 471 something that is connected which touches with, Evans, 5-7, 1698-99; supra, U.S. at S.Ct. at person. A with in contact anоther or 644 A.2d at 1010. pain, physical touching if it causes is harmful illness; it injury touching if is offensive Jury Civil Instructions for the 6. Standardized personal person’s reasonable sense of offends a to 19-4 of Columbia No. 19-2 dignity. provide: person batteiy though even A can occur is and unlawful An assault an intentional the vic- committing tim; did not intend to touch it acts, attempt, by by words or threat or either touching aimed it is sufficient physically appear must harm the victim. It person conse- another and as a or directed at making person the victim that the threat quence, is touched. the victim ability carry attempt present has force, Also, display there must be out. (1994) provides § in relevant 4-142 7.D.C.Code bodily causing harm; immediate the victim to fear part: necessary. is not actual contact neglect аny force shall If member of does to be directed at The threat not have against making any for an offense victim; arrest if a threat an assault occurs in his States committed laws the United person, as a at a conse- directed third presence, guilty of a misde- shall be deemed bodily he put in fear of quence, the victim is imprison- punishable by shall be meanor and harm.

duty attempt apparent to arrest an already law had found for the District on the breaker. Paragraphs 8-11 are taken almost verbatim from Standardized In- Civil juries We have often pre- said that structions for the District of Columbia No. See, sumed to have followed instructions. (1981),8 18-5 dealing with the excessive use e.g., ‍‌​​‌‌​​‌​‌​​‌​​‌​​‌‌​​‌‌‌​​​​​‌‌‌‌‌​​​‌‌‌​‌‌‌‌‌‌‍States, Harris v. United of force officer in making an (D.C.1992)(en banc). There is no reason arrеst, applicable ato civil false arrest action. to think they do so here on the paragraph The last sentence of 11 reflects a argues count. Holder stipulation that the District was hable under jury’s negligence may verdict on have been

respondeat superior. based 4 alone. We see no reasonable assumption. basis for such an parties, Whatever the intent of the these all, noted, First already as the overall given part instructions were in fact as structure of the instructions can instructions, could viewed encompassing paragraphs all of reasonably have way. taken them in that As through 11 under the instruction. discussed, we have concept of lack of Furthermore, paragraph begins, 5 itself “On excessive force as a defense to assault and hand,” the other indicating that the instruc- easily aspect negli- seen as an tion on beyond para- continues gence through the use of force. excessive graph 4. issue, And in deciding that it is useful to know the imposed upon police duties argued It is also note and respect with to the arrest aof malefactor. require reinstruction us to conclude that paragraph 4 applied to negligence. The bottom fine is that under negli- note read instruction, gence encompassing very ¶ “Re 1—Negligence Count form and structure of the instructions as “gunman” Does the word this context totality of paragraphs through mean that we find that Holder was the 11,9 clearly given two circum- perceived or that Walker stances under which it must find the District gunman? was the first, plaintiff liable: gun- was not the man that Officer Walker intended to shoot caption is asserted that of the note 4), second, (paragraph if the officer used indicates that the understood the con- greater force than trolling negligence instruction to be the sin- in the circumstances of (paragraph this case gle sentence 4. We think that 11). completely That plaintiffs caption covered two the is at best ambiguous. It could liability. theories of jury When the just easily found as mean question refers the District not liable on “negligence the paragraph to the first multi-paragraph of the count,” it necessarily rejected both negligence Second, theories count. it argued is that as the trial court correctly ruled. the court’s answer to the note which clarified The jury, any, confusion of if the must have “gunman” that the term meant “armed” been how battery to deal with the assault and leaves “no doubt” that negligence the in- count on given, the instructions as encompassed after it struction paragraph 4 alone. Penitentiary ment in the District Jail or any beyond not cer is not allowed to use that force exceeding years, exceeding a fine not reasonably necessaiy accomplish his lawful $500. Therefore, purpose. if find that the defen- greater dant used force than was 8. Standardized Civil Instructions for the necessary in the circumstances of this (1981) provides: District of Columbia No. 18-5 you must find that the defendant is liable for You are instructed that the force which an any injuries damage plain- and suffered the may person of the law use to arrest a tiff as a result thereof. , person and to maintain the so arrested is that reasonably necessary. force which is You are n paragraph The trial court in 3 said "On the city further advised that it is the law in this count, negligence following person being ap- the that officer, instruction arrested not resist an plies.” legal paragraph even when there is no sufficient Then in it said: "On the However, justification for following the arrest. applies.” an offi- the assault theory why case. District on Holder’s sole We fail to see this is the The jury only to find that Holder paragraph required which the ambiguity about the unarmed, jury apparent unintended victim inquired wording from the was Thus, returning shooting. the paragraph given of that as and court count, it simply ambiguity.10 Finally, clarified that it for the District on Hold- unnecessary jury was to reach argued that theory of jury battery and negligence instruction er’s alternative assault because sent To liability jury “[rjegarding note the assault on which deadlocked. second & in the This much. there was confusion battery proves count.” too The the extent that jury question misled the regarding the as- instructions which raised impression batteiy para- by conveying claim concern that sault and did not which, graph if force instruc- any- consider excessive jury recognized with thing, tends to show that the tions connection Holder’s claim, expressed spite intentions the assault count did not paragraphs parties preceding include the under the and extensive efforts court delineat- negligence instructions. triаl to formulate instructions ing theory separately force as excessive instructions out in These were worked ex- claim, part of the assault and among conferences tended Therefore, prevent mani- trial was unfair. They given trial court. without injustice, trial ordered fest a new should be objection suggestion for clarification or on the count on which any amendment. blame for confusion not reach reported could plaintiffs justifiably can at be laid feet as as Westinghouse Bell v. Elec. verdict. at any appeal, other locale. On com- (D.C.1984). Corp., plaint event, any too late. comes In seewe no think juiy reason to did given instructions in arriving

follow the at I. verdict on the count. Ac- appellant It is from the clear record agrеe cordingly, we with trial court proceeded on theories of alternative here, unique negli- liability. first was based no negligence necessarily gence for of Columbia found that Officer Walker not use exces- (District) stipulated found force, that, sive accordingly, the District gun no the time that Holder had judgment entitled as a matter of law on theory him.1 officer shot Holder’s the assault if it was that was established Affirmed. bystander shown he was an unarmed govern- whom the officer shot. Since the WAGNER, Judge, dissenting: Chief court, point, trial ment conceded this view, parties, dispensed my support does not with the consent of the record conclusion, adopted by customary negligence instructions. court’s with the trial parties agreed the court should majority, jury’s that the verdict the Dis- The you thаt the “[i]f trict means instruct the find on the count necessar- ily jury rejected Plaintiff not the that Officer Holder’s excessive was shoot, in the circum- theory liability. par- of on the Walker intended then force Based case, you the defen- of must find stipulation ties’ the trial court’s stances under The of Columbia hable.”2 dant District jury, instructions to a verdict they the officer thought 10. was because had conceded that That the court itself plain instruction is than the negligent was not alone was if he shot someone other conference, hit, i.e., where it stated specifically from the instruction person intended whom he [paragraphs out “negligence is and these two person gun. with the go place negligence.” in 5] and would mirrors the language in the instruction 2. represented that thе reason that The District developed only negligence instruction expert testimony duty of care had no parties explicitly, instructions, court and the stated more much confusion in the the ma- once, than jority that this instruction was sufficient must conclude under- liability to allow the to determine the stood them mean that there were two question negligence theory, under Holder’s theories of addition to the as- Indeed, given stipulation. the District’s sault and claim. For then can suggested give jury’s the trial court the conclusion be reached that proposition, the converse of this which the negli- favor of the District on the you District’s counsel gence parties’ formulated as “[i]f under the that Officer (shooting bystander) Walker intended to shoot the of an unarmed also cоv- [Holder], (excessive Plaintiff then against must find ered Holder’s assault and force) however, the Plaintiff ... appar- My [Holder] claim.5 review of the record and ently by oversight, the converse was not considerations of me fairness lead to con- given.3 otherwise. clude theory liability

Holder’s Although second was as the record is itself somewhat battery premised upon it, sault confusing, I pro officer’s read the trial court use of excessive posed language force under a formulation set from Garner to cover Garner, forth in Tennessee v. 11- theory U.S. Holder’s second 1694, 1701-02, (excessive force). 105 S.Ct. 85 L.Ed.2d 1 and equiva (1985).4 Tinker, language See District Columbia v. lent is found in the trial court’s (D.C.1997) (“‘Excessive’ jury, instruction to the which it acknowl force denoting term of art an edged “literally act of out of the [Garner] battery by assault or law enforcement offi case.”6 The court agreed and counsel cials committed language given course this Garner should be after duties.”) predicate The factual special for this theo the brief negligence instruction which ry was that developed the officer shot in the light stipu of the District’s back as he Although clearly fled. it was lation. Since the trial court had decided parties intended the court and the submit to the the excessive force issue these two justi theories of be submit and “whether or not [the officer] ‍‌​​‌‌​​‌​‌​​‌​​‌​​‌‌​​‌‌‌​​​​​‌‌‌‌‌​​​‌‌‌​‌‌‌‌‌‌‍jury, felon,” majority ted to the fleeing holds that the fied to shoot a the District accomplish instruction as requested failed to instruction that “a purpose. acknowledging intended While required to make an arrest when there is a purposes closing suspect court and weapon counsel for in- threatens the officer with a probable structions. there cause to believe that he has involving committed a crime the infliction or harm, physical threatened infliction of object serious 3. Holder’s counsel did not to the District's however, deadly pre- proposal force be used if proposition; for the converse if, feasible, escape, vent and where some warn- immediately portion she turned to a of the dis- ing given. been has exception. cussion to which she did take There 11-12, Id. at 105 S.Ct. at 1701. sugges- was no further mention the District's tion, provide and the trial court did not out, majority points 5. As the "the trial court and instruction which have eliminated some of interchangeably used 'excessive force’ speculation meaning about instruc- battery.” Maj. op. with assault and at 742. conveyed. tions part Garner, 6. That of the instruction reads: Supreme Court held unconstitu tional a Tennessee statute insofar itas authorized hand, you If on the other find that Officer deadly escape use force to of a Walker intended to and did shoot the Plaintiff nondangerous fleeing suspect. 471 U.S. at [Holder], that at the time of the 105 S.Ct. at 1701. Pertinent to the trial court's Officer believed the Plaintiff was formulation of the instruction in this fleeing felony, the commission of a that the use finding the that statute was not unconstitutional deadly necessary prevent force was face, Supreme on its Court stated: escape, probable and that the Officer hаd probable suspect posed signif- Where the has cause to believe officer cause to believe that the a suspect poses physi- physical injury a threat of serious icant threat of death or to the harm, others, others, cal either to the officer or to isit Officer or then in the circumstance of case, defendant, constitutionally prevent you not unreasonable to this must find for the Thus, escape by using deadly force. District of Columbia. case, Mm, in circumstances of tMs presence committed in Ms on then crime based regulations.”7 you the D.C.Code and various must find that the District—that also parties agreed portions The is liable. defendant District Columbia instruction, 18-5, jury involving No. standard repeated then the instruction: The court malting of forcе in the use arrest gun, If Plaintiff not have that’s did prohibiting fur- resistance.8 As a result of find, not you that the Plaintiff did what instruction, preliminary to ther discussions him, gun have a when Officer Walker shot give that was resolved the court also would you the District of Colum- then must find standard instructions on assault and You must find the District bia.... in and transferred intent connection with liable. Columbia agreed by force As excessive claim. reinstructions, the instructions Given parties, these instructions followed Gar- jury that was there can be little doubt language. ner negli- informed that its consideration of instruction, in liability The first set forth gence was once it count at an end determined paragraph, requires oMy the first that gun when the officer whether Holder had jury Holder was determine whether was or presume, him. Since at least where shot we gunman nоt the in order to resolve whether clear, jury that fol- the instructions are jury was negligent. the District The instructions,9 their verdict necessari- lows proceed not to further if it found instructed single ly reflect the answer to the should liability question. for Holder on tMs first dispositive claim.10 question jury obviously sent a note wMch ad- phrase, the other “[i]f The connective single instructing dressed the sentence hand,” precedes the formula wMch Garner jury negligence theory. on Holder’s tion, although possibly misleading, does as note read follows: separate substantively that two theories alter ¶ 1—Negligence Re: Count presented jury’s consideration were gunman Does the context word para one and that of them commenced mean that we find that Holder was graph spite of tMs two instruction. perceived or that Walker connecting phrase, paragraphs the first two the gunman? Holder was proposi are not of the mstruetions converse appears from this note un- tions, majority suggests, as the insofar as controlling negligence derstood the instruc- first grounds for are stated.11 The single tion to be the sentence the court per paragraph, wMch could intended. The indicated instruction, properly as the ceived caption oMy finding was not requires Holder in paragraph one covered about gunman to find in his favor. order Moreover, inquiring. response, requires a verdict The second for negli- the court reinstrueted the on the District, a finding in favor of the gence theory as follows: was a believed Holder felon,

So, deadly fоrce was you rephrase fleeing could the first that the use escape, his and that you as if find that the Plaintiff [Holder] gun posed significant shot threat of death not have when Officer Walker unarmed, however, position, stating, 7. as a "if the District [Holder] It was the District's could you matter of law the officer shoot Holder case.” has justifiably under the circumstances. para proposition for first converse 11. The 8. Standardized Dis- Instructions along graph the Dis would have been the lines 18-5. No. Columbia, trict of suggested trict as follows: States, v. See Harris United A.2d hand, you the other find that the Plaintiff If on States, (D.C.1992)(en banc)(citing Clark United gunman that Officer intended was the Walker (D.C.1991)). shoot, then the circumstances of this must find the District Columbia note, concerning During discussions liable. require- recognized court the limited thе trial theory, for a on the ment 748

physical injury to the officer or others. This fairly respect confusing be made with Here, theory was the recovery Garner instructions. for the much confusion sur use of succeeding para language excessive force. The rounds whether the Garer graphs in the second may embody instructions be was intended to viewed explicate concept part the initial excessive force as a excessive force negligence Only majority’s claim. outlining responsibili the officer’s careful arrest ties, legal analysis prohibition against relationship or similari a citizen’s resis tance, ties which can exist and the amount of between excessive force force which Looking negligence claims as used. elemеnts of or of assault instructions as a whole, battery do, it required as we are leads to determine that the without singling separate negligence verdict on the phrases, out it count also covered is reason battery say jury jury able to assault and claim.14 that the The was instructed to consider not have the negligence theory para benefit of the careful delineation under graph majori one and the the two causes action which the theory Garner under the ty remaining efficacy presump makes here. The paragraphs. See Minor v. United States, 770, jurors (D.C.1994); 647 tion that follow A.2d the instructions dissi Powell States, (D.C. pates phrased v. United the instructions are 485 A.2d where 1984). jurors likely terms which the are not Thompson understand. v. United jury’s subsequent note evidences that States, (D.C.1988). 546 A.2d I аm they obligation understood their under the persuaded, my are, colleagues separately instructions to consider an assault responsibility total for the confusion battery claim based on excessive force. upon should be Holder. The After their initial concerning paragraph note record reflects that the and the court one, count, they sent another genuine put made efforts to forth instruc “[rjegarding note battery assault & tions jury which would allow the to consider charge.”12 parties’ count based 16, 1994, sent a note on March and the assault and claim indicating they had reached a verdict on spite based on excessive force. of their intentions, only in hindsight appear does deadlocked on the assault and count. they may оbjec have not achieved that partial The court took finding tive. for the District on the gave charge.13 also an Allen Jury delibera- III. day, tions resumed the next reasons, foregoing my For the opinion, morning seeking sent note in the clarifica- Holder is entitled to have a decide the tion about the damages. elements of Later unresolved count at a new trial. We have afternoon, jury reported that it was “[wjhere context, slightly in a held different still deadlocked on the assault and several theories of one of which is count, and the trial court declared a mistrial. impermissible, and the court ‘cannot deter- theory mine on which

II. [party], relied when in favor of the jurors presumed While leaving open possibility to follow the that it instructions, one, court’s аssumption impermissible such an can- relied on the the case inquired 12. The note whether transferred intent 13. See Standardized Civil Instructions (approved was to be considered in with No. 1-11 in Win connection Columbia, States, (D.C. theory. ‍‌​​‌‌​​‌​‌​​‌​​‌​​‌‌​​‌‌‌​​​​​‌‌‌‌‌​​​‌‌‌​‌‌‌‌‌‌‍ters v. United 317 A.2d assault The trial court instructed that 1974)). transferred intent related to both battery. The court also reminded the Columbia, these instructions "should be considered [the Etheredge 14. See v. District jury] along (D.C.1993)(Claims with all of the other instructions in applied the case and to the facts as assault and contexts.) are related in some factual them." ” remanded must be for retrial.’ District of (D.C. White, 159, 165 v.

Columbia

1982) States, (quoting Murphy v. United

U.S.App. D.C. 653 F.2d omitted)).

(1981)(other Here, citations

jury specified its in favor of the Dis

trict on the record court, that the trial counsel for the

indicates all understood basis theory which that was submitted. The permitted to

District should not be contend might that because

now interpreted way,

have been another is enti a verdict of law. The

tled to as a matter patent.

injustice position seems

Therefore, jury’s should be

effect, least, very trial or at a new should Bell, granted injustice. reasons,

supra, 483 A.2d at these I 327. For

respectfully opinion dissent from the

court. T., al., Appellants,

ERIC et ENTERPRISES,

NATIONAL MEDICAL

INC., al., Appellees. et - 96-CV-12, -77, 95-CV-1118,

Nos.

1438, -1439, -1609, & -1874. Appeals.

District of Columbia Court of

Argued June Aug.

Decided

Case Details

Case Name: Holder v. District of Columbia

Court Name: District of Columbia Court of Appeals

Date Published: Aug 21, 1997

Citation: 700 A.2d 738

Docket Number: 94-CV-1383

Court Abbreviation: D.C.