MITCHELL A. KATZ, APPELLANT, v. DISTRICT OF COLUMBIA, et al., APPELLEES.
No. 18-CV-111
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided December 15, 2022
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia (2015-CAB-5304)
(Hon. Jeanette J. Clark, Motions Judge)
(Hon. Florence Y. Pan, Motions Judge)
(Argued September 11, 2019 Decided December 15, 2022)
David C. Tobin, with whom Javad Khan was on the brief, for appellant.
Richard S. Love, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General at the time of argument, and Caroline S. Van Zile, Deputy Solicitor General, were on the brief, for appellees.
Before BLACKBURNE-RIGSBY, Chief Judge, BECKWITH, Associate Judge, and WASHINGTON, Senior Judge.
I.
The facts surrounding the circumstances of Mr. Katz‘s arrest remain heavily disputed at this stage. As we are reviewing a grant of summary judgment, we view the evidence in the light most favorable to Mr. Katz, the party opposing the motion. See Kotsch v. District of Columbia, 924 A.2d 1040, 1042 (D.C. 2007).
A. The Altercation Between Mr. Katz and Mr. Goyette
Mr. Katz testified in his deposition to the following events. Early one summer morning in 2014, Mr. Katz left the Heist nightclub with a group of acquaintances, one of whom hailed a taxi van. Mr. Katz watched his friends enter the rear driver‘s side door and walked around the vehicle to enter the rear passenger door, but his entry was blocked by Mr. Goyette, who
As the argument got “much louder,” Mr. Katz saw Mr. Goyette raise a skateboard “over his head like [he was] going to strike [Mr. Katz] with it.” As Mr. Katz was turning to face Mr. Goyette in order to protect himself from the skateboard, Ms. Ahmad tore off Mr. Katz‘s shirt, scratching his chest. “Almost instantaneously,” Mr. Goyette hit Mr. Katz‘s right shoulder with the skateboard, knocking him to the ground and causing more bruises. Mr. Katz got up “very quickly” and ran away from the group when “[t]here was an opening.”1
B. The Encounter with MPD Officers
Mr. Katz testified at his deposition that as he was running, he saw some police cars in the middle of the road and “ran [down Connecticut Avenue] to them,” with Mr. Goyette chasing “right behind [him]” and “swinging the skateboard.” Mr. Katz “ran to the police for help,” telling the group of “[t]hree or four” officers that he had just been attacked. In response, the officers put him in handcuffs “just seconds” later, without first asking any questions. Mr. Katz testified that the officers “did not tell [him he] was under arrest,” but told him that they placed him in handcuffs “[f]or everybody‘s protection, and they were going to investigate.” While in handcuffs, Mr. Katz told the officers the details of the attack, informing them that he was scratched when his shirt was ripped off of him.
Mr. Katz testified that he repeatedly complained to all of the officers present that the handcuffs were too tight. He stated that less than half an hour after being handcuffed, an African American male officer “slammed” him into the back of a police car, causing pain to his chest, and made an adjustment to the handcuffs that “didn‘t exactly loosen” them. Mr. Katz “continue[d] to complain that the handcuffs were tight” until an officer eventually “loosened them.” Mr. Katz testified that it “felt like a long time” between when he was slammed against the police car and when the cuffs were loosened. His wrists were sore and had “red indentions” [sic] on them for “[a] couple days” after the incident, and his shoulders were sore for four or five days from having his arms tightly pushed behind him.
The record includes two sources of testimony from Officer Cherry: her testimony at Mr. Katz‘s subsequent criminal trial and her deposition in this case. At Mr. Katz‘s trial, Officer Cherry testified that she saw Mr. Katz and Mr. Goyette running down Connecticut Avenue, and “the manner in which [Mr. Goyette] was holding the skateboard” above his head caused her to stop the two men as she was not “completely sure what was going to happen next.” Mr. Katz appeared to be “trying to get away from [Mr. Goyette] for whatever reason” and Mr. Goyette appeared “pretty upset” and was “chasing behind” Mr. Katz like he was “trying to stop him.” She testified that neither individual called out to the officers as they were running.
In her deposition, Officer Cherry again testified that she could not initially determine whether Mr. Goyette was wielding the skateboard defensively or offensively. She and another officer crossed the street to apprehend the men, and yelled at them to stop. She then interviewed Mr. Goyette, who claimed that Mr. Katz had shoved him by the taxi, then started following him and Ms. Ahmad as they began to walk away, running up to Ms. Ahmad and punching her in the face after she asked Mr. Katz to leave them alone. When Officer Cherry asked Mr. Goyette why he was running down the street with a skateboard, he stated that “he was chasing or trying to stop Mr. [Katz] from getting away out of self-defense.” After hearing Mr. Goyette‘s
According to Officer Cherry‘s deposition testimony, she then informed Mr. Katz “that he was going to be placed under arrest for simple assault.” She testified that she conducted a warrantless arrest because, after interviewing the witnesses including the cab driver, she concluded that Mr. Katz might “possibly assault someone else.” While Mr. Katz was in Officer Cherry‘s presence, however, she did not perceive him as presenting a threat to anyone‘s wellbeing. Officer Cherry testified that a male officer handcuffed Mr. Katz at the time she told Mr. Katz he was being arrested. Mr. Katz then began to complain about pain to his chest, and Sergeant Maguire noticed a scratch on Mr. Katz‘s chest at that time and filled out an incident report accordingly.5 Officer Cherry testified that she did not hear Mr. Katz complain about the handcuffs being tight.
Sergeant Maguire testified that he did hear Mr. Katz complain about the tightness of the handcuffs. After Mr. Katz complained, Sergeant Maguire “checked the handcuffs to make sure that they were double-locked and that there was adequate spacing, which would be the pinky‘s width between [Mr. Katz‘s] wrist bone and the handcuff inner diameter.” Sergeant Maguire testified that he determined that the handcuffs were “properly applied” and that he “tried to explain to [Mr. Katz that] handcuffs are extremely uncomfortable.” He also testified that he “kept on trying to reassure [Mr. Katz] that [he] underst[ood] it‘s extremely painful, it‘s just how handcuffs feel, and that they definitely were put on properly” and would be “taken off as
C. Aftermath of the Arrest
The following facts are not in dispute. According to Mr. Katz‘s deposition testimony, officers put him into a police transport van, still handcuffed, and brought him to a hospital to treat his scratch wound. Mr. Katz “was in police custody the entire time” he was at the hospital, “handcuffed to . . . a hospital bed with two officers by [his] side.” He first realized he was being charged with a crime after an officer told him he would be “processed.” Mr. Katz was transported to the police station and released from custody “the next day.” He testified that he missed several days of work, missed opportunities for potential income, and experienced sleeplessness and anxiety because of his injuries, his arrest, and his subsequent prosecution.
Mr. Katz was charged with two counts of simple assault, one for shoving Mr. Goyette to the ground and one for punching Ms. Ahmad in the face. Officer Cherry is listed as the arresting officer on his arrest and prosecution report. Sergeant Maguire and Officer Butler are listed as officers on the scene. Mr. Katz was acquitted of both charges in a bench trial in November 2014.6
Eight months after his acquittal, Mr. Katz filed a complaint against the District, Officer Cherry, Officer Butler, and Sergeant Maguire, alleging violations of the U.S. Constitution, actionable under
The District and the officers filed a motion to dismiss for failure to state a claim upon which relief can be granted under Super. Ct. Civ. R. 12(b)(6). The trial court treated the motion to dismiss as a motion for summary judgment without first notifying the parties that it would do so.8 The court granted summary judgment to the District on the § 1983 claims against it and on the negligent hiring, training, retention, and supervision claim. It also granted summary judgment to Officer Butler and Sergeant Maguire on all counts against them. Finally, it granted summary judgment to all defendants on the negligence count. The court allowed the following counts to proceed: the common law false arrest count against the District and Officer Cherry, the § 1983 wrongful arrest count against Officer Cherry, the common law malicious prosecution count against the District and Officer Cherry, the § 1983 malicious prosecution count against Officer Cherry, the assault and battery count
After discovery on the remaining claims, the parties filed cross-motions for summary judgment in August 2017.9 On January 24, 2018, the trial court denied Mr. Katz‘s motion for summary judgment, granted the defendants’ motion, and entered judgment in favor of the District and Officer Cherry on all of the claims. This appeal followed.
II.
Mr. Katz argues that the trial court erred both in treating the defendants’ motion to dismiss as a motion for summary judgment in its April 1, 2016, order and in granting summary judgment to the defendants on the remaining claims in its January 24, 2018, order. We begin with Mr. Katz‘s challenge to the trial court‘s January 2018 grant of summary judgment to the defendants.
We review the grant of a motion for summary judgment de novo. Franco v. District of Columbia, 39 A.3d 890, 894 (D.C. 2012). In doing so, “we conduct an independent review of the record, and apply the same standard as the trial court in considering the motion for summary judgment.” Kotsch, 924 A.2d at 1044. “At the summary judgment stage, the trial court does not make credibility determinations or weigh the evidence, which are functions reserved for the trier of fact.” Sibley v. St. Albans Sch., 134 A.3d 789, 809 (D.C. 2016). Instead, the evidence must be viewed in the light most favorable to the party opposing the motion for summary judgment. Franco, 39 A.3d at 894. Summary judgment is proper if “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” Kotsch, 924 A.2d at 1044–45. If a reasonable jury could return a verdict for the nonmoving party, there is a genuine dispute that precludes summary judgment. See Sibley, 134 A.3d at 809.
D. Section 1983 Unlawful Arrest Claim Against Officer Cherry
In his § 1983 unlawful arrest claim, Mr. Katz seeks to vindicate a purported violation of his Fourth Amendment rights. He argues that the trial court erred in determining that Officer Cherry was entitled to qualified immunity on this claim.
“The defense of qualified immunity shields government officials performing discretionary functions from liability for damages in actions brought under
The Fourth Amendment prohibits “unreasonable searches and seizures.”
Under Terry, “an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). To come within the purview of Terry‘s “narrow exception to the Fourth Amendment‘s probable cause requirement,” police action must be (1) “justified at its inception” and (2) “reasonably related in scope to the circumstances which initially justified the detention.” Womack v. United States, 673 A.2d 603, 608 (D.C. 1996).
As we have no argument before us that Officer Cherry did not have the requisite suspicion to detain Mr. Katz initially, we focus our analysis on the second prong. “A Terry stop that is supported by reasonable suspicion at the outset may nonetheless violate the Fourth Amendment if it is excessively intrusive in its scope or manner of execution.” United States v. Johnson, 592 F.3d 442, 451 (3d Cir. 2010); see also Florida v. Royer, 460 U.S. 491, 499 (1983) (noting that Terry and its progeny do not permit police to “seek to verify their suspicions by means that approach the conditions of arrest“); Dunaway v. New York, 442 U.S. 200, 210 (1979) (describing Terry as applicable to “‘seizures’ so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment ‘seizures’ reasonable could be replaced by a balancing test“). “It is the [officer‘s] burden to demonstrate that [a] seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” Royer, 460 U.S. at 500. “[W]hen officers subject a detained suspect to a greater restraint on his liberty than is permissible in a legitimate Terry seizure, articulable suspicion is not sufficient, and the Constitution requires a showing of probable cause.” Womack, 673 A.2d at 608.
“The measure of the scope of permissible police action in any investigative stop depends on whether the police conduct was reasonable under the circumstances.” In re M.E.B., 638 A.2d 1123, 1127 (D.C. 1993). Circumstances to consider include protection of the officer, as well as whether the suspect “attempted to resist police, made furtive gestures, ignored police commands, attempted to flee, or otherwise frustrated police inquiry.” Womack, 673 A.2d at 609; see also M.E.B., 638 A.2d at 1127 (calling officer safety “a significant factor to be weighed in determining whether the restraint chosen by the officers converts the stop to an arrest“). We must consider these circumstances from the “perspective of a reasonably prudent officer on the scene.” Womack, 673 A.2d at 610. Officers must “be able to point to some specific fact or circumstance that could have supported a reasonable belief that the use of [handcuffs] was necessary to carry out the legitimate purposes of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm.” United States v. Mohamed, 630 F.3d 1, 7 (1st Cir. 2010) (quoting United States v. Acosta-Colon, 157 F.3d 9, 18-19 (1st Cir. 1998)); see also United States v. Howard, 729 F.3d 655, 661 (7th Cir. 2013) (noting that the use of handcuffs in a Terry stop “is not always unconstitutional, . . . at least where police officers can point to specific reasons for believing that handcuffing the particular person during the stop was needed for safety or to prevent flight“). “While there is no categorical rule that an officer‘s decision to place a suspect in handcuffs always transforms the interaction for a Terry stop into an arrest, it is the ‘rare case’ in which ‘common sense and ordinary human experience convince us that an officer believed reasonably than an investigative stop could be effectuated safely only in this manner.‘” Mwangangi v. Nielsen, 48 F.4th 816, 827 (7th Cir. 2022) (quoting United States v. Glenna, 878 F.2d 967, 973 (7th Cir. 1989)).
The appellees at no point argue that handcuffing Mr. Katz immediately was reasonably related to the reasons for stopping him. Instead, they argue that the handcuffing was part of a Terry stop—and so did not constitute an arrest—because Mr. Katz was not told that he was under arrest and “never testified that he believed he was immediately placed under arrest.”11 Neither of these facts automatically makes handcuffing without probable cause reasonable.12 See Giles v. United States, 400 A.2d 1051, 1053-54 (D.C. 1979); M.E.B., 638 A.2d at 1126-27 (noting that it was “not controlling” in determining whether a seizure was a Terry stop or an arrest that the handcuffed individuals were “specifically told they were not under arrest“); United States v. Bailey, 743 F.3d 322, 341-42 (2d Cir. 2014) (holding that handcuffing transformed Terry stop into arrest notwithstanding the fact that suspect was told he was not under arrest). The appellees also cite the trial court‘s reference to cases finding the use of handcuffs “appropriate for safety purposes.” But they provide no reason that handcuffing Mr. Katz immediately was reasonable for safety purposes aside from the fact that “what Officer Cherry first heard upon stopping both individuals was Mr. Goyette‘s allegation ‘that Mr. Katz had just assaulted him and his girlfriend.‘”
First, we disagree with the appellees that there is no material factual dispute as to what Officer Cherry had heard at the time Mr. Katz was handcuffed. Mr. Katz testified that he told the police he had been attacked when he reached them. It is undisputed that Officer Cherry was in that group of officers, and nothing in the record indicates that, at that late hour, she
Even if we take as undisputed that Officer Cherry had also heard Mr. Goyette‘s account—that Mr. Katz “punched [his] girlfriend”13—at the time Mr. Katz was handcuffed, a jury could find this accusation insufficient to establish a safety justification for handcuffing Mr. Katz, in light of the totality of the circumstances. For one, a jury could find that it was not objectively reasonable in these circumstances to perceive Mr. Katz as the aggressor, given that he was running to a conspicuous group of police officers with a torn-open shirt, a scratched chest, and a skateboard-wielding man on his heels. Additionally, a jury could find that the allegations against Mr. Katz at that time did not provide objectively reasonable grounds to believe that Mr. Katz was armed or otherwise posed a danger to a group of multiple officers that could not be reasonably managed through less intrusive means than handcuffing until officers had more information. See Bennett v. City of Eastpointe, 410 F.3d 810, 836 (6th Cir. 2005) (noting that conducting a pat-down during a Terry stop requires “a reasonable belief that the suspect is armed and dangerous; likewise, for the use of handcuffs during a Terry stop, the Fourth Amendment requires some reasonable belief that the suspect is armed and dangerous or that the restraints are necessary for some other legitimate purpose“).
In some cases, the allegations that officers are investigating can contribute to a safety justification for handcuffing, either because individuals were reported to be armed or because the crime at issue could be thought to involve dangerous weapons. See Womack, 673 A.2d at 609-10; see also Hicks v. United States, 730 A.2d 657, 661 (D.C. 1999) (focusing on whether responding officers could “reasonably assume [the crime] entailed the use of a weapon“). Compare, e.g., Cotton v. District of Columbia, 541 F. Supp. 2d 195, 202-04 (D.D.C. 2008) (finding that a single officer responding to a “crowd” of people alleging an altercation involving a knife did not act unreasonably in handcuffing a person later determined to be the victim, and relying on the fact that the “altercation . . . reportedly involved a weapon“), with, e.g., Lundstrom v. Romero, 616 F.3d 1108, 1123, 1126 (10th Cir. 2010) (finding that even “serious” allegations of child abuse did not make handcuffing a potential suspect reasonable). This is not such a case. If officers here had reason at the time they handcuffed Mr. Katz to suspect that he was involved in a crime, it was not one associated with the use of dangerous weapons.14
serious crimes, . . . all while armed with a handgun“).
If the allegations against Mr. Katz did not establish serious safety concerns, neither did Mr. Katz‘s actions while in the presence of the police. Officer Cherry has not argued that any officer thought, based on Mr. Katz‘s gestures or demeanor, that Mr. Katz might be armed. Regardless, such a belief would have to be objectively reasonable. See In re R.M.C., 719 A.2d 491, 495-96 (D.C. 1998) (concluding that officers’ subjective belief that a suspect was armed was objectively unreasonable, and thus frisking and handcuffing him was impermissible). We see nothing in the record that could provide a reasonable basis to think that Mr. Katz was armed. Relatedly, nothing in the record suggests that Mr. Katz behaved erratically or resisted the officers in any way. To the contrary, there is evidence that Officer Cherry did not perceive Mr. Katz to be a danger to himself or others.15 See Womack, 673 A.2d at 609 & n.10 (noting that “whether police officers in fact feared for their safety during an encounter with a suspect is not dispositive” but evidence about whether an officer felt threatened may be helpful to the factfinder in “explain[ing] the context of the encounter from [the officer‘s] point of view“).
While the circumstances in which officers encounter a suspect have also affected courts’ analysis of the reasonableness of handcuffing, Officer Cherry has not argued that any such circumstances gave rise to a safety justification here. This is not a case, for example, in which officers were in “unfamiliar surroundings.” Cf. id. at 611. Nor did the officers need to move Mr. Katz from one location to another. Cf. M.E.B., 638 A.2d at 1127 (finding handcuffing of two detainees suspected of involvement in a murder reasonable while transporting them, together, in the back of a patrol car so that a show-up could be conducted). And in the light favorable to Mr. Katz, he was handcuffed while in the presence of a “group” of officers that outnumbered Mr. Katz and Mr. Goyette. A jury could find that the presence of multiple officers substantially reduced any safety concerns. Washington v. Lambert, 98 F.3d 1181, 1189-90 (9th Cir. 1996) (considering the “number of police officers present” a relevant factor in “analyzing the reasonableness of the use of aggressive investigatory tactics as part of a Terry stop“); cf. Coghill v. United States, 982 A.2d 802, 809 (D.C. 2009) (considering the fact that an officer was alone with the suspect in finding handcuffing the suspect reasonable as part of an investigatory stop). While the situation the officers found themselves in may have been confusing and even tense, that does not justify handcuffing someone who himself presents no objective safety threat. Cf. R.M.C., 719 A.2d at 493, 496 (finding that an officer who handcuffed a minor who was stopped on suspicion of a curfew violation so that the officer could help his partner, who was “engaged in a scuffle” with one of the minor‘s companions, acted unreasonably); Lundstrom, 616 F.3d at 1122-23 (rejecting
Handcuffing is ordinarily improper in a Terry stop absent an objective safety concern. See United States v. Smith, 373 F. Supp. 3d 223, 241 (D.D.C. 2019); Haynes v. Minnehan, 14 F.4th 830, 835 n.4 (8th Cir. 2021) (“[A]bsent an objective safety risk, handcuffing is not a routine part of a Terry stop.“). For the reasons stated above, a jury could find—notwithstanding the fact that officers told Mr. Katz that he was being handcuffed “for everybody‘s protection“—that it was unreasonable under the circumstances to think handcuffing Mr. Katz immediately was necessary for safety purposes.
Nevertheless, we have recognized that handcuffing can sometimes be a reasonable way for officers to “maintain the status quo” while diligently pursuing an investigation, such as where a suspect may attempt to flee. See Womack, 673 A.2d at 609. Taken in the light favorable to Mr. Katz, the facts do not suggest an investigative need for handcuffing, either. Mr. Katz‘s account—bolstered by Mr. Goyette‘s testimony that Mr. Katz turned toward the large group of officers—was that he was seeking out the police. A jury could find on these facts that the objective risk of Mr. Katz fleeing was minimal and that handcuffing was not necessary to secure his presence. Cf. Harris v. Byner, No. 2:12cv591-MHT, 2014 WL 129040, at *5 (M.D. Ala. Jan. 14, 2014) (finding it “utterly incredible” that appellant “could have been a flight risk” given that he was the one who had called the police).16 And Officer Cherry has pointed to no other facts suggesting that handcuffing Mr. Katz was reasonably necessary to allow officers to investigate.
In the absence of any objective reason to believe that Mr. Katz posed a safety risk or a flight risk or might otherwise frustrate police inquiry if not handcuffed, there was no reason to handcuff him immediately, before conducting “even the most basic investigation.” El-Ghazzawy v. Berthiaume, 636 F.3d 452, 458 (8th Cir. 2011). Particularly in light of the reasons to think that Mr. Katz might have been the victim of an offense rather than the perpetrator, it was unreasonable to handcuff Mr. Katz without asking him or anyone else a single question. Cf. id. (finding it unreasonable for an officer who was responding to a dispatch that stated that an individual was attempting to sell counterfeit watches to handcuff the suspect without first “pos[ing] a single question to [the suspect] or store personnel to ascertain the basis of the dispatch“); Lundstrom, 616 F.3d at 1123 (finding that officers responding to “serious” allegations of child abuse acted unreasonably in handcuffing a woman before “undertak[ing] the most rudimentary investigation—asking [her] what happened“); Hall v. District of Columbia, 867 F.3d 138, 165 (D.C. 2017) (finding that allegations in complaint constituted de facto arrest where the officer “did not attempt to verify [the complainant‘s] contentions before handcuffing [the plaintiff]“).
If a jury credited Mr. Katz‘s account, it could find that handcuffing was not reasonably necessary for officer safety or to maintain the status quo while officers sought more information. In the light favorable to Mr. Katz, handcuffing him was
Having determined that Mr. Katz‘s version of the facts—if credited—constitutes a Fourth Amendment violation, we must determine “whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions.” Sabir v. District of Columbia, 755 A.2d 449, 455 (D.C. 2000) (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)). A right is clearly established when it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). This requires that the legal principle be “dictated by ‘controlling authority’ or ‘a robust “consensus of cases of persuasive authority.“‘” District of Columbia v. Wesby, 138 S. Ct. 577, 589-90 (2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741-42 (2011)). It also requires that “the legal principle clearly prohibit the officer‘s conduct in the particular circumstances before him.” Id. at 590. Ultimately, while there need not “be ‘a case directly on point,’ existing precedent must place the lawfulness of the particular [conduct] ‘beyond debate.‘” Id. (quoting al-Kidd, 563 U.S. at 741).
At the time Officer Cherry stopped Mr. Katz, it was clear that absent a safety or investigative justification, it was unlawful to handcuff someone without probable cause to believe they had committed or were about to commit an offense.17 A preeminent treatise on the Fourth Amendment stated that “handcuffing of the suspect is not ordinarily proper” during a Terry stop, citing decisions of five federal appellate courts and six state supreme courts to that effect. Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 408-09, 409 n.134 (5th ed. 2012). Resort to handcuffing, it provided, requires “special circumstances.” Id. at 409-10, 410 n.135. Well before the events here, this court noted that handcuffing is “a familiar feature of arrests” and described the “critical question” in determining whether handcuffing was within the permissible scope of a Terry stop as “whether a reasonably prudent officer would have been justified in using handcuffs to neutralize potential threats to his or her safety or to inhibit any attempt by the suspect to escape.” Womack, 673 A.2d at 608-09.
It is clear from cases requiring “special circumstances” to justify the use of handcuffs that their use in a Terry stop is not permissible absent such circumstances. See El-Ghazzawy, 636 F.3d at 459-60 (“‘It is well established . . . that when officers are presented with serious danger in the course of carrying out an investigative detention, they may brandish weapons or even constrain the suspect with handcuffs in order to control the scene and protect their safety.’ It follows that the converse is equally true: it is well established that if suspects are cooperative and officers have no objective concerns for
When the facts are viewed in the light most favorable to Mr. Katz, any reasonable officer would also have known that such circumstances were not present in this case. See Manzanares, 575 F.3d at 1150 (rejecting the idea “that the existence of a grey area between arrests and investigative detentions means that no reasonable officer can ever understand that he has arrested a suspect“). On Mr. Katz‘s account, neither his conduct while in the presence of police nor the reason the police had for stopping him established an objective threat to anyone‘s safety or to the officers’ ability to investigate the competing allegations before them. This court has found handcuffing reasonable only in cases where the detainee was suspected of a crime that officers could reasonably believe involved dangerous weapons or where the detainee had already attempted to flee from police.18 Moreover, other jurisdictions have found not only Fourth Amendment violations but clearly established ones where officers handcuffed compliant individuals before conducting any investigation. E.g., El-Ghazzawy, 636 F.3d at 459-60; Lundstrom, 616 F.3d at 1125-26. In light of these cases, no reasonable officer could think that immediately handcuffing a (compliant) individual who sought out police for help and who was not believed to be armed was permissible. It was clear in the circumstances Mr. Katz describes that officers needed to conduct some investigation before handcuffing Mr. Katz.
We emphasize that this decision rests on the significantly disputed facts before us at this stage. Cf. Gupta v. Melloh, 19 F.4th 990, 996-1001 (7th Cir. 2021) (deeming qualified immunity on an excessive force claim improper where case law made clear that officers cannot lawfully use force without provocation or justification and
E. Common Law False Arrest Claims Against Officer Cherry and the District
Mr. Katz also challenges the grant of summary judgment to the defendants on his common law false arrest claims. “The gravamen of a complaint for false arrest or false imprisonment [under District law] is an unlawful detention.” Enders v. District of Columbia, 4 A.3d 457, 461 (D.C. 2010). The “central issue” is whether there was “legal justification” for the detention. Id. at 466 (quoting Moorehead v. District of Columbia, 747 A.2d 138, 147 (D.C. 2000)).
Mr. Katz argues that his detention was not legally justified because it failed to comport with either of the requirements in
For the reasons discussed in connection with the § 1983 unlawful arrest claim, a jury could conclude that Mr. Katz‘s detention did not comply with the first requirement in
Moreover, there are disputes of material fact about whether there was at any point—before or after the investigation—probable cause to believe that, “unless immediately arrested, [Mr. Katz] may not be apprehended, may cause injury to others, or may tamper with, dispose of, or destroy evidence,” as the second prong of
Even though a jury could find that one or both of the prongs of the warrantless misdemeanor arrest statute was not satisfied, Officer Cherry was entitled to summary judgment on Mr. Katz‘s common law false arrest claim if it was clear as a matter of law that she “believed, in good faith, that [her] conduct was lawful” and this “belief was reasonable.” District of Columbia v. Murphy, 631 A.2d 34, 36 (D.C. 1993); see also Enders, 4 A.3d at 464 n.10 (describing this as an “alternate legal justification for an arrest“). Even if she subjectively believed that her conduct was lawful, however, a jury could find that this belief was not reasonable. That is because, as discussed above, it was clear at the time of this encounter that handcuffing an individual without probable cause or a safety or investigative reason was impermissible, and there are disputed facts about whether any such reason was present here.20 There are also such significant factual disputes underlying the circumstances of Mr. Katz‘s arrest that we hesitate to conclude as a matter of law that Officer Cherry had a subjective belief in the legality of her actions. See Murphy, 631 A.2d at 38-39 (finding the evidence “too equivocal to support a judicial determination that no reasonable juror could find” that officers had “at least a reasonable good faith belief that they were acting lawfully in [arresting appellant],” because appellant‘s testimony—which directly contradicted officers’ and complainant‘s accounts—meant there was a possibility that officers seized appellant with “no ground for believing that [he] was breaking the law“).
F. Malicious Prosecution Claims Against Officer Cherry and the District
We now turn to Mr. Katz‘s malicious prosecution claims, which he brought pursuant to both District law and
“The issue in a malicious prosecution case is not whether there was probable cause for the initial arrest, but whether there was probable cause for the ‘underlying suit.‘” Pitt v. District of Columbia, 491 F.3d 494, 502 (D.C. Cir. 2007) (quoting Joeckel v. Disabled Am. Veterans, 793 A.2d 1279, 1282 (D.C. 2002)). “In a civil action for malicious prosecution, probable cause is defined as the existence of ‘facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting it are legally just and proper.‘” Id. at 501-02 (quoting Ammerman v. Newman, 384 A.2d 637, 639-40 (D.C. 1978)).
Mr. Katz does not develop an argument that the investigation did not supply the requisite quantum of suspicion to believe that he had committed a crime.22 The police report states that (1) in an interview, Mr. Goyette described Mr. Katz punching Ms. Ahmad on the right side of her face with a closed fist, (2) Ms. Ahmad sustained swelling on her right cheek, and (3) both Ms. Ahmad and Mr. Goyette identified Mr. Katz in show-ups. Mr. Katz does not dispute that Mr. Goyette and Ms. Ahmad each independently represented to officers that Mr. Katz had assaulted them, and that the taxi driver—seemingly an uninterested third party—corroborated their account. Mr. Katz has not shown that a jury could find it unreasonable for those
The absence of any material factual dispute as to the existence of probable cause for the proceeding was sufficient to warrant summary judgment to Officer Cherry and the District on the malicious prosecution claims. Therefore, we need not reach Mr. Katz‘s arguments about malice. We affirm the trial court‘s grant of summary judgment to Officer Cherry and the District on the common law malicious prosecution count and to Officer Cherry on the related § 1983 count.
G. Assault and Battery Claims Against the District
Mr. Katz also challenges the grant of summary judgment to the District on his assault and battery claims.24 Liability for assault and battery for an officer conducting an arrest or investigative stop turns on “whether the officer‘s conduct was reasonably necessary and thereby privileged.” District of Columbia v. Chinn, 839 A.2d 701, 707 (D.C. 2003) (quoting Holder v. District of Columbia, 700 A.2d 738, 742 (D.C. 1997)). In resolving this question, we consider what a reasonable officer on the scene would believe to be necessary, “given the conditions apparent to the officer at the time.” Id. at 706; see also Etheredge v. District of Columbia, 635 A.2d 908, 916 (D.C. 1993). And, in doing so, we “allow[] for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Etheredge, 635 A.2d at 916 (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).
The District contends that its officers used a reasonable amount of force to effect an arrest in handcuffing Mr. Katz.25 But considering the facts and circumstances
to officer on District law battery claim notwithstanding some evidence suggesting that the suspect may have been “resisting” because a jury could find that the officer “should have perceived that she could resolve the situation without physical force“); cf. Dormu v. District of Columbia, 795 F. Supp. 2d 7, 23 (D.D.C. 2011) (“A reasonable juror could find that [the officer] violated [the plaintiff‘s Fourth Amendment right to be free from excessive force] because the circumstances surrounding [the plaintiff‘s] arrest were quite benign. In particular, [the plaintiff] was not arrested for any violent crime and . . . did not resist arrest.“); Shannon v. Koehler, 616 F.3d 855, 863 (8th Cir. 2010) (“Assuming, then, that [the plaintiff‘s] story is true—i.e., assuming he was not threatening anyone, not resisting arrest, and so on—it was not reasonable for [the officer] to use more than de minimis force against him. It follows, a fortiori, that using enough force to cause the injuries that [the plaintiff] alleges . . . was also unreasonable.” (citations omitted)).
That the handcuffs were ultimately loosened—albeit after “what felt like a long time“—does not mean that no juror could find the use of force unreasonable. See Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004) (finding that plaintiff‘s allegations that officer “placed handcuffs on him that were excessively tight and failed to respond to [his] repeated requests for them to be loosened,” causing “permanent nerve damage,” could permit a jury to find the use of force excessive even though the officer did loosen the handcuffs after ten minutes, in part because the officer was not “in the midst of a dangerous situation” but instead “faced rather benign circumstances that hardly justified his failure to respond more promptly to [the plaintiff‘s]
III.
We next consider Mr. Katz‘s challenge to the trial court‘s resolution of the defendants’ motion to dismiss in its April 1, 2016, order. Mr. Katz contends that the trial court erred when it treated that motion to dismiss as a
The appellees conceded at oral argument that the trial court erred in failing to give the parties notice before treating the motion to dismiss as one for summary judgment. See
Mr. Katz‘s challenge to the order is properly before us. The very nature of the error claimed prevented Mr. Katz from objecting before the entry of summary judgment, especially as he had no reason to anticipate that the trial court would apply summary judgment standards to the defendants’ motion. See Oparaugo v. Watts, 884 A.2d 63, 76 n.10 (D.C. 2005) (noting that documents referenced in complaint and central to plaintiff‘s claim can be considered in connection with motion to dismiss without converting the motion into one for summary judgment). Mr. Katz was not required, as the appellees suggest, to file a motion for reconsideration in order to preserve an objection to the trial court‘s sua sponte grant of summary judgment.27
At oral argument, the appellees cited Rumber v. District of Columbia, 595 F.3d 1298, 1302 (D.C. Cir. 2010), and VanHaaren v. State Farm Mutual Automobile Insurance Co., 989 F.2d 1, 4-5 (1st Cir. 1993), in support of their argument that Mr. Katz was required to file a motion for reconsideration to preserve this claim. Neither case involves a sua sponte grant of summary judgment, and both are readily distinguishable. In Rumber, the issue was whether the litigant had received a “full and fair opportunity to litigate” her constitutional claims in state proceedings, for Younger abstention purposes, where the state court had held that she had forfeited her constitutional defenses. 595 F.3d at 1301-02 (quoting Act Now to Stop War & End Racism Coal. v. District of Columbia, 589 F.3d 433, 436 (D.C. Cir. 2009)) (citing Younger v. Harris, 401 U.S. 37 (1971)). The D.C. Circuit held that the litigant failed to show that she was deprived of a fair opportunity to raise her defenses in part because she could have challenged the forfeiture ruling in a motion for reconsideration raising new, favorable law but failed to do so. Id. at 1302. In VanHaaren, the trial court had expressly declined to reach an issue given the plaintiff‘s failure to raise it; the First Circuit suggested that the plaintiff could have had another bite at the apple had he moved for reconsideration of the trial court‘s order. See 989 F.2d at 4-5. Neither case speaks to whether a motion for reconsideration is required to preserve a challenge to a procedural decision that the trial court made without any prior opportunity for the parties to raise objections.
The only remaining question is whether the error was harmless. In reviewing a claim that a trial court erroneously
A. Section 1983 Claims Against the District
We first consider whether the conversion to summary judgment was
The trial court granted summary judgment to the District on Mr. Katz‘s
In relevant part, Mr. Katz‘s amended complaint alleges that the officers’ actions underlying the constitutional claims “were a direct and proximate result of Defendant District of Columbia‘s failure to properly hire, train, and/or supervise them.” The complaint also alleges that the District “fail[ed] to properly train and/or supervise . . . officers employed by MPD with respect to the proper investigation procedures and on procedures for arresting individuals they come into contact with.” Because these allegations are no more than bare legal conclusions, however, they are insufficient to state a
Because Mr. Katz failed to state a claim for municipal liability under
B. Negligent Hiring, Training, Retention and Supervision
The trial court also granted summary judgment to the District on Mr. Katz‘s common law claim of negligent hiring, training, retention, and supervision. To invoke negligent hiring or supervision as a theory of liability, a party must “show that an employer knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and that the employer, armed with that actual or constructive knowledge, failed to adequately supervise the employee.” Giles v. Shell Oil Corp., 487 A.2d 610, 613 (D.C. 1985) (emphasis omitted).
Mr. Katz‘s complaint alleges that the District hired and retained Officer Cherry, Officer Butler, and Sergeant Maguire “despite actual and/or constructive knowledge of incompetence” and that the District “fail[ed] to properly train and/or supervise” the officers “with respect to the proper investigation procedures and . . . procedures for arresting individuals.” These allegations are not “enough to raise a right to relief above the speculative level.” Close It! Title Servs., Inc., 248 A.3d at 138 (quoting OneWest Bank, 18 A.3d at 721); see also Grayson v. AT&T Corp., 140 A.3d 1155, 1161-62 (D.C. 2011) (“‘[W]hile a complaint attacked by a
C. Negligence
The trial court also granted summary judgment for the District and the officers on Mr. Katz‘s negligence claim. The complaint asserts that the officers “owe a duty of reasonable care” and “[p]lead[s] in the alternative” that MPD officers acted negligently, “includ[ing], but . . . not limited to, the negligent arrest of [Mr. Katz], the negligent taking of him into custody, the negligent application of handcuffs and other negligent acts.”
The claims of “negligent arrest” and “negligently taking [Mr. Katz] into custody” are indistinguishable from Mr. Katz‘s false arrest claims. See Stewart-Veal v. District of Columbia, 896 A.2d 232, 235 (D.C. 2006) (holding that plaintiff‘s negligence claim “based on the actions of the arresting officers” was properly dismissed because it was “not separate and distinct from [her] false arrest claim“). The negligence claim based on the application of the handcuffs also fails to state “a separate
Because Mr. Katz did not allege “independent grounds for finding negligence,” the negligence claim could not have been sent to the jury alongside the intentional tort claims, id. at 712, and so the trial court‘s grant of summary judgment on the negligence count was harmless.
D. Remaining Claims Against Officer Butler and Sergeant Maguire
Counsel for Mr. Katz stated at oral argument that Mr. Katz would not pursue his claims against Officer Butler if the case were remanded.32 Accordingly, the trial court‘s dismissal of the claims against Officer Butler did not prejudice Mr. Katz. As to Sergeant Maguire, the dismissal of the malicious prosecution claim against him was harmless—even assuming that he could be a proper defendant for this claim—given that there was probable cause to initiate a proceeding against Mr. Katz. See supra Section II.F. But we must determine whether the dismissal of Mr. Katz‘s false arrest, assault and battery, and
The trial court dismissed Sergeant Maguire from the case on qualified immunity grounds given that Mr. Katz “made no showing that [Sergeant Maguire was] involved in the arrest and handcuffing of [Mr. Katz].” But the only showing Mr. Katz had to make at the motion-to-dismiss stage was to plead facts supporting a plausible inference of entitlement to relief. His amended complaint alleges that shortly after Mr. Katz ran up to the police officers, “an officer on the scene slammed [Mr. Katz] into the back of a police car and handcuffed him.” It also states that “[t]he Arrest/Prosecution Report . . . identifies [Sergeant] Maguire as” one of three “officers on the scene.” These allegations made it plausible that Sergeant Maguire was liable for the arrest and handcuffing of Mr. Katz. See Potomac Dev. Corp., 28 A.3d at 544 (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))); cf. Gudger v. District of Columbia, 74 F. Supp. 3d 47, 52 (D.D.C. 2014) (concluding that accepting plaintiff‘s request to infer that certain named defendants
The appellees argue that even if Mr. Katz‘s complaint stated claims against Sergeant Maguire, however, the dismissal of those claims was nonetheless harmless because subsequent discovery made clear that they would fail as a matter of law. This is so, they argue, because there are no material disputes of fact as to threshold issues such as the existence of probable cause for Mr. Katz‘s arrest or the excessiveness of the force used in arresting him. But as addressed above in connection with the claims against Officer Cherry and the District, we disagree.
As to the common law and
Similarly, we do not agree with the appellees that no reasonable jury could find that an unreasonable amount of force was used against Mr. Katz. See supra Section II.G. And here, too, the factual record as it stands now—which includes Sergeant Maguire‘s testimony that he heard Mr. Katz‘s complaints about the tightness of the handcuffs and checked the handcuffs—does not foreclose the possibility that Sergeant Maguire could be liable to Mr. Katz for assault and battery. Thus, for the reasons stated above with respect to the assault and battery claims against the District, we find that the dismissal of the assault and battery claims against Sergeant Maguire was not harmless.
As to the
The evidence that has been produced in the course of discovery does not lead us to conclude that the dismissal was nonetheless harmless because the excessive force claim would be dismissed on qualified immunity grounds at the summary judgment stage. Our case law predating this incident made clear that even where officers are effecting an arrest for which they have probable cause—a circumstance that is far from certain here—a use of force is unreasonable if not necessary to “protect [the
Because we are not convinced that the trial court‘s dismissal of the common law and
IV.
Material factual disputes precluded entry of summary judgment on Mr. Katz‘s false arrest claims against Officer Cherry and the District, his
So ordered.
Notes
Q: Okay. So you said, “He just punched my girlfriend,” twice; Mr. Katz stopped.
A: Yes.
Q: And then what happened?
A: He was—from what I could tell, he was clearly in the custody of police . . . and they allowed me to go check on [Ms. Ahmad].
Q: Okay. What was the next thing you said to the police after, “He just punched my girlfriend,” twice? After you said that twice, what was the next interaction you had with any police officer?
A: I think they said, “What happened“—I think I—I don‘t—I can‘t say specifically because it had been clarified what happened already . . . .
Q: At any point did you notice the police officers putting handcuffs on Mr. Katz?
A: I believe, as I walked away, yes.
Q: About how long would you say that was from the point where you yelled, “He just punched my girlfriend“—how long after that did you notice them put the handcuffs on Mr. Katz?
A: I can‘t say specifically.