Melissa STANDLEY, Appellant v. Karen EDMONDS-LEACH, Officer, District of Columbia Library Police Department and District of Columbia, a Municipal Corporation, Appellees.
No. 13-7104.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 25, 2014. Decided April 21, 2015.
782 F.3d 1276
Mary L. Wilson, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.
Before: ROGERS, KAVANAUGH and PILLARD, Circuit Judges.
ROGERS, Circuit Judge:
Melissa Standley appeals the judgment on her tort claims for D.C. Public Library Special Police Officer Karen Edmonds-Leach and the District of Columbia on the ground that the district court abused its discretion in allowing the defendants to call a witness they failed to identify prior to trial in accordance with
I.
On February 3, 2011, Standley went to a D.C. public library to complete her homework and study for upcoming college exams. She sat in an area of the library reserved for children, even though she was too old to sit in that section. Officer Edmonds-Leach (hereinafter “Officer Leach“) asked Standley to move. Standley then relocated to the young-adult area, even though she was too old to sit there, too. After the officer again asked Standley to move, an altercation ensued, and the officer arrested Standley. Standley sued Officer Leach and the District of Columbia for the unconstitutional use of excessive force and common law torts. At trial, Standley and Officer Leach disputed the specifics of their encounter at the library. Other than an inconclusive video, which both Standley and the officer argued supported their version of the incident, the only other evidence about the events at the library was provided by Wendell Kellar, a librarian, whose testimony is at issue in this appeal.
A.
At trial, Standley testified that around 5 p.m. she went to a library near her home to study, as she did three to four times a week; she was a nursing student at the University of the District of Columbia. The children‘s area of the library is restricted to children under thirteen years of age and adults accompanying them, and the section for young adults is reserved for those aged thirteen to nineteen. Although Standley was twenty-one years old, the adult section was full, so Standley put her things on a table in the children‘s section, where she had sat previously when the library was crowded. Officer Leach asked Standley to leave the area for children. Standley moved, first walking through the adult section to see if there were any available seats and then, because there were not, as she claimed could be seen in the video, to the young-adult area. She explained that although some adult seats were not presently occupied, other library patrons had left the seats temporarily to get books or to socialize, so those seats were not available for use.
Ten or fifteen minutes later, after Standley had opened her computer and “start[ed] [her] activities,” Officer Leach asked Standley to leave the area for young adults. Standley asked the officer to make an exception because the adult section was full. Officer Leach said that she did not care, Standley could not sit in the young-adult area. Standley told the officer that this was “real petty” because there were no seats available in the adult section. The officer laughed and said she knew it was. Standley also questioned how she could be asked to leave without first verifying her age; when Officer Leach requested identification, Standley said she had none with her. Standley stood up and walked towards the adult section. As she did so, she mumbled under her breath the word “bitch” once but did not use any other profane language. Officer Leach “charge[d] after” her, got “in [her] face” and asked “what did you say, what did you say,” trying to provoke a confrontation.
The officer then told Standley to leave the library and pointed towards the exit.
Officer Leach‘s trial testimony depicted the events leading to Standley‘s arrest quite differently. According to the officer, she saw Standley sitting in the children‘s area and asked her to move to the adult section, in which there were seats fewer than five minutes earlier. When Standley objected to moving because there were no other seats, the officer explained the library‘s policy regarding the age-restricted sections and again asked Standley to move. Standley left the children‘s area. Later, Officer Leach noticed Standley sitting in the section for teenagers and returned to tell Standley to move to the adult section. Standley asserted that she had sat in the area for young adults before and kept saying there were no other seats. The officer responded that she could see seats in the adult section. Standley continued to object and also asked, “how do you even know what my age is?” After Standley told the officer she was only nineteen, Officer Leach requested her identification. At that point, Officer Leach testified, Standley “went into a frenzy,” “started cursing,” and said “I didn‘t know you need to bring no fuckin’ ID to the fuckin’ library.” Standley continued to spout profanities, and told Officer Leach she was “just being a fuckin’ bitch.”
Officer Leach told Standley to leave the library. Standley sat there and repeated that the officer was “just a bitch.” Standley began to pack her things, and then with her laptop in hand walked towards the adult section. Officer Leach followed Standley, calling out “ma‘am, ma‘am” to get Standley‘s attention. Standley ignored the officer, except to say again “[y]ou‘re just being a bitch.” Standley put her belongings down on a table, as if she were going to sit down. Officer Leach said, “ma‘am, this is the last and final time that I‘m going to tell you to leave,” and pointed towards the exit. The officer “stood almost to the side of her,” and Standley stated loudly, “bitch, get the fuck away from me. Bitch, get out of my face.” Other library patrons turned around to see what was happening.
Because Standley refused to leave, Officer Leach proceeded to arrest her for unlawful entry. The officer grabbed Standley‘s arm, but Standley “snatche[d] away.” She tried to grab Standley‘s arm again, but Standley once more pulled back. They continued to struggle for “maybe 5 to 10 minutes,” eventually “end[ing] up in[] the stacks where the books are,” and at some point they fell to the floor. Library patrons gathered around Standley and the officer, as the video showed. While Standley
B.
All of the criminal charges against Standley were dropped before trial. Standley filed this suit, alleging excessive force in violation of the Fourth Amendment and common law claims for false arrest, false imprisonment, assault, and battery against Officer Leach and the District of Columbia (collectively “the defendants“). (Standley also filed a malicious prosecution claim that was dismissed at the close of all the evidence and has not been pursued on appeal.)
Prior to trial, Standley filed a motion in limine to preclude the defendants, pursuant to
After Standley testified at trial, the defendants asked to call Kellar as an impeachment witness. They argued that Kellar would impeach Standley‘s testimony that during the incident at the library (1) she did not use profanity, except for muttering an expletive once, and (2) there were no seats available in the adult section. Standley objected, countering that “it would be prejudicial and against [] the basic rules to allow defendants to suddenly use someone for impeachment that was clearly discoverable” before trial. The district court reserved ruling until after the officer testified.
Following Officer Leach‘s testimony, the defendants renewed their request to call Kellar for the purpose of impeachment. Standley objected, explaining that Kellar‘s testimony would not be proper impeachment evidence because it would be used to corroborate Officer Leach‘s version of events, with Kellar “only testifying to a different version than [Standley].” Standley argued that admission of Kellar‘s testimony would violate the discovery rules and would be unduly prejudicial to her, noting, for example, that she “would have prepared her case differently” had she known he would be called as a witness.
The district court allowed Kellar to testify as an impeachment witness. The court found that he was “an impeaching witness and not called solely for corroboration.” Trial Tr. 68 (May 29, 2013) (afternoon session). The court explained that, “at least as his testimony is represented” by the defendants, Kellar “will be testifying on at least two areas that [Officer Leach] has not testified to.” Id. In particular, Kellar would testify about the num-
At trial, Kellar testified about the two areas of impeachment approved by the district court. First, Kellar testified that during the incident at the library he heard yelling and cursing from someone other than Officer Leach, with whose voice he was familiar. That part of his testimony contradicted, and thus tended to impeach, Standley‘s testimony that she did not raise her voice and that it was Officer Leach who swore at her. Second, Kellar testified that at the time of the incident the library was not particularly crowded, and there was adequate seating available in the adult section, thereby tending to impeach Standley‘s testimony that she needed to sit in the young-adult section. But Kellar also testified on another matter. Specifically, he testified that he heard Officer Leach instruct Standley to leave the library. That was not impeachment, as Standley had testified to the same effect.
The jury returned a verdict in the defendants’ favor, and the district court entered judgment for the defendants. Standley appeals. Our review of the district court‘s decision to admit Kellar‘s testimony is for abuse of discretion. See United States v. Garner, 396 F.3d 438, 440 (D.C. Cir. 2005).
II.
A.
The defendants concede that they did not identify Kellar as a witness in their pretrial disclosures or discovery responses, and they do not maintain on appeal that their failure to identify Kellar before trial was substantially justified or harmless. See
By contrast to substantive evidence, “which is offered to establish the truth of a matter to be determined by the trier of fact,” impeachment evidence is “offered to discredit a witness to reduce the effectiveness of her testimony by bringing forth evidence which explains why the jury should not put faith in her . . . testimony.” Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993) (internal quotation omitted), cert. denied, 511 U.S. 1029 (1994); see Friedman v. Rehal, 618 F.3d 142, 153-54 (2d Cir. 2010) (citing Chiasson, 988 F.2d at 517). Impeachment evidence used “[t]o attack the credibility of witnesses by the presentation of evidence showing that facts asserted or relied upon in their testimony are false . . . impeach[es] by contradiction.” Wegener v. Johnson, 527 F.3d 687, 691 (8th Cir. 2008). Impeachment by contradiction is an established way to impeach a witness‘s credibility. See, e.g., United States v. Miller, 738 F.3d 361, 376-77 (D.C. Cir. 2013); United States v. Fonseca, 435 F.3d 369, 375 (D.C. Cir. 2006) (citing WEINSTEIN‘S FEDERAL EVIDENCE §§ 607.06[1], 608. 20[3][a] (2d ed. 2005)). Kellar impeached Standley by contradicting her about whether she yelled and cursed and the availability of seats for adults at the library, so that testimony was permissible impeachment evidence.
But “separate and apart from whether [Kellar] contradicted [Standley‘s] testimony,” Kellar‘s testimony also “tended to establish the truth of a matter to be determined by the trier of fact.” Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998) (quoting Chiasson, 988 F.2d at 517); see also United States v. Sanchez-Robles, 927 F.2d 1070, 1078 (9th Cir. 1991), disapproved of on other grounds by United States v. Heredia, 483 F.3d 913 (9th Cir. 2007). In particular, if credited by the jury, Kellar‘s testimony about Standley‘s behavior tended to show Officer Leach had probable cause to arrest Standley for disorderly conduct. The defendants themselves highlighted this when they first moved to reinstate Kellar as a witness,
In applying
The district court in Hayes v. Cha, 338 F. Supp. 2d 470, 503-04 (D.N.J. 2004), summarized the competing considerations. On the one hand, the district court acknowledged that some circuits, such as the Seventh Circuit in DeBiasio, 52 F.3d at 686, reject the proposition that “solely” means that the evidence can have no substantive non-impeachment value. Hayes, 338 F. Supp. 2d at 503. Those courts reason that evidence used to attack a witness‘s credibility often contains some substantive element, and reading
“Because a district court by definition abuses its discretion when it makes an error of law, the abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” Koch v. Cox, 489 F.3d 384, 388 (D.C. Cir. 2007) (internal quotations omitted). Here, the district court rejected Standley‘s objection to Kellar‘s testimony as “a matter of semantics.” Trial Tr. 6 (May 30, 2013) (morning session). The court ruled that Kellar could testify because he was “an impeaching witness and not called solely for corroboration.” Trial Tr. 68 (May 29, 2013) (afternoon session). Under
By so proceeding, the district court never addressed the considerations that courts have found relevant under the several interpretations of the scope and nature of
B.
The question remains whether the error was harmless. This court “will reverse an erroneous evidentiary ruling . . . only if the error affects a party‘s substantial rights.” Huthnance v. District of Columbia, 722 F.3d 371, 377 (D.C. Cir. 2013) (citing
As a preliminary matter, the defendants’ position that Standley forfeited any claim of prejudice lacks merit. In her opening brief, Standley contends that the district court‘s admission of Kellar‘s testimony “was manifestly prejudicial.” Appellant‘s Br. 10. Standley pointed to the district court‘s erroneous evidentiary ruling, and “the circumstances of the case . . . make clear . . . that the [erroneous] ruling . . . was harmful,” Shinseki v. Sanders, 556 U.S. 396, 410 (2009), so Standley‘s assertion of prejudice sufficed, and she was not required to make any further argument on appeal to preserve that issue. See id. Throughout the district court proceedings Standley acted to protect her rights under the Federal Rules of Civil Procedure and to preclude Kellar‘s testimony because its admission would be harmful to her case.
On the merits, we conclude that the district court‘s legal error was not harmless. The prejudice to Standley goes beyond hindering her ability to plan for trial in deciding who to call as a witness and in preparing cross-examination of defense witnesses, although that typically is what the federal rules governing discovery are designed to avoid. See Advisory Committee Note on 1993 Amendments to subdivision (a) of
Accordingly, this court cannot say with fair assurance that the district court‘s legal error did not affect Standley‘s substantial rights, and we must reverse and remand for a new trial.