Rogala v. District of Columbia

Decision Date12 November 1998
Docket NumberNo. 98-7014,98-7014
Citation333 U.S. App. D.C. 145,161 F.3d 44
PartiesFrances ROGALA, Appellant, v. DISTRICT OF COLUMBIA and Ephriam Williams, Officer, Badge #4357, Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Before: SILBERMAN, HENDERSON, and TATEL, Circuit Judges.

ORDER

Upon consideration of the motion for summary affirmance, the opposition thereto, and the reply, it is

ORDERED that the motion be granted. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C.Cir.1987) (per curiam); Walker v. Washington, 627 F.2d 541, 545 (D.C.Cir.) (per curiam), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 292 (1980). We affirm the judgment for appellees on appellant Rogala's claims substantially for the reasons well-stated in the district court's "Opinion, Findings of Fact and Conclusions of Law" filed January 5, 1998, and reprinted as an appendix to this order. We note that although the district court discussed a "split" on whether police may detain a passenger during a traffic stop, this case is readily distinguishable from Dennis v. State, 345 Md. 649, 693 A.2d 1150 (Md.1997) (holding detention invalid). Unlike in Dennis, appellant did not seek to leave the scene, and Officer Williams merely required her to remain in the car, rather than in the street or on the sidewalk, in light of his concerns about his safety, her creation of a traffic hazard, and her interference with the field sobriety test. We do not reach appellant's arguments concerning the field sobriety test administered to her companion Kinberg, as he did not appeal and appellant lacks standing to challenge the test. See, e.g., Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (" 'Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.' ") (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)).

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir. Rule 41.

APPENDIX

Robert KINBERG and Frances ROGALA, Plaintiffs,

v.

DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 94-2516 (PLF)

United States District Court for the District of Columbia

Jan. 5, 1998.

OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW

FRIEDMAN, J.

Robert Kinberg and Frances Rogala bring this action for damages against the District of Columbia and Officer Ephriam Williams, an officer of the Metropolitan Police Department ("MPD"). All of the claims arise from a traffic stop and ensuing arrest of both plaintiffs.

Robert Kinberg was pulled over by Officer Williams as he drove through Georgetown late on a November evening with Frances Rogala as his passenger. After stopping the car, Officer Williams ordered Mr. Kinberg out of the car and directed him to undergo a field sobriety test. Ms. Rogala got out of the car to join Mr. Kinberg on the sidewalk. Plaintiffs claim that Officer Williams became aggressive and threatening and ordered Ms. Rogala back into the car. A dispute broke out between Ms. Rogala and Officer Williams, and Officer Williams ultimately arrested Ms. Rogala and Mr. Kinberg and charged them with assault. Both plaintiffs spent the night in custody and were released early the next morning. The United States Attorney's Office declined to file charges against either Mr. Kinberg or Ms. Rogala.

Ms. Rogala and Mr. Kinberg sued Officer Williams and the District of Columbia for: (1) violating their Fourth Amendment right to be free from unreasonable seizures; (2) violating Mr. Kinberg's Sixth Amendment right to counsel; (3) violating Mr. Kinberg's Fifth and Sixth Amendment rights to compulsory process and to due process of law; (4) committing assault and battery against both of them; (5) falsely arresting and imprisoning them; (6) maliciously prosecuting them; and (7) intentionally inflicting emotional distress on Ms. Rogala. Plaintiffs also claim that the District of Columbia negligently retained Officer Williams with the knowledge that he was unfit to serve as a police officer.

The case was tried before the Court without a jury over a period of five days. At trial, Mr. Kinberg and Ms. Rogala testified on their own behalf. Plaintiffs also called as witnesses Ms. Eva Kempner, Mr. Afzal Kahn, Dr. Eric Cantor, Dr. Lynn Hornyak, Mr. Brian Mooar, Mr. Gerald Fisher, an attorney representing Mr. Kinberg and Ms. Rogala in their efforts to seal their arrest records, Ms. Diane Walton, former Executive Director of the Civilian Complaint Review Board, Mr. Louis Wolff and Mr. Robert Klotz, a former Captain and former Commanding Officer of Internal Affairs for the MPD, who testified as an expert in police practices and procedures.

Officer Williams testified in his own defense. Defendants also called as a witness Mr. Jerry Wilson, a twenty-five year veteran and former Chief of the MPD, who testified as an expert in police practices and procedures.

I. FINDINGS OF FACT

At approximately 11:00 p.m. on Monday, November 22, 1993, plaintiff Robert Kinberg was driving westbound on M Street, Northwest, in Georgetown with plaintiff Frances Rogala as his passenger. The two, both attorneys, were driving home after seeing a special showing of the movie SCHINDLER'S LIST. Officer Ephriam Williams, an officer with the Metropolitan Police Department since 1986, was stationed alone in the 3200 block of M Street, Northwest, and observed Mr. Kinberg pull up next to a blue car and stop at a red light at the intersection of 33rd and M Streets. Officer Williams testified that he heard one of the cars stopped at the light race its engine. The blue car rocked forward slightly and then stopped. Officer Williams testified that he then saw Mr. Kinberg drive through the intersection against the red light. Mr. Kinberg and Ms. Rogala both testified that Mr. Kinberg did not run the red light.

The Court finds Officer Williams' testimony credible. While Mr. Kinberg may not have intended to run the red light and may genuinely believe he did not, he may well have been drawn through the light by the movement of the car next to him. 1 The Court credits the testimony of Officer Williams that he saw Mr. Kinberg run the red light and therefore concludes that the decision to stop Mr. Kinberg's car was reasonable.

Officer Williams activated his emergency lights and stopped Mr. Kinberg's car in the 3400 block of M Street. Officer Williams testified that he pulled the car over in order to determine why the car had run the red light and to ascertain whether the driver was intoxicated. Officer Williams got out of his cruiser and walked up to the driver's side of the car. He testified that Mr. Kinberg's eyes appeared "glossy" and that his face was "bloated." He requested Mr. Kinberg's driver's license and vehicle registration and asked Mr. Kinberg whether he had been drinking. Both Officer Williams and Mr. Kinberg testified that Mr. Kinberg handed Officer Williams his license and registration and replied that he had not had anything to drink. At that point, Officer Williams ordered Mr. Kinberg to step out of the car for a field sobriety test.

Officer Williams testified that he decided to conduct the field sobriety test based on the following facts: he had seen Mr. Kinberg run a red light; Mr. Kinberg's eyes were glossy and his face was bloated; and, in Officer Williams' experience, there were often intoxicated drivers traveling through Georgetown at that time of night. Former Chief Jerry Wilson, defendants' expert in police practices, testified that these factors would be sufficient to indicate to a police officer that a driver may be intoxicated and to justify a field sobriety test. 2 Mr. Kinberg disputes Officer Williams' characterization of his facial appearance, and Ms. Eva Kempner, who saw Mr. Kinberg and Ms. Rogala at the movie earlier in the evening, testified that Mr. Kinberg looked normal after the movie. At trial, however, Mr. Kinberg testified that he may have cried at the movie, which he said had an emotional impact on both him and Ms. Rogala, and that his eyes may have been red.

The Court finds credible Officer Williams' testimony both about his observation of Mr. Kinberg's appearance and his reasons for conducting the field sobriety test. While Mr. Kinberg's glossy eyes and bloated face may have been caused by his reaction to the movie that he had just seen, in Officer Williams' experience Mr. Kinberg's appearance was consistent with that of an intoxicated person. Combined with the other factors identified by the officer, Mr. Kinberg's appearance was a legitimate basis for Officer Williams' decision to conduct a field sobriety test.

Officer Williams testified that he called for back-up at this time and then moved Mr. Kinberg to the sidewalk near the rear of the vehicle for the field sobriety test. He said that he wanted to be in a position to keep both Mr. Kinberg and Ms. Rogala in his view for his own safety. The first test, a "finger count" test, required Mr. Kinberg to count to five on the fingers of one hand and then count back down. Mr. Kinberg began counting with his first finger and then realized that he should have started with his thumb because he was going to run out of fingers. When he realized his mistake, Mr. Kinberg stopped and asked Officer Williams to clarify the instructions. After Officer Williams repeated the instructions, Mr. Kinberg successfully performed the test. Officer Williams then had Mr. Kinberg perform an "alphabet test," which consisted of Mr. Kinberg reciting the alphabet from H to Z with his head tilted backwards.

While Mr. Kinberg was performing these tests, Ms. Rogala opened the passenger door and began to get out of the vehicle. Officer Williams ordered her to...

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