235 F.3d 637 (D.C. Cir. 2001), 00-7008, Butera v. Dist. of Columbia

Docket Nº:00-7008
Citation:235 F.3d 637
Party Name:Terry E. Butera, Individually, and as Personal and Legal Representative of the Estate of Eric Michael Butera, deceased, Appellee v. District of Columbia, et al., Appellants
Case Date:January 09, 2001
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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235 F.3d 637 (D.C. Cir. 2001)

Terry E. Butera, Individually, and as Personal and Legal Representative of the Estate of Eric Michael Butera, deceased, Appellee


District of Columbia, et al., Appellants

No. 00-7008

United States Court of Appeals, District of Columbia Circuit

January 9, 2001

Argued October 12, 2000

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Appeal from the United States District Court for the District of Columbia (No. 98cv02794)

Charles F.C. Ruff argued the cause for appellants. With him on the briefs were Kevin C. Newsom, Robert R. Rigsby, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and Donna M. Murasky, Assistant Corporation Counsel.

Daniel A. Rezneck, General Counsel, was on the brief for amicus curiae District of Columbia Financial Responsibility & Management Assistance Authority.

Paul Mogin argued the cause for appellee. On the brief were Brendan V. Sullivan, Jr., John G. Kester, Peter C. Grenier and James M. Ludwig. J. Alan Galbraith entered an appearance.

Before: Edwards, Chief Judge, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge:

This appeal arises from the tragic death of 31-year-old Eric Butera while he served as an undercover operative for the Metropolitan Police Department of the District of Columbia. Mr. Butera's mother, Terry Butera, sued, on her own behalf and on behalf of her son's estate, the District of Columbia and the four police officers who engineered the undercover operation, alleging that they recklessly failed to provide adequate protection for her son. She alleged violations of her son's and her

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own civil rights under 42 U.S.C. § 1983 (1994), negligence under the District of Columbia Survival Act, D.C. Code § 12-101 et seq. (1995 Repl.), and the District of Columbia Wrongful Death Act, D.C. Code § 16-2701 et seq. (1997 Repl.), and at common law for intentional infliction of emotional distress. The jury returned verdicts against the officers on the constitutional claims and against the officers and the District of Columbia on the statutory claims, and awarded Terry Butera $70,530,000 in compensatory damages and $27,570,000 in punitive damages.

On appeal, the District of Columbia and the four officers (collectively, "the District of Columbia") contend that the district court erred in denying their motion for judgment as a matter of law under Fed. R. Civ. P. 50, or alternatively for a new trial under Fed. R. Civ. P. 59, or for remittitur. See Butera v. District of Columbia, 83 F.Supp.2d 25 (D.D.C. 1999) ("Butera II"). With respect to the civil rights claims, the District of Columbia contends that the officers did not violate either Eric Butera's or Terry Butera's substantive due process rights, because no such rights existed. Alternatively, the District of Columbia contends that the officers are entitled to qualified immunity because, even if Eric and Terry Butera could assert substantive due process rights, it was not clearly established prior to Eric Butera's death that the officers' conduct would violate these rights. In this regard, the appeal presents two questions of first impression in this circuit: (1) whether the District of Columbia can be held constitutionally liable for failing to protect an individual who is not in custody from harm inflicted by a third party, and (2) whether a parent has a constitutionally-protected interest in the society and companionship of her adult son. In addition to challenging the civil rights claims, the District of Columbia disputes the lawfulness of imposing punitive damages against it and the sufficiency of the evidence to support the punitive damages awards against the four officers. Finally, the District of Columbia challenges the sufficiency of the evidence to support the statutory claims, and the denial of its request to substitute an expert witness for a disqualified expert.

We affirm in part and reverse in part. On the civil rights claims, we hold that the "State endangerment" concept, through which Eric Butera might have succeeded in proving a constitutional violation, was not clearly established prior to his death; hence, the officers were entitled to qualified immunity. We also hold that there is no parental due process right to the company of an adult child who is independent; consequently, Terry Butera had no grounds for asserting a constitutional violation. Therefore, the officers were entitled to summary judgment on all claims brought under 42 U.S.C. § 1983. We further hold, consistent with recent precedent in this circuit, that the evidence did not amount to the "extraordinary circumstances" necessary to award punitive damages against the District of Columbia. For these reasons, we vacate the $70 million compensatory award on the civil rights claims and the $27 million punitive damages award against the District of Columbia. In all other respects, we affirm the judgment awarding $530,000 in compensatory damages under the Survival and Wrongful Death Acts, and a total of $570,000 in punitive damages against the four officers.


A. Background. On November 16, 1997, Eric Butera telephoned the Metropolitan Police Department of the District of Columbia ("MPD") to provide information about the highly publicized triple homicide at the Starbucks coffee shop that had occurred July 7, 1997. He told Detective Anthony Patterson, one of the MPD's homicide detectives assigned to the Starbucks investigation, that on two separate occasions, while he was purchasing or using crack cocaine at a house in the Greenleaf Gardens housing complex in Southwest Washington, D.C., he overheard

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someone talking about the Starbucks murders. He also said he had seen firearms at the house. Detective Patterson and his partner met with Eric Butera that same day. Both detectives found him to be credible and trustworthy. Eric Butera told Detective Patterson that he had come forward with this information because "he was no longer taking drugs, he was attempting to get his life in order and he wanted to do the right thing." On November 23, 1999, Eric Butera went to the homicide branch and identified from mug shots the person whom he had overheard talking about the Starbucks murders.

In addition to Detective Patterson, Lieutenant Brian McAllister and Sergeant Nicholas Breul were assigned to the Starbucks investigation. To advance the investigation, the officers decided to stage an undercover drug purchase at the house where Eric Butera had overheard the conversation and seen the drugs and firearms. The officers asked Eric Butera to assist them by conducting the undercover drug purchase, and Eric Butera agreed. For purposes of the Butera drug purchase, Lieutenant McAllister supervised the officers, Sergeant Breul was in charge of the operation, and Detective Patterson was the lead detective. They also enlisted the participation of Detective Anthony Brigidini, who was familiar with the Greenleaf housing complex.

On December 4, 1997, officers Patterson, Brigidini, and Breul met with Eric Butera to plan and execute the drug purchase. The officers planned the operation to resemble as closely as possible Eric Butera's previous visits to the Greenleaf Gardens house. Eric Butera told them that usually he would enter and exit through the back door of the house, and that the entire transaction generally took "anywhere from one minute to ten minutes, maybe fifteen minutes." Eric Butera and the officers agreed to follow this same pattern, with one exception: Eric Butera would exit through the front door and meet the officers at a pre-arranged location. The officers assured Eric Butera that the MPD would "exercise proper care to ensure that he would not be harmed," and that they would "carefully watch and monitor him throughout the process." They supplied him with $80 in marked twenty dollar bills to make the drug purchase.

After the debriefing, the officers decided that Detective Brigidini would drive Eric Butera to the house, and Detective Patterson and Sergeant Breul would follow in a separate car for surveillance and backup. Detective Brigidini drove Eric Butera to the house around 9:20 p.m., and watched as Eric Butera approached the back door. As Eric Butera knocked on the door, Detective Brigidini drove away and parked approximately one hundred fifty feet from the house. Detective Brigidini testified that he was attempting to mirror the practices of those who had driven Eric Butera to the location in the past, by circling the area until Eric Butera emerged from the house to be picked up. Detective Brigidini also intended to place himself in a position where he could see the front of the house (from which he expected Eric Butera to emerge) and the rear opening of the walkway behind the house; from his location, however, he was unable to see the back of the house. Meanwhile, Detective Patterson and Sergeant Breul parked their car, with their windows down, in a location that enabled them to see only part of the back alley of the housing complex.1 As a result, none of the officers was in a position to see (or otherwise monitor) Eric Butera when he attempted to enter the house.

After approximately fifteen minutes had passed since Eric Butera approached the house, Detective Brigidini, who had not seen Eric Butera, notified Sergeant Breul and Detective Patterson that he was becoming uneasy. Detective Brigidini began driving around the block to look for him, and after circling the streets, he returned

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to his original position. Sergeant Breul and Detective Patterson also began to look for Eric Butera. Approximately thirty minutes after Detective Brigidini dropped off Eric Butera, uniformed police...

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