Huthnance v. Dist. of Columbia, 11–7086.

Citation722 F.3d 371
Decision Date09 July 2013
Docket NumberNo. 11–7086.,11–7086.
PartiesLindsay HUTHNANCE, Appellee v. DISTRICT OF COLUMBIA, et al., Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

OPINION TEXT STARTS HERE

Appeal from the United States District Court for the District of Columbia, (No. 1:06–cv–01871).

Mary L. Wilson, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellants. With her on the briefs were Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General.

John Moustakas argued the cause for appellee. With him on the brief were Jeffrey D. Skinner, Andrew S. Hudson, Arthur B. Spitzer, and Frederick V. Mulhauser.

Before: BROWN and KAVANAUGH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

BROWN, Circuit Judge:

The District of Columbia and two of its police officers appeal a jury verdict in favor of Lindsay Huthnance, an alleged victim of overzealous law enforcement. Huthnance claimed District police violated her common-law, statutory, and constitutional rights when they arrested her for disorderly conduct. A jury agreed, awarding her $90,000 in compensatory damages against the District and two of its officers, as well as $7,500 in punitive damages against the individual officers. The District and the officers now challenge the district court's decision to exclude certain evidence, and argue that two jury instructions were improper. We agree the court erred by issuing a missing evidence instruction, but conclude the error was not prejudicial and affirm the district court.

I

On November 15, 2005, Huthnance and her boyfriend, Adrien Marsoni, joined two friends at the Raven Bar and Grill in the District's Mt. Pleasant neighborhood for a few drinks. On their walk home afterwards, Huthnance and Marsoni stopped at a 7–Eleven to buy cigarettes, a decision that ultimately spoiled what may otherwise have been a lovely evening. The parties dispute what happened, but in broad strokes, Huthnance got into a verbal tussle with some police officers and was arrested for disorderly conduct.

This is Huthnance's story. She “saw a number of police officers inside” the 7–Eleven and asked “what was going on.” Trial Tr. 52 (Mar. 7, 2011). Apparently uninterested in friendly banter, the officers told her to mind her own business and move along, so she turned to Marsoni and said, “Wow, nice use of my tax dollars.” Id. One of the officers, “in sort of a confrontational way,” challenged Huthnance to repeat herself, but she declined and walked out of the store, intending to go home. Id. at 52, 55. On their way out, Marsoni told someone outside the 7–Eleven to “fuck off,” but they continued “up the street” unmolested. Id. at 55, 112. This did not last. Two officers—James Antonio, the person Marsoni told to “fuck off,” and Liliana Acebal—followed Huthnance and Marsoni, stopped them, and demanded to see identification. Marsoni complied; Huthnance did not. Instead, she “asked continuously” why she was being stopped, whether the officers had probable cause, and whether she was under arrest. Id. at 55. The officers did not respond. Huthnance then “raise[d her] voice” and said “I want your badge number.” Id. at 55, 61. She was instead told to put her hands against the wall. She complied, at which point Officer Acebal searched and handcuffed her. A third officer drove Huthnance to the police station, where she remained until morning. Huthnance claims this encounter began around 11:45 p.m. and that she was arrested ten minutes later and was taken to the police station soon after midnight.

The appellants paint a very different picture. Relying on Officer Antonio's and Officer Acebal's trial testimony, they claim Officers Antonio and Acebal, along with Officer Jose Morales, stopped to use the 7–Eleven's bathroom during a plainclothes robbery detail. Officers Antonio and Acebal waited outside while Officer Morales went inside, and while sitting in their car, they saw Huthnance inside the 7–Eleven, “backing up towards the door.... waving her arms around” with “her middle finger ex[t]ended towards the officers that were inside the 7–Eleven.” Trial Tr. 43 (Mar. 11, 2011). They also heard her “scream out: You donut eating mother fuckers, this is where my tax dollars are going.” Id. at 44. Seeing that his colleagues inside 7–Eleven had not asked Huthnance to stop “standing in the doorway” and that two people “had walked up and tried to get into the 7–Eleven,” Officer Antonio approached Huthnance and asked her to “keep it down and just keep moving.” Id. at 44–45. Officer Acebal also asked Huthnance to calm down. Apparently unappreciative of the officers' solicitude for potential 7–Eleven patrons, Huthnance screamed, “Fuck you. Mind your own fucking business, go fuck yourself.” Id. at 45. Huthnance and Marsoni then began walking away, but Huthnance turned around, pulling back from Marsoni, and in a [v]ery loud” voice said, “Fuck that. I ain't fucking going nowhere. I'm a fucking citizen, I know my fucking rights.” Id. at 48. Marsoni repeatedly tried to calm her down and go home, but despite his best efforts, she began walking back toward the officers, yelling further affirmations of her citizenship and rights.

By now, the officers had asked her a number of times to calm down and go home and warned her that if she did not, they would issue her a citation for being “loud and boisterous.” Id. at 55. People were also beginning to “gather around” to see what was happening, residents of the apartments across the street were turning on their lights, and vehicles were slowing and stopping. Officer Antonio therefore walked back to the car to get the citation booklet, and Officer Acebal asked Huthnance for identification. Huthnance, who is about a foot taller than Officer Acebal, stood “basically on top of” the officer and replied, “Fuck you little bitch, I ain't giving you shit.” Id. at 60. The officers had noticed “a hint of alcohol on her breath” and that her hair was “a little messy” and her eyes “a little red,” id. at 46, so when bystanders started moving closer, the officers decided to arrest her. Huthnance then asked, “What are you arresting me for, being drunk and eating a burrito?” Trial Tr. 29 (Mar. 14, 2011). According to the officers' testimony at trial, they first arrived at the 7–Eleven around 1:40 a.m. on November 16 and arrested Huthnance somewhere between 1:45 and 1:55 a.m.

Huthnance eventually sued the District of Columbia and Officers Antonio, Acebal, and Morales claiming the police essentially arrested her for “contempt of cop,” Appellee's Br. at 1, and that the government knew or should have known about its officers' habits of doing so and failed to train them properly. After a few weeks of trial, the jury found that Officer Antonio and Officer Acebal committed the tort of false arrest and violated Huthnance's First and Fourth Amendment rights, that Officer Acebal committed the tort of assault and battery, and that the District was deliberately indifferent to citizens' First and Fourth Amendment rights.1 The jury found Morales was not liable on any of the counts. The District and Officers Antonio and Acebal now appeal.

II

During discovery, Huthnance asked the District to produce [a]ll Documents referring or relating to the arrest and detention of Plaintiff (and any encounter that preceded it) ... including, without limitation, any police reports, witness statements, log entries, video recordings, post and forfeit paperwork, and all radio communications/transmissions relating to Plaintiffs [ sic] arrest, detention and transportation.” The District produced the arrest report the officers prepared at the police station after arresting Huthnance, the form Huthnance signed in jail that entitled her to release, and a Court Case Review Form.” The District later supplemented its response, stating, “As a result of its search, the District has concluded that there are no radio communications related to plaintiff's arrest, however see Attachment 21, radio log related to plaintiff's arrest.” The radio log in question listed the following information:

+------------------------------------+
                ¦AGENCY:            ¦MPD             ¦
                +-------------------+----------------¦
                ¦DATE/TIME:         ¦20051116020505ES¦
                +-------------------+----------------¦
                ¦DISPATCH DATE/TIME:¦20051116020506ES¦
                +-------------------+----------------¦
                ¦UNIQUE ID:         ¦5118642         ¦
                +-------------------+----------------¦
                ¦CASE NUMBER:       ¦R2005155750     ¦
                +------------------------------------+
                
+----------------------------------+
                ¦ADDRESS: 3100 MOUNT PLEASANT ST NW¦
                +----------------------------------+
                

Huthnance subsequently told the District she wanted to depose someone about radio transmissions, so the District produced a supervisor at its Office of Unified Communications. SeeFed.R.Civ.P. 30(b)(6). The following exchange occurred at the deposition:

Q: [W]hen a requester wants to pull information about a call, how does your office—what information does your office use as the identifier to match up the request with the call?

A: Usually the location, time and date.

Q: You say “usually.” There's times when you use other identifiers?

A: Maybe the central complaint number, ... the CCN number.

Q: And the CCN number is the category on [the radio log] marked complaint number, I believe.

A: No. They are two separate things.

Q: So the CCN number, is that the case number on this [radio log]?

A: No. It's different.

Q: Okay. So I don't see CCN number on this radio [log], correct?

A: Right.

Huthnance asked no follow-up questions, a decision she later explained was the result of her conclusion that the radio log, unconnected to her arrest, had been produced only because of its relationship to the date, time, and location of her arrest. As...

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