738 F.2d 1352 (D.C. Cir. 1984), 83-1965, Biscoe v. Arlington County

Docket Nº:83-1965, 83-1966.
Citation:738 F.2d 1352
Party Name:Alvin B. BISCOE, Jr., Eleanor L. Biscoe, His Wife v. ARLINGTON COUNTY, Appellant, Arlington County Police Department, et al. Alvin B. BISCOE, Jr., Eleanor L. Biscoe, His Wife v. ARLINGTON COUNTY, et al. Michael Kyle, Arlington County Police Department, Appellant.
Case Date:July 06, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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738 F.2d 1352 (D.C. Cir. 1984)

Alvin B. BISCOE, Jr., Eleanor L. Biscoe, His Wife


ARLINGTON COUNTY, Appellant, Arlington County Police

Department, et al.

Alvin B. BISCOE, Jr., Eleanor L. Biscoe, His Wife



Michael Kyle, Arlington County Police Department, Appellant.

Nos. 83-1965, 83-1966.

United States Court of Appeals, District of Columbia Circuit

July 6, 1984

Argued April 16, 1984.

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Appeals from the United States District Court for the District of Columbia (Civil Action No. 80-0766).

William D. Dolan, III, Arlington, Va., with whom William A. Kaplin, Washington, D.C., and Charles G. Flinn, Arlington, Va.,

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were on the brief for appellant, Arlington County, in No. 83-1965.

Paul F. Sheriden, Fairfax, Va., for appellant, Kyle, in No. 83-1966.

Joseph H. Koonz, Jr., Washington, D.C., with whom Carolyn McKenney, Roger C. Johnson and Patrick M. Regan, Washington D.C., were on the brief for appellees, Alvin Biscoe, et al. in Nos. 83-1965 and 83-1966. Jill Robinson, and William P. Lightfoot, Washington D.C., also entered appearances for appellees.

Before TAMM and EDWARDS, Circuit Judges, and HAYNSWORTH, [*] Senior Circuit Judge, United States Court of Appeals for the Fourth Circuit.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This case involves the liability of Arlington County, Virginia, and one of its police officers, for serious injuries to an innocent bystander arising out of a negligent high-speed police pursuit of a suspected bank robber into the District of Columbia. As a result of the negligent pursuit, the plaintiff, Alvin Biscoe, had one of his legs severed and the other severely injured, ultimately requiring amputation. A jury returned a verdict in favor of the injured plaintiff and his wife, and the County and its officer have appealed. We affirm.


Late in the morning of September 29, 1979, Lyntellus Brooks and Orlando Durantes robbed the Arlington, Virginia branch of the Washington-Lee Savings & Loan Association. Shortly thereafter, an alarm was broadcast to all Arlington County Police Department ("ACPD") units; some of these units went to the robbery scene, and others to probable escape routes in the County. Police radio broadcasts alerted units to look for the persons who had been involved the previous day in a robbery of the Potomac Savings and Loan Association, and informed them that the car used in that robbery was a green Dodge Dart or Plymouth Duster, with a District of Columbia license plate.

Officer Michael Kyle responded to the alert by positioning his cruiser eastbound along Route 50. About nine minutes after the initial bank alarm transmission, he spotted a light green car driven by a man who resembled pictures of a suspect from the Potomac bank robbery that Kyle had seen the day before. A woman was seated beside the driver. Kyle radioed his suspicion regarding the driver and began to follow the green car along Route 50, with each car traveling within the speed limit. Kyle followed the car onto the Theodore Roosevelt Bridge (which connects Virginia with the District of Columbia), pulled in behind it, and turned on his overhead lights and siren. The car took the E Street Ramp off the Bridge into the District of Columbia, slowed to a stop in the breakdown lane of the ramp, and came to rest three car lengths in front of the police car. Before the stop, the ACPD dispatcher broadcast that the District of Columbia ("D.C." or "District") and United States Park Police were being notified. Also before the stop, Kyle radioed that the car appeared to have a third passenger--another woman--in the back seat.

Once stopped, Brooks, the driver of the car, immediately got out of his vehicle and walked toward Kyle with his hands in the air, leaving his car door open. Kyle got out of his cruiser, with his portable radio in hand, and notified the dispatcher that he had made the stop. Whether the officer also had his revolver drawn at this time was a matter of considerable dispute at trial. Kyle turned Brooks around, walked him back to his car, had him put his hands on the trunk, and ordered him to stay there.

According to plaintiffs' evidence, Kyle did not tell Brooks to turn off the car motor, throw his keys to the ground, or shut the car door; he did not instruct him

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to lie on the ground; and he did not handcuff or frisk him. Instead, the officer turned to the passenger side of the car to look in the back seat, and, with his hand radio, broadcast his location and requested a clothing description of the bank robbery suspects. While Kyle was so preoccupied--leaving Brooks wholly unattended and unrestrained--Brooks ran to his side of the car, jumped in and drove off. Brooks testified that he was able to make a quick escape because he had left the engine running and the car door ajar. Trial Transcript ("Tr.") at 31.

Kyle informed his dispatcher of the departure and returned to his car. With his lights flashing and his siren blaring, he pursued Brooks down the E Street Expressway and through the tunnel. Kyle radioed that a fourth passenger in the car was shooting at him, and also that, "I don't know where I'm at." Tr. at 332-33. Brooks, who by now was well within the city limits of the District of Columbia and traveling at more than 70 to 80 m.p.h., drove through a red light at 20th Street and sped toward the 19th and E Street intersection. The speed limit over this distance was 30 m.p.h., until one and a half blocks before the intersection, at which point it dropped to 25 m.p.h. Kyle, who knew neither his speed nor the speed limit, followed. Tr. at 332-33, 338. Plaintiffs contend that the officer averaged 55.38 m.p.h. over this distance and that his speed during the chase increased to 80 m.p.h. Defendants dispute this assertion, but do not deny that Kyle was traveling well in excess of the speed limits.

As Brooks approached the intersection, he saw a car traveling south on 19th Street into the intersection. Brooks' car struck that vehicle and careened off into the southeast corner of the intersection, where it pinned a pedestrian, Alvin Biscoe, against a light pole. The impact, which knocked Biscoe in the air, severed one of his legs and severely injured the other, ultimately requiring amputation.

Officer Kyle, who had by then arrived on the scene, saw Brooks flee from his car. Kyle removed his shotgun and followed. When Kyle reached Brooks, the suspect had been restrained by pedestrians. Kyle hit Brooks on the right side of his head with the butt of the shotgun. Soon thereafter, other police from various jurisdictions, as well as the United States Park Police helicopter, arrived on the scene.

Alvin Biscoe and his wife Eleanor filed a suit for damages against numerous parties, including Officer Kyle, Arlington County, and Brooks. They asserted that from the time Kyle first stopped Brooks' car on the E Street Ramp in the District of Columbia, the officer committed violations of a series of generally accepted police standards--in particular, in his conduct of the felony stop and the high-speed pursuit--which resulted in the accident. Moreover, they claimed that Officer Kyle violated Arlington County regulations that specifically prohibit its officers from engaging in high speed chases--defined as greater than 20 m.p.h. above the speed limit--in the District of Columbia. 1 In addition, they alleged that

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Arlington County's negligent training and supervision of Officer Kyle were a cause of the accident that injured Alvin Biscoe. After an 11-day trial, a jury returned a verdict finding that defendant Kyle was negligent in his conduct of the felony stop on the bridge and negligent in his high-speed pursuit of Brooks' vehicle, and that his employer, Arlington County, was similarly liable on a theory of respondeat superior. The jury also found that defendant Arlington County was negligent in its training and supervision of Kyle, and that defendant Brooks was negligent as well. The jury additionally found that all defendants' acts and omissions proximately caused the injuries to the plaintiffs. It awarded $4 million to Alvin Biscoe and $1 million to Eleanor Biscoe; the award to Eleanor Biscoe was reduced on remittitur to $350,000.


Defendants Kyle and Arlington County appeal the judgments against them on a number of grounds, principally involving pure questions of law. We have carefully reviewed each claim and have found none to merit reversal or remand. Accordingly, we affirm.

  1. Immunity Issues

    1. Sovereign Immunity

    Initially, defendant Arlington County asserts that the District Court improperly declined to recognize the immunity from tort claims that the County retains under Virginia law. In support of this assertion, Arlington County argues that the United States Constitution's Full Faith and Credit Clause, U.S. CONST. art. IV, Sec. 1, compels application of Virginia immunity in this case, that principles of comity require that Virginia's immunity be recognized in the District, and that the District's choice of law rules require adoption of that aspect of Virginia law.

    The first of these arguments may be readily dismissed on the basis of the Supreme Court's decision in Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979), which held that federal constitutional law does not prohibit one state's courts from entering a judgment against or asserting jurisdiction over another sovereign state. In Hall, plaintiffs sued Nevada in a California court for injuries suffered in a traffic accident allegedly caused by a Nevada state employee driving in California.

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    Nevada had argued that under the...

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