District of Columbia v. Evans

• Decision Date: 21 July 1994
• Docket Number: No. 92-CV-1323,94-CV-451.,92-CV-1323
• Citation: 644 A.2d 1008
• Parties: DISTRICT OF COLUMBIA, Joyce Powell, and Eric Winer, Appellants, v. Indiana EVANS, Individually and as Personal Representative of the Estate of Virtus A. Evans, Deceased, Appellee. Indiana EVANS, Individually and as Personal Representative of the Estate of Virtus A. Evans, Deceased, Cross-Appellant, v. DISTRICT OF COLUMBIA, Joyce Powell, and Eric Winer, Cross-Appellees.
• Court: D.C. Court of Appeals

644 A.2d 1008

DISTRICT OF COLUMBIA, Joyce Powell, and Eric Winer, Appellants, v. Indiana EVANS, Individually and as Personal Representative of the Estate of Virtus A. Evans, Deceased, Appellee.

Indiana EVANS, Individually and as Personal Representative of the Estate of Virtus A. Evans, Deceased, Cross-Appellant, v. DISTRICT OF COLUMBIA, Joyce Powell, and Eric Winer, Cross-Appellees.

Nos. 92-CV-1323, 94-CV-451.

District of Columbia Court of Appeals.

Argued April 19, 1994.

Decided July 21, 1994.

Edward E. Schwab, with whom John Payton, Corp. Counsel at the time the brief was filed, Charles L. Reischel, Deputy Corp. Counsel, and Lutz Alexander Prager, Asst. Deputy Corp. Counsel, were on the brief, for appellants.

Perry A. Hilbert, Jr., with whom Allan Sosslau and William L. Kohler were on the brief, for appellees.

Before FERREN^* and TERRY, Associate Judges, and GALLAGHER, Senior Judge.

FERREN, Associate Judge:

This is a police shooting case which resulted in a $612,828 judgment against the two police officers involved, Eric Winer and Joyce Powell, and against the District of Columbia. The principal basis for this award was a 42 U.S.C. § 1983 (1993) claim that the officers and the District violated the decedent's Fourth Amendment right against unreasonable seizures. The jury also found for the plaintiff—the mother of the victim, Virtus Evans, and the personal representative of his estate—on wrongful death, survival, and negligent infliction of emotional distress claims. The jury found for the defendants on the assault and battery claim. The trial judge dismissed plaintiff's other claims, which were all based on negligence.

We conclude that the officers are entitled to immunity from the § 1983 suit and that, as a result, the District is not subject to § 1983 liability. Accordingly, we must reverse the judgments totaling $562,828 in plaintiffs favor on that claim, as well as on the wrongful death and survival claims, which were predicated on the § 1983 claim. We uphold, however, the jury's verdict awarding $50,000 to plaintiff for negligent infliction of emotional distress. We also conclude that the trial court erred in dismissing plaintiffs negligence claims. We therefore reverse and remand for a new trial on those claims alone.

I. FACTS

Metropolitan Police Department Officers Eric Winer and Joyce Powell shot and killed Virtus Evans after a confrontation at his home. The facts were hotly contested at trial; the dispute centered on whether the victim possessed a butcher knife at the time he was shot.

A.

The plaintiff's version of what happened, based primarily on the testimony of the plaintiff-appellee herself, Indiana Evans, the victim's mother, is as follows. Virtus Evans, who was 37 years old at the time of the shooting, had a long history of epileptic seizures. He lived with his mother, who had been accustomed to dealing with her son's seizures since he was two years old. On May 24, 1986, Ms. Evans returned home to find her son attempting to get out of the locked back door of their home without using a key, in spite of the fact that he had the key with him. Ms. Evans asked her son what was wrong and inquired whether he had taken the medicine he used to control his epilepsy. He did not respond, and in the next few moments he twice fell down attempting to walk across the kitchen floor. At this point, Ms. Evans, feeling that she needed assistance, went to a neighbor's house to dial 911. She testified that she told the emergency operator, "My son is having a seizure. I'm home alone and need some help." Ms. Evans then returned to her own home to check on her son, whom she found sitting in the kitchen, apparently "a little better."

Approximately five minutes later, a fire truck with five firefighters arrived at the scene. Ms. Evans told them that she had requested an ambulance to give medical help because her son was "having a seizure." Two firefighters followed Ms. Evans to the kitchen to check on her son. According to Ms. Evans, upon seeing Virtus Evans, one of the firefighters said, "He's on drugs." At this point Virtus Evans was not out of the seizure, but he had calmed down.

When the firefighters entered the house with Ms. Evans, they encountered Virtus Evans trying to eat a watermelon. He had a large knife, and watermelon pieces and juice were scattered all over the counter and the floor. The firefighters continued to exclaim that Virtus Evans was on drugs, "probably PCP." After about five minutes, fearing Evans would hurt himself, one of the firefighters took the knife away from him and gave it to his mother, who placed it behind a chair in the living room. According to Ms. Evans, her son never entered the living room during the entire incident.

Virtus Evans then left the kitchen and stepped into an alley behind the house. According to his mother, he had nothing in his hands at this time. After another couple of minutes had passed, Ms. Evans heard sirens and decided to wait outside her house for more help to arrive. She testified that she next saw a police officer, later identified as defendant Joyce Powell, running through the alley, "moving very fast," with her gun drawn. Officer Powell passed Ms. Evans without speaking, although Ms. Evans testified that she had told the officer her son was an epileptic. Ms. Evans testified that, upon hearing this, Officer Powell looked directly at Ms. Evans, as if to acknowledge the statement.

Ms. Evans further testified that she then followed Officer Powell into the back yard, where she saw her son approaching. She heard Officer Powell say "Drop it" twice. Virtus Evans stumbled toward Officer Powell, who backed up and raised her gun. Ms. Evans testified that her son's hands were hanging loosely at his side at the time, and that he held nothing. She said that her son was at least ten feet away from Officer Powell when the officer fired her weapon at him. Just before Officer Powell fired, Ms. Evans saw Officer Winer for the first time. At that point, before the actual shooting, fearing for her own safety, Ms. Evans placed her hands over her eyes, screamed, and either fell or was knocked to the ground. She heard a number of shots and later learned that her son had been killed by shots fired by both Officer Winer and Officer Powell.

In addition to Ms. Evans' testimony, the plaintiff presented two other eyewitnesses who testified that events outside the house occurred much as Ms. Evans had described. They, too, testified that Virtus Evans had nothing in his hands before he was shot. These other eyewitnesses also testified that Virtus Evans never threatened Officer Powell in any way.

Plaintiff also called Daniel Beach, one of the firefighters who was on the scene, as a witness in her case-in-chief. Unlike plaintiff's other witnesses, Beach testified that Virtus Evans did have a knife at the time he was shot. Beach added, however, that Evans never acted in a threatening way toward any other person present, but that he had "jabbed at himself" with the knife several times. Beach also testified that Officer Winer had told Evans to drop the knife.

B.

The District of Columbia defendants-appellants presented a much different version of the facts through the testimony of firefighters at the scene and of Officers Winer and Powell. Allan Russell, one of the firefighters, testified that Ms. Evans had told him that her son was "acting crazy" and that she was afraid to go into the house. According to the testimony of defendants' witnesses, when the firefighters first entered the house, encountering Virtus Evans with the knife and the watermelon, they attempted to take his vital signs but Evans would not cooperate. The firefighters spoke with Evans for about 15 minutes without getting a response. During this time, they were able to get the knife from him and give it to his mother. Eventually, Evans told the firefighters to "get away from him."

At this point, according to the firefighters' testimony, Evans pulled another butcher knife from his shirt and told everyone to back off. Evans then left the kitchen and went into the back yard, where he "lunged" at firefighters Lee Mason and Allen Russell with this second knife. I Russell hopped over a fence to avoid the knife thrust. While this was occurring, firefighter Beach called for police assistance, sending over the radio a "firemen in trouble" dispatch which said they were dealing with a person with an "altered mental status."

Shortly thereafter, Officer Eric Winer arrived at the scene. According to Winer's testimony, the firefighters told him that a man in the alley with a knife had acted threateningly toward them. Officer Winer then proceeded to the alley, where he saw a man later identified as Virtus Evans with a butcher knife. Officer Winer kept a short fence between himself and Evans and used the radio to call for a taser (stun gun). Evans continued to act strangely and did not respond to the officer's pleas to drop the knife. At one point, Evans jabbed himself in the stomach with the knife. Shortly after that, Evans started to climb the fence that separated him from Officer Winer. At that point Winer aimed his gun and yelled, "Stop, it's not worth it. Don't do it this way." According to Winer, Evans backed off of the fence and retreated down the alley, heading toward a young girl. Winer distracted Evans by shaking the fence. Evans then approached Winer and fell to the ground, seemingly onto the knife. Winer holstered his weapon and jumped the fence to approach Evans. Suddenly, according to Winer, Evans stood up and brandished the knife. Officer Winer backed away and continued to plead with Evans to drop the knife.

This was the time when Officer Joyce Powell arrived at the scene. She knew another officer was there. Firefighters also told her a man was there armed with a knife. The officer testified that she ran to the back of the house holding her baton. Officer Powell added that she did not remove her gun from...