District of Columbia v. Downs, 8895.
| Decision Date | 24 May 1976 |
| Docket Number | No. 8895.,8895. |
| Citation | 357 A.2d 857 |
| Parties | DISTRICT OF COLUMBIA, a Municipal Corporation, and Albert Ramirez, Appellants, v. Irene DOWNS, Administratrix of the Estate of Gary Downs, a Deceased minor, Appellee. |
| Court | D.C. Court of Appeals |
David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, Washington, D. C., at the time the brief was filed, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellants.
William W. Graham, Washington, D. C., with whom David Povich, Washington, D. C., was on the brief, for appellee.
Before REILLY, Chief Judge, and KELLY and KERN, Associate Judges.
At approximately 6 o'clock on the evening of September 17, 1971, appellant Ramirez, a Metropolitan policeman, accompanied by two other officers, shot and mortally wounded Gary Downs,1 who was unarmed, in the bedroom of an apartment during their search for narcotics and narcotics paraphernalia pursuant to a search warrant which is conceded to have been valid.2
Appellee, the mother of decedent and administratrix of his estate, brought suit against Officer Ramirez and the District of Columbia3 under the Wrongful Death Act and the Survival Statute, D.C.Code 1973, §§ 12-101 and 16-2701, alleging that they had been negligent in using excessive force under the circumstances and that their negligence was the proximate cause of her son's death. After a jury found in her favor, the trial court denied defendants' motions for a new trial and judgment notwithstanding the verdict, and this appeal followed.
The defense case consisted of testimony by Officer Ramirez that he had seen a trail of white powder on the bedroom floor leading to the closet, and as he moved in that direction out burst Downs toward him.4 Ramirez pushed Downs away and drew his revolver, but Downs came back at him once more and reached for that revolver, and appellant pushed him away for the second time. The next time Downs sought to grab his gun, appellant shot him. Downs fell face down on the floor of the bedroom (not the closet) and did not move again. At about that time Ramirez's shirt was observed to be torn and his side scratched and bleeding. The other officers confirmed the facts of the struggle and the shooting, but one had not seen Downs come out of the closet, and the other had not seen the shots fired. The defense theory was that Ramirez, given Downs's aggressive behavior and relative superiority in size, had reason to fear death or serious bodily injury and therefore was justified in shooting him.
Appellee's case consisted of testimony by decedent's brother and mother that upon going to the apartment some hours after the fatal shooting, they saw stains of what appeared to them to be blood on the floor of the bedroom closet and on the chest of drawers near that closet as well as on the floor of the bedroom. Photographs taken by the brother depicting such stains were received in evidence.
There was expert testimony presented. The Deputy Medical Examiner testified that (1) the fatal bullet entered the heel of Downs's hand, passed through it and re-entered Downs's chest at a downward angle of 45° and (2) in view of the nature of the mortal wound, only a few drops of blood could have splattered beyond the area where Downs fell and lay after appellant shot him.
A forensic serologist testified that scrapings allegedly taken from the closet floor at the time of trial did contain blood although he could not say whether it was human or animal given the contamination of the sample over the passage of time.
Certain other circumstances were also presented to the jury. First, when decedent was examined at the hospital, no hair, fibers or foreign skin were found under his fingernails. Second, the officer charged with the responsibility of collecting evidence and photographing the scene of the shooting took than 60 pictures of the apartment, but in none was the bedroom closet door open more than an inch. This same officer also had taken possession of the sample blood scrapings about which the serologist had testified at trial; he then pointed out to the expert witness that there had been a mix-up in the sample scrapings and as a result of his suggestion, the expert was recalled to the stand during trial and changed his testimony.
A homicide officer responding to the scene denied in his testimony that he had seen any blood on the floor of the closet, but his own notes contained a reference to "blood on the closet door and floor." He also was seen, according to a witness, in conversation with appellant Ramirez and the other two officers shortly after the shooting, although the normal procedure in a homicide case, about which the homicide officer should have known, was to keep witnesses separated to avoid the possibility of their concocting together a story.
Finally, Chapter II, § 29 of the Rules and Regulations of the Metropolitan Police Department was received in evidence; it provides in pertinent part:
(a) [E]ach member of the department shall . . . use only the minimum amount of force . . . consistent with the accomplishment of his mission, and shall exhaust every other reasonable means of apprehension or defense before resorting to the use of firearms.
(b) No member of the . Force shall discharge a firearm
except . . . (1) to defend himself . . . from an attack which the officer has reasonable cause to believe could result in death or serious bodily injury. . . .
Given the evidence adduced, the plaintiff's theory was either (1) that Downs never even left the closet but while still crouched down with his hand extended upwards to protect himself was shot there and then carried to the middle of the bedroom by the officers, or (2) that Officer Ramirez, given the number of policemen and their weapons and the fact that Downs was unarmed, used excessive force in shooting him.
The trial judge, after instructing the jury concerning the meaning of the terms "ne...
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