District of Columbia v. White, 80-865.

Docket NºNo. 80-865.
Citation442 A.2d 159
Case DateFebruary 19, 1982
CourtCourt of Appeals of Columbia District

David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D. C., were on the brief, for appellant.

Elise Haldane, Washington, D. C., with whom Robert Case Liotta, and Nathan I. Finkelstein, Washington, D. C., were on the brief, for appellees.

Before NEWMAN, Chief Judge, and FERREN and PRYOR, Associate Judges.

PRYOR, Associate Judge:

On the evening of September 10, 1976, a detective of the Metropolitan Police Department, while acting in the course of duty in Southeast Washington, fired his service revolver, causing the death of George White. In this suit brought by the decedent's wife and two minor children1 against the District of Columbia2 under the Wrongful Death Act3 and Survival Statute,4 appellees alleged that decedent's death resulted either from an assault and battery by the detective or from his negligence in using excessive force under the circumstances. Appellees also alleged that the District of Columbia had negligently trained the detective.5 Finding appellant responsible for the negligent shooting death of White, the jury returned a verdict for appellees in the amount of $289,000.6

On appeal from that verdict, appellant contends that this court should vacate it on grounds that: (1) there was insufficient evidence concerning the detective's negligent behavior; (2) there was insufficient evidence to support the allegation of negligent training of the detective; and (3) the admission of evidence concerning events preceding the shooting was so prejudicial as to require a new trial. Due to the lack of evidence establishing an appropriate standard of care for training the detective and establishing a breach of that standard by police supervisory officials, we find there was insufficient evidence upon which to submit the negligent training issue to the jury. Accordingly, we hold that the erroneous submission of that issue to the jury undermines the validity of the jury's general finding of negligence and therefore requires reversal for a new trial.


On the evening of his death, the decedent, George White, and two friends had been riding bicycles in their Southeast Washington neighborhood when they stopped to talk to another man standing outside his residence. The men were preparing to smoke marijuana when a police car passed by. White made an insulting comment about the two police officers, who, upon hearing the remark, approached the men and asked for identification and bicycle registrations. When White failed to produce any registration, he was informed that his bicycle would be taken to the station. When one of the officers reached for the cycle, decedent objected and an altercation erupted. After an interval of several minutes, White fled the scene; the police broadcast a lookout for him as being involved in an assault on a police officer.

Steven Greenwood, the only civilian witness to the shooting, testified that he saw an unmarked police cruiser driving slowly along the street and heard a detective shout "Halt." The detective exited his car, assumed a "quick draw" position, with his arms outstretched straight in front of him, and pointed his gun at White. According to Greenwood, the decedent was standing between an apartment building and a house, facing the detective with his empty hands at his side, and looked as if he had just stopped running. As White started to turn away, the detective shot him in the back. The witness was impeached as to his recollection of events by the introduction of his grand jury testimony indicating that White had been running away from the detective and started to turn toward him when the latter fired the shot. Two other witnesses testified that they saw a motorcycle policeman speed through the parking lot of their apartment building, dismount and disappear. They both heard a shot and then walked around the side of the building to find decedent lying face down in handcuffs. White died before the ambulance called by the police arrived.

Appellees also called Detective Gaston, the officer who fired the shot, who testified, over appellant's objection, as to training he had received from the police department in the safe use of his firearm. Recalled to testify for appellant, Detective Gaston explained that on the night of the shooting he was responding to a radio call regarding an assault on a police officer when he observed the decedent running toward his car. Seeing the detective step out of his car, White turned around and started to run in the opposite direction between an apartment building and a house, but stopped. Detective Gaston noticed another officer pursuing White from the other side of the building with a gun in his hand. The other officer darted back and forth behind the building shouting "drop it," causing the detective to mistake an object, allegedly in White's hand, for a gun. With his service revolver drawn, the detective approached the decedent out of the line of the other officer's fire and ordered the decedent to halt. When White began to turn around to face the detective, Gaston fired his weapon. The other officer substantially corroborated the detective's testimony except that the other officer could only say that there was a shining object in White's hand; he was not certain it was a gun.


Preliminarily, we address appellant's contention that the verdict should be set aside and judgment entered for appellant on the ground that the jury could not reasonably find in favor of the District as to the intentional tort — assault and battery — and yet find liability for negligence.7 Appellant contends that all the evidence presented by both parties established that the shooting was intentional and not negligent. In asserting this position, appellant points to the chief witness for the defense, Detective Gaston, who testified that the shooting was intentional, but in self-defense; and to the only non-involved eyewitness, who testified for appellees, that Detective Gaston assumed a "quick draw" position and fired at the decedent from the street. Appellant therefore contends that it was plain error to submit/this issue of negligence to the jury since the shooting in this instance could only be viewed as an intentional tort.

In reviewing appellant's claim, neither the trial court nor this court is bound by plaintiff's characterization of the action as negligence. Kelton v. District of Columbia, D.C.App., 413 A.2d 919, 922 (1980). Instead, we must examine "the elements of the alleged offense" to determine which causes of action the complaint actually states. Id. To allege negligence, a complaint cannot merely make conclusory assertions but must specify a negligent act and "characterize the duty whose breach might have resulted in negligence liability." Id. at 922 n. 5; see Maddox v. Bano, D.C.App., 422 A.2d 763, 764 (1980).

Controlling our decision today is District of Columbia v. Downs, D.C.App., 357 A.2d 857 (1976), in which we held that a jury could properly find negligence in the shooting death of decedent although it did not find assault. In that case contradictory evidence at trial revealed either that the police shot Downs after he leapt out of a closet where he was hiding during their search of an apartment for narcotics, or that they shot him while he remained crouched in the closet and later carried him to a bedroom. Id. at 858-59. The same police regulation on safe use of firearms at issue here was introduced into evidence in that case. Id. at 859. On those facts we upheld submission to the jury of both the assault and negligence counts, which posed to the jury "whether [the police officer] deliberately and intentionally shot [the decedent] or whether the shooting resulted from the failure of [the police officer] to act as a reasonably prudent person would under the circumstances of his confrontation with [the decedent]." Id. at 860.8

Reviewing the record in this case in light of Downs, we hold that there was a basis in the evidence for submitting the question of negligence to the jury and that appellant's motion for judgment n.o.v. was correctly denied.9 Admitted into evidence, the police regulation on an officer's safe use of firearms 10 established a duty owed decedent, a breach of which would constitute evidence of negligence.11 Providing evidence concerning a breach of that duty were several witnesses who described the shooting and the circumstances surrounding it.

In addition, evidence of the detective's violation of the District of Columbia statutory provision, which makes use of excessive force by an officer criminal,12 constituted further evidence of negligence. "`[V]iolation of an ordinance intended to promote safety' can give rise to a negligence action." Marusa v. District of Columbia, 157 U.S. App.D.C. 348, 353, 484 F.2d 828, 833 (1973), quoting Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 389, 282 F.2d 943, 947 (1960); accord, Wyandotte Transportation Co. v. United States, 389 U.S. 191, 202, 88 S.Ct. 379, 386, 19 L.Ed.2d 407 (1967), citing Restatement (Second) of Torts § 286. To create civil liability, the criminal statute allegedly violated (1) should be one designed to promote safety; (2) must include plaintiff as a "member of the class to be protected"; and (3) must impose specific duties on the defendant. Marusa v. District of Columbia, supra at 354, 484 F.2d at 834. However, the court may decline to impose civil liability if sufficient policy considerations militate against it. Id.

We think that D.C. statute § 4-176 meets the criteria of Marusa. Criminal sanctions penalizing police use of excessive force promote the safety of city residents by deterrence. Plaintiffs fall within the class of people that the...

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