Holder v. District of Columbia, 94-CV-1383.

• Decision Date: 21 August 1997
• Docket Number: No. 94-CV-1383.,94-CV-1383.
• Citation: 700 A.2d 738
• Parties: Michael HOLDER, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

700 A.2d 738

Michael HOLDER, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 94-CV-1383.

District of Columbia Court of Appeals.

Argued October 16, 1996.

Decided August 21, 1997.

Victor E. Long, with whom Cheryl Stein, Washington, DC, was on the brief, for appellant.

Donna M. Murasky, Assistant Corporation Counsel, with whom Charles F.C. Ruff, Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellee.

Before WAGNER, Chief Judge, and STEADMAN and KING, Associate Judges.

STEADMAN, Associate Judge:

This case arises from the shooting of appellant Michael Holder by an off-duty police officer. Holder brought suit against the appellee District of Columbia, and the case went to the jury on two theories of liability: negligence and assault and battery. Following a partial jury verdict in favor of the District on the negligence claim, the trial court entered judgment as a matter of law for the District on the assault and battery claim. Based on the unique instructions given in this case we affirm.¹

I.

Holder was shot by off-duty Metropolitan Police Department Officer Johnny Ben Walker, Jr., on August 18, 1991, around closing time outside the East Side Club in Southwest Washington. The shooting took place almost immediately after someone shot another East Side patron named Nate Bush in the crowded street outside the club. Just how Holder was shot was the subject of two distinct and competing accounts presented to the jury at trial.

Officer Walker's version, corroborated in part by other police officers on the scene, was that shortly after the Bush shooting, he heard someone shout "Walker, there he goes." Walker looked and saw Holder carrying a gun and running toward the rear of the club. When Walker identified himself as a police officer and ordered Holder to stop and drop his gun, Holder turned and pointed his gun at Walker.² Walker fired his gun two to three times, and Holder turned and fled down an empty street carrying the gun. Walker pursued Holder and fired his gun eleven additional times, this time hitting Holder in the back. Holder stumbled into the rear door on the driver's side of a car and the car drove away.

Holder's version, corroborated in part by friends who were with him that evening, was that following the Bush shooting he fled along with others in the crowd toward the rear of the club. He did not have a gun, did not hear Officer Walker's order to stop, and was running down the street with a crowd of other people when he was shot in the back. He was helped by a friend into the front passenger seat of a car and driven to the hospital.

It was Holder's position at trial that the District was liable for either negligence or assault and battery. Holder argued that the District was liable for negligence because he did not have a gun on the night of the shooting and Walker had shot the wrong person. He also argued, alternatively, that even if he did have a gun, the District was liable for assault and battery because Officer Walker used excessive force in apprehending him.

Midway through the plaintiff's case at trial, the District offered to stipulate that if the jury concluded that Holder did not have a gun, the District was liable for Holder's damages. After an extensive colloquy, the trial court and Holder's counsel agreed to this stipulation. The stipulation obviated the need for Holder to call an expert witness on the standard of care, but necessitated the drafting of a special instruction on negligence as the standard instructions were no longer applicable.

As it turned out, the instructions on liability actually given to the jury, which were without objection and after much debate and compromise between counsel, were as follows (we have added paragraph numbers for ease of reference):

(1) Now, there are 2 counts that you will be considering in this case. They are distinct and they are very clear and separate. I will just give you the instructions on each count.

(2) One is called the negligence count and the other is the assault and battery count. Those are the 2 claims or theories of liability on which the Plaintiff will ask you to make a decision.

(3) On the negligence count, the following instruction applies.

(4) If you find that the Plaintiff was not the gunman that Officer Walker intended to shoot, then in the circumstances of this case, you must find the defendant District of Columbia liable.

(5) If on the other hand, you find that Officer Walker intended to and did shoot the Plaintiff, that at the time of the shooting the Officer reasonably believed the Plaintiff was fleeing the commission of a felony, that the use of deadly force was necessary to prevent the escape, and that the Officer had probable cause to believe that the suspect posed a significant threat of death or physical injury to the Officer or others, then in that circumstance of this case, you must find for the defendant, the District of Columbia.

(6) You are instructed that a police officer is required by law to attempt to arrest a person when the Officer believes that that person has committed a crime in his presence.

(7) If an Officer fails to try to arrest such an individual, then the officer is guilty of a misdemeanor and can be punished by being sentenced to prison for up to 2 years.

(8) You are instructed that the force with which an Officer of the law may use to arrest a person and to maintain the person so arrested is that force which is reasonably necessary.

(9) You are further instructed that the law in this city is that a person being arrested cannot resist the Officer either sic when there is no sufficient legal justification for the arrest.

(10) However, an Officer is not allowed to use any force beyond that reasonably necessary to accomplish his lawful purpose.

(11) Therefore, if you find that the defendant used greater force than was reasonably necessary in the circumstances of this case, you must find the defendant is liable for any injuries or damage suffered by the Plaintiff as a result thereof. The defendant there is acting through Officer Walker.

(12) On the assault count, the following applies.

(13) An assault is an intentional and unlawful threat or attempt either by word or acts to physically harm the victim. It must appear to the victim that the person making the threat or attempt has the present ability to carry it out.

(14) Also, there must be a display of force causing the victim to fear immediate bodily harm. But, actual contact is not necessary.

(15) The threat does not have to be directed at the victim. An assault occurs if a threat is directed at a third person and as a consequence, the victim is put in fear of bodily harm.

(16) Now, battery is an intentional and unlawful harmful or offensive touching or use of force upon the physical person of another.

(17) Touching includes intentionally putting into motion any object which touches another person or which touches something that is connected with or in contact with another person.

(18) A touching is harmful if it causes physical pain and injury or illness. A touching is offensive if it offends a person's reasonable sense of personal dignity. That's assault and battery which really go together.

(19) A battery can occur even though the person committing it did not intend to touch the victim. It is sufficient if the touching is aimed at or directed at another person and as a consequence, the victim was touched.

The jury returned a verdict for the District on the negligence count, but deadlocked on the assault and battery count. Following the jury verdict the District moved for judgment as a matter of law asserting that the jury verdict for the District on the negligence count necessarily meant the District was not liable on the assault and battery count because the excessive force instruction was actually given as part of the negligence instruction. The trial court granted the motion because the negligence instruction, "perhaps inadvertently, encompassed both Plaintiff's negligence and intentional tort theories," and "when the jury indicated that it found in favor of Defendant on the negligence count, it necessarily rejected the contentions that the officer negligently shot the wrong man, or that the officer intentionally used excessive force." This appeal followed.

II.

When an individual is shot by a District of Columbia police officer, and he or his successors in interest decide to bring a lawsuit, they may proceed under one or more different common law theories of legal liability. For example, they may sue for the common law intentional torts of assault and battery. See Etheredge v. District of Columbia, 635 A.2d 908, 916 (D.C.1993); District of Columbia v. White, 442 A.2d 159, 162-64 (D.C. 1982); District of Columbia v. Downs, 357 A.2d 857, 859-60 (D.C.1976). Suit may also be predicated upon one or more theories of negligence, including the officer's negligent act of shooting the victim. See District of Columbia v. Evans, 644 A.2d 1008, 1019-21 (D.C.1994); Etheredge, supra, 635 A.2d at 918; White, supra, 442 A.2d at 162-64; District of Columbia v. Davis, 386 A.2d 1195, 1198 (D.C.1978); Downs, supra, 357 A.2d at 859-60. Each of these theories of liability has distinct elements of proof, defenses, and rules on vicarious liability, but bear substantial similarities at the same time.

Although assault and battery are technically distinct intentional torts, see W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS §§ 9-10 (5th ed.1984), in cases like this one they are often pled in conjunction as a single count. An assault is "an intentional and unlawful attempt or threat, either by words or acts, to do physical harm to the plaintiff." Etheredge, supra, 635 A.2d at 916. "A battery is an intentional act that causes a harmful or offensive bodily contact." Id. In most cases involving intentional shootings by police officers the technical requirements...