Morgan v. District of Columbia

Decision Date30 September 1983
Docket NumberNo. 79-588.,79-588.
Citation468 A.2d 1306
PartiesGarnett P. MORGAN, et al., Appellants, v. DISTRICT OF COLUMBIA, Appellee.
CourtD.C. Court of Appeals

Harlow Case, with whom Jack H. Olender, Washington, D.C., was on the response to the petition, for appellants.

Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, Washington, D.C., at the time of en banc argument, was on the petition, for appellee.

Before NEWMAN, Chief Judge, KERN, NEBEKER, MACK, FERREN, PRYOR, BELSON and TERRY, Associate Judges, and GALLAGHER and KELLY**, Associate Judges, Retired.

GALLAGHER, Associate Judge, Retired:

In an action for negligence and wrongful death against the District of Columbia, a jury returned a verdict in favor of appellants on March 6, 1979. On April 20, 1979, the trial court granted the District of Columbia's motion for judgment notwithstanding the verdict on the ground that appellants had failed to establish the applicable standard of care by which to measure the actions of police officers in the performance of their official duties. In a split-decision, a three-judge panel of this court reversed the trial court and reinstated the jury's verdict. Morgan v. District of Columbia, 449 A.2d 1102 (D.C.1982). The full court vacated the panel's decision and heard arguments en banc. We affirm the trial court's grant of the motion for judgment notwithstanding the verdict.

Absent a special relationship between police department and victim, liability for failure to protect individual citizens from crime does not generally lie against police officials, who occupy positions necessarily fraught with discretion in the administration of justice. Appellants do not fall within the narrow exception to this long-standing rule. Furthermore, the facts of this case, as a matter of law, cannot support a finding of negligence by the city.

In August 1974, Garnett Pinkney Morgan telephoned Metropolitan Police Department Seventh District Headquarters and spoke to Captain Francis J. Tiernan. She told Tiernan that her husband, Officer John Morgan, Jr., who was then assigned to the Seventh District, had threatened her with a gun the night before at their home in Maryland and a month earlier had beaten her, causing her eye to bruise. According to her testimony at trial, Morgan had come home in the early morning hours and after dragging her out of bed, "put the gun to my head and told me that if I didn't leave within the next couple of days, that he would kill me." Morgan then sat in the bedroom chair and eventually fell asleep, whereupon Garnett Morgan left for her mother's house, taking the two-year old and four-year old children with her.

That afternoon, Morgan called Captain Tiernan and explained what had happened, including the earlier eye injury. She told him that she was at her mother's house and was afraid that her husband was going to kill her. Garnett Morgan then asked Captain Tiernan if he "would just make [her husband] stay away" from her. Tiernan suggested she file a complaint with the Maryland authorities because the alleged assault had occurred in her Maryland home. She declined to do so because she did not want to "intimidate" her husband by "having police come to the house. I don't know what he may have done at that time." She also did not want to file a written complaint against her husband with Captain Tiernan; rather, she had called Tiernan "asking for his assistance with my husband, and just to ask [her husband] to stay away from me." Tiernan told her that he could not "put a man out of his own house," but that when Officer Morgan reported to work he would talk with him and call her back.

Captain Tiernan then contacted Lieutenant Bruce H. Swank, Morgan's immediate supervisor, and asked him to bring Morgan in to talk with them. Officer Morgan had been under Swank's command for the previous two years. During this time, according to Swank's trial testimony, Garnett Morgan had called him several times to complain that "her husband was fighting with her, and that he was beating on her, and generally, they were having family arguments." Each time she called, Swank, as part of his normal procedure in handling these kinds of incidents, asked whether a gun was involved, and each time Garnett Morgan said there was not. In Officer Morgan's personnel file, there was no indication of violent conduct during his five years with the department1

Captain Tiernan and Lieutenant Swank met for a discussion with Officer Morgan, told him of Garnett Morgan's report that they had been fighting and, "told him that if he couldn't get along with his wife, that he should leave." After the meeting Tiernan called Garnett Morgan. According to her testimony, Tiernan told her that he "had talked with John and had explained some things to him, and he [Tiernan] said that maybe it would be best if we just separated." Thereafter, Garnett Morgan found an apartment and moved into the District of Columbia. She called Captain Tiernan to let him know that she was moving, and also to assure that Officer Morgan was at work when she moved from her Maryland residence. Unable to ascertain this information immediately, she called several times until Tiernan finally was able to inform her that Morgan had reported and would be at work. She quickly packed her belongings along with some furniture and moved into the apartment, not informing her husband of her whereabouts and maintaining an unlisted telephone number.

Three months later, Officer Morgan arrived at his wife's apartment, choked her into unconsciousness, and forced her into his car. Threatening to kill her if she objected, he drove to her parents' home, took their two children and left. Garnett Morgan then called the police. Along with two other officers, Lieutenant John R. Bowles, Jr. responded to the call and she told him what had happened, including the beating in July and the August gun threat. Lieutenant Bowles contacted Officer Morgan and directed him to report to the precinct. Morgan said that he would do so after he brought the children to the Pinkney house. When Morgan arrived, he was met by the Lieutenant, but rather than proceed with him to the precinct, Morgan carried the youngest child, with the older child beside him, toward the house. Lieutenant Bowles walked behind them. Officer Morgan walked into the house, said to his wife, "I told you so," then took out his revolver and shot at her twice; one of the bullets wounded her and the other hit John Keith, his son. Morgan then turned and shot Lieutenant Bowles, shot and killed Elton Pinkney, and surrendered to the police.2

At trial, Garnett Morgan testified to the events of the preceding months, including her telephone call to Captain Tiernan informing him that Officer Morgan had threatened her with his service revolver. Captain Tiernan testified that "general orders" require him to conduct an official investigation when anyone, including an officer's wife, reports an improper use of an officer's service revolver. Written statements from the individuals concerned must be obtained and a report and recommendation submitted to his superiors. Captain Tiernan testified that he did not "investigate" Garnett Morgan's complaint3 nor did he prepare a written report or recommendation regarding the incident.

I

To avoid later confusion, it is important to state first what this case is not about. It is not about a situation where the police do not respond to an urgent call from a citizen who is in immediate danger of being harmed. In this case, on both occasions the police responded to the requests of Garnett Morgan. Her first request to the police captain was that he speak to her husband in an effort to "keep him away from me" because of the violent threats her husband, a police officer, had made to her. The police complied with this request.

Several months later, the next request was for police aid due to the violence her husband had perpetrated on her and the danger she felt she was then in. The police complied with her request promptly and, when the tragic shootings occurred, the police lieutenant was in the act of arresting her husband — who then briefly eluded the lieutenant by the ruse of returning his children to his wife and perpetrated the shootings.

One may, therefore, rule out in the beginning any notion that this case brings into play other decisions where the police abandon someone in distress or in immediate danger. Here, on both occasions the requests made of the police by Garnett Morgan were complied with promptly. The only genuine question is whether the police should have done more and, not having done more, whether this had, as a matter of law, an attributable relation to the injuries such as to cause responsibility on the part of the city government for damages resulting from the shootings.

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