Thurman v. Dist. of Columbia, 19-CV-912

Citation19-CV-912
Case DateSeptember 15, 2022
CourtCourt of Appeals of Columbia District

Jordan Marcus Thurman, Appellant,
v.

District of Columbia, et al., Appellees.

No. 19-CV-912

Court of Appeals of The District of Columbia

September 15, 2022


Argued February 25, 2021

Appeal from the Superior Court of the District of Columbia (CAB-3993-17) (Hon. Michael L. Rankin, Trial Judge)

Neil E. Nappo for appellant.

Lucy E. Pittman, Assistant Attorney General, with whom Karl A. Racine, Attorney General, Loren L. AliKhan, Solicitor General at the time of argument, and Caroline S. Van Zile, Principal Deputy Solicitor General at the time of argument, were on the brief, for appellee.

Before Easterly and Deahl, Associate Judges, and Washington, Senior Judge.

Washington, Senior Judge:

Appellant, Jordan Thurman, was fifteen years old when he was bitten by a Metropolitan Police Department ("MPD") canine while hiding from MPD officers in his great-grandmother's house. A neighbor called the police when Mr. Thurman and his friends entered his great-

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grandmother's house through a window. As a result of the dog bites, Mr. Thurman filed a five-count complaint against the District of Columbia and MPD Officers Craig Reynolds and Daniel Jones, alleging one count of negligence, one count of personal injuries, one count of excessive force, one count of violation of civil rights, and one count of assault and battery. On September 10, 2019, the trial court granted summary judgment in favor of the officers and the District on all five counts. Mr. Thurman is appealing the grant of summary judgment in favor of the District and the officers on his excessive force, civil rights, and negligence claims.[1]

After careful review, we conclude that the trial court erred in granting summary judgment in favor of the officers on Mr. Thurman's claim of negligence. Accordingly, we reverse the court's grant of summary judgment in favor of the officers and remand on the negligence claim. We affirm the grants of summary judgment for the District and the officers on the excessive force and violation of civil rights claims and for the District on the negligence claim.

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I. Background

On June 13, 2014, Mr. Thurman's school would not let him in the building because he was tardy, so he and two friends decided to go to his great-grandmother's house at 5131 Chillum Place NE. He did not have a key to the house, but one of his friends told a gardener in a neighbor's yard that Mr. Thurman was the grandson of the homeowner. The smallest of Mr. Thurman's friends entered the house through a window and let Mr. Thurman and the other friend in through the door. The gardener saw the boys enter through the window and asked a neighbor to call 9-1-1. The neighbor called 9-1-1 and told the operator that "three little boys" entered 5131 Chillum Place NE.

The occupant of the house, Clarence Winkler, was not at home when the juveniles broke in, but the police called him to inform him about the break-in.[2]Mr. Winkler called his friend, Sergeant Brandon Green, an MPD officer, to let him know he had three firearms in the house in two safes. Mr. Winkler explained that he passed along this information because he wanted the officers to be "aware that there was a weapon in the house," adding, "I don't know who broke in the house,

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so I don't know if they could've broken in the safe [and] took the gun . . . ." Sergeant Green was not on duty, but he told Mr. Winkler that he would pass along the information to the officer then in charge at the precinct.

Officer Reynolds and Officer Jones were called to what was referred to as a burglary in process at 5131 Chillum Place NE. Officer Reynolds and Officer Jones were with the MPD Canine Unit. When the dispatcher stated that juveniles were involved, Officer Reynolds and Officer Jones were going to disregard the call because, under an MPD General Order, the canine unit does not respond to calls when the suspects are juveniles. However, the officers decided to respond to the call when it was reported that weapons were in the house. Officer Reynolds stated in his deposition that the presence of weapons "changes everything." At one point Officer Cynthia Williams, who was already on the scene, could be heard on the 4th District radio channel saying, "The complainant that called is out here with me . . . he saw them go in . . . apparently one of them may be the grandson but he claims he didn't have a key . . . ." Neither Officer Reynolds nor Officer Jones remember hearing Officer Williams's transmission.

Officer Jones and Officer Reynolds arrived at 5131 Chillum Place NE about thirty minutes after getting the initial call. When they arrived, they learned that the

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suspects were still in the house. Sergeant Michelle Starr, Officer Williams, and multiple other officers had arrived before Officer Reynolds and Officer Jones and had surrounded the house. At that point, Mr. Winkler arrived and confirmed that no one was supposed to be in the house.

Officer Jones talked to Mr. Winkler when he arrived, and Mr. Winkler told him there were guns inside the house. Officer Jones stated that he did not ask him what type of guns were in the home. Mr. Winkler maintains that he did tell Officer Jones the locations of the guns, but Officer Jones did not recall that Mr. Winkler told him the guns were in safes. Officer Reynolds did not talk to any officers or neighbors on the scene other than Sergeant Starr. He did not know the ages of the juveniles inside the house. Sergeant Starr stated in her deposition that she did not talk to any civilians on the scene prior to deploying the canines. She did not obtain any descriptions of the suspects or their behavior. Meanwhile, Mr. Thurman and his friends saw the police through the window and ran upstairs. Mr. Thurman proceeded to hide under a blanket when he heard the police come inside.

Sergeant Starr, Officer Jones, and Officer Reynolds decided to use Max, a police canine, to search for the suspects because of the presence of guns in the house. "For tactical reasons and for officer safety," Sergeant Starr approved the

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omission of a canine warning when the officers entered the home with Max. The MPD General Order on Canine Teams states that "[p]rior to all canine deployments (both tactical and non-tactical), the handler shall . . . [i]ssue a loud and clear announcement." However, the Order allows for exceptions to the warning requirement in "exigent circumstances where specific articulated facts demonstrate the need for complete surprise or where the announcement may place the handler in imminent danger," and "the on-scene supervisor must approve the omission." The Order prohibits the use of canines to apprehend juvenile suspects who "pose no immediate threat of serious injury to members on the scene."

Officer Reynolds stated that they determined they would use Max because there were weapons in the house, and the officers' safety was their primary concern. However, the only evidence the officers had of the juveniles potentially being armed were Mr. Winkler's statements that there were weapons inside the house. In his deposition, Officer Jones stated that this was not an exigent or emergency situation, explaining, "There was no rush or [exigent] emergency to go in there immediately without receiving authorization." Sergeant Starr stated that she did not discuss the decision to deploy the canines while omitting the warning with the other Sergeant on the scene, Sergeant Leary.

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Mr. Winkler gave the officers a key to the house. Officer Reynolds and Max entered the house, and Officer Jones provided "tactical backup." Officer Reynolds and Officer Jones both maintain that they omitted a canine warning when entering. However, Officer Williams stated that she was sure that she heard an announcement. Mr. Winkler also said that he heard the officers give a warning that they were entering the house.

Officer Reynolds and Max had completed searching a bedroom when Max turned away from Officer Reynolds and reentered the bedroom, moving toward a comforter or blanket on the floor. Max bit the blanket and Mr. Thurman, who was hiding under the blanket. Officer Reynolds said that Mr. Thurman then "popped his head . . . from underneath the comforter." Mr. Thurman said that Max bit him twice on the face, three seconds apart, for a total of about ten seconds. Officer Reynolds said that after the two bites, he grabbed Max to end the hold.

When they came out of the house, Mr. Winkler identified Mr. Thurman as his nephew. Mr. Thurman was charged and convicted of unlawful entry, which was subsequently cleared from his record.

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On June 8, 2017, Mr. Thurman filed his five-count complaint against the District, subsequently amending his complaint to add Officer Jones, Officer Reynolds, and Officer Leary as defendants.[3] Three of the five counts are relevant for this appeal.[4] First, Mr. Thurman alleges that the officers used excessive force by utilizing the dog to apprehend him without a warning. Second, Mr. Thurman claims that the officers were negligent because they failed to follow department procedures, failed to adequately investigate the situation, failed to adequately control the dog, and improperly released the dog on him and that, therefore, the District should be held liable for negligent hiring and training and for its policy of allowing omission of a warning prior to unleashing a canine. Finally, Mr. Thurman contends that his civil rights were violated.

The District moved for summary judgment, which Mr. Thurman opposed. As part of Mr. Thurman's opposition to the motion for summary judgment, he included an expert affidavit from Mr. Gerard Busnuk, a retired police officer from the Baltimore Police Department with over twenty-nine years of law enforcement experience. Mr. Busnuk did not purport to have any special knowledge of canine

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units. Mr. Busnuk's affidavit addressed "solely the issue of negligence on MPD employees'...

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