Michele Hall v. District of Columbia , 867 F.3d 138 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 10, 2017 Decided August 11, 2017
No. 16-7056
MICHELE H ALL,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00324)
Gregory L. Lattimer argued the cause and filed the briefs
for appellant.
Lucy E. Pittman, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellees. With her on the brief were Karl A. Racine,
Attorney General, Todd S. Kim, Solicitor General, and Loren
L. AliKhan, Deputy Solicitor General.
Before: R OGERS, MILLETT and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
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PILLARD , Circuit Judge: This case arises from
restaurant patron Michelle Hall’s claims that employees of
Cities Restaurant and Lounge, and the Metropolitan Police
Department officers they summoned, reacted overly harshly
when she raised a question about her bill and temporarily left
the restaurant. Hall appeals the district court’s final judgment
against her resulting from dismissal of some of her damages
claims on the pleadings, and others on summary judgment.
Hall celebrated her birthday with friends at Cities. Near
the end of the evening, Hall was surprised by some of the
charges on her bill due to what turned out to be mis-
communication with the promoter who had set up the party for
her. Before the billing question was fully resolved or Hall’s
party disbanded, some additional people on Hall’s guest list
arrived late and texted her; rather than pay a cover charge to
join her at Cities, the late arrivals said they would go to a no-
cover-charge bar across the street and asked Hall to join them
for a quick drink. Hall then stepped out of Cities temporarily
to greet those friends at the bar opposite. When she did so,
Cities still held Hall’s credit card and driver’s license, and
several of Hall’s celebrants stayed at the table at Cities with the
bill, Hall’s purse, her phone, and her birthday gifts.
Cities employees responded as if Hall’s departure were an
attempt to avoid paying her bill. They called the police to
report felony theft of services. The responding officers located
Hall at the bar across the street and broke down the door of the
single-occupancy bathroom where Hall and a friend were
freshening their makeup and using the toilet. Without asking
her any questions about what happened at Cities, Hall
contends, the police handcuffed Hall, dragged her out of the
bar, and detained her on the sidewalk and then in a squad car
for about forty-five minutes. While she was sitting handcuffed
in the police cruiser, Hall asked a passing officer who had not
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been involved in her initial arrest why she was being held. The
officer replied that Hall had walked out on her bill. Hall
objected that she had not; indeed, Cities still had her credit card
and driver’s license. The officer, hearing that information for
the first time, went into the restaurant and came back with a
receipt charging the full amount of Hall’s bill to her credit card.
Hall promptly signed the receipt and the officer released her.
Hall brought this suit for damages against the District of
Columbia, its officers, Cities, and its manager. The district
court dismissed some of Hall’s claims on the pleadings and,
after discovery, granted summary judgment in defendants’
favor on the rest. We affirm in part, vacate in part, and remand
for further proceedings consistent with this opinion.
Background
Because Hall’s claims were dismissed either on the
pleadings or at summary judgment, the factual background
draws inferences in Hall’s favor from her complaint and from
facts revealed through discovery. See Mpoy v. Rhee, 758 F.3d
285, 287 (D.C. Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009)); Tolan v. Cotton, 134 S. Ct. 1861, 1863
(2014) (per curiam). Needless to say, where there are
evidentiary conflicts, jurors might well find the facts
differently. Our recitation of events, as definitive as it may
sound, is thus necessarily provisional due to the procedural
posture of the district court’s ruling.
In 2012, Michelle Hall, who lived and worked in
Washington, D.C., arranged through event promoter Ryan
White to have her twenty-ninth birthday party at Cities
Restaurant and Lounge, located at 919 19th Street Northwest.
White had coordinated Hall’s birthday party at Cities the
previous year, and Hall understood that she would again be
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served two free bottles of alcohol as incentive to bring her
business to Cities. When Hall arrived at Cities for the party on
March 17, Cities requested that Hall leave her credit card and
identification with restaurant employees, which she did.
Several hours later, after the group consumed three bottles
of alcohol and some food, a server presented Hall with a bill
for $1,104.74. It reflected a charge of $935.04 for the food and
all three of the bottles of alcohol the group had consumed, plus
a $169.70 tip. Because Hall had not expected to pay for the
first two bottles of alcohol, she texted her objection to Ryan
White, the party promoter, who responded that she was
mistaken; Cities had not agreed to provide any free bottles of
alcohol this time. Hall felt misled, and when White stopped
responding to Hall’s text messages, she spoke with manager
Seyhan Duru, who alerted the restaurant owner to the dispute.
Meanwhile, Hall’s party guests, who had agreed to contribute
money for the food and third bottle consumed, started putting
cash in a bill book towards paying the check.
While Hall’s friends remained at Cities and attempted to
work something out with Duru and Cities’ owner, Hall went to
a bar across the street to meet friends who had arrived at the
tail end of the party at Cities and did not wish to pay Cities’
forty-dollar cover charge to enter just as the group was
finishing up there. Because Cities had stamped Hall’s hand for
re-entry and the restaurant retained the credit card and driver’s
license she had handed over when she arrived, and because
Hall left her birthday presents, her purse, her cell phone, and
most of her friends at Cities, and had told the server to leave
the bill on the table as they were “still working on it,” J.A. 100,
she did not anticipate that the restaurant would have any
concerns about her temporarily leaving the premises.
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Shortly thereafter, however, a Cities employee called the
police to report that an “intoxicated female” wearing a yellow
sundress had refused to pay her bill. J.A. 165. The police
apparently registered the call as a report of “theft one of
services,” or felony theft in the first degree, meaning the value
of what was stolen exceeded $1000. Lee Dep., 25:16-18, Mar.
9, 2015; D.C. CODE § 22-3212(a). The call was puzzling given
the record evidence showing that Cities had swiped and
received approval for a $935.04 charge to Hall’s credit card
eleven minutes before the police report recorded the call from
Cities.
Police arrived and entered the bar opposite Cities.
According to Hall’s account, they found Hall in the bathroom,
announced themselves as the police and ordered Hall to open
up, almost immediately broke down the door, “slammed” her
against a wall, See Hall Dep., 49:1, Feb. 12, 2015, handcuffed
her, and dragged her out of the bar, all without asking her any
questions to verify Cities’ complaint. The police detained Hall,
restraining her in what Hall alleged and some of the evidence
confirmed to be varying positions of discomfort, for
approximately forty-five minutes.
Hall complained that her handcuffs were too tight. The
arresting officer, Alice Lee, responded by tightening the cuffs.
Lee forced Hall to her knees on the sidewalk, where Hall’s
underwear was exposed to passers-by and her knees scraped
and bruised by the concrete. Lee repeatedly tightened Hall’s
handcuffs, and even yanked Hall’s handcuffed arms behind
her. When Hall asked Lee “What’s going on?” Lee responded
“[Theft of] services.” Hall Dep. 49:18-50:4. Officer Lee did
not identify herself to Hall. Only after Lee had brought Hall
into the street could Hall read Lee’s badge number. Officer
Lee placed the handcuffed Hall in the back of a police cruiser.
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As noted above, what could be viewed as Cities’ and the
police’s over-reaction to Hall’s dissatisfaction about a liquor
charge she had not anticipated was quickly resolved as soon as
an officer listened to Hall’s version of events. While Hall was
sitting handcuffed in the police vehicle with the window down,
she asked another police officer why she was detained. When
the officer responded that Hall had walked out on her bill, Hall
objected that she most certainly had not; in fact, she had even
left her credit card with Cities’ staff. The officer went into
Cities, came out with a credit card receipt charging Hall for the
full bill and, when she promptly signed it, he released her.
Hall suffered emotional trauma, cuts and bruises, and an
injured wrist. She sued the District, Officer Lee and Lee’s
partner (an unknown John Doe officer), Cities, and its manager
Seyhan Duru. The complaint alleged excessive force and
assault and battery by Officers Lee and Doe, intentional and
negligent infliction of emotional distress by the officers and
Duru, negligence on the part of all defendants, conversion by
Cities, defamation by Cities and Duru, and false arrest and false
imprisonment in violation of state law and the United States
Constitution against the officers. Officer Doe does not seem to
have been identified and is not listed as a party on appeal. See
Appellant Br. Certificate as to Parties, Ruling, and Related
Cases.
The district court granted a motion to dismiss all claims
against the District and the officers except the common law
battery claim. Hall v. District of Columbia, 73 F. Supp. 3d 116(D.D.C. 2014). Cities and its manager Seyhan Duru did not
file or join any motion to dismiss. The parties then conducted
discovery, deposing Hall, Officer Lee, Duru, two of Hall’s
friends—Kay Vollans and Gary Jones—who were at Cities
with her that night, and a radiologist who examined Hall’s
injured wrist after the incident Officer Lee, Cities, and Duru
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then moved for summary judgment on all remaining counts.
The court granted judgment to Officer Lee on the battery claim,
concluding that no reasonable jury could conclude that her use
of force was unjustified, and granted summary judgment to
Cities and Duru on the common law tort claims against them.
See Hall v. District of Columbia, No. 13-cv-324, 2016 WL
1452325 (D.D.C. Apr. 12, 2016). Hall appealed.
We affirm the dismissal of the intentional and negligent
infliction of emotional distress claims and the negligence
claims against Officer Lee and the District of Columbia. We
also affirm the grant of summary judgment to Duru on all
claims against him. We vacate the judgment on all remaining
claims and remand for further proceedings. The allegations of
the complaint suffice to make out claims under section 1983 of
false arrest and excessive force, as well as common law assault,
false arrest, and false imprisonment against Officer Lee. The
evidence suffices to create material factual disputes on the
common law battery claim against Officer Lee, and the
defamation, negligence, and conversion claims against Cities.
Analysis
We group the claims into three clusters for analysis, each
of which turns on one of three common issues. First, relevant
to the common law claims against Cities, did Cities employees
act reasonably and in good faith in calling the police to report
Hall’s alleged theft of services? Second, was the police arrest
and detention of Hall reasonable under the Fourth
Amendment? And, third, did police use excessive force against
Hall, or was their force justified by resistance on Hall’s part?
We apply settled District of Columbia law. Our analysis is not
intended to express any view on the ultimate resolution of
Hall’s claims, nor is it intended to modify D.C. law.
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I. Common Law Claims against Cities and Duru
Resolved on Summary Judgment
The viability of the first group of claims turns on whether
a reasonable jury would be required on the summary judgment
record to find that Cities, through its employees, acted
reasonably toward Hall, called the police in good faith, and
charged her only for what she owed, or whether Hall has triable
common law tort claims because the evidence could support
contrary determinations. The district court granted summary
judgment to Cities and its manager Seyhan Duru on all counts
against them. We review the grant of summary judgment de
novo, examining “the facts in the record and all reasonable
inferences derived therefrom in a light most favorable to” Hall.
Robinson v. Pezzat, 818 F.3d 1, 7-8 (D.C. Cir. 2016) (quoting
DeGraff v. District of Columbia, 120 F.3d 298, 299-300 (D.C.
Cir. 1997)). Because, as the district court correctly held, the
record contains no triable factual disputes material to the tort
claims against Cities employee Seyhan Duru, we affirm the
grant of summary judgment in his favor. As to Cities, however,
we conclude that material factual disputes preclude summary
judgment in its favor on all claims against it.
a. The Record Does Not Support Claims Against
Seyhan Duru
Hall’s tort claims against Duru charge him with
negligence, negligent and intentional infliction of emotional
distress, and defamation for calling the police and falsely
accusing Hall of theft. See Compl. ¶ 36. Discovery failed to
corroborate the allegation that Duru placed the 911 call.
Instead, the only record evidence directly on point identifies
manager Carla Urquhart as the Cities employee who called the
police to report that Hall refused to pay. See J.A.165; Lee Dep.,
62:6-16. Duru testified that he did not communicate with the
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police at all. See Duru Dep., 38:1-41:22, Mar. 9, 2015. The
record identifies Urquhart as someone to whom the responding
officers spoke in person. See Lee Dep., 62:6-16; see id. 29:22-
30:16. Hall failed in discovery to ask Urquhart whether Duru
or anyone else told her to call the police. In her own deposition,
Hall admitted that she had not been in a position to observe and
so could not testify who made the phone call. Hall did not
testify to any other interaction between Duru and the police.
See Hall Dep., 31:4-32:8.
Hall contends that Duru’s responsibility for calling or
directing an employee to call the police can be inferred from
Duru’s role as the manager with whom Hall spoke about the
bill. But the record does not support that inference. Hall
testified that she initially disputed the bill with Duru, and that
Duru then went to get the restaurant’s owner. The owner and
Duru then spoke with Hall’s friend, Kay Vollans, and later with
another of Hall’s friends named Alana Hill. Hall Dep. 20:20-
21:13; 23:7-25:19. Duru was not the only Cities employee to
speak with Hall or her party about the bill dispute, nor is there
any evidence that he directed anyone to call the police.
Accordingly, we affirm the district court’s grant of summary
judgment to Duru on the claims against him personally.
b. The Record Contains Triable Issues Supporting
Claims Against Cities
The district court granted summary judgment to Cities on
the ground that it was undisputed that Hall failed to pay the full
amount of her bill, making it reasonable for Cities to report her
to the police for theft of services. Hall, 2016 WL 1452325, at
*3. As we read it, however, the evidence could also support
the contrary conclusion. There are material disputes as to how
much, if anything, Hall owed when Cities reported her to the
police, how much she had paid in cash in addition to the credit
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card charges, and whether Cities acted in good faith in placing
the 911 call.
First, record evidence raises a genuine issue of material
fact as to whether Hall had left sufficient funds to cover her bill
before Cities called the police. Cities charged Hall’s credit
card $935.04—an amount that covered the food and drink
purchases on a $1,104.74 total bill but excluded a $169.70 tip.
A credit card transaction record appears to show that the credit
card company approved the charge at 9:24 p.m., eleven minutes
before police records indicated a call from Cities.
Second, the record does not establish that the tip was
mandatory. Cities’ brief in the district court contended that it
was, Hall, 2016 WL 1452325, at *3, but no witness so testified.
The record does not disclose the restaurant’s tipping policy nor
why, if the tip was mandatory, restaurant employees sought the
credit card company’s approval for only $935.04 rather than
$1,104.74. The restaurant receipt does not state that the tip is
mandatory, but ambiguously shows $169.70 on its own tip line,
before the subtotal, and invites “Add’l Tip.” J.A. 164.
Needless to say, if the tip was optional, Cities could not
reasonably have reported Hall to the police for any failure to
pay it.
Third, Hall testified that, before she went across the street,
members of her party had also put cash in the Cities bill book
to contribute toward the food and the third liquor bottle they
had ordered. Even if the tip were mandatory, a jury could
reasonably conclude the cash the guests had put in the bill
book—with the intention that Hall pocket it before paying the
whole bill with her card, or that it be subtracted from whatever
amount was ultimately charged to Hall’s credit card—sufficed
to cover the $169.70 shortfall. The record thus could support a
determination that Hall had left enough funds to pay her bill in
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full before the arrest, and that Cities knew or should have
known as much.
Fourth, there is a triable issue as to whether Hall had
abandoned the bill when the restaurant contacted police. Under
the law of the District of Columbia, leaving an establishment
without paying for services that one has reason to believe are
available only for compensation is prima facie evidence of
theft of services. D.C. CODE § 22-3211(c). Even a finding that
Hall walked out of the restaurant before the bill was paid would
not, however, obligate a jury to find theft of services. The
undisputed evidence of record could support a jury
determination that Hall did not abandon the bill because Cities
had her credit card, and that in any event she intended to return
to settle up. As noted above, when Hall went to the bar across
the street, she left her credit card and driver’s license with
Cities staff, and left birthday presents, her purse, and her cell
phone at the table in Cities, along with most members of her
party, who also consumed the food and drink that were charged
on the bill. Given all the indicia that the bill had not been
abandoned, Hall’s physical departure from Cities without her
credit card, driver’s license, other possessions, or guests is
hardly dispositive, especially given Cities’ practice of
stamping customers’ hands for re-entry.
Fifth, the record supports an inference that Cities in fact
received a windfall from Hall. Before the police released Hall
from custody, she signed a credit card receipt for $1,104.74—
the full amount of the bill, including tip. So, even if the tip
were mandatory and the cash in the bill book were less than
$169.70, the presence of some cash in the bill book that Cities
picked up and retained supports an inference that Cities
received more than the total on the bill: the $1,104.74 she
signed for in the police cruiser, plus whatever cash was in the
book.
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Sixth, the summary judgment record could support a
finding that Cities acted in bad faith by reporting felony theft—
“theft one”—defined as theft of property worth $1,000 or more.
See Lee Dep., 25:16-18 (“She was the only individual matching
that description for an alleged crime of theft one of services.”);
Lee Dep., 26:6-7 (“[W]e got the call for a theft one of services
from Cities . . . .”); compare D.C. CODE § 22-3212(a) (defining
theft in the first degree as theft of property worth $1,000 or
more and imposing penalty of up to ten years’ imprisonment),
with id. § 22-3212(b) (defining theft in the second degree as
theft of property of any value, carrying a maximum penalty of
180 days’ imprisonment). A jury could reasonably find that the
credit card company had authorized Cities’ charge of $935.04
before Cities called the police, which in turn could suggest that
Cities misrepresented to the police the amount of money that
Hall owed the restaurant: On the summary judgment record, a
reasonable jury could find that Hall arguably only owed a
maximum of $169.70 minus the cash in the book—potentially
a net negative, as just discussed, but at most a misdemeanor
amount.
The factual record, with inferences drawn in Hall’s favor,
defeats summary judgment on all claims against Cities.
Accordingly, we vacate the order granting summary judgment
to Cities and remand for further proceedings.
i. The Record Supports Defamation by
Cities
Hall has a viable defamation claim because a reasonable
jury could find on this record that Cities employees acted in
bad faith by reporting Hall to the police as having committed
felony theft. Defamation consists of:
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(1) . . . a false and defamatory statement concerning the
plaintiff; (2) that the defendant published . . . without
privilege to a third party; (3) [with] fault . . .
amount[ing] to at least negligence; and (4) either . . .
the statement was actionable as a matter of law
irrespective of special harm [i.e.the loss of something
having economic or pecuniary value caused by
someone other than the defamer,] or . . . its publication
caused the plaintiff special harm.
Williams v. District of Columbia, 9 A.3d 484, 491 (D.C. 2010);
see Charlton v. Mond, 987 A.2d 436, 438 n.4 (D.C. 2010)
(“Publication of defamatory matter is its communication . . . to
one other than the person defamed.”) (quoting RESTATEMENT
(SECOND) OF TORTS § 577(1) (1977)). A statement that falsely
imputes a criminal offense is defamatory per se. See Smith v.
District of Columbia, 399 A.2d 213, 220 (D.C. 1979); see also
Von Kahl v. Bureau of Nat’l Affairs, Inc., 934 F. Supp. 2d 204,
218 (D.D.C. 2013).
District of Columbia law provides a qualified privilege to
any person who reports a crime, as long as the “statement about
suspected wrongdoing is made in good faith to law
enforcement authorities.” Carter v. Hahn, 821 A.2d 890, 894
(D.C. 2003) (quoting Columbia First Bank v. Ferguson, 665
A.2d 650, 655 (D.C. 1995)). No privilege attaches to a
statement made “without just cause or excuse, with such a
conscious indifference or reckless disregard as to its results or
effects upon the rights or feelings of others as to constitute ill
will.” Id. (quoting Columbia First Bank, 665 A.2d at 656).
A jury could reasonably conclude that Cities acted in bad
faith when it called the police. As described above, the record
supports an inference that Cities reported Hall for theft of
services in the first degree—a felony that is triggered by theft
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of $1,000 or more. A reasonable jury could conclude that
Cities’ employees negligently made a false report, indifferent
to or reckless of its effects on Hall, for at least two reasons.
First, as discussed above, a reasonable jury could conclude that
Cities charged Hall in full or, indeed, that Cities overcharged
her by keeping the cash in the bill book as well as charging
Hall’s credit card, which a reasonable jury could also conclude,
Cities had already charged for the full amount of the party’s
food and alcohol. Second, given that the restaurant stamped
the hands of patrons upon entry in the apparent expectation that
they might come and go throughout the evening, Hall had not
retrieved the credit card and driver’s license she turned over
when the party arrived, and Hall’s friends and many of her
possessions were still at the table they had occupied with Hall
throughout the evening, a reasonable jury also could conclude
that Cities lacked any reasonable basis to believe that Hall’s
exit from the restaurant was anything but temporary.
Accordingly, we vacate summary judgment on Count VIII
alleging defamation against Cities.
ii. The Record Supports Cities’ Negligence
The same facts that support the defamation claim suffice
to create a triable issue regarding negligence. To prove a
negligence claim, a plaintiff must establish “(1) that the
defendant owed a duty to the plaintiff, (2) breach of that duty,
and (3) injury to the plaintiff that was proximately caused by
the breach.” Night & Day Mgmt., LLC v. Butler, 101 A.3d
1033, 1038 (D.C. 2014). “In the District of Columbia the
applicable standard for determining whether an owner or
occupier of land has exercised the proper level of care to a
person lawfully upon his premises is reasonable care under all
of the circumstances.” Id. (quoting D.C. Hous. Auth. v.
Pinkney, 970 A.2d 854, 866 (D.C. 2009)). Further, “[a]s a
general rule[,] the proprietor of a place of public resort is
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subject to liability to his business invitees by the acts of other
patrons or third persons if the proprietor by the exercise of
reasonable care could have known that such acts were being
done or were about to be done.” Grasso v. Blue Bell Waffle
Shop, Inc., 164 A.2d 475, 476 (D.C. 1960). There is no dispute
that Hall was lawfully at Cities and that Cities had a duty to
treat her reasonably under the circumstances. See Sandoe v.
Lefta Assocs., 559 A.2d 732, 738 (D.C. 1988). Under the
familiar respondeat superior doctrine, “an employer may be
held liable for the acts of his employees committed within the
scope of their employment.” Brown v. Argenbright Sec., Inc.,
782 A.2d 752, 757 (D.C. 2001). Thus, if Cities’ personnel
lacked grounds to conclude that Hall owed and refused to pay
an amount in excess of $1,000, then Cities may be liable for
their negligent act of reporting Hall to the police. See id. at
758.
The district court granted summary judgment to Cities on
the negligence claim because, in its view, Cities did not
proximately cause Hall’s injuries. Causation for purposes of
the negligence claim entails a two-pronged inquiry: (1)
whether the defendant’s alleged negligence was the “cause-in-
fact” of the plaintiff’s injury, and (2) whether the defendant
proximately caused the injury or instead, despite cause-in-fact,
should be relieved of liability because the “chain of events
leading to the plaintiff’s injury is unforeseeable or highly
extraordinary in retrospect.” Majeska v. District of Columbia,
812 A.2d 948, 950 (D.C. 2002) (quoting District of Columbia
v. Carlson, 793 A.2d 1285, 1288 (D.C. 2002)). Liability
attaches to one who sets in motion harmful conduct performed
by another—such as the police officers here—when “the
danger of an intervening negligent or criminal act should have
been reasonably anticipated and protected against.” Carlson,
793 A.2d at 1290 (quoting Lacy v. District of Columbia, 424
A.2d 317, 323 (D.C. 1980)).
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Based on the evidence of record, a reasonable jury could
find that Cities’ call actually caused the arrest, and that it was
foreseeable that police would arrest Hall based on Cities’ report
that Hall fled the establishment after having refused to pay a
bill that it said exceeded $1,000. There is certainly no evidence
that Duru, Urquhart, or anyone else working for Cities told the
police that arrest was unnecessary, or that they did anything but
invite and encourage it. Indeed, Hall testified that she saw
Duru standing outside staring at Hall when she was in
handcuffs in the squad car, and that he was nodding and
laughing at Hall, gloating over her arrest. See Hall Dep., 31:7-
11, 32:3-8. In sum, a jury could find both that Cities’
personnel’s call to the police was the cause-in-fact of Hall’s
arrest, and that they should have foreseen that their allegation
of facts amounting to felony theft would cause an arrest and
some associated harm, satisfying the proximate cause
requirement.
The district court further held that Cities could not have
reasonably foreseen that calling the police would result in
Officer Lee’s use of excessive force. See Hall, 2016 WL
1452325, at *3. But anticipation that the force would be
unlawfully excessive is not a prerequisite to Cities’ negligence
liability to Hall. A reasonable jury could find it foreseeable
that an unjustified arrest, even without excessive force, would
cause some modicum of the physical and emotional harm the
record suggests Hall experienced due to Cities’ 911 call. Arrest
without justification can be deeply disturbing, and arrest itself
often involves some physical discomfort, unnatural restraint,
and forceful handling.
For example, Hall testified that the arrest left her bruised
on her arm, chin, shoulder and knees, scraped at her knees, and
her wrist cut and bleeding as well as internally injured. Hall
17
Dep., 80:4-82:20; J.A. 61-63. She also testified that the arrest
was a “very traumatic experience” causing her residual anxiety,
that she repeatedly remembers the day “too much for comfort,”
and that the arrest has had a “significant effect” on how and
how much she interacts with people. Hall Dep., 106:1-20. In
view of the record evidence capable of supporting a finding that
Cities’ negligent or reckless conduct proximately caused the
arrest, a jury that so found should be permitted to determine
what portion of Hall’s harm would have been reasonably
foreseeable had the arrest been unjustified but the force
reasonable. Indeed, Hall’s emotional distress alone could
support negligence liability: “[A] plaintiff may recover for
negligent infliction of serious emotional distress, even without
an accompanying physical injury, if the plaintiff was in the
zone of physical danger and was caused by defendant's
negligence to fear for his or her own safety . . . regardless of
whether plaintiff experienced a physical impact as a direct
result of defendant’s negligence.” Jones v. Howard Univ., Inc.,
589 A.2d 419, 423 (D.C. 1991) (alteration in original) (quoting
Williams v. Baker, 572 A.2d 1062, 1067 (D.C.1990) (en banc)).
iii. The Record Supports Conversion by
Cities
There is no dispute that Hall has now, at the very least,
paid Cities’ bill in full. Indeed, as noted above, there are
various ways in which the evidence could support a finding that
Hall overpaid Cities. First, the record evidence does not place
beyond dispute that the $169.70 tip on the final bill was
mandatory. A jury could find that the tip was optional, but that
Cities effectively extracted it from her with the aid of the
police, amounting to conversion. Second, even if Hall owed a
tip, the evidence showed she signed a credit card receipt for the
full amount, including that tip, and that Hall’s party also put in
the bill book cash which Cities never credited or returned to
18
her. The evidence thus could readily support a determination
that Hall overpaid, having left cash, but also ultimately paying
the full amount of the bill, including tip, with her credit card.
Whether this claim is best analyzed under the conversion
doctrine as Hall asserts, see Chase Manhattan Bank v. Burden,
489 A.2d 494, 495 (D.C. 1985) (conversion doctrine imposes
liability for “any unlawful exercise of ownership, dominion or
control over the personal property of another in denial or
repudiation of his rights thereto”), or is more aptly viewed as a
claim of unjust enrichment, see Falconi-Sachs v. LPF Senate
Square, LLC, 142 A.3d 550, 556 (D.C. 2016) (unjust
enrichment occurs where “a person retains a benefit (usually
money) which in justice and equity belongs to another”), there
is a triable factual dispute over whether Hall unwillingly
overpaid Cities. The district court treated the tip as mandatory
and as unpaid, but there is no record evidence to require that
inference. See Hall, 2016 WL 1452325, at *4. Moreover, the
record could support a finding that the circumstances under
which Hall signed for the full amount of the bill—in handcuffs
in the back of a police cruiser—were coercive. See Hall Dep.
32:12-14; Appellant Br. at 22. Regardless of whether the tip
was required or Hall’s signature coerced, once Hall had signed
for $1,104.74, the cash left in the bill book was a clear windfall
to Cities. Count VII alleging conversion is thus remanded for
further proceedings.
II. Probable Cause-Related Claims Against Officer
Lee Dismissed on the Pleadings
The second cluster of claims turns on whether the police
arrested Hall without the requisite justification under the
Fourth Amendment and the common law. Unlike the claims
just discussed, which the district court disposed of at the
summary judgment stage, Officer Lee filed and the court
19
granted a motion to dismiss these claims on the pleadings under
Federal Rule of Civil Procedure 12(c). The court determined
that Hall’s own allegations supported probable cause, and that
in any event Officer Lee was entitled to qualified immunity on
the conduct alleged. It thus dismissed Hall’s section 1983 false
arrest and common law false arrest and imprisonment claims
for failure to state legally cognizable claims. Hall, 73 F. Supp.
3d at 121.
We review those determinations de novo, asking whether,
treating the plaintiff’s allegations as true and reading them in
the light most favorable to the plaintiff, the complaint shows
that defendants necessarily acted with probable cause to arrest
or, if not, whether Officer Lee would be entitled to qualified
immunity from liability for her actions. Mpoy, 758 F.3d at 287;
Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 129-30 (D.C.
Cir. 2012) (quoting Iqbal, 556 U.S. at 678). A Rule 12(c)
motion considers the defendants’ answers together with the
complaint, so we take into account Officer Lee’s Answer
asserting the affirmative defense of qualified immunity in
response to the section 1983 claims. See Defendant Officer
Alice Lee’s Answer to the Complaint at 12, 1:13-cv-00324
(filed July 11, 2013); Gomez v. Toledo, 446 U.S. 635, 640
(1980) (holding that defendant bears the burden of pleading
qualified immunity defense).
We hold that the complaint alleges action by Officer Lee
that no reasonable officer would have taken, and thus was in
violation of the Fourth Amendment and the common law. As
discussed in more detail below, we remand the false arrest and
imprisonment claims to the district court for further
proceedings. 1
1
Because she did not raise them in her briefs on appeal, Hall
forfeited her claims of intentional and negligent infliction of
20
a. Section 1983 False Arrest Claim Against
Officer Lee
Hall’s first count charged Officer Lee under 42 U.S.C.
§ 1983 with false arrest in violation of the Fourth Amendment.
Compl. ¶ 44. The Fourth Amendment requires probable cause
for any arrest. See Dunaway v. New York, 442 U.S. 200, 208-
09 (1979). Officers may conduct brief investigatory stops
supported only by reasonable suspicion, see Terry v. Ohio, 392
U.S. 1, 27 (1968), which is a “less demanding standard than
probable cause” in terms of both the reliability and the
extensiveness of the information required. Alabama v. White,
496 U.S. 325, 330 (1990); accord Navarette v. California, 134
emotional distress, and negligence by Officer Lee. See Terry v.
Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996). Hall argues that she
preserved those claims on appeal by broadly contending that “[t]he
trial [c]ourt had no legal basis to dismiss any of the Appellant’s
claims,” and that “absolutely no basis whatsoever existed for
judgment on the pleadings in any respect.” Appellant Br. at 5, 8; see
Reply Br. at 6-7. The first statement appeared in the summary of
argument and the latter in a section heading. Without any arguments
advancing the disputed claims, such blanket, conclusory assertions
are insufficient to preserve them. See Am. Wildlands v. Kempthorne,
530 F.3d 991, 1001 (D.C. Cir. 2008); see also Bryant v. Gates, 532
F.3d 888, 898 (D.C. Cir. 2008).
Hall also failed to preserve her negligence claim against the
District. Although she did include in her appellate brief a cursory
discussion of that negligence claim, see Appellant Br. at 11, Hall did
not defend it before the district court, see Hall, 73 F. Supp. 3d at 122;
see also Opposition to Motion for Judgment on the Pleadings, 1:13-
cv-00324 (filed May 6, 2014). It is therefore forfeited. See District
of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C. Cir.
1984) (“It is well settled that issues and legal theories not asserted at
the District Court level ordinarily will not be heard on appeal.”).
21
S. Ct. 1683, 1687 (2014). In her deposition, Officer Lee
characterized her encounter with Hall as a justified Terry stop.
See Lee Dep., 25:20-21. But the character of Officer Lee’s
seizure of Hall does not turn on whether she intended it to be
an arrest. And, tellingly, Officer Lee does not maintain on
appeal that the encounter was an investigative stop rather than
an arrest. Instead, she argues only that the facts pleaded
demonstrate that she acted with probable cause to arrest Hall.
See Appellee Br. 19.
For purposes of the Fourth Amendment, a stop that is
unduly prolonged or intrusive transforms from an investigative
stop into an arrest requiring probable cause. See United States
v. Sharpe, 470 U.S. 675, 685 (1985). The point at which an
investigative stop becomes an arrest is not marked with a bright
line. See id. Rather, the Court has “emphasized the need to
consider the law enforcement purposes to be served by the stop
as well as the time reasonably needed to effectuate those
purposes.” Id. In other words, investigative detention must last
“no longer than is necessary to effectuate the purpose of the
stop.” United States v. Hutchinson, 408 F.3d 796, 800 (D.C.
Cir. 2005) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)
(plurality opinion)).
Relevant to that inquiry, and particularly germane on these
alleged facts, is “whether the police diligently pursued a means
of investigation that was likely to confirm or dispel their
suspicions quickly, during which time it was necessary to
detain the defendant.” Sharpe, 470 U.S. at 686. An
investigatory stop “to maintain the status quo momentarily
while obtaining more information” would have been “most
reasonable in light of the facts known to [Lee] at the time.”
Adams v. Williams, 407 U.S. 143, 146 (1972). Hall’s complaint
alleges that Lee did not, however, undertake even the most
basic means of investigation that could “confirm or dispel [her]
22
suspicions quickly.” Sharpe, 470 U.S. at 686; accord Compl.
¶ 23. Officer Lee did not attempt to verify Cities’ contentions
before handcuffing Hall, forcibly removing her from the bar,
and putting her in the police cruiser. Compl. ¶¶ 23-28. And
Lee failed to ask simple questions that might have uncovered
that Hall had already provided her credit card, Cities may have
already charged $935.04 to that card, Hall never actually
refused to pay or left under circumstances suggesting she did
not intend to return to settle her bill, and Hall’s friends were
still present and might have had the authority and intention to
pay or to contact Hall to confirm her intentions. See Id. ¶¶ 19,
35. Moreover, Lee detained Hall for forty-five minutes, which
a jury could find to be far longer than reasonably necessary to
effectuate the purposes of an investigative stop, particularly
given that the police found Hall close to Cities and all the
relevant witnesses. On the facts as alleged, Officer Lee’s
detention of Hall amounted to an arrest.
We are mindful that courts should not indulge in
“unrealistic second-guessing” of an officer’s assessment in a
“swiftly developing situation.” Sharpe, 470 U.S. at 686. But
here, on the facts as pleaded, the matter was quickly resolved
once the police asked Hall a few, basic questions. In other
words, we need not indulge any counterfactuals. Another
officer’s actions at the scene show that, if Officer Lee had
simply asked Hall about the bill Cities claimed that Hall
refused to pay, Lee quickly would have discovered that Hall’s
arrest and detention were unnecessary and unjustified.
Having concluded that Hall’s detention was an arrest, not
a mere investigatory stop, we consider whether Officer Lee
acted with the requisite probable cause. Whether an officer
acted with probable cause is an objective inquiry, dependent on
whether the officer acted on the basis of “reasonably
trustworthy information . . . sufficient to warrant a prudent
23
[person] in believing that the [suspect] had committed or was
committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964).
The precise point at which probable cause arises is “fluid,” and
requires a “totality-of-the-circumstances analysis.” Illinois v.
Gates, 462 U.S. 213, 232, 238-39 (1983).
Probable cause to arrest requires at least some evidence
supporting each element of the offense. The complaint alleges
Officer Lee told Hall she was being detained for committing
“[t]heft of services.” Compl. ¶ 24. Prima facie evidence of
theft of services is evidence that “a person obtained services
that he or she knew or had reason to believe were available to
him or her only for compensation,” but the person “departed
from the place where the services were obtained knowing or
having reason to believe that no payment had been made for
the services rendered.” D.C. CODE § 22-3211(c). According
to the complaint, the officers acted on the basis of a phone call
from Cities accusing Hall of theft of services. See Compl. ¶ 36.
The complaint alleges the call was placed after Cities had
already charged Hall’s bill to her card and received approval
from the credit card company. The facts as alleged thus do not
support the reported theft of services. There are no allegations,
moreover, that officers took even the simplest steps to verify
the details of the ostensible payment refusal. Taking the
allegations of the complaint in the light most favorable to Hall
and in the absence of information to corroborate Cities’
assertions that Hall abandoned her bill, the district court could
not conclude as a matter of law that the police had probable
cause to conclude that Hall had committed or was committing
theft of services.
A phone call from a member of the public lodging a
complaint is not alone probable cause when the caller is not
known to the police as reliable and when the complaint could
readily be verified but is not (as here, where the police failed to
24
ask Hall whether she in fact refused to pay)—at least in a
circumstance such as the complaint Cities lodged here, which
did not implicate an emergency situation, threatening conduct,
a matter of public safety, or similar urgent concerns. See
Adams, 407 U.S. at 146-47 (known reliable informant’s tip
“that was immediately verifiable at the scene” supported
reasonable suspicion to justify a stop, but “may have been
insufficient for a[n] arrest or search warrant”); see also
Navarette, 134 S. Ct. at 1692 (describing as a “close case,” but
finding police had reasonable suspicion for a brief investigative
stop of vehicle based on anonymous 911 call reporting that a
specific vehicle had run caller’s car off the road); Florida v.
J.L., 529 U.S. 266, 272-73 (2000) (holding anonymous tip that
accurately described subject’s location and appearance, but did
not show reliability in its “assertion of illegality,” did not
provide reasonable suspicion, while acknowledging potential
“circumstances under which the danger alleged in an
anonymous tip might be so great as to justify a search even
without a showing of reliability.”). If it were otherwise,
members of the public could routinely call the police and, on
the caller’s word alone, get their enemies locked up.
The decisions of courts reviewing similar circumstances
reinforce the inadequacy of the facts as alleged to show
probable cause. In Moore v. Marketplace Rest., Inc., 754 F.2d
1336 (7th Cir. 1985), police responded to a call from a manager
at the Marketplace Restaurant who told them that five people
consumed drinks, soups, and salads and left without paying. Id.
at 1340. The manager described the suspects and their
vehicles, said the suspects were staying overnight at a nearby
camping area, and said they would press charges should the
suspects be apprehended. Id. Police went to the campground,
found the vehicles the manager had described, and knocked on
the doors of the campers in which the suspects were sleeping.
The officers entered the campers, asked whether the occupants
25
had been at the Marketplace Restaurant and, upon hearing they
had, arrested them all. The officers took the suspects to jail
where they detained them for approximately four hours. Id. at
1340-41.
The Moore court lamented that the “entire episode [might]
have been avoided if the officer[s] . . . had used reasonable
judgment and conducted a proper investigation, inquiring both
as to the plaintiffs’ presence in the restaurant and the dispute
over the bill.” Id. at 1345-46. The record showed the campers
presented no risk of flight nor any danger to officers. There
was no allegation of any serious crime; only a small dinner bill
was at stake in the claimed theft of services. Id. at 1345.
Therefore, the court determined, the deputies’ investigation at
the scene was potentially insufficient and the potential want of
probable cause remained an open jury question. Id. at 1347.
Similarly, in Allen v. City of Portland, 73 F.3d 232 (9th
Cir. 1995), a family of three attempted to use a half-price
coupon to pay for part of their $25 meal. Id. at 234. The
restaurant told them the coupon could not be used. Id. In
protest, the family left $15 and the coupon to cover the meal.
Id. The restaurant called 911 and reported a theft. Id. A
responding officer testified that the reported theft “did not seem
to be [of] a very large amount.” Id. Nonetheless, officers
tracked the family to a second restaurant where the family had
relocated, followed one of the family members into the
women’s restroom, and “after a brief discussion told [the
woman] that she was under arrest.” Id. Before the arrest, the
woman acknowledged that there had been a dispute over the
cost of the meal and did not claim to have paid the full price
demanded, but the court held that the officers lacked probable
cause to arrest. Id. at 234-35.
26
When pressed at oral argument for any more direct
support, the District of Columbia cited Royster v. Nichols, 698
F.3d 681 (8th Cir. 2012), but that decision also fails to support
a determination that the officers had probable cause in this
case. In Royster, the Eighth Circuit concluded that police had
probable cause to arrest Royster for theft of services after he
refused to sign his credit card receipt when prompted to do so
by the police. Id. at 684-86, 689-90. Here, Hall did just the
opposite.
Finally, Officer Lee asserts qualified immunity. Qualified
immunity shields officers from suit for false arrest when, “in
light of clearly established law and the information the
[arresting] officers possessed,” a reasonable officer could have
believed the arrest was lawful. Hunter v. Bryant, 502 U.S. 224,
227 (1991) (per curiam) (alteration in original) (quoting
Anderson v. Creighton, 483 U.S. 635, 641 (1987)); accord
Barham v. Ramsey, 434 F.3d 565, 573 (D.C. Cir. 2006). In
other words, “if a reasonable officer could have believed that
probable cause existed” to arrest Hall on the facts as Hall
alleged them, Officer Lee would be entitled to immunity.
Hunter, 502 U.S. at 228. Cities’ phone call giving a one-sided
and uncorroborated account of events was not “reasonably
trustworthy information . . . sufficient to warrant a prudent
[officer] in believing” that Hall committed theft of services. Id.No reasonable officer would have arrested Hall for theft of
services, as Officer Lee did, without even attempting to verify
that Hall indeed refused and did not intend to pay her bill.
Because on the allegations of the complaint Lee’s
detention of Hall constituted a de facto arrest, and Lee acted
without probable cause or even a reasonable claim thereto,
judgment on the pleadings was not warranted on Hall’s section
1983 false arrest claim against Lee.
27
b. Common Law False Arrest and
Imprisonment Claims Against Officer Lee
The lack of probable cause for Hall’s arrest also supports
vacatur of the order dismissing on the pleadings Hall’s
common law false arrest and imprisonment claims.
Under D.C. common law, false arrest and false
imprisonment are as a practical matter indistinguishable.
Enders v. District of Columbia, 4 A.3d 457, 461 (D.C. 2010).
The essential elements of liability are “(1) the detention or
restraint of one against his or her will, and (2) the unlawfulness
of the detention or restraint.” Id. (quoting 32 AM. J UR. 2d § 7
(2007)); see also Harris v. U.S. Dep’t of Veterans Affairs, 776
F.3d 907, 911-12 (D.C. Cir. 2015). The central question here
is whether the arrest was justified—that is, whether it was
supported by probable cause. As we discussed above, the
allegations of the complaint do not show probable cause to
arrest Hall. Accordingly, judgment on the common law false
arrest and imprisonment claims against Officer Lee is vacated.
III. Excessive Force Claims Against Officer Lee
Finally, we turn to the third question in our analysis: Did
police use excessive force against Hall, or was their use of force
justified by resistance on Hall’s part? Hall’s complaint alleged
three counts that hinge on this question: Count I’s section 1983
excessive force claim, Count II’s common law assault claim,
and Count III’s common law battery claim. 2 The district court
2
The district court dismissed the entirety of Count I on the pleadings
based on its conclusion that the officers acted with probable cause to
arrest Hall, seemingly confining its analysis to a section 1983 false
arrest claim. Hall, 73 F. Supp. 3d at 120-21. It is not apparent why
the court did not read Count I to assert a section 1983 excessive force
28
dismissed the excessive force and assault claims on the
pleadings, and granted summary judgment against Hall on the
battery claim. We review both types of disposition de novo and
draw all inferences in Hall’s favor. For the former, we look
only to the facts as pleaded; for the latter, we have the benefit
of evidence produced during discovery. See Mpoy, 758 F.3d at
287; Robinson, 818 F.3d at 8.
a. Facts as Pleaded Support Claims of
Unconstitutional Excessive Force and
Common Law Assault
As pleaded, the facts relevant to Lee’s use of force are as
follows: Hall was in the bathroom of the bar across the street
from Cities when there was a knock at the door, to which Hall
responded, “Someone’s in here.” Compl. ¶ 21. Then came a
louder knock and the statement, “It’s the police.” Id.
“Immediately thereafter,” without awaiting a response, Lee and
her partner “broke down” the bathroom door, “threw [Hall] up
against the bathroom wall,” and handcuffed her. Id. ¶ 22. Lee
then “dragged” Hall out of the restaurant. Id. ¶ 24. Outside the
restaurant, Lee “continued to tighten the handcuffs on [Hall’s]
wrists to the point that [Hall] lost feeling in her thumb and hand
and told [Lee] that she was hurting [Hall], but [Lee] still
retained a firm grip on [Hall’s] upper right arm, enough to leave
a full handprint bruise.” Id. ¶ 26. Lee then “dragged” Hall to
a police cruiser and “threw” Hall in the back seat. Id. ¶ 28.
claim as well. The complaint spells out that “Defendants Lee and
John Doe substantially and meaningfully deprived Plaintiff of her
right to be secure in her person under the Fourth Amendment,
subjected Plaintiff to objectively excessive and excessive use of
force which were unreasonable and constitute[d] an unlawful
seizure.” Compl. ¶ 45.
29
i. Section 1983 Excessive Force
We analyze a section 1983 claim of excessive force in
violation of the Fourth Amendment under the constitutional
“objective reasonableness” standard. Cty. of Los Angeles v.
Mendez, 137 S. Ct. 1539, 1546 (2017) (quoting Saucier v. Katz,
533 U.S. 194, 207 (2001)); accord Graham v. Connor, 490
U.S. 386, 396 (1989). We assess whether the use of force was
reasonable by balancing the “nature and quality of the intrusion
on the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the
intrusion.” Tolan, 134 S. Ct. at 1865 (quoting Tennessee v.
Garner, 471 U.S. 1, 8 (1985)). We pay “careful attention to
the facts and circumstances of [the] particular case, including
the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officer or others, and
whether [s]he is actively resisting arrest or attempting to evade
arrest by flight.” Johnson v. District of Columbia, 528 F.3d
969, 974 (D.C. Cir. 2008) (first alteration in original) (quoting
Graham, 490 U.S. at 396). “An officer’s act of violence
violates the Fourth Amendment’s prohibition against
unreasonable seizures if it furthers no governmental interest,
such as apprehending a suspect or protecting an officer or the
public.” Id. at 976. Because Officer Lee raised a defense of
qualified immunity, we analyze the excessive force claim with
an additional layer of protection for the officer, asking whether
the violated right was clearly established. See Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (per curiam); Saucier, 533
U.S. at 200-02.
The complaint alleges that Officer Lee “threw Plaintiff up
against the bathroom wall,” “dragged Plaintiff out of the [bar],”
“tighten[ed] the handcuffs on Plaintiff’s wrists to the point that
Plaintiff lost feeling in her thumb and hand,” “dragged Plaintiff
to an empty parked police cruiser . . . and threw Plaintiff in the
30
back seat.” Compl. ¶¶ 22, 24, 26, 28. It further alleges that
Officer Lee thereby injured Hall’s wrist. Id. ¶ 32. The
complaint contains no indication that Hall posed any threat to
Lee or others, or that Hall had committed a serious crime. On
the facts as the complaint describes them, Lee’s force was
without justification, and the excessive force claim should not
have been dismissed on the pleadings. We vacate the dismissal
and remand the claim for further proceedings.
ii. Assault
The same allegations that support the claim of excessive
force against Lee also require reversal and remand of the
district court dismissal of the assault claim. “An assault is an
intentional and unlawful attempt or threat, either by words or
by acts, to do physical harm to the victim.” Evans-Reid v.
District of Columbia, 930 A.2d 930, 937 (D.C. 2007) (internal
quotation marks omitted). The district court held that the
complaint fails to allege “that the officers made any threats of
harm which were objectively unreasonable.” Hall, 73 F. Supp.
3d at 121. We read the complaint to allege a course of conduct
that conveyed a threat to Hall, reasonably causing her to fear
for her safety. Officers broke down the bathroom door, threw
Hall up against a wall, dragged Hall around, and tightened her
cuffs when she protested that she was in pain. The officers did
so abruptly and without warning, ignored her queries and
objections, and refused to identify themselves or explain what
was going on. Those allegations are fairly read to claim not
only excessive use of force, but also a threatening message of
more brutality in store for Hall if she questioned the officers’
actions.
31
b. Facts Revealed Through Discovery Support
the Battery Claim Against Officer Lee
Hall’s testimony corroborated and added detail to the
complaint’s allegations; nothing in discovery indisputably
defeated any material aspect of the allegations that stated the
excessive force claims. For instance, Hall testified that, after
police knocked on the single-occupancy bathroom door and
yelled, “Open up, it’s the police,” Hall let out a “small giggle,”
but before she “even ha[d] time to think about opening the
door,” the officers broke it down and slammed Hall against the
wall. Hall Dep., 47:15-48:6. Hall testified that when she
complained to Officer Lee “that the handcuffs were too tight,”
Lee told Hall to “shut up” and then Officer Lee “pushed the
sides to tighten” the cuffs. Id. at 51:20-52:6. When Hall
complained again and stated that her thumb was going numb,
Lee told her to “[s]hut up” and “stop resisting.” Id. at 54:7-11.
Officer Lee twice tightened Hall’s handcuffs in response to
Hall’s complaints. Id. at 73:10-18. Officer Lee forced Hall
down on her knees on the concrete, scraping and bruising her.
Id. at 80:19-22. Lee held Hall there with her knee in Hall’s
back. Id. at 58:17-19. When Hall attempted to stand up with
her hands cuffed behind her, Officer Lee grabbed Hall by her
elbows behind her back and “yanked” her up. Id. at 54:22.
Eventually, Lee “drag[ged]” Hall to a police cruiser and threw
her in the backseat. Id. at 63:12-13.
Two of Hall’s friends who witnessed the scene
corroborated her testimony. Kay Vollans, who was with Hall
in the bathroom of the bar, testified that police kicked in the
door and that Lee dragged Hall out of the bar. Vollans Dep.,
23:15-23:17; 25:22-26:11, Mar. 19, 2015. Once outside,
Vollans testified, Lee forced Hall to her knees on the concrete
sidewalk, and lifted Hall’s hands behind her back and pointed
them to the sky while Hall was handcuffed. Id. at 29:17-20;
32
34:4-10. Hall’s complaints of pain throughout the interaction
were met with commands to shut up. Id. at 37:4-17. Gary
Jones also testified that Lee dragged Hall out of the bar and that
when Hall was on the ground, Lee put her knee in Hall’s back
while pulling Hall’s arms up behind her by the cuffs. Jones
Dep., 27:3-28:21; 36:16-18, Mar. 19, 2015.
Officer Lee’s testimony characterized the interaction
differently. She testified that her partner, a male officer, was
the one who “grabbed” Hall in the bathroom and handcuffed
her. Lee Dep., 25:1-8. Officer Lee testified that police
handcuffed Hall because she fit the description of a black
female wearing a yellow sundress who had reportedly
committed “theft one of services,” a felony. Id. at 25:14-18.
According to Lee, Hall was considered a flight risk because she
had left Cities. Id. at 26:4-16. Lee testified that she “placed”
Hall down on the sidewalk; she later testified that she did so for
fear that Hall might “stumble and fall,” given her high heels.
Id. at 65:18-66:2. And Lee testified that Hall was “screaming,
and shouting, and fighting, and pulling away,” and was
generally “not compliant.” Id. at 28:10, 65:15.
Finally, the parties devote multiple pages in their appellate
briefs to arguing over the severity of Hall’s wrist injury and its
relevance to the analysis. See Appellant Br. 13 (arguing that
Hall was diagnosed with and treated for a broken wrist);
Appellee Br. 31-33 (arguing the “undisputed medical records
show that Ms. Hall did not fracture her wrist”). The record
shows that Hall was initially diagnosed with a potential wrist
fracture, but that follow-up with a radiologist called that
diagnosis into question. In any event, a reasonable jury could
conclude on the summary judgment record that Hall
experienced pain, numbness, limited mobility in her wrist and
hand, and scrapes and bruises. The particular medical
diagnosis of Hall’s wrist injury is not determinative of whether
33
Officer Lee used excessive force. With the record evidence in
mind, we move to the battery claim, dismissed by the district
court at summary judgment.
Discovery corroborated Hall’s allegations that Lee used
force against her without justification, creating a jury issue on
the battery claim. A police officer is liable for battery when
she commits an “intentional act that causes harmful or
offensive bodily contact” and when the officer’s use of such
force was “in excess of [that] which the actor reasonably
believes to be necessary.” District of Columbia v. Chinn, 839
A.2d 701, 705-06 (D.C. 2003) (quoting Holder v. District of
Columbia, 700 A.2d 738, 741 (D.C. 1997)). “[T]he officer
must subjectively believe that he or she used no more force than
necessary, but the officer’s judgment is [also] compared to that
of a hypothetical reasonable police officer placed in the same
situation.” Scales v. District of Columbia, 973 A.2d 722, 730
(D.C. 2009).
The district court granted summary judgment to Officer
Lee on the battery claim, reasoning that Hall’s own testimony
put beyond dispute that she was resisting arrest sufficiently to
justify Lee’s use of force. In our view, however, a reasonable
jury could reject Officer Lee’s contention that, starting when
Hall did not immediately open the bathroom door in response
to the police directive to “[o]pen up,” Hall resisted the officers
and thereby justified their use of force. See Hall, 2016 WL
1452325, at *2. The record could support a jury determination
that the officers did not give Hall an opportunity to comply
with their command to open the bathroom door before
“bust[ing]” through the door. See Hall Dep., 48:3.
The district court also concluded that the record placed
beyond dispute that Hall resisted arrest after she was
handcuffed on the ground because, as the district court put it,
34
she “moved and behaved in ways that a police officer could
reasonably conclude were meant to defy arrest.” Hall, 2016
WL 1452325, at *3. The court recounted that Hall’s testimony
showed that she “tried to stand after Lee had forced her to
kneel, and moved abruptly, even ‘swing[ing] around,’ during
the arrest.” Id. Reasonable jurors could disagree, however,
whether Hall’s movements were resistant, and whether Officer
Lee’s use of force was an appropriate response. Hall testified
that she complained about her handcuffs being too tight, and
that Lee responded by tightening the handcuffs. Hall Dep.,
51:20-52:6. Hall tried to stand up because her knees were cut
from being forced to kneel on concrete, in response to which
Lee “grabbed [Hall by her] elbows and yank[ed her] up.” Id.
at 54:17-22. Hall’s friends both corroborated Hall’s testimony.
And, given Officer Lee’s failure to explain to Hall that she was
under arrest or to articulate why Hall was being detained—
beyond saying “theft of services,” which Hall apparently heard
as “[t]hat’s the services,” id. at 50:2-4—a jury could determine
that Hall’s attempts to view Lee’s badge number were
appropriate, non-resistant conduct. Most importantly, a
reasonable jury could find on these facts that Officer Lee
should have perceived that she could resolve the situation
without physical force. At summary judgment, when we are
required to view the record in the light most favorable to Hall,
we cannot say that a reasonable jury would be required to find
that, given Hall’s conduct, Officer Lee’s force was justified.
Conclusion
We affirm summary judgment on the negligence,
negligent and intentional infliction of emotional distress, and
defamation claims against Seyhan Duru. We affirm, as
forfeited on appeal, dismissal of the negligence claim against
the District and Officer Lee as well as the negligent and
intentional infliction of emotional distress claims against Lee.
35
We vacate the district court’s grant of summary judgment to
Cities on the negligence, conversion, and defamation claims
against it. We also vacate the dismissal of Hall’s section 1983
excessive force and false arrest, common law false arrest and
imprisonment, and assault claims against Officer Lee. Finally,
we vacate summary judgment on the battery claim against
Officer Lee. We remand the surviving counts to the district
court for further proceedings.
So ordered.