Butera v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 2000 Decided January 9, 2001

No. 00-7008

Terry E. Butera, Individually, and as Personal
and Legal Representative of the Estate of
Eric Michael Butera, deceased,
Appellee

v.

District of Columbia, et al.,
Appellants

Appeal from the United States District Court
for the District of Columbia
(No. 98cv02794)

Charles F.C. Ruff argued the cause for appellants. With
him on the briefs were Kevin C. Newsom, Robert R. Rigsby,
Corporation Counsel, Charles L. Reischel, Deputy Corpora-
tion Counsel, and Donna M. Murasky, Assistant Corporation
Counsel.

 Daniel A. Rezneck, General Counsel, was on the brief for
amicus curiae District of Columbia Financial Responsibility
& Management Assistance Authority.

Paul Mogin argued the cause for appellee. On the brief
were Brendan V. Sullivan, Jr., John G. Kester, Peter C.
Grenier and James M. Ludwig. J. Alan Galbraith entered
an appearance.

Before: Edwards, Chief Judge, Rogers and Garland,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: This appeal arises from the tragic
death of 31-year-old Eric Butera while he served as an
undercover operative for the Metropolitan Police Department
of the District of Columbia. Mr. Butera's mother, Terry
Butera, sued, on her own behalf and on behalf of her son's
estate, the District of Columbia and the four police officers
who engineered the undercover operation, alleging that they
recklessly failed to provide adequate protection for her son.
She alleged violations of her son's and her own civil rights
under 42 U.S.C. s 1983 (1994), negligence under the District
of Columbia Survival Act, D.C. Code s 12-101 et seq. (1995
Repl.), and the District of Columbia Wrongful Death Act,
D.C. Code s 16-2701 et seq. (1997 Repl.), and at common law
for intentional infliction of emotional distress. The jury
returned verdicts against the officers on the constitutional
claims and against the officers and the District of Columbia
on the statutory claims, and awarded Terry Butera
$70,530,000 in compensatory damages and $27,570,000 in pu-
nitive damages.

On appeal, the District of Columbia and the four officers
(collectively, "the District of Columbia") contend that the
district court erred in denying their motion for judgment as a
matter of law under Fed. R. Civ. P. 50, or alternatively for a
new trial under Fed. R. Civ. P. 59, or for remittitur. See
Butera v. District of Columbia, 83 F. Supp. 2d 25 (D.D.C.
1999) ("Butera II"). With respect to the civil rights claims,
the District of Columbia contends that the officers did not

violate either Eric Butera's or Terry Butera's substantive due
process rights, because no such rights existed. Alternatively,
the District of Columbia contends that the officers are enti-
tled to qualified immunity because, even if Eric and Terry
Butera could assert substantive due process rights, it was not
clearly established prior to Eric Butera's death that the
officers' conduct would violate these rights. In this regard,
the appeal presents two questions of first impression in this
circuit: (1) whether the District of Columbia can be held
constitutionally liable for failing to protect an individual who
is not in custody from harm inflicted by a third party, and (2)
whether a parent has a constitutionally-protected interest in
the society and companionship of her adult son. In addition
to challenging the civil rights claims, the District of Columbia
disputes the lawfulness of imposing punitive damages against
it and the sufficiency of the evidence to support the punitive
damages awards against the four officers. Finally, the Dis-
trict of Columbia challenges the sufficiency of the evidence to
support the statutory claims, and the denial of its request to
substitute an expert witness for a disqualified expert.

We affirm in part and reverse in part. On the civil rights
claims, we hold that the "State endangerment" concept,
through which Eric Butera might have succeeded in proving a
constitutional violation, was not clearly established prior to
his death; hence, the officers were entitled to qualified immu-
nity. We also hold that there is no parental due process right
to the company of an adult child who is independent; conse-
quently, Terry Butera had no grounds for asserting a consti-
tutional violation. Therefore, the officers were entitled to
summary judgment on all claims brought under 42 U.S.C.
s 1983. We further hold, consistent with recent precedent in
this circuit, that the evidence did not amount to the "extraor-
dinary circumstances" necessary to award punitive damages
against the District of Columbia. For these reasons, we
vacate the $70 million compensatory award on the civil rights
claims and the $27 million punitive damages award against
the District of Columbia. In all other respects, we affirm the
judgment awarding $530,000 in compensatory damages under

the Survival and Wrongful Death Acts, and a total of $570,000
in punitive damages against the four officers.

I.

A. Background. On November 16, 1997, Eric Butera
telephoned the Metropolitan Police Department of the Dis-
trict of Columbia ("MPD") to provide information about the
highly publicized triple homicide at the Starbucks coffee shop
that had occurred July 7, 1997. He told Detective Anthony
Patterson, one of the MPD's homicide detectives assigned to
the Starbucks investigation, that on two separate occasions,
while he was purchasing or using crack cocaine at a house in
the Greenleaf Gardens housing complex in Southwest Wash-
ington, D.C., he overheard someone talking about the Star-
bucks murders. He also said he had seen firearms at the
house. Detective Patterson and his partner met with Eric
Butera that same day. Both detectives found him to be
credible and trustworthy. Eric Butera told Detective Patter-
son that he had come forward with this information because
"he was no longer taking drugs, he was attempting to get his
life in order and he wanted to do the right thing." On
November 23, 1999, Eric Butera went to the homicide branch
and identified from mug shots the person whom he had
overheard talking about the Starbucks murders.

In addition to Detective Patterson, Lieutenant Brian McAl-
lister and Sergeant Nicholas Breul were assigned to the
Starbucks investigation. To advance the investigation, the
officers decided to stage an undercover drug purchase at the
house where Eric Butera had overheard the conversation and
seen the drugs and firearms. The officers asked Eric Butera
to assist them by conducting the undercover drug purchase,
and Eric Butera agreed. For purposes of the Butera drug
purchase, Lieutenant McAllister supervised the officers, Ser-
geant Breul was in charge of the operation, and Detective
Patterson was the lead detective. They also enlisted the
participation of Detective Anthony Brigidini, who was familiar
with the Greenleaf housing complex.

 On December 4, 1997, officers Patterson, Brigidini, and
Breul met with Eric Butera to plan and execute the drug
purchase. The officers planned the operation to resemble as
closely as possible Eric Butera's previous visits to the Green-
leaf Gardens house. Eric Butera told them that usually he
would enter and exit through the back door of the house, and
that the entire transaction generally took "anywhere from
one minute to ten minutes, maybe fifteen minutes." Eric
Butera and the officers agreed to follow this same pattern,
with one exception: Eric Butera would exit through the front
door and meet the officers at a pre-arranged location. The
officers assured Eric Butera that the MPD would "exercise
proper care to ensure that he would not be harmed," and that
they would "carefully watch and monitor him throughout the
process." They supplied him with $80 in marked twenty
dollar bills to make the drug purchase.

After the debriefing, the officers decided that Detective
Brigidini would drive Eric Butera to the house, and Detective
Patterson and Sergeant Breul would follow in a separate car
for surveillance and backup. Detective Brigidini drove Eric
Butera to the house around 9:20 p.m., and watched as Eric
Butera approached the back door. As Eric Butera knocked
on the door, Detective Brigidini drove away and parked
approximately one hundred fifty feet from the house. Detec-
tive Brigidini testified that he was attempting to mirror the
practices of those who had driven Eric Butera to the location
in the past, by circling the area until Eric Butera emerged
from the house to be picked up. Detective Brigidini also
intended to place himself in a position where he could see the
front of the house (from which he expected Eric Butera to
emerge) and the rear opening of the walkway behind the
house; from his location, however, he was unable to see the
back of the house. Meanwhile, Detective Patterson and
Sergeant Breul parked their car, with their windows down, in
a location that enabled them to see only part of the back alley
of the housing complex.1 As a result, none of the officers was

__________
1 At that time, Sergeant Breul joked to Detective Patterson
that they should keep the windows down so they could "hear any
gunshots or screams."

in a position to see (or otherwise monitor) Eric Butera when
he attempted to enter the house.

After approximately fifteen minutes had passed since Eric
Butera approached the house, Detective Brigidini, who had
not seen Eric Butera, notified Sergeant Breul and Detective
Patterson that he was becoming uneasy. Detective Brigidini
began driving around the block to look for him, and after
circling the streets, he returned to his original position.
Sergeant Breul and Detective Patterson also began to look
for Eric Butera. Approximately thirty minutes after Detec-
tive Brigidini dropped off Eric Butera, uniformed police
officers from the MPD First District who were unrelated to
the Starbucks investigation appeared at the scene; they were
responding to a "911" call by a civilian reporting an uncon-
scious person in the rear walkway of the house where Detec-
tive Brigidini had left Eric Butera. Detective Brigidini chose
to remain inside his car when he saw the uniformed officers,
for fear of compromising the operation.

Shortly after seeing the uniformed officers, the detectives
heard an MPD First District radio report of a man down in
the alley behind the house that Eric Butera attempted to
enter. Approximately forty minutes had passed since Detec-
tive Brigidini had last seen Eric Butera. Because the officers
had left Eric Butera at the rear of the house, they were
unaware that he had never gained entry; rather, Eric Butera
was accosted by three men, who robbed and stomped him to
death in the alley behind the house. Sergeant Breul and
Detective Patterson drove to the alley and found a uniformed
First District officer standing with a flashlight over Eric
Butera, who was bleeding from the back of his head. An
ambulance took Eric Butera to George Washington Universi-
ty Hospital, where he was pronounced dead by reason of
blunt force trauma to the head; he was 31 years old.

At trial, the parties presented conflicting evidence concern-
ing (1) the purpose of the undercover operation, (2) the
manner in which Eric Butera came to participate in the
undercover drug buy, (3) the degree to which the officers
made Eric Butera aware of the risks involved, and (4) the

adequacy of the measures that the officers took to ensure
Eric Butera's safety. The District of Columbia made a
number of admissions, which were read to the jury. Terry
Butera presented evidence that the officers gave conflicting
versions of the purpose of using Eric Butera in this operation:
While the District of Columbia admitted that the purpose of
the operation was to obtain a search warrant, the individual
officers testified that the operation was intended to test Eric
Butera's reliability as an informant, to learn the name of the
person whom Eric Butera heard talk about the Starbucks
murders, and to acquire drugs or information from individuals
at the house.2 As to the origin of Eric Butera's participation
in the undercover plan, Terry Butera presented evidence that
the police officers devised the undercover plan and actively
solicited Eric Butera, who had ceased being a drug user, for
this operation. The District of Columbia presented evidence
that, from the outset, Eric Butera volunteered to return to
the Greenleaf Gardens house, which he had visited on numer-
ous occasions (and whose residents he knew) to "get more
information."

The evidence was also in conflict regarding the degree to
which the officers made Eric Butera aware of the dangers
associated with the undercover operation. Terry Butera
presented evidence that the officers did not notify Eric But-
era of a drug bust that had occurred at the house on the
previous evening (December 3, 1999), of the activities of two
violent criminal gangs in the area, of the violent crimes that
were being investigated in the area, or of the risks associated
with the undercover operation. The District of Columbia
responded with evidence that Eric Butera knew the people in
the area and did not think that the environment was danger-
ous for him. The District of Columbia admitted, however,
that Lieutenant McAllister did not fully advise Eric Butera of
the potential risks of physical harm.

__________
2 At trial, the District of Columbia admitted that the officers
could have obtained a search warrant without the aid of Eric
Butera.

 Finally, Terry Butera introduced evidence disputing the
adequacy of the measures taken to ensure Eric Butera's
safety. Specifically, Terry Butera submitted evidence that
the officers failed to (1) use surveillance equipment and wires;
(2) make arrangements for safety and danger signals; (3) set
time limits for the operation; or (4) enlist the assistance of
the MPD's First District, where the undercover operation
was to occur, or of specialized MPD narcotics, special investi-
gations, and electronic surveillance units. Through admis-
sions by the District of Columbia, she presented evidence that
the officers had planned the undercover operation recklessly
without conducting a full assessment of the need to use a
citizen in a controlled drug buy, and that Sergeant Breul had
admitted to the MPD's Office of Internal Affairs that, in
carrying out the undercover operation, Eric Butera's safety
was not the officers' principal concern. In response, the
District of Columbia introduced evidence that Eric Butera did
not want to wear a wire, and that he insisted that he was
"comfortable with going to the area" because "[e]verybody
down there knew him." The District of Columbia admitted,
however, that other precautions could have been taken to
ensure Eric Butera's safety.

B. Procedural History. Terry Butera, on behalf of her-
self and the estate of Eric Butera, sued the District of
Columbia, and Lieutenant McAllister, Sergeant Breul, Detec-
tive Patterson, and Detective Brigidini ("the officers"), for
negligence under the District of Columbia Wrongful Death
Act and the District of Columbia Survival Act, for violation of
her son's and her own constitutional rights under 42 U.S.C.
s 1983, and at common law for negligence and intentional
infliction of emotional distress. The District of Columbia
moved for summary judgment under Fed. R. Civ. P. 56,
arguing that the civil rights claims under s 1983 should be
dismissed as a matter of law because neither Eric Butera nor
his mother could assert a substantive due process violation
and, in any event, the officers were entitled to qualified
immunity. In addition, the District of Columbia argued that
punitive damages could not be awarded against the District of
Columbia as a matter of law, and, alternatively, that even if
punitive damages were so recoverable, no such award was

justified by the evidence.3

The district court denied the motion for summary judg-
ment. See Butera v. District of Columbia, 83 F. Supp. 2d 15
(D.D.C. 1999) ("Butera I"). The court concluded that both
Eric and Terry Butera could assert substantive due process
claims, based on Eric Butera's right to life and Terry But-
era's right to her son's companionship. See id. at 19 & n.3.
The district court also ruled that the allegations in the
complaint "present[ed] circumstances upon which a jury
might find the existence of 'extraordinary circumstances' "
necessary to award punitive damages against the District of
Columbia. Id. at 22.

After trial, the jury returned a verdict against the District
of Columbia and the four officers on the Survival Act and
Wrongful Death Act claims (but not on Terry Butera's claim
for intentional infliction of emotional distress), and against the
four officers (but not the District of Columbia) under 42
U.S.C. s 1983, and awarded Terry Butera compensatory and
punitive damages.4 The District of Columbia moved for

__________
3 The District of Columbia and the officers also argued that
they were entitled to summary judgment because (1) Eric Butera's
negligence claims were barred by the doctrine of assumption of
risk; (2) Terry Butera's intentional infliction of emotional distress
claim failed as matter of law, and (3) Terry Butera's claims of
negligent training and supervision by the District were barred
because she had already sued to hold the District of Columbia
vicariously liable on a theory of respondeat superior. Terry Butera
subsequently abandoned, and the district court dismissed, her
claims of negligent training and supervision. See Butera I, 83
F. Supp. 2d at 18 n.1.

4 The jury awarded the following damages:
Compensatory Damages
Survival Act Claim $ 462,000
Wrongful Death Act Claim $ 68,000
Civil Rights Claim of Eric Butera $36,000,000
Civil Rights Claim of Terry Butera $34,000,000
Punitive damages
Against District of Columbia $27,000,000
Against the four Officers
($142,500 for each officer) $ 570,000

judgment as a matter of law under Fed. R. Civ. P. 50, or for a
new trial and vacatur or remittitur of the damages awards
under Fed. R. Civ. P. 59. The district court denied the
motion. See Butera II, 83 F. Supp. 2d at 27-38.

II.

On appeal, the District of Columbia contends that the
district court erred in denying it judgment as a matter of law,
or alternatively a new trial or remittitur, for essentially three
reasons: First, the officers are not constitutionally liable to
Eric or Terry Butera on their s 1983 claims because (A) the
officers did not have a constitutional duty to protect Eric
Butera from private violence, (B) Terry Butera had no consti-
tutional interest in the companionship of her adult son, and
(C) even if such rights existed, the officers were entitled to
qualified immunity because it was not clearly established
prior to Eric Butera's death that their conduct would violate
the Due Process Clause.5 Second, the punitive damages
awards should be vacated because (A) there is no allegation
that the officers intended to injure or expose Eric Butera to
harm by third parties, nor is there evidence that the officers
acted with evil motive or actual malice, and (B) as a matter of
District of Columbia law, punitive damages cannot be award-
ed against the District of Columbia; alternatively, if punitive
damages against the District of Columbia were permissible,
there was no evidence of extraordinary circumstances to
justify such an award. Third, the damages awards under the
Survival and Wrongful Death Acts must be set aside because
(A) Terry Butera failed to establish a national standard of
care, and (B) the district court's refusal to allow a substitute
for the District of Columbia's disqualified expert was prejudi-
cial.

__________
5 Alternatively, the District of Columbia contends that the $36
and $34 million compensatory awards on the civil rights claims are
excessive and should be remitted.

 We address in Part II the District of Columbia's challenge
to the constitutional claims. In Part III, we address the issue
of punitive damages. Finally, in Part IV, we address the
evidentiary issues regarding the statutory claims.6

Constitutional Claims. Section 1983 allows a plaintiff to
seek money damages from government officials who have
violated her constitutional rights. See 42 U.S.C. s 1983.7
Qualified immunity, on the other hand, generally shields State

__________
6 Terry Butera relies on District of Columbia v. Air Florida,
Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984), in contending that the
District of Columbia is barred from raising certain issues on appeal
because it did not raise exactly the same theories in the district
court. By contrast with Air Florida, however, the record estab-
lishes that the District of Columbia, with one exception, is not
presenting entirely new contentions on appeal. See Butera II, 83
F. Supp. 2d at 30-33; Butera I, 83 F. Supp. 2d at 18-22. We do
not reach the exception--the District of Columbia's constitutional
and evidentiary challenges to the amount of the punitive damages
award against it--because we vacate this award as a matter of law.
See infra Part III.B.

7 Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdic-
tion thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress....

42 U.S.C. s 1983. Claims of substantive due process violations by
State officials are generally analyzed under the Due Process Clause
of the Fourteenth Amendment, which provides that "[n]o State shall
... deprive any person of life, liberty, or property, without due
process of law." U.S. Const. amend. XIV, s 1. While the District
of Columbia is not a state, it is subject to the Due Process Clause of
the Fifth Amendment, which also states that "[n]o person shall be
... deprived of life, liberty, or property, without due process of
law." U.S. Const. amend. V. See Bolling v. Sharpe, 347 U.S. 497,
499 (1954).

officials from liability for their discretionary functions "inso-
far as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable per-
son would have known." Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). To evaluate a substantive due process claim in
which State officials have raised the defense of qualified
immunity, and particularly where defendants can be spared
the burdens of long trials and where the court can provide
clarity in standards for official conduct, the Supreme Court
has instructed that courts ordinarily follow a two-prong analy-
sis. See Wilson v. Layne, 526 U.S. 603, 609 (1999); County
of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998); Har-
bury v. Deutch, No. 99-5307, 2000 WL 1769100, at *5-6 (D.C.
Cir. Dec. 12, 2000); Kalka v. Hawk, 215 F.3d 90, 95-98 (D.C.
Cir. 2000). First, courts must address the threshold issue in
any action brought under s 1983: "whether the plaintiff has
alleged the deprivation of an actual constitutional right at all."
Wilson, 526 U.S. at 609 (quoting Conn v. Gabbert, 526 U.S.
286, 290 (1999)); see also Sacramento, 523 U.S. at 841 n.5;
Baker v. McCollan, 443 U.S. 137, 146-47 (1979). In this
stage, courts must not define the relevant constitutional right
in overly general terms, lest they strip the qualified immunity
defense of all meaning:

For example, the right to due process of law is quite
clearly established by the Due Process Clause, and thus
there is a sense in which any action that violates that
Clause (no matter how unclear it may be that the partic-
ular action is a violation) violates a clearly established
right. Much the same could be said of any other consti-
tutional or statutory violation. But if the test of "clearly
established law" were to be applied at this level of
generality, it would bear no relationship to the "objective
legal reasonableness" that is the touchstone of Harlow.
Plaintiffs would be able to convert the rule of qualified
immunity that our cases plainly establish into a rule of
virtually unqualified liability simply by alleging violation
of extremely abstract rights.

Anderson v. Creighton, 483 U.S. 635, 639 (1987). Conse-
quently, the court must define the right to a degree that
would allow officials "reasonably [to] anticipate when their
conduct may give rise to liability for damages," thus preserv-
ing "the balance that [Supreme Court] cases strike between
the interests in vindication of citizens' constitutional rights
and in public officials' effective performance of their duties."
Id. (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)).

Put otherwise, the constitutional right must be identified
"at the appropriate level of specificity" for a court to deter-
mine the second prong of the inquiry: whether the right was
"clearly established." Wilson, 526 U.S. at 615. A constitu-
tional right was "clearly established" at the time of the events
in question only if "[t]he contours of the right [were] suffi-
ciently clear that a reasonable officer would understand that
what he [was] doing violate[d] that right." Anderson, 483
U.S. at 640; see also Harris v. District of Columbia, 932 F.2d
10, 13 (D.C. Cir. 1991); Martin v. Malhoyt, 830 F.2d 237, 253
(D.C. Cir. 1987). As the Court stated in Anderson, "[t]his is
not to say that an official action is protected by qualified
immunity unless the very action in question has previously
been held unlawful, but it is to say that in the light of pre-
existing law the unlawfulness must be apparent." 483 U.S. at
640 (citation omitted).

The district court ruled in denying summary judgment to
the District of Columbia that Eric Butera had a constitutional
right to "life," and that Terry Butera had a "constitutionally-
protected liberty interest" in the companionship of her son.
Butera I, 83 F. Supp. 2d at 19 & n.3. At trial, the district
court instructed the jury that Eric Butera's right to "life,"
"personal security," "bodily integrity," and "personal priva-
cy," and Terry Butera's right to her son's companionship,
were "clearly-established constitutional rights as of the date
of the incident, December 4, 1997."8 On appeal, the court

__________
8 Having declared that the constitutional rights were clearly
established, the district court allowed the jury to determine wheth-
er a reasonable police officer could have believed that his conduct
did not violate the clearly-established constitutional rights and

reviews de novo the district court's legal conclusion that the
constitutional rights allegedly violated existed and that they
were clearly established as a matter of law in December 1997.
See Mitchell v. Forsyth, 472 U.S. 511, 528 n.9 (1985); United
States v. Popa, 187 F.3d 672, 674 (D.C. Cir. 1999).

Under the first stage of the Wilson inquiry--whether the
plaintiff has asserted the relevant constitutional rights at the
appropriate level of specificity--we conclude, consistent with
the Supreme Court's instructions in Anderson and Wilson,
that the district court erred by defining the constitutional
rights as Eric Butera's right to life, bodily integrity, personal
security, and personal privacy, and as Terry Butera's "liberty
interest" in the companionship of her son. Although courts
have acknowledged the existence of these general rights in
certain circumstances, see, e.g., Ingraham v. Wright, 430 U.S.
651, 674-75 (1977); Stanley v. Illinois, 405 U.S. 645, 651
(1972); Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d Cir. 1996);
Wood v. Ostrander, 879 F.2d 583, 589 (9th Cir. 1989), they are
overly broad where a qualified immunity defense is asserted.
Applying the standards of Wilson and Anderson, we conclude
that the relevant inquiries are (1) whether Eric Butera has a
constitutional right to protection by the District of Columbia
from danger that it created or enhanced that resulted in harm
by third parties, and (2) whether Terry Butera has a liberty
interest in the society and companionship of her independent
adult child. This narrower definition of the rights allows a
reasonable police officer to anticipate whether his actions
amount to a constitutional violation.

A. State Endangerment. As a general matter, a State's
failure to protect an individual from private violence, even in
the face of a known danger, "does not constitute a violation of
the Due Process Clause." DeShaney v. Winnebago County
Dep't of Soc. Servs., 489 U.S. 189, 197 (1989); see also Harris,
932 F.2d at 13. The Due Process Clause, the Supreme Court
has emphasized, is "phrased as a limitation on the State's

__________
whether, for purposes of qualified immunity, the officers' conduct
was sufficiently egregious to constitute a due process violation. See
Butera I, 83 F. Supp. 2d. at 19.

power to act, not as a guarantee of certain minimal levels of
safety and security." DeShaney, 489 U.S. at 195. Thus, the
Due Process Clause "generally confer[s] no affirmative right
to governmental aid, even where such aid may be necessary
to secure life, liberty, or protect property interests of which
the government itself may not deprive the individual." Id. at
196. It followed in DeShaney that the State was not constitu-
tionally liable for the permanent brain damage to a child who
was beaten severely by his father, notwithstanding evidence
that the State was aware of the child's physical abuse yet
failed to remove the child from his father's custody. See id.
at 202.

Despite this general rule, the DeShaney Court acknowl-
edged that, in "certain limited circumstances[,] the Constitu-
tion imposes upon the State affirmative duties of care and
protection with respect to particular individuals." Id. at 198.
One such circumstance, the Court stated, arises when the
State "takes a person into its custody and holds him there
against his will," hence depriving him of liberty. Id. at 199-
200; see also Youngberg v. Romeo, 457 U.S. 307, 317 (1982);
Estelle v. Gamble, 429 U.S. 97, 103-04 (1976); LaShawn v.
Kelly, 990 F.2d. 1319, 1325 (D.C. Cir. 1993). In this circuit,
the custody exception is narrowly construed: Mere police
interaction with or assistance to an individual, for example,
does not necessarily amount to custody. See Harris, 932
F.2d at 14-15. Thus, in Harris, the court held that police
officers did not have a constitutional obligation to provide
medical care to a victim of a drug overdose whom they
encountered on the street and placed in restraints for his own
safety. See id. at 13-15. In so holding, the court noted that
the Due Process Clause is "phrased in the negative--'[n]o
State shall deprive any person'--and does not easily admit of
a construction imposing on government officials the duty
affirmatively to do anything." Id. at 13. Unlike cases in
which the Supreme Court declared the State's "affirmative
duty to protect" individuals in custody, see, e.g., Revere v.
Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983); Young-

berg, 457 U.S. at 315-16; Estelle, 429 U.S. at 104,9 the court
stated, "Harris had not been formally committed, either by
conviction, involuntary commitment, or arrest, to the charge
of the District"; hence, "the government had not entered into
a special relationship with Harris." Harris, 932 F.2d at 14.
Consequently,

any affirmative constitutional duty on the District offi-
cials to look after [Harris'] medical needs would ... have
to arise not ... 'from the limitation which [they] ...
imposed on [Harris'] freedom to act on his own behalf,'
but from the limitation which they imposed (by locking
him in the police van) on the possibility of others learning
of Harris' condition and coming to his aid.

Id. at 14 (quoting DeShaney, 489 U.S. at 200). The court
continued, "it is no longer the 'deprivation of liberty' which
causes the injury, as was deemed crucial in DeShaney to
trigger due process protections, so much as the 'deprivation
of visibility' or the appearance of helplessness." Id. at 15.
Moreover, the court observed, "we are not at all confident
that it will be subsequently determined by the Supreme
Court (or other federal courts) that the Youngberg line [i.e.,
the custody definition,] will be extended to this kind of
situation." Id.

In addition to custody, the DeShaney Court left open the
possibility that, under a second set of circumstances, the
State could be liable for harm inflicted to an individual by
third parties. In explaining the absence of constitutional
liability for the child's physical abuse by his father, the Court
stated:

__________
9 In Estelle, the Supreme Court held that the cruel and unusual
punishment clause of the Eighth Amendment obliges the State to
provide medical care to prisoners. See 429 U.S. at 103-04. Young-
berg extended this obligation as a matter of substantive due process
to mental patients who were involuntarily committed. See 457 U.S.
at 315-16. In Revere, the Supreme Court held that the Due
Process Clause also requires the State to provide medical care to
persons who were injured while being apprehended by the police.
See 463 U.S. at 244.

 While the State may have been aware of the dangers that
Joshua faced in the free world, it played no part in their
creation, nor did it do anything to render him more
vulnerable to them.

DeShaney, 489 U.S. at 201. All circuit courts of appeals,
except this circuit, have by now relied on this passage in
DeShaney to acknowledge that there may be possible consti-
tutional liability under s 1983 "where the state creates a
dangerous situation or renders citizens more vulnerable to
danger."10 Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir.
1993), cert. denied, 510 U.S. 947 (1993).11 In Reed, police
officers arrested a presumably sober driver and left behind
an obviously intoxicated passenger, who subsequently drove
the car and was involved in a collision with the victims. The
Seventh Circuit held that the victims of the collision stated a
substantive due process claim because "[p]olice officers who
remove sober drivers and leave behind drunk passengers with

__________
10 See, e.g., Frances-Colon v. Ramirez, 107 F.3d 62, 64 (1st Cir.
1997); Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993);
Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d Cir. 1996); Pinder v.
Johnson, 54 F.3d 1169, 1175-77 (4th Cir. 1995) (en banc), cert.
denied, 516 U.S. 994 (1995); Johnson v. Dallas Indep. Sch. Distr.,
38 F.3d 198, 200-01 (5th Cir. 1994), cert. denied, 514 U.S. 1017
(1995); Kallstrom v. City of Columbus, 136 F.3d 1055, 1066-67 (6th
Cir. 1998); Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993),
cert. denied, 510 U.S. 947 (1993); Gregory v. City of Rogers, 974
F.2d 1006, 1010 (8th Cir. 1992) (en banc), cert. denied, 507 U.S. 913
(1993); Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir. 1989),
cert. denied, 498 U.S. 938 (1990); Uhlrig v. Harder, 64 F.3d 567,
572 & n.7 (10th Cir. 1995), cert. denied, 516 U.S. 1118 (1996); Wyke
v. Polk County Sch. Bd., 129 F.3d 560, 567 (11th Cir. 1997).

11 Even before DeShaney, several courts of appeals had recog-
nized a State's constitutional duty to protect an individual whom the
State placed in a situation of heightened danger. See, e.g., Wells v.
Walker, 852 F.2d 368, 370-71 (8th Cir. 1988); Escamilla v. City of
Santa Ana, 796 F.2d 266, 269 (9th Cir. 1986); Estate of Gilmore v.
Buckley, 787 F.2d 714, 722 (1st Cir. 1986); Jones v. Phyfer, 761
F.2d 642, 646 (11th Cir. 1985); Bowers v. DeVito, 686 F.2d 616, 618
(7th Cir. 1982).

keys may be said to create a danger."12 Id. at 1125. Similar-
ly, in Wood, a police officer arrested a drunk driver at 2:30
a.m. and impounded his vehicle, leaving the driver's female
passenger by the side of the road in a high-crime area. The
passenger, who was five miles from her home, accepted a ride
from a stranger, who raped her. See 879 F.2d at 586. The
Ninth Circuit held that the passenger had "raised a triable
issue of fact as to whether [the police officer] affirmatively
placed [her] in a position of danger." Id. at 589-90 (citation
omitted). Additionally, in Kallstrom v. City of Columbus, 136
F.3d 1055 (6th Cir. 1998), city officials released personal
information from the files of undercover police officers (in-
cluding names, addresses, and telephone numbers of the
officers and their families) to defense counsel for the alleged
drug conspirators whom the officers had investigated. The
Sixth Circuit held that "the City's actions placed the officers
and their family members in 'special danger' by substantially
increasing the likelihood that a private actor would deprive
them of their liberty interest in personal security." Id. at
1067.

The circuit courts have adopted the State endangerment
concept in a range of fact patterns concerning alleged miscon-

__________
12 Like this court in Harris, which refused to adopt an expand-
ed definition of "custody," the Seventh Circuit in Reed was reluctant
to "expand any existing duties for police officers," 986 F.2d at 1127.
Nonetheless, the court imposed a duty where officers "knowingly
and affirmatively create a dangerous situation for the public and fail
to take reasonable preventative steps to diffuse that danger." Id.
In Gregory v. City of Rogers, 974 F.2d 1006 (8th Cir. 1992) (en
banc), the Eighth Circuit reached a different conclusion on a
somewhat similar fact pattern. In Gregory, a police officer de-
tained the designated driver of a drinking group and allowed him to
follow the officer to the police station. The driver entered the
police station, leaving the keys inside the car; one of the intoxicated
passengers drove away and had an accident. See id. at 1007-08.
The court concluded that the police officer had not taken the
requisite affirmative actions to trigger liability under the State
endangerment concept, because it was the designated driver (and
not the police officer) who placed the passengers in danger by
leaving the keys in the car. See id. at 1012.

duct by State officials.13 Regardless of the conduct at issue,
however, the circuits have held that a key requirement for
constitutional liability is affirmative conduct by the State to
increase or create the danger that results in harm to the
individual. No constitutional liability exists where the State
actors "had no hand in creating a danger but [simply] 'stood
by and did nothing when suspicious circumstances dictated a
more active role for them.' " Reed, 986 F.2d at 1125 (quoting
DeShaney, 489 U.S. at 203); see also Kallstrom, 136 F.3d at
1066; Armijo v. Wagon Mound Pub. Schs., 159 F.3d 1253,
1262-63 (10th Cir. 1998); Frances-Colon v. Ramirez, 107
F.3d 62, 64 (1st Cir. 1997); Estate of Stevens v. City of Green
Bay, 105 F.3d 1169, 1176-77 (7th Cir. 1997); Johnson v.
Dallas Indep. Sch. Distr., 38 F.3d 198, 201 (5th Cir. 1994);
Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993);
Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)
(en banc); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992).
Absent such affirmative conduct by the State to endanger an
individual, courts have rejected liability under a State endan-
germent concept. See, e.g., S.S. v. McMullen, 225 F.3d 960,
962 (8th Cir. 2000) (en banc); Stevens v. Umsted, 131 F.3d
697, 705 (7th Cir. 1997).

Unlike other circuit courts of appeals, this court has never
been presented with a State endangerment claim; rather, it
has only addressed the first DeShaney exception-custody. In
Harris, for example, the court was confronted with a claim
that officers had a constitutional obligation to provide medical
care to a drug overdose victim whom they had restrained in a
police wagon for his own safety. In this context, the court
addressed the contention that the officers entered into a
"special relationship" with the victim because they placed him

__________
13 Plaintiffs have brought s 1983 suits under the State endan-
germent theory for the actions of various types of State actors,
including police officers, see, e.g., Reed, 986 F.2d at 1123; supervi-
sors of State custodial institutions, see, e.g., L.W. v. Grubbs, 974
F.2d 119, 120 (9th Cir. 1992); city officials, see, e.g., Kallstrom, 136
F.3d at 1059; and public school officials, see, e.g., Armijo v. Wagon
Mound Pub. Schs., 159 F.3d 1253, 1256 (10th Cir. 1998); Stevens v.
Umsted, 131 F.3d 697, 699 (7th Cir. 1997).

in police custody. See Harris, 932 F.2d at 14.14 Similarly, in
LaShawn, the court was confronted with a claim of constitu-
tional liability based on DeShaney's custody exception. In
LaShawn, class action plaintiffs brought constitutional and
statutory claims against the District of Columbia, alleging
abuses in the District of Columbia's child welfare and foster
care system. See 990 F.2d at 1320-21. The district court
ruled that the plaintiffs had stated a due process claim based
on DeShaney's concept of custody, because "the rights of
children in foster care [were] analogous to the rights of the
involuntarily committed." LaShawn v. Dixon, 762 F. Supp.
959, 992 (D.D.C. 1991). On appeal, the court avoided reach-
ing the constitutional and federal statutory issues, choosing
instead to address the claims presented under District of
Columbia statutes and regulations. See LaShawn, 990 F.2d
at 1324.15 Only now is the court directly confronted with a
plaintiff's express s 1983 claim of State endangerment.

The development of the State endangerment concept by the
circuit court of appeals is consistent with the notion, implied
in DeShaney, that something less than physical custody may
suffice to present a substantive due process claim. We join

__________
14 The concurrence in Harris alludes to the State endanger-
ment exception, see 932 F.2d at 17, but does not directly address it.

15 The court concluded in LaShawn that the District of Colum-
bia statutes created a private right of action both for children who
were in its foster care and for children who were abused or
neglected but not yet in its custody. See 990 F.2d at 1325. Citing
District of Columbia precedent that "conclusively" showed this to be
the case for the latter category of plaintiffs under the District of
Columbia Prevention of Child Abuse and Neglect Act, id. (citation
omitted), the court reasoned that, in view of the Act's application to
children who were not yet in custody, it "seem[ed] self-evident that
th[e] Act ... also creates privately enforceable rights for those
children actually in the District [of Columbia]'s custody." Id. In
dictum, the court interpreted DeShaney to hold that "the state has
a constitutional duty to assume responsibility for the safety and
well-being of a person only when the state takes that person into its
custody." Id. (emphasis added).

the other circuits in holding that, under the State endanger-
ment concept, an individual can assert a substantive due
process right to protection by the District of Columbia from
third-party violence when District of Columbia officials affir-
matively act to increase or create the danger that ultimately
results in the individual's harm.16 In so doing, we are "mind-
ful of the caution we must exercise in expanding the liberty
interests protected by substantive due process," Harbury,
2000 WL 1769100, at *9 (citing and quoting Collins v. Harker
Heights, 503 U.S. 115, 125 (1992)), but conclude that the
circuits' exposition of the concept has mitigated some of the
general concerns about the lack of guideposts; to that extent,
the court is hardly "break[ing] new ground in this field."
Collins, 503 U.S. at 125.

To assert a substantive due process violation, however, the
plaintiff must also show that the District of Columbia's con-
duct was "so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience." Sacramento,
523 U.S. at 847 n.8. This stringent requirement exists to
differentiate substantive due process, which is intended only
to protect against arbitrary government action, from local
tort law. See id. at 845-46, 848-49; Daniels v. Williams, 474
U.S. 327, 331 (1986); Wolff v. McDonnell, 418 U.S. 539, 558
(1974); see also Paul v. Davis, 424 U.S. 693, 701 (1976).
Hence, while it may be possible under District of Columbia
tort law for a plaintiff to obtain a remedy by proving mere
negligence or failure to exercise due care, this "lowest com-
mon denominator of customary tort liability" is "categorically
beneath the threshold of constitutional due process." Sacra-
mento, 523 U.S. at 848-49.

It is, on the contrary, behavior at the other end of the
culpability spectrum that would most probably support a

__________
16 Because we hold that the right arising from State endanger-
ment was not clearly established in this circuit at the time of Eric
Butera's death, we do not address whether the possibly voluntary
nature of his conduct would relieve or mitigate the District of
Columbia of constitutional liability. See Summar v. Bennett, 157
F.3d 1054, 1060 n.2 (6th Cir. 1998).

 substantive due process claim; conduct intended to in-
jure in some way unjustifiable by any government inter-
est is the sort of official action most likely to rise to the
conscience-shocking level.

Id. at 849. Hence, in Sacramento, in the context of a high-
speed chase by police officers that accidentally killed a fleeing
motorcyclist, the Supreme Court held that the plaintiff must
satisfy the higher "intent to harm" standard to prove that the
officers' behavior was conscience-shocking. See id. at 854.

The Supreme Court in Sacramento acknowledged, howev-
er, that in some circumstances the "point of the conscience-
shocking" can be reached by proving "something more than
negligence but 'less than intentional conduct, such as reck-
lessness or gross negligence.' " Id. at 849 (citation omitted).
While such proof "is a matter for closer calls," id., this lower
threshold, the Supreme Court has instructed, is appropriate
in circumstances where the State has a heightened obligation
toward the individual. For example, where the State has
taken a person into custody, it "so restrains [his] liberty that
it renders him unable to care for himself"; therefore, the
"Constitution imposes upon [the State] a corresponding duty
to assume some responsibility for his safety and general well-
being." Id. at 851 (quoting DeShaney, 489 U.S. at 199-200).
Further, where an individual is in State custody, prison
officials have "the luxury ... of ... time to make unhurried
judgments, upon the chance for repeated reflection, largely
uncomplicated by the pulls of competing obligations." Id. at
853. Because of these special circumstances, a State official's
deliberate indifference in the context of state custody can be
"truly shocking." Id.

As in the context of State custody, the State also owes a
duty of protection when its agents create or increase the
danger to an individual. Like prison officials who are
charged with overseeing an inmate's welfare, State officials
who create or enhance danger to citizens may also be in a
position where "actual deliberation is practical." Id. at 851.
In the instant case, the officers had the opportunity to plan
the undercover operation with care. In view of the officers'

duty to protect Eric Butera, he may prove that the officers'
treatment of him in connection with the attempted undercov-
er drug buy "shocked the conscience" by meeting the lower
threshold of "deliberate indifference." See Radecki v. Barela,
146 F.3d 1227, 1232 (10th Cir. 1998); L.W. v. Grubbs, 92 F.3d
894, 896 (9th Cir. 1996).

The remaining question, under the second prong of the
Wilson test, is whether, in December 1997, the law surround-
ing the violation of Eric Butera's asserted due process right
to be protected from third-party violence in the context of
State endangerment was "sufficiently clear that a reasonable
officer would understand that what he [was] doing violate[d]
that right." Anderson, 483 U.S. at 640; see also Wilson, 526
U.S. at 615. Qualified immunity is intended to "provide
government officials with the ability 'reasonably to anticipate
when their conduct may give rise to liability for damages,' "
Anderson, 483 U.S. at 646 (citation omitted). In light of this
purpose, an official "[cannot] reasonably be expected to antici-
pate subsequent legal developments, nor ... fairly be said to
'know' that the law forb[ids] conduct not previously identified
as unlawful." Harlow, 457 U.S. at 818. Consequently, the
court must determine whether the Supreme Court, the Dis-
trict of Columbia Circuit, and, to the extent that there is a
consensus, other circuits have spoken clearly on the lawful-
ness of the conduct at issue.17 See Clanton v. Cooper, 129
F.3d 1147, 1156-57 (10th Cir. 1997); Gan v. City of New
York, 996 F.2d 522, 532 (2d Cir. 1993).

Upon examining relevant case law on the "State endanger-
ment" exception to DeShaney, we conclude that, in December
1997, Eric Butera's constitutional right to protection by the
District of Columbia from third-party violence was not clearly

__________
17 In Anderson, the Supreme Court made clear that, in evaluat-
ing whether the right at issue was clearly established, a court need
not have found the very action in question unlawful in the past. See
id. at 640. Rather, a court must consider whether "in the light of
pre-existing law the unlawfulness [was] apparent." Id. To make
this determination, however, the parties have pointed us to no

established within the meaning of Anderson. First, as dis-
cussed, this circuit has never recognized constitutional liabili-
ty in the context of a State endangerment claim, and the
court in Harris intimated that it would construe narrowly the
express custody exception set forth in DeShaney.18 See 932
F.2d at 13. Furthermore, LaShawn, albeit in dictum, did not
indicate any circumstance other than custody that would give
rise to District of Columbia liability. See 990 F.2d at 1325.
Moreover, the only Supreme Court authority to support a
State endangerment concept consisted of the often-quoted
dictum in DeShaney, which simply "leaves the door open for
liability" in this context. Reed, 986 F.2d at 1125.

Second, as of 1997, the "contours" of the rights created by
the State endangerment concept were not settled among the
circuits. See Anderson, 483 U.S. at 640. While courts of
appeals had adopted the State endangerment concept without
prompting Supreme Court review,19 there was little consisten-
cy in courts' explanations of the types of actions that would
amount to constitutional liability. The Eighth Circuit, for
__________
source other than case law from the Supreme Court and the
circuits.

18 This court and the District of Columbia Court of Appeals
have acknowledged that, in regard to liability for negligence, if a
"special relationship" exists between an individual and the police,
the latter has a "duty to protect." Malhoyt, 830 F.2d at 259
(citation omitted); see also Butera II, 83 F. Supp. 2d at 31. To
determine whether a "special relationship" exists, the District of
Columbia courts ask whether the police "have beg[un] to act in
behalf of a particular citizen in such a way as to raise significantly
the quotient of risk over and above the risks assumed by every
other member of the community." Malhoyt, 830 F.2d at 259
(quoting Morgan v. District of Columbia, 468 A.2d 1306, 1312 (D.C.
1983)). The issue of constitutional liability, however, involves con-
siderations not pertinent to the negligence inquiry. See, e.g., Sacra-
mento, 523 U.S. at 848-49.

19 See, e.g., Uhlrig, 64 F.3d 567, cert. denied, 516 U.S. 1118
(1996); Pinder, 54 F.3d 1169, cert. denied, 516 U.S. 994 (1995);
Johnson, 38 F.3d 198, cert. denied, 514 U.S. 1017 (1995); Reed, 986
F.2d 1122, cert. denied, 510 U.S. 947 (1993); City of Rogers, 974
F.2d 1006, cert. denied, 507 U.S. 913 (1993); Wood, 879 F.2d 583,
cert. denied, 498 U.S. 938 (1990).

example, first acknowledged that "[i]t is not clear, under
DeShaney, how large a role the state must play in the
creation of danger and in the creation of vulnerability before
it assumes a corresponding constitutional duty to protect."
Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990). The
court later stated that, to establish constitutional liability, the
plaintiff must demonstrate that he "would not have been in
harm's way but for the government's affirmative actions."
Carlton v. Cleburne County, 93 F.3d 505, 508 (8th Cir. 1996).
The Seventh Circuit, in turn, provided a slightly different
standard, finding State endangerment where the State "great-
ly increased the danger to [the plaintiff] while constricting
access to self-help." Estate of Stevens v. City of Green Bay,
105 F.3d 1169, 1177 (7th Cir. 1997) (emphasis added). Other
circuits, however, adopted more elaborate tests to determine
whether the actions of State officials amounted to State
endangerment and therefore triggered constitutional liabili-
ty.20

__________
20 For example, while stating in 1995 that it had "yet to decide
definitively whether the State endangerment theory is a viable
mechanism for finding a constitutional injury," the Third Circuit
identified four elements that State endangerment cases from other
circuits had "in common":

(1) the harm ultimately caused was foreseeable and fairly
direct; (2) the state actor acted in willful disregard for the
safety of the plaintiff; (3) there existed some relationship
between the state and the plaintiff; [and] (4) the state actors
used their authority to create an opportunity that otherwise
would not have existed for the third party's crime to occur.

Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995). In
1996, the Third Circuit applied the four elements outlined in Mark
to hold that an individual could assert a constitutional claim based
on the State endangerment theory. See Kneipp, 95 F.3d at 1208-
11. The Fifth Circuit, in turn, stated the following common ele-
ments, while also acknowledging in 1994 that it had never predicat-
ed relief based on a State endangerment claim:

[T]he environment created by the state actors must be danger-
ous; they must know it is dangerous; and ... they must have

While all of these tests share the key element of State
endangerment, namely, affirmative conduct by State actors,
see, e.g., Reed, 986 F.2d at 1126, they are inconsistent in their
elaborations of the concept. For example, the circuits have
adopted different nexus requirements, compare Mark v. Bor-
ough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995), and
Carlton, 93 F.3d at 508, with Uhlrig v. Harder, 64 F.3d 567,
574 (10th Cir. 1995), and employed differing degrees of
specificity in defining actionable conduct, compare Estate of
Stevens, 105 F.3d at 1177, and Carlton, 93 F.3d at 508, with
Johnson, 38 F.3d at 201, Mark, 51 F.3d at 1152, and Uhlrig,
64 F.3d at 574. Moreover, although we do not suggest that
State liability would necessarily be eliminated or mitigated, to
date no circuit has applied the State endangerment concept
where an arguably voluntary informant, much less a police
operative like Eric Butera, was involved. See supra note 16.
This lack of clarity in the law of the circuits leads us to
conclude that no reasonable police officer would have known
that his or her actions were subject to a State endangerment
limitation. See Anderson, 483 U.S. at 640. Harris' silence,
and LaShawn's restrictive dictum, as to the second DeShaney

__________
used their authority to create an opportunity that would not
otherwise have existed for the third party's crime to occur.

Johnson, 38 F.3d at 201. Finally, the Tenth Circuit expounded a
multi-part test to determine whether the defendant created a
"special danger" sufficient to trigger the State's constitutional liabil-
ity:
Plaintiff must demonstrate that (1) [plaintiff] was a member of
a limited and specifically definable group; (2) Defendants'
conduct put [the plaintiff] . . . at substantial risk of serious,
immediate and proximate harm; (3) the risk was obvious or
known; (4) Defendants acted recklessly in concious disregard
of that risk; and (5) such conduct, when viewed in total, is
conscience shocking.
Uhlrig, 64 F.3d at 574. In 1998, the Tenth Circuit added another
criterion to theUhlrig test: Plaintiff must show 34that the charged
state entity and the charged individual defendant actors created the
danger or increased the plaintiff's vulnerability to the danger in
some way.34 Armijo, 159 F.3d at 1263.

exception gave no such warning in this circuit. See La-
Shawn, 990 F.2d at 1325; Harris, 932 F.2d at 13.

Given the criteria imposed by the qualified immunity de-
fense, as well as the absence of Supreme Court and District
of Columbia Circuit precedent, we hold that the law in this
circuit was insufficiently clear in December 1997 to alert the
District of Columbia and its police officers to possible consti-
tutional liability (as distinct from tort liability) for their
conduct in using Eric Butera as a police operative in an
undercover operation. While the law was evolving in the
circuits to cover situations where either (1) there was State
control or custody, or (2) the State knowingly created or
increased the risk that an individual would be exposed to
danger, we do not know whether, had a State endangerment
concept been recognized in this circuit in 1997, Eric Butera's
claim would have survived. In any event, the officers were
entitled to qualified immunity.

B. Right to the Companionship of an Adult Child. Terry
Butera's claim of a constitutional right to the companionship
of her 31-year-old son has a more difficult hurdle to over-
come: It fails the first prong of the Wilson test. The
Supreme Court has not spoken to the precise issue, and the
precedent in this and nearly all of the other circuits suggests
that no such right exits.

Terry Butera testified that her son was an adult, living on
his own, and that he was not providing her with any financial
assistance at the time of his death. The evidence further
showed that Eric Butera had moved out of his mother's house
when he was eighteen years old, married, moved to Pennsyl-
vania, and had a child. In allowing Terry Butera to claim a
due process interest in the society and companionship of her
adult son, the district court relied solely on our opinion in
Franz v. United States, 707 F.2d 582 (D.C. Cir. 1983). See
Butera II, 83 F. Supp. 2d at 31; Butera I, 83 F. Supp. 2d at
19 n.3. In Franz, federal officials relocated and changed the
identities of a divorced mother and her minor children pursu-

ant to the Federal Witness Protection Program, with "the
effect of severing the ongoing relationship between the chil`

dren and their natural father." 707 F.2d at 585. The chil-
dren's father sued the United States on statutory and consti-
tutional grounds, alleging a violation of his constitutionally-
protected right to his children's companionship. In holding
that such a right existed, the Franz court acknowledged "the
profound importance of the bond between a parent and a
child to the emotional life of both." Id. at 599. The court
expressed "skepticism" at governmental interference with a
parent's right to "shape the development" of his children and
to be intimately involved in the "rearing of his offspring." Id.
at 597-99.

On appeal, Terry Butera relies on Franz, as well on cases
from other circuits that recognize parents' constitutionally-
protected liberty interest in the companionship and custody of
their children and in the "maintenance and integrity of the
family." Estate of Bailey v. County of York, 768 F.2d 503,
509 n.7 (3d Cir. 1985), overruled in part by DeShaney, 489
U.S. at 202; see also Kelson v. City of Springfield, 767 F.2d
651, 653-54 (9th Cir. 1985); Bell v. City of Milwaukee, 746
F.2d 1205, 1243-44 (7th Cir. 1984). In Bell, the Seventh
Circuit recognized this constitutional interest in the context of
a plaintiff's twenty-three-year-old son.21 See 746 F.2d at
1242-45.

The general statements in Franz, as well as in the Supreme
Court cases on which Franz relies, focus on securing the
rights of parents to have custody of and to raise their minor
children in a manner that develops "parental and filial bonds
free from government interference." Franz, 707 F.2d at 595.
This emphasis is clear in cases such as Prince v. Massachu-
setts, 321 U.S. 158 (1944), where, in the context of the
___________
21 In recognizing a constitutional right for Bell's father (the
plaintiff), the Seventh Circuit noted that the decedent was single,
had no children, and had not become a part of another family unit
other than his father's, although the two lived apart. See Bell, 746
F.2d at 1245. The court concluded that the victim's age and
separate residence were relevant only to the amount of damages to
be awarded to the father for the loss of the son's society and
companionship. See id.
prosecution of a child's guardian for furnishing her with
religious literature to sell on the public streets in violation of
child labor laws, the Court stated that "the custody, care, and
nurture of the child reside first in the parents," id. at 166, and
Ginsberg v. New York, 390 U.S. 629, (1968), where the Court
recognized parents' right "to direct the rearing of their
children [as] basic in the structure of our society." Id. at 639.
Moreover, while the Court in Stanley v. Illinois, 405 U.S. 645
(1972), recognized a parent's constitutional interest in the
"companionship" of his children, it did so in the context of a
parent's right to the custody and care of a minor child. See
id. at 651. We find nothing in Supreme Court case law to
indicate an intention to extend these concerns in support of a
constitutional liberty interest in a parent's relationship with
her adult son. Indeed, two of the three cases on which Terry
Butera relies were also decided in the context of minor (not
adult) children. See Kelson, 767 F.2d at 652-54; Estate of
Bailey, 768 F.2d at 505, 509 n.7. In the third case, see Bell,
746 F.2d at 1245, the Seventh Circuit relied largely on the
same Supreme Court cases that this court cited in Franz, as
well as on others that focus on parents' relationships with
their minor children, to reject the notion that "a constitutional
line based solely on the age of the child should be drawn."
Id.22

This circuit has indicated that it is not prepared to adopt
the interpretation that the Seventh Circuit espoused in Bell.
In an addendum to Franz, the court acknowledged different
constitutional treatment when the parent-child relationship
involves two adults:

When children grow up, their dependence on their par-
ents for guidance, socialization, and support gradually
diminishes. At the same time, the strength and impor-
tance of the emotional bonds between them and their
parents usually decrease. Concededly, the bond between
_____________
22 In addition to Stanley and Prince, the Bell court cites Caban
v. Mohammed, 441 U.S. 380, 394 (1979) and Quilloin v. Walcott, 434
U.S. 246, 255 (1978). Both cases deal with parental interests in
minor children in the context of adoption.
 a parent and child when the child is an adult usually
bears some resemblance to the same bond when the child
was a minor. But, as a long line of Supreme Court cases
attests, the differences between the two stages of the
relationship are sufficiently marked to warrant sharply
different constitutional treatment.

Franz v. United States, 712 F.2d 1428, 1432 (D.C. Cir. 1983)
(citation omitted). While the court acknowledges the impor-
tance of the parent-child relationship regardless of the child's
age, and the court does not minimize the devastating loss that
a parent can experience from the death of an adult child, this
consideration, in view of circuit precedent, is insufficient to
establish a constitutional liberty interest under s 1983. We
do not think Franz can be read as broadly as the district
court and Terry Butera suggest. Neither do we think the
Supreme Court cases and other authorities on which Bell
relied can be read to support Terry Butera's constitutional
claim. Therefore, we hold that a parent does not have a
constitutionally-protected liberty interest in the companion-
ship of a child who is past minority and independent. Conse-
quently, the district court erred in denying summary judg-
ment on Terry Butera's due process claim.23

For these reasons, we hold that the District of Columbia
and the four officers were entitled to summary judgment on
both Eric and Terry's Butera's s 1983 claims. The officers
were entitled to qualified immunity regarding Eric Butera's
constitutional claim; further, Terry Butera did not have a
constitutional right to the companionship of her adult son.
Accordingly, we reverse the district court's order denying
judgment as a matter of law and vacate the compensatory
__________
.23 Because we hold that a parent-child relationship between two
indepedent adults does not invoke constituitonal 34companionship34
interests, we do not reach the District of Columbia's contention that
Terry Butera's claim fails because the District of Columbia's actions
were not intentionally directed or aimed at her relationship with her
son. See generally Harbury, 2000 WL 1769100, at *9.
damages award on the s 1983 claims.24

III.

Punitive Damages. The District of Columbia contends
that the evidence presented by Terry Butera does not meet
the stringent evidentiary standard under District of Columbia
law for awarding punitive damages against the individual
officers. It further contends that, as a matter of District of
Columbia law, punitive damages may not be awarded against
the District in this case. We conclude that the District's
evidentiary challenge is wanting, see Barbour v. Merrill, 48
F.3d 1270, 1276 (D.C. Cir. 1995), and that the district court
erred in declining to vacate the punitive damages award
against the District.25

A. The Individual Officers. "In the District of Columbia,
with rare exceptions, punitive damages [against individuals]
are available only for intentional torts." Jemison v. National
Baptist Convention, U.S.A., Inc., 720 A.2d 275, 285 n.9 (D.C.
1998); see also Bernstein v. Fernandez, 649 A.2d 1064, 1073
(D.C. 1991); Washington Med. Ctr. v. Holle, 573 A.2d 1269,
1284 (D.C. 1990). "Punitive damages are warranted only
when the defendant commits a tortious act accompanied with
fraud, ill will, recklessness, wantonness, oppressiveness, wilful

__________
24 Because summary judgment was warranted on Eric and
Terry Butera's civil rights claims, we do not address the contentions
of the District of Columbia that the s 1983 compensatory damages
award was excessive and that the verdict awarded "double recov-
ery" to Eric Butera's estate.

25 The jury did not allocate its punitive damages award among
the constitutional and statutory claims brought by Terry Butera.
On appeal, the District of Columbia has not contended that, if the
court vacates the $70 million compensatory award under s 1983, it
is entitled either to remittitur of the punitive damages awards or to
a new trial on damages. Absent such a contention, and because
"[a]n award of punitive damages cannot stand alone, unaccompanied
by compensatory damages," Bernstein v. Fernandez, 649 A.2d 1064,
1073 (D.C. 1991), we attribute the punitive damages award to Terry
Butera's Survival Act and Wrongful Death Act claims.

disregard of the plaintiff's right, or other circumstances tend-
ing to aggravate the injury." Jonathan Woodner Co. v.
Breeden, 665 A.2d 929, 938 (D.C. 1995) (quoting Washington
Med. Ctr., 573 A.2d at 1284). Thus, to obtain punitive
damages under District of Columbia law, Terry Butera must
"prove, by a preponderance of the evidence, that the [officers]
committed a tortious act, and by clear and convincing evi-
dence that the act was accompanied by conduct and a state of
mind evincing malice or its equivalent." Jonathan Woodner
Co., 665 A.2d at 938. A jury may "infer the requisite state of
mind from the surrounding circumstances." Jemison, 720
A.2d at 285-86. Consistent with this standard, the district
court instructed the jury that it could award punitive dam-
ages

only if the plaintiff has proved with clear and convincing
evidence: One, that the defendant[s] acted with evil
motive, actual malice, deliberate violence or oppression,
or with intent to injure, or willful disregard for the rights
of Eric Butera; and Two, that the defendants' [sic]
conduct itself was outrageous, grossly fraudulent or reck-
less toward the safety of Eric Butera.

The district court further instructed the jury that it could
"conclude that the [officers] acted with a state of mind
justifying punitive damages based on direct evidence or based
on circumstantial evidence."

In light of the evidence presented by Terry Butera, as well
as the District of Columbia's admissions at trial, a reasonable
jury could conclude that the officers were reckless toward
Eric Butera's safety. The officers sent Eric Butera, un-
watched and unmonitored, into a housing complex that they
should have realized was a source of criminal narcotics sales
and violence; in so doing, they never made the requisite
threshold evaluation of the need to use a citizen as a police
operative and thereby expose him to potential danger. Not
only did the officers fail to take obvious precautionary steps,
such as consulting with the MPD narcotics and special inves-
tigations units, they failed to consult with the MPD First
District to determine whether there were ongoing or recent

operations in the area of the Greenleaf Gardens housing
complex that might interfere with or increase the danger
involved in the planned undercover operation. The evidence
before the jury revealed that the officers did not notify Eric
Butera of possible police activity or police concerns in the
area, including a drug-related arrest that had occurred at the
same location on the previous night. Furthermore, while
executing the operation, the officers did not arrange for
monitoring or signaling devices, much less visual, auditory, or
electronic surveillance from a rooftop, window, or other loca-
tion. Because of carelessness with respect to Eric Butera's
safety, the officers were not in a position to come to his aid
when he was brutally attacked. Not until forty minutes after
Eric Butera headed toward the house, when, as a result of the
arrival of police officers unrelated to the undercover opera-
tion, were the officers in a position to know what had hap-
pened to him; by that time, it was too late to save Eric
Butera's life.

From the entirety of the evidence, the jury could reason-
ably have inferred that the officers' actions were impelled by
ambition for professional advancement, heedless of Eric But-
era's safety. See Jemison, 720 A.2d at 285-86. There was
testimony about the detectives getting credit for solving the
high-profile Starbucks murders from which such an inference
could reasonably be drawn. That the jury did not return a
verdict in favor of Terry Butera's claim for intentional inflic-
tion of emotional distress does not lessen the force of the
evidence regarding the officers' conduct toward Eric Butera.
Thus, because no contention is made of error in the jury
instructions or of excessiveness of the punitive damages
awards against the officers, the court has no basis to conclude
that the district court erred in declining to vacate the punitive
damages awards against the officers.26

__________
26 Although the District of Columbia asserted in moving for
judgment as a matter of law under Rule 50, or for a new trial and
vacatur or remittitur of the damages awards under Rule 59, that
the punitive damages awards against the officers were grossly
excessive, no such contention is made on appeal.

 B. The District of Columbia. In City of Newport v. Fact
Concerts, Inc., 453 U.S. 247 (1981), the Supreme Court stated
that "a municipality is immune from punitive damages" under
s 1983. Id. at 271. The District of Columbia is a municipal
corporation. See D.C. Code s 1-102 (1999 Repl.). In addi-
tion, this court and the District of Columbia Court of Appeals
have held that, absent "extraordinary circumstances," puni-
tive damages are unavailable against the District of Columbia
under District of Columbia law. Atchinson v. District of
Columbia, 73 F.3d 418, 425 (D.C. Cir. 1996); see also Finkel-
stein v. District of Columbia, 593 A.2d 591, 599 (D.C. 1991)
(en banc). The term "extraordinary circumstances" is a term
of art in this context. In Daskalea v. District of Columbia,
227 F.3d 433 (D.C. Cir. 2000), the court, following Fact
Concerts, clarified the meaning of "extraordinary circum-
stances" to refer to circumstances such as "where a jurisdic-
tion's taxpayers are directly responsible for perpetrating the
policies that caused the plaintiff's injuries" or "where a mu-
nicipality or its policymakers have intentionally adopted the
unconstitutional policy that caused the damages in question."
Id. at 447. Terry Butera has made no such showing here.

Contrary to Terry Butera's contention that there was am-
ple evidence of an "officially sanctioned cover-up" of the
officers' wrongdoing and of "condonation" by the officers'
superiors, she has made no showing that the District of
Columbia policymakers intentionally adopted an unconstitu-
tional policy. That none of the officers was disciplined in
connection with the undercover operation does not show that
the District of Columbia condoned their conduct or attempted
to deny that the officers were at fault; the District of
Columbia's admissions to the jury are to the contrary. Still,
the jury found that the evidence was insufficient to hold the
District of Columbia liable for violation of Eric and Terry
Butera's claimed civil rights under s 1983. In addition,
Terry Butera's contention that the jury's finding that the
officers engaged in willful misconduct translates into a finding
of willful misconduct by the District of Columbia is unavail-
ing. All of the District of Columbia's actions and policies are

performed through agents. If these agents' actions were
always attributable to the District of Columbia, the holdings
in Fact Concerts and Daskalea, emphasizing the very limited
circumstances in which a court will award punitive damages
against the District of Columbia, would be undermined.27

IV.

Claims under Survival Act and Wrongful Death Act. Re-
garding the verdicts under the Survival and Wrongful Death
Acts, the District of Columbia contends that the district court
erred first, in ruling that Terry Butera's expert witness
established a national standard of care, see Butera II, 83 F.
Supp. 2d at 28-29, and second, in denying the District of
Columbia's pretrial request for a substitute expert on police
practices.28

A. National Standard of Care. Under District of Colum-
bia law, "[t]he plaintiff in a negligence action bears the
burden of proof on three issues: 'the applicable standard of
care, a deviation from that standard by the defendant, and a
causal relationship between that deviation and the plaintiff's
injury.' " Toy v. District of Columbia, 549 A.2d 1, 6 (D.C.
1988) (quoting Meek v. Shepard, 484 A.2d 579, 581 (D.C.
1984)); see also Messina v. District of Columbia, 663 A.2d
535, 537-38 (D.C. 1995). To prove that a defendant deviated
from the standard of care, a plaintiff need not rely on expert
testimony "where the alleged negligent act is 'within the

__________
27 Because Daskalea, 227 F.3d at 447, bars the award of
punitive damages against the District of Columbia, we do not reach
the District of Columbia's contention that the award was unconstitu-
tionally excessive under BMW of North America, Inc. v. Gore, 517
U.S. 559 (1996), and "infected" by the admission of prejudicial
evidence (Exhibit 214) concerning the finances of the District of
Columbia.

28 The District of Columbia does not contend that it is entitled
to reversal of the judgments on the statutory claims because those
judgments were premised solely on the validity of the s 1983 claims
against the officers. See District of Columbia v. Evans, 644 A.2d
1008 (D.C. 1994).

realm of common knowledge and everyday experience.' "
Toy, 549 A.2d at 6 (quoting District of Columbia v. White, 442
A.2d 159, 164 (D.C. 1982)); see also Daskalea, 227 F.3d at
445. A plaintiff must, however, "put on expert testimony to
establish what that standard of care is if the subject in
question is so distinctly related to some science, profession, or
occupation as to be beyond the ken of the average layperson."
Messina, 663 A.2d at 538 (quoting District of Columbia v.
Peters, 527 A.2d 1269, 1273 (D.C. 1987)). The district court
ruled that expert testimony concerning proper police proce-
dures for the undercover operation was warranted in the
instant case. See Butera II, 83 F. Supp. 2d at 29 n.2.

To establish a national standard of care, an expert must do
more than rely on his own experience or "simply ... declare
that the District violated the national standard of care."29
Clark v. District of Columbia, 708 A.2d 632, 635 (D.C. 1997);
see also Toy, 549 A.2d at 7-8. The expert must refer to
commonly used police procedures, identifying specific stan-
dards by which the jury could measure the defendant's

__________
29 We do not reach the district court's suggestion that a nation-
al standard of care might not have been necessary in this case. See
Butera II, 83 F. Supp. 2d at 29. While Clark v. District of
Columbia, 708 A.2d 632, 635 (D.C. 1997), states that, "[i]n the
context of actions against the District by persons in its custodial
care, [the District of Columbia Court of Appeals has] been demand-
ing in requiring proof of a national standard of care," id. at 635, the
cases on which Clark relies do not appear to impose such a
requirement. See, e.g., District of Columbia v. Moreno, 647 A.2d
396, 399-400 (D.C. 1994); District of Columbia v. Carmichael, 577
A.2d 312, 315 (D.C. 1990); Toy, 549 A.2d at 6-9. In these cases,
plaintiffs simply presented experts who purported to establish a
national standard of care; the court did not expressly hold that a
national standard was a necessary part of the plaintiff's burden of
establishing the "applicable standard of care." Toy, 549 A.2d at 6.
As in Moreno, Carmichael, and Toy, Terry Butera offered Mr.
Bradley "as an expert in the national standard of care in police
procedures," Butera II, 83 F. Supp. 2d at 30, and that is how the
case was tried. Hence, we examine whether her expert witness
established a national standard of care, without suggesting that
Terry Butera was acting pursuant to a court-imposed requirement.

actions. See Scott v. District of Columbia, 101 F.3d 748, 758
(D.C. Cir. 1996); Doe v. Dominion Bank of Washington, 963
F.2d 1552, 1563 (D.C. Cir. 1992); Phillips v. District of
Columbia, 714 A.2d 768, 775 (D.C. 1998); District of Colum-
bia v. Bethel, 567 A.2d 1331, 1333 (D.C. 1990); Toy, 549 A.2d
at 7-8; Peters, 527 A.2d at 1273. In so doing, however, the
expert need not "enumerate the facilities across the country
at which that standard is in effect." District of Columbia v.
Wilson, 721 A.2d 591, 599 (D.C. 1998); see also Dominion
Bank of Washington, 963 F.2d at 1563.

In light of these requirements, the district court could
properly find that Terry Butera's expert witness, Mr. James
Bradley, presented sufficient evidence to establish a national
standard of care. Terry Butera presented Mr. Bradley as an
expert based on his twenty-five years' experience at the
MPD, which included experience as a control officer for
undercover drug purchases and participation with federal
agencies in undercover operations. Rather than relying on
this experience in the abstract to proffer a national standard
of care, Mr. Bradley set forth concrete bases for his expert
testimony: his consultation with police officers in Prince
George's County, his review of the MPD's General Orders,
and his examination of the U.S. Department of Justice Drug
Enforcement Administration Handbook and Manual, and the
Narcotics Investigators' Manual of the Institute of Police
Technology and Management, University of North Florida,
which provides training for police officers. See Butera II, 83
F. Supp. 2d at 28-29. This is a far cry from the expert
witnesses at issue in the cases that the District of Columbia
cites. In Toy, 549 A.2d at 8, for example, the expert did not
rely on any written product when presenting his expert
opinion. Similarly, in District of Columbia v. Carmichael,
577 A.2d 312 (D.C. 1990), the expert did not "identify any
concrete standard upon which a finding of negligence could be
based." Id. at 315. In contrast, Mr. Bradley's testimony was
much more than a simple assertion of "what he ... would do
under similar circumstances." Messina, 663 A.2d at 538
(quoting Toy, 549 A.2d at 7). Hence, the District of Colum-
bia's sufficiency challenge fails.

 B. Substitute Expert Witness. The district court granted
Terry Butera's motion to strike as a witness Detective John-
ny St. Valentine Brown, the expert whose testimony the
District of Columbia and the officers planned to present, for
two reasons. First, there was evidence indicating that the
attorney for the District of Columbia, rather than Detective
Brown, wrote his expert witness report, in possible violation
of Fed. R. Civ. P. 26(a)(2)(B).30 Second, Detective Brown had
falsified his educational credentials during his deposition.
Although the June 4, 1999 deadline for designating new
experts had passed, the District of Columbia moved orally
during a July 7, 1999 pretrial conference, and then in writing
on July 28, 1999, for leave to replace the stricken expert
witness. Noting "surprise[ ]" that Detective Brown "may
have misrepresented his credentials," the District of Colum-
bia argued that it would be "incurably prejudiced if [it] were
denied the opportunity to present expert testimony regarding
the applicable standards of care." Moreover, the District of
Columbia argued that Terry Butera would not be prejudiced
if the court allowed a substitute expert, because the district
court had continued the trial date from July 26 to October 5
in response to Terry Butera's July 20, 1998 motion for a

__________
30 Rule 26(a)(2)(B) provides in relevant part:

Except as otherwise stipulated or directed by the court, [the
disclosure of expert testimony] shall, with respect to a witness
who is retained or specially employed to provide expert testi-
mony in the case ..., be accompanied by a written report
prepared and signed by the witness. The report shall contain
a complete statement of all opinions to be expressed and the
basis and reasons therefor; the data or other information
considered by the witness in forming the opinions; any exhibits
to be used as a summary of or support for the opinions; the
qualifications of the witness, including a list of all publications
authored by the witness within the preceding ten years; the
compensation to be paid for the study and testimony; and a
listing of any other cases in which the witness has testified as
an expert at trial or by deposition within the preceding four
years.

Fed. R. Civ. P. 26(a)(2)(B).

default judgment or continuance as a result of an allegedly
"crucial" document that was not turned over during discov-
ery.

The district court denied the District of Columbia's motion.
It concluded that first, the named expert had misrepresented
his qualifications; second, the "District of Columbia probably
should have been aware of its own employee's educational
background;" and third, while under Rule 26(a)(2)(B) an
attorney may "assist" in the preparation of an expert's report,
the actual preparation of the report goes "beyond mere
assistance." We review the district court's preclusion of
expert testimony for abuse of discretion. See United States
v. Hall, 969 F.2d 1102, 1110 (D.C. Cir. 1992). "Even if we
find error, we will not reverse an otherwise valid judgment
unless [the District of Columbia] demonstrates that such
error affected [its] 'substantial rights.' " Whitbeck v. Vital
Signs, Inc., 159 F.3d 1369, 1372 (D.C. Cir. 1998) (citation
omitted).

In evaluating the district court's preclusion of expert testi-
mony for the District of Columbia, our decisions addressing
Fed. R. Civ. P. 37 are instructive.31 The court has noted that
"[a] district court may order sanctions, including a default
judgment, for misconduct either pursuant to Rule 37(b)(2) ...
or pursuant to the court's inherent power to 'protect [its]
integrity and prevent abuses of the judicial process.' " Webb
v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998)
(quoting Shepherd v. American Broad. Cos., 62 F.3d 1469,
1474 (D.C. Cir. 1995)). These preclusionary orders ensure
that a party will not be able to profit from its own failure to
comply with the rules set forth by the court. See, e.g.,

__________
31 Rule 37 provides in relevant part:

(b)(2) Sanctions by Court in Which Action is Pending.

If a party ... fails to obey an order to provide or permit
discovery ... or if a party fails to obey an order entered under
Rule 26(f), the court in which the action is pending may make
such orders in regard to the failure as are just....

Fed. R. Civ. P. 37(b)(2).

Dellums v. Powell, 566 F.2d 231, 235 (D.C. Cir. 1977). Where
the failure to comply is not due to willful bad faith or fault of
the disobedient party, however, the harshest sanction of
dismissal of the action, or preclusion of evidence, which is
tantamount to dismissal, is inappropriate. See Societe Inter-
nationale Pour Participations Industrielles et Commerciales
v. Rogers, 357 U.S. 197, 212 (1958); Bonds v. District of
Columbia, 93 F.3d 801, 808-10 (D.C. Cir. 1996).

The court has identified three justifications for the imposi-
tion of defaults or dismissals as sanctions for misconduct: (1)
prejudice to the other party, (2) prejudice to the judicial
system requiring the district court "to modify its own docket
and operations to accommodate the delay," and (3) the need
"to sanction conduct that is disrespectful to the court and to
deter similar conduct in the future." Webb, 146 F.3d at 971
(quoting Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1074-77
(D.C. Cir. 1986)); see also Bonds, 93 F.3d at 808; Weiner v.
Kneller, 557 A.2d 1306, 1311-12 (D.C. 1989). Because Terry
Butera does not identify how she would have been prejudiced
by a substitute expert witness, and the district court had
already continued the trial date for three months, we focus on
the third justification.

Regarding the need for a sanction, the district court faced
competing considerations. On one hand, the district court
was confronted with perjury by the District of Columbia's
named expert, a perceived violation of Rule 26 by the District
of Columbia's attorney, and an untimely motion by the Dis-
trict of Columbia. The district court was clearly troubled by
the misconduct of the attorney in writing the entirety of
Detective Brown's report, which the court considered a viola-
tion of Rule 26, and which the District of Columbia does not
contest on appeal. In addition, the District of Columbia's
motion, which did not identify the substitute witness or set
forth in detail the nature of his testimony, was untimely.
Under these circumstances, the district court would have
broad discretion to exclude the substituted testimony. See
Pride v. Bic Corporation, 218 F.3d 566, 578-79 (6th Cir.
2000). The district court could understandably have been
reluctant to reward the District of Columbia for Detective

Brown's perjury. On the other hand, the District of Colum-
bia was apparently caught unaware, particularly as Detective
Brown had been an expert witness for the United States in
criminal prosecutions for many years. See, e.g., United
States v. Toms, 136 F.3d 176, 184 (D.C. Cir 1998); Hall, 969
F.2d at 1109. Expert testimony was important in this case,
see Toy, 549 A.2d at 8, and the absence of an expert witness
for the District of Columbia could have rendered the trial
imbalanced.

In some cases, the preclusion of expert testimony would be
tantamount to a default judgment, and thus constitute an
abuse of discretion. See Bonds, 93 F.3d at 808-09. But this
is not such a case. In assessing the prejudice to the District
of Columbia as a result of the preclusion of expert testimony
on police practices, the court is confronted with the District of
Columbia's trial admissions, which are devastating. The Dis-
trict of Columbia admitted to the jury that it failed (1) to take
all possible precautions to ensure Eric Butera's safety; (2) to
equip Eric Butera with surveillance or signaling devices; (3)
to seek the assistance of other MPD units or special divisions
in conducting the undercover operation; and (4) to inform
Eric Butera of the potential risk of harm. It further admit-
ted that the MPD assured Eric Butera that if he agreed to
assist the MPD by playing an undercover role, the MPD
would protect him from harm, would carefully watch and
monitor him throughout the process, and would be standing
closely by with sufficient resources to ensure his safety. In
addition, there was abundant testimony indicating that the
undercover operation was seriously flawed, starting with the
admitted failure of the officers to conduct a comprehensive
evaluation of the need to involve a citizen in an undercover
operation, as required by MPD policy. Moreover, MPD
General Orders and policies outlining the use of informants
were in evidence. Consequently, it seems extremely doubtful
that an expert for the District of Columbia on police practices
would have mitigated the prejudice arising from the incrimi-
nating evidence that was before the jury. Nothing that the
District of Columbia contends on appeal suggests to the
contrary.

 Accordingly, we affirm the district court's denial of judg-
ment as a matter of law on Terry Butera's statutory claims
and on the punitive damages awards against the individual
officers. We reverse the denial of summary judgment on
Eric and Terry Butera's constitutional tort claims, and on the
punitive damages award against the District of Columbia.