United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2006 Decided December 29, 2006
No. 05-5263
DERREK E. ARRINGTON
APPELLANT
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv01391)
Richard H. Frankel, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on the
briefs were Steven H. Goldblatt, Director, and Ariana Torchin
and Elizabeth Glasgow, Student Counsel.
Derrek E. Arrington, pro se, filed a brief.
Beverly M. Russell, Assistant U.S. Attorney, argued the
cause for appellees. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and
Craig Lawrence, Assistant U.S. Attorney. Michael J. Ryan,
Assistant U.S. Attorney, entered an appearance.
2
Stacy L. Anderson, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the cause
for appellees. With her on the brief were Robert J. Spagnoletti,
Attorney General, Todd S. Kim, Solicitor General, and Edward
E. Schwab, Deputy Attorney General. Mary L. Wilson,
Assistant Attorney General, entered an appearance.
Before: TATEL and BROWN, Circuit Judges, and EDWARDS,
Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
Concurring and dissenting opinion filed by Circuit Judge
BROWN.
EDWARDS, Senior Circuit Judge: Derrek E. Arrington,
appellant, filed a lawsuit in District Court seeking relief under
the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b),
2671-2680 (2000), and 42 U.S.C. § 1983 (2000), for alleged
police brutality. The District Court granted summary judgments
in favor of appellees – the United States, on behalf of the
United States Park Police (“USPP”), and Sergeant Rick Murray
of the District of Columbia Metropolitan Police Department
(“MPD”) – and Arrington now appeals. Appellant also alleged
common law tort violations against the District of Columbia.
The District Court held that these claims against the District
were barred by appellant’s failure to file a timely D.C. CODE §
12-309 (2001) notice of intent to sue. Appellant does not
challenge that judgment on appeal.
Appellant acknowledges that he inappropriately engaged
police officers by fleeing from a lawful traffic stop. He claims,
however, that after he was pursued by officers, and eventually
captured, restrained, disarmed, and handcuffed, Murray and
members of the USPP beat him severely for approximately ten
minutes, in violation of District of Columbia law and his
constitutional rights. Appellees do not dispute using exceptional
3
force against appellant, but justify their actions as necessary to
disarm appellant, who they believed had just shot a USPP
officer.
The District Court also granted summary judgment in favor
of the United States, finding that “the undisputed material facts
establish that the police officers’ conduct was reasonable under
the circumstances.” Arrington v. U.S. Park Police, No. Civ. A.
01-1391, 2005 WL 1076186, at *1 (D.D.C. May 6, 2005). And,
finally, the District Court granted summary judgment in favor of
Sergeant Murray, holding that he was entitled to qualified
immunity. Arrington v. U.S. Park Police, No. Civ. A. 01-1391
(D.D.C. May 26, 2005).
The principal question in this case is whether the officers
who inflicted bodily harm on appellant employed more force
than was reasonably necessary. We find that the evidence
before the District Court, viewed in the light most favorable to
appellant, creates a genuine issue of material fact as to whether
appellant was severely beaten by the officers after he had been
captured, restrained, disarmed, and handcuffed. Obviously, if
appellant was completely detained and rendered helpless before
being brutally beaten, then a reasonable jury could return a
verdict for him. There is a genuine issue of material fact on this
matter. And because the resolution of this issue involves
credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts, it is
inappropriate for summary judgment. We therefore reverse and
remand.
I. BACKGROUND
In April 2000, a vehicle driven by appellant was stopped by
USPP officers John Daniels and Martin Yates when they noticed
that the car displayed no front license plate. After appellant was
stopped, the officers saw a cellophane “ziplock” bag on the
passenger side floorboard and thought that the bag might contain
4
narcotics. Yates asked the passenger in appellant’s car to hand
him the bag. After the passenger complied, Yates confirmed
that the bag contained cocaine. Daniels then ordered appellant
to exit the vehicle. Instead of following the officer’s instruction,
appellant drove the car away from the scene of the stop,
dragging Daniels approximately 75 yards before the officer
could free himself. Once Daniels was free, he joined Yates in
their vehicle and pursued appellant. While driving at a high
speed, appellant lost control of his vehicle and collided with a
median. Appellant quickly abandoned the disabled vehicle and
ran from the pursuing officers, armed with a .380 caliber
firearm.
Sergeant Rick Murray, who was heading home in a marked
MPD police car, saw appellant crash his vehicle and then run,
followed by Daniels, also on foot. Murray stopped his vehicle
and joined the pursuit. The chase ended when Daniels caught
appellant trying to climb a fence into a residential backyard. At
this point, the stories diverge.
Appellant claims that Daniels caught him and slammed him
against the fence, causing appellant to drop his weapon to the
ground. Then, according to appellant, the officers threw him
face down on the ground, handcuffed him with his hands behind
his back, and proceeded to beat him about the ribs, back, and
head. Appellant says that he was absolutely helpless while
being beaten by several officers. He also claims that the beating
inflicted on him was so severe that it caused him to drift in and
out of consciousness. He allegedly awoke to the pain of a dog
biting his leg. By appellant’s account, the officers beat him
nonstop for approximately ten minutes. Appellant disclaims
shooting his weapon at officer Daniels. Rather, he maintains
that the gun he was carrying accidently discharged, resulting in
the officer’s gunshot wound.
Appellees offer a different account of the events at issue.
According to appellees, Daniels pulled appellant off of the fence
5
and Murray punched appellant in the ribs two or three times in
order to restrain and handcuff him. Before the officers could
handcuff appellant, he allegedly raised his arm toward Daniels
and fired his weapon, shooting Daniels in the face. Murray
claims that he then tackled appellant to the ground and held him
in a bear hug but could not dislodge the weapon. Yates arrived
at the scene to find Daniels slumped against a fence and Murray
struggling with appellant. Murray allegedly told Yates to shoot
appellant, because appellant had a gun. Yates claims that
instead of shooting appellant, he struck him on the head a
number of times with his service weapon but still could not
disarm him. USPP Officer Russell Kidd then arrived at the
scene and allegedly saw appellant lying face down with both
Murray and Yates on top of him. Yates claims that he told Kidd
that appellant had a gun and Kidd, in yet another alleged attempt
to disarm appellant, struck appellant on the head with a
compressed telescopic baton. Appellees claim that, despite
these continuous beatings, appellant still refused to surrender his
weapon. Officer Michael Peer of the USPP Canine Unit joined
the four officers already on the scene with a patrol dog. Peer
allegedly instructed the dog to apply controlled bites to
appellant’s leg. Appellees say that it took almost ten minutes
before Murray could disarm appellant.
“On May 10, 2000, Arrington was indicted on four counts
of violating federal law. Count 1 charged him with using [his
vehicle as] a dangerous weapon to forcibly assault, resist,
oppose, impede, intimidate, or interfere with three federal
officers engaged in the performance of their duties, in violation
of 18 U.S.C. § 111(a) and (b). Count 2 charged him with
attempting to murder a federal officer, in violation of 18 U.S.C.
§ 1114. Count 3 accused Arrington of discharging a firearm
during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii). And Count 4 charged him with unlawfully
possessing a firearm as a convicted felon, in violation of 18
U.S.C. §§ 922(g) and 924(a)(2).” United States v. Arrington,
6
309 F.3d 40, 42 (D.C. Cir. 2002). “The jury convicted
Arrington on Counts 1 and 4, but deadlocked on Counts 2 and
3 – the attempted murder and discharging-a-firearm counts. The
latter two counts were retried twice (along with a new,
additional count), each trial ending in deadlock. After the third
trial, the government dismissed the outstanding counts.” Id. at
43.
II. ANALYSIS
A. Standard of Review
We review de novo a district court’s decision to grant
summary judgment. George v. Leavitt, 407 F.3d 405, 410 (D.C.
Cir. 2005); Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir.
2004). Summary judgment may be granted only if “there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A
dispute over a material fact is “genuine” if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.” Id. at 248. And, with respect to materiality, “the
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Id.
Although a jury might ultimately decide to credit the
version of the events described by defendants over that offered
by the plaintiff, “this is not a basis upon which a court may rest
in granting a motion for summary judgment.” George, 407 F.3d
at 413. “[A]t the summary judgment stage the judge’s function
is not himself to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249. “Credibility determinations,
the weighing of the evidence, and the drawing of legitimate
7
inferences from the facts are jury functions, not those of a
judge” ruling on a motion for summary judgment. Id. at 255.
And, in assessing a motion for summary judgment, a court must
view all of the evidence in the light most favorable to the
nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970); Kaempe, 367 F.3d at 965.
B. Threshold Issues Regarding Jurisdiction and the Scope of
Review
Before undertaking our review of appellant’s challenge to
the summary judgments in favor of appellees, we must first
consider two threshold issues. First, the District of Columbia
and Sergeant Murray argue that this court lacks jurisdiction to
consider the District Court’s May 26, 2005 judgment in their
favor, because, in his notice of appeal, appellant challenged only
the judgment in favor of the United States. Second, the United
States argues that, because appellant never provided the District
Court with a statement of genuine issues in support of his
opposition to summary judgment as required by Local Civil
Rule 7(h), the facts as presented by appellees stand
uncontroverted. For the reasons noted below, we reject each of
these claims in turn.
1. This Court’s Jurisdiction To Review the Judgment
Rendered in Favor of Sergeant Murray
Murray seeks dismissal of the appeal against him on
jurisdictional grounds, claiming that appellant failed to file
timely notice of appeal. See FED. R. APP. P. 3. In particular, he
contends that appellant filed two notices of appeal, neither of
which purported to appeal the District Court’s May 26, 2005
grant of summary judgment in his favor. Therefore, according
to Murray, this court lacks jurisdiction, because appellant failed
to “designate the judgment, order, or part thereof being
appealed.” FED. R. APP. P. 3(c)(1)(B).
8
Appellant, acting pro se, filed two documents titled “Notice
of Appeal,” one apparently self-created and the other using a
court template. Joint Appendix (“J.A.”) 113-15. The second
notice refers to the date of the order of summary judgment in
favor of the United States, but by its language appeals from an
order “in favor of [the] United States of America and the District
of Columbia.” J.A. 115. This was clearly adequate to satisfy
the requirements of Federal Rule of Appellate Procedure 3.
In Martinez v. Bureau of Prisons, 444 F.3d 620 (D.C. Cir.
2006), we recognized jurisdiction where we could reasonably
discern that a would-be appellant wished to appeal multiple
orders although his notice of appeal referred only to a single
order. The court, cognizant of the fact that “appellant was
proceeding pro se,” held that his “intention to appeal from both
rulings of the district court [could] be fairly inferred from his
notice of appeal and no appellee [was] prejudiced.” Id. at 623.
The same is true here. On appeal, Sergeant Murray is
represented by the Attorney General for the District of
Columbia, “who has presented [his] arguments and shown no
evidence that [he] would be prejudiced if appellant’s challenges
to the [May 26, 2005] order were addressed by this court.” Id.
On the record here, we can easily infer appellant’s intent to
appeal both orders of the District Court with respect to both
current appellees, so Federal Rule of Appellate Procedure
3(c)(1)(B) does not bar his appeal. See also 16A CHARLES
ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER,
FEDERAL PRACTICE AND PROCEDURE § 3949.4 (3d ed. 1999)
(“Defects in the wording of the notice of appeal are generally
overlooked if the true intentions of the appellant can fairly be
ascertained, if the courts have not been misled, and if the other
parties have suffered no prejudice.”).
9
2. The Applicability of Local Rule 7(h) in Defining the
Scope of Review
The United States argues that “Appellant neither provided
a statement of genuine issues in support of his opposition to
summary judgment as required by Local Civil Rule 7(h), nor
urged a different standard. Accordingly, given Appellant’s
omission, the District Court was not presented with any factual
issues properly in dispute. And, because Appellant failed to
argue that a different standard should be applied, he waived this
new argument on appeal.” Br. for Appellee United States at 13
(internal citation omitted). This is a specious argument. The
United States readily concedes that “the District Court did not
treat Appellee United States’ statement of material facts not in
dispute as conceded, [but] instead, reviewed Appellant’s claims
on the merits in light of the evidence presented by the parties.”
Id. at 17. This concession says it all.
Rule 7(h) permits, but does not require, the District Court
to “assume that facts identified by the moving party in its
statement of material facts are admitted, unless such a fact is
controverted in the statement of genuine issues filed in
opposition to the motion.” LCVR 7(h). Appellant filed a
memorandum in opposition to the motion for summary
judgment, but the filing did not conform to the standards of the
rule. The District Court, however, did not limit its consideration
to, or treat as admitted, the facts contained in appellees’
statement of material facts. In assessing appellees’ motions for
summary judgment, the District Court acted within its discretion
in reviewing the entire record.
“This circuit has long upheld strict compliance with the
district court’s local rules on summary judgment when invoked
by the district court.” Burke v. Gould, 286 F.3d 513, 517 (D.C.
Cir. 2002); see also Jackson v. Finnegan, Henderson, Farabow,
Garrett & Dunner, 101 F.3d 145, 150-51 (D.C. Cir. 1996)
(discussing Rule 7(h)’s predecessor rule). But when, as here,
10
the local rule “does not require the district court to enter
judgment because of the nonmoving party’s default in
complying with the local rule,” Burke, 286 F.3d at 518, “we
review the grant of summary judgment in light of [the]
requirements” of Federal Rule of Civil Procedure 56, id. at 519-
20. We therefore reject the claim by the United States that the
facts as presented by appellees stand uncontroverted.
C. Because There Is a Genuine Dispute As to a Material
Fact, Appellees Are Not Entitled to Summary Judgment
We review de novo the District Court’s grant of summary
judgment to appellees, viewing all of the evidence in the light
most favorable to appellant. To survive a motion for summary
judgment, the party bearing the burden of proof at trial – in this
case, appellant – must provide evidence showing that there is a
triable issue as to an element essential to that party’s claim. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
principal legal issue in this case is whether the officers who
inflicted severe bodily harm on appellant violated his rights by
using more force than was reasonably necessary. The question
that we face is whether appellant has provided sufficient
evidence to show that there is a genuine issue of material fact
with respect to this legal claim.
The parties agree that appellant’s FTCA assault and battery
claim is governed by District of Columbia law. They also agree
that the controlling legal standard governing a claim against
police officers for assault and battery is set forth in Etheredge v.
District of Columbia, 635 A.2d 908 (D.C. 1993):
A police officer has a qualified privilege to use
reasonable force to effect an arrest, provided that the means
employed are not in excess of those which the actor
reasonably believes to be necessary. Moreover, any person,
including an officer, is justified in using reasonable force to
repel an actual assault, or if he reasonably believes he is in
11
danger of bodily harm. Use of “deadly force,” however, is
lawful only if the user actually and reasonably believes, at
the time such force is used, that he or she (or a third person)
is in imminent peril of death or serious bodily harm.9
9.
“Deadly force” is force which is likely to cause death
or serious bodily harm.
635 A.2d at 916 & n.9 (internal citations and quotation marks
omitted). Etheredge also cites with approval the following
passage from Graham v. Connor, 490 U.S. 386 (1989):
The “reasonableness” of a particular use of force must
be judged from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight. . . .
The calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make
split-second judgments – in circumstances that are tense,
uncertain, and rapidly evolving – about the amount of force
that is necessary in a particular situation.
Id. at 396-97 (internal citations omitted).
With this legal standard in mind, we must consider whether
the evidence before the District Court, viewed in the light most
favorable to appellant, creates a genuine issue as to any material
fact such that a reasonable jury could return a verdict for
appellant. We find that it does.
Appellees do not dispute that, in pursuing and subduing
appellant, the officers struck him with their fists, a telescopic
baton, and a pistol grip, and also ordered a trained police dog to
bite appellant’s leg. The facts that the parties do dispute – and
they are central – are whether, as appellees contend, force was
used to subdue appellant while he was armed and before he was
in handcuffs, or whether, as appellant contends, he was beaten
by police officers after he was captured, restrained, disarmed,
and handcuffed. If appellant’s hands were handcuffed behind
12
his back before the officers inflicted bodily harm on him, as
appellant claims, it stands to reason that appellant was disarmed
before he was beaten. Appellees do not suggest otherwise. And
the materiality of this factual dispute is obvious.
If appellant’s version of facts is accepted as true, there is
little doubt that a jury could find that he satisfies the “excessive
force” standard under Etheredge. In other words, if several
police officers severely and continuously beat up an unarmed
and virtually defenseless man for ten minutes, this would
constitute unlawful “deadly force.” Etheredge, 635 A.2d at 916
n.9. A severe beating for ten minutes is a long time. A single
round of boxing, involving two equally unrestrained combatants,
is only three minutes. A jury could certainly find that no
“reasonable officer” would believe that the brutality here would
be necessary under the circumstances alleged by appellant.
The depositions of the officers involved in appellant’s arrest
confirm the degree of force used. One officer admits repeatedly
striking appellant on the head with a compressed telescopic
baton “with as much force as [he] could muster,” Kidd Dep.
21:15-22:11, Oct. 27, 2004, J.A. 227-28, and another describes
striking appellant with the side of his handgun in a “violent” and
“fast” manner, Yates Dep. 69:12-15, Nov. 10, 2004, J.A. 309.
On the basis of these facts, a jury could reasonably find that the
officers violated District of Columbia law by exercising more
force than they reasonably believed necessary, see Etheredge,
635 A.2d at 916, and violated appellant’s Fourth Amendment
right against unreasonable seizure by using force not
“objectively reasonable in light of the facts and circumstances
confronting them,” Graham, 490 U.S. at 397 (internal quotation
marks omitted).
In its brief to this court, Appellee United States makes the
implausible argument that, even if appellant was handcuffed,
nothing in the record indicates that the officers had knowledge
of that fact. Br. for Appellee United States at 18 n.20. At oral
13
argument, however, counsel for the United States readily agreed
that at least one officer – the one who allegedly handcuffed
appellant – would have known that appellant was handcuffed
while beaten if in fact appellant’s story is true. Tr. of Oral
Argument at 16. Likewise, counsel for Murray conceded that
“it’s obvious that beating a handcuffed man presents a very,
very difficult case for [Sergeant Murray].” Id. at 23. Indeed,
counsel candidly acknowledged that Murray’s case “rise[s] and
fall[s] on the question of whether [appellant] was handcuffed.”
Id. We agree.
Whether other officers also knew that appellant was
handcuffed is a matter to be determined by a finder of fact. In
performing our review of the District Court’s grant of summary
judgment, we need only decide the materiality of the alleged fact
that the officers handcuffed appellant before the administration
of force. We find it unquestionably material.
Our inquiry does not end here, however. Having found a
material disputed fact, we must nonetheless uphold the grants of
summary judgments if there is no genuine dispute as to the
material fact. On this point, appellees argue that “[c]onclusory,
unsubstantiated statements of an opposing party which are
unsupported by specific facts are insufficient to overcome a
summary judgment motion,” Br. for Appellee Murray at 21,
citing Greene v. Dalton, 164 F.3d 671 (D.C. Cir. 1999).
Interestingly, appellant also cites Greene, for the accepted
proposition that a “non-moving party’s affidavit [is] sufficient
to defeat summary judgment in [the] face of contradicting
testimony.” Appellant’s Reply Br. at 25.
Appellant has the better of this duel, because Greene clearly
states that a plaintiff may defeat a summary judgment granted to
a defendant if the parties’ sworn statements are materially
different. On this point, the court stated:
14
In granting summary judgment for the Navy on
Greene’s claim for sexual harassment, the district court
quite clearly invaded the province of the jury. Greene
submitted a sworn affidavit stating that Clause had harassed
and raped her, and that the proffered diary suggesting
otherwise was a forgery. If true, these allegations are
indisputably sufficient to support a verdict against the Navy
under Title VII. The allegations may, of course, be false.
That is a question not for the court, however, but for the
jury.
....
As the party moving for summary judgment, the Navy bears
the initial burden of identifying evidence that demonstrates
the absence of any genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On the
record before us, however, we can determine neither the
point at which Clause’s harassment became severe or
pervasive nor when a reasonable person would have
reported his behavior. A jury may resolve both these issues
in favor of the Navy, but without improperly resolving
disputed issues of fact, we cannot.
Greene, 164 F.3d at 674, 675 (internal citation omitted). Later
in the opinion, the Greene decision notes that “[a]lthough, as a
rule, statements made by the party opposing a motion for
summary judgment must be accepted as true for the purpose of
ruling on that motion, some statements are so conclusory as to
come within an exception to that rule.” Id. at 675. The court
made this point in rejecting the plaintiff’s challenge to the
summary judgment granted in favor of the defendant on her
claim of retaliation. The court found the retaliation claim
“conclusory,” because plaintiff offered nothing more than a
“representation in her affidavit that she applied for summer jobs
in 1996 and 1997 and was not hired although ‘another student,
who had less experience and education was hired back’ in
15
1996.” Id. The court’s affirmance of the summary judgment on
the retaliation claim is unsurprising, because, as the decision
notes, “a jury would be in no position to assess [her] claim of
[superior qualifications].” Id.
The evidence offered by appellant in this case is easily
distinguishable from the conclusory representations offered by
the plaintiff in Greene in support of her retaliation claim.
Appellant’s claim here that he was “thrown to the ground . . . ,
immediately dropped his gun,” and “was then handcuffed and
then beaten while face down,” Plaintiff’s Statement of Material
Facts in Dispute at ¶ 1, J.A. 131, finds support in sworn
deposition testimony filed in the District Court, Arrington Dep.
88:14-95:25, Nov. 16, 2004, J.A. 190-92. Thus, unlike the
plaintiff’s retaliation charge in Greene, appellant here provides
direct testimonial evidence of the violations he now alleges.
Possessed of this testimony, a jury can assess the validity of
appellant’s claims.
As the court noted in reversing the summary judgment for
the defendant with respect to the sexual harassment charge in
Greene, “[a] jury may resolve [the issue] in favor of the
[defendant], but without improperly resolving disputed issues of
fact, we cannot.” Greene, 164 F.3d at 675. The same is true in
this case. See also Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.
2003) (holding that, “[w]here the material facts specifically
averred by one party contradict the facts averred by a party
moving for summary judgment, the motion must be denied.”);
cf. Johnson v. Jones, 515 U.S. 304, 307-08 (1995) (In rejecting
an interlocutory appeal on police officers’ claim of qualified
immunity, the Court pointed to plaintiff’s “deposition, in which
he swore that officers (though he did not name them) had used
excessive force when arresting him and, later, in the booking
room at the station house.”).
On the record at hand, neither the District Court nor this
court can conclude that appellees’ story is truthful and
16
appellant’s story is a fabrication, at least not if all of the
evidence is viewed in the light most favorable to appellant as
required by Federal Rule of Civil Procedure 56(c). As noted
above, “[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge” ruling on a motion for
summary judgment. Anderson, 477 U.S. at 255. There is a
genuine issue of material fact in this case which makes it clear
that appellees are not entitled to a judgment as a matter of law.
D. Officer Murray’s Claims of Qualified Immunity
Appellee Murray seeks affirmance of the District Court’s
judgment in his favor on the grounds of qualified immunity.
When applicable, “[q]ualified immunity under section 1983
shields a state or local official from personal liability.” Estate
of Phillips v. District of Columbia, 455 F.3d 397, 402 (D.C. Cir.
2006). However, qualified immunity does not shield
government officials who “violate clearly established statutory
or constitutional rights of which a reasonable person would have
known.” Wilson v. Layne, 526 U.S. 603, 609 (1999). In
Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court
enunciated a two-step analysis for determining whether qualified
immunity applies. First, the court must determine whether the
complainant alleges violations of constitutional rights. Id. at
201. If constitutional violations are alleged, the court must next
determine whether the right allegedly violated is clearly
established. Id.
Qualified immunity cannot be granted on summary
judgment, however, if there is a genuine issue as to a material
issue of fact. This point is frequently made in cases in which
defendants seek to file an interlocutory appeal challenging a
district court’s denial of their motions for summary judgment on
grounds of qualified immunity. See, e.g., Elliott v. Thomas, 937
F.2d 338, 342 (7th Cir. 1991) (“[T]he reason a court of appeals
examines the facts is to determine whether it was ‘clearly
17
established’ at the time that [the defendants’] deeds were
forbidden. It would extend [the qualified immunity doctrine]
well beyond its rationale to accept an appeal containing nothing
but a factual issue.”) (internal citation omitted); cf. Johnson, 515
U.S. 304 (holding that pretrial “evidence insufficiency” claims
made by public official defendants who assert qualified
immunity defenses are not immediately appealable).
Murray testified that he held appellant down on the ground
and ordered another officer to beat appellant and, at one point,
to shoot appellant in the head. Murray Dep. 31:13-35:14, Nov.
4, 2004, J.A. 264-65. Murray also testified that he restrained
appellant while another officer ordered his patrol dog to bite
appellant’s leg. Id. 35:18-36:9, J.A. 265. Murray made these
statements in describing a struggle to disarm appellant.
However, if we accept appellant’s sworn testimony that he was
handcuffed, and in reviewing a grant of summary judgment we
must, Salazar v. Wash. Metro. Area Transit Auth., 401 F.3d 504,
507 (D.C. Cir. 2005), we find that the actions taken by Murray
could persuade a reasonable jury that Murray committed
constitutional violations sufficiently significant to overcome the
qualified immunity bar set forth in Saucier v. Katz. In sum,
there is a genuine issue of material fact which makes it clear that
Murray is not entitled to summary judgment on his claim of
qualified immunity.
III. CONCLUSION
Appellant makes the claim, supported by sworn testimony,
that he was disarmed, thrown to the ground, handcuffed, and
severely beaten by appellees for ten minutes. Appellees
maintain, also by sworn testimony, that in order to disarm
appellant, who they believed had just shot a USPP officer in the
face, it was necessary to hold him down and beat him for ten
minutes, using their fists, a telescopic baton, and the grip of a
handgun, and then instruct a patrol dog to bite his leg. If all of
the evidence is viewed in the light most favorable to appellant,
18
as required by Rule 56(c), appellees surely are not entitled to
judgment as a matter of law. “[A]t the summary judgment stage
the judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Anderson, 477 U.S. at 249.
Because we find a genuine dispute concerning a material fact,
we hold that this case is unsuitable for disposition by grant of
summary judgment.
Our dissenting colleague may or may not be right in her
characterization of the facts. But fact finding is not the role of
the appellate court. That the dissent strains mightily in this
misplaced fact finding effort serves only to highlight the
existence of a genuine issue of material fact. It is also
noteworthy that three criminal juries have deadlocked on counts
charging Arrington with attempting to murder a federal officer
and discharging a firearm during a crime of violence. See
Arrington, 309 F.3d at 42. Obviously, the testimony of the
police officers is not as clear cut as the dissent would have it. In
any event, the trier of fact in this civil case will have an
opportunity to sort this out.
For the foregoing reasons, the grants of summary judgments
in favor of the United States and Sergeant Murray are hereby
reversed and remanded.
So ordered.
BROWN, Circuit Judge, concurring and dissenting: I agree
with the majority that we should affirm the grant of summary
judgment for the District of Columbia and that appellate
jurisdiction is proper despite defects in the notice of appeal.
However, I do not agree with the majority’s view that Derrek
Arrington’s deposition testimony creates a genuine issue of
material fact which precludes summary judgment. Maj. Op.
10-16. The majority acknowledges that Arrington’s testimony
lacks credibility but concludes it is for the jury to determine its
truthfulness. I disagree. This is not testimony about which
reasonable minds could differ; this is a confabulation Candide
would find suspect.
I
In this case the facts are important; so are the laws of
physics. Here both the facts and the physics support the district
court’s grant of summary judgment. Based on any remotely
reasonable reading of the record, the following is what hap-
pened. Arrington was stopped by Park Police for failure to
display a front license tag. Arrington presented license, registra-
tion, and temporary tags. In the course of that contact, one of
the officers, Martin Yates, spotted a clear plastic bag that
appeared to contain cocaine residue. Yates’s partner, John
Daniels, then asked Arrington to step out of the vehicle.
Arrington refused. When Daniels reached inside the vehicle to
physically extract Arrington, Arrington put his car in “drive”
and sped off, dragging Daniels seventy-five yards through an
intersection. The officer’s contact with the pavement was so
violent that his handcuffs left gouge marks in the pavement and
were torn from his belt. Mercifully, Daniels finally tumbled
free. He picked himself up and hurried back to his police
cruiser, in which he and his partner then gave chase.
Fleeing the scene at high speed, Arrington lost control
during a left turn and crashed into a median. Arrington, a thrice-
convicted felon carrying a .380 caliber pistol with a full clip,
2
climbed out of his wrecked car and ran into a residential yard.
Daniels and Yates exited their cruiser and pursued on foot. An
off-duty police officer, Sergeant Rick Murray, saw the crash and
joined the chase. Arrington easily vaulted over two fences but
then failed to surmount a third, taller fence. As Arrington tried
again to climb the third fence, Officer Daniels caught up with
him and pulled him from the fence, and a struggle ensued.
Murray, the off-duty officer, joined the melee. Both Murray and
Yates reported seeing Arrington push Daniels away with his left
hand and then fire a shot point blank into Daniels’s face with his
right hand extended. In the light from the muzzle flash, Yates
saw the shiny gun. Murray grabbed Arrington’s right arm and
wrapped him in a bear hug, and both men fell to the ground.
Daniels fell back against the fence. He went down to his knees,
tried to rise, and discovered he could not. He remained slumped
against the fence.
Not surprisingly, there was much screaming and commo-
tion. Officers and civilian witnesses alike report having heard
repeated commands, screams, and curses. “Let go of the gun; let
go of the damn gun.”1 “Drop the fucking gun, get the gun.”2
“Where’s the gun? Drop the gun.”3 “He’s too strong. I can’t
1
Civilian witness Runako Ellerby, resident of a back apartment
on 13th Street, NW. Mr. Ellerby said the officers surrounded the
suspect after he “heard the gun go off.” He could see several police
officers “struggling with [Arrington] trying to disarm him.” They
said, “Let it go drop the damn gun,” as they “repeatedly attempt[ed]
to get him to release the weapon.” Sergeant Moser, summarizing the
debriefing statements of Yates and Murray, recalled the same words.
2
Officer Daniels’s recollection of what he heard as he lay
slumped against the fence.
3
Civilian witness Louis Price, resident at 1223 Missouri Ave.,
NW #4. He was awakened by voices outside his window and then
heard a “pop” sound. He looked out and saw what he thought was a
police officer struggling with a man on the ground. The officers
appeared to be trying to retrieve something from the man.
3
get the gun away from him.”4 “Don’t leave me, I don’t have a
gun, you gotta come back here, this guy will kill us.”5 “Get the
gun out his hands; get the gun out of his hands.”6
Yates had entered that dark yard just in time to see his
partner shot. He drew his weapon. Murray and Arrington
crashed to the ground, but Arrington was “trying to raise
[himself] off the ground, thrusting his hips around and his
shoulders.” Murray urged Yates to shoot Arrington. He
explained that he was “scared to death[] and . . . just knew that
if [Arrington] got up, he was going to kill one of us.” Yates
placed his gun against Arrington’s head and took up the slack in
the trigger mechanism. Whether Arrington heard the gun cock
or merely felt the vibration, he stopped moving for a few
seconds. His arms remained beneath him, close to his body,
very tight. Arrington had stopped moving violently, but he
continued to resist. Because Murray and Arrington were
entangled, Yates did not shoot and settled for using the side of
his weapon to strike Arrington. Yates hit Arrington repeatedly.
It was “violent” and “fast,” but he failed to gain Arrington’s
compliance. Arrington “never went unconscious”; rather, he
“fought the whole time,”7 rolling and moving. Asked why he hit
Arrington repeatedly, Yates was clear: “I was determined to put
myself in a position where either [Arrington was] going to go
unconscious or I was going to have to shoot him . . . .” He
reasoned that if Arrington was allowed to get to his feet, still
armed, with a weapon he had already used, “that would just
invite him to shoot again.”
4
Officer Yates’s recollection of what Murray said. According to
Yates, Murray was excited and yelling.
5
Sergeant Murray’s plea to Officer Yates.
6
Civilian witness Tiyon Smith, who reports hearing the police
say this immediately after he heard a single gunshot.
7
Murray’s Dep. 37:4-5, Nov. 4, 2004.
4
Other officers arrived. Officer Kidd joined the fray, using
his police baton. Officer Peer, with his police dog Lazer on his
lead, repeatedly told Arrington to “give up the gun or I’m going
to put the dog on [you].” Arrington did not respond, so the dog
was instructed to perform controlled bites of Arrington exposed
leg, which it did. Soon after Lazer went to work, Sergeant
Murray announced he had the gun. Murray pulled Arrington’s
right hand out and stripped the gun from it, tossing it four or five
feet away from Arrington. Then, releasing a scream of
adrenalin-induced exultation, Murray walked a few paces away.
Officer Kidd was able to get control of Arrington’s left arm.
Together, he and Yates handcuffed Arrington.
Given the nature of the confrontation—a frantic and
desperate struggle in the dark—the sequence of events emerges
with remarkable clarity, and the physical evidence—right down
to the gouge marks from Officer Daniels’s handcuffs—is
completely consistent with the officers’ descriptions of what
happened, as well as with radio transmissions that provided
virtually a moment-by-moment commentary.
There is but one rip in this seamless web: Arrington’s
version of events. According to Arrington, he sped off from the
initial traffic stop because the officers had drawn their weapons
(or looked like they might). He was also in possession of a gun
and knew this violated his parole. Officer Daniels was nowhere
near the car, Arrington asserts, and certainly was not being
dragged through the streets. Arrington claims he was scaling the
fence with the gun in his hand in order to dispose of the gun, but
that when Daniels pulled him off the fence and then slammed
him, face first, back into it, he dropped the gun. Officers then
took him down to the ground and handcuffed him. Next, he
heard a “pop” sound. When he heard the pop, the gun was
already on the ground; Arrington claims he dropped it “way
before” he heard the pop. He also saw a flash, and he thought he
5
had been shot. He contends that, as he lay on the ground
handcuffed, disarmed, and helpless, the officers pistol-whipped
him, beat him with a baton, kicked and punched him, and finally
released the dog to attack his leg.
II
The majority identifies one material issue in dispute:
“whether, as appellees contend, force was used to subdue
appellant while he was armed and before he was in handcuffs,
or whether, as appellant contends, he was beaten by police
officers after he was captured, restrained, disarmed, and hand-
cuffed.” Maj. Op. 11. The majority insists, with respect to this
issue, that the court may not determine credibility, and that
therefore Arrington’s sworn testimony that the officers contin-
ued to attack him after he was handcuffed, no matter how self-
serving and implausible, entitles him to a jury trial. Maj. Op.
15. But the judge’s role in deciding a motion for summary
judgment is more robust and flexible than the majority con-
ceives.
To defeat summary judgment, nonmoving parties “must do
more than simply show that there is some metaphysical doubt as
to the material facts,” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986); the party “must offer
some hard evidence showing that its version of the events is not
wholly fanciful,” D’Amico v. City of New York, 132 F.3d 145,
149 (2d Cir. 1998). “The mere existence of a scintilla of
evidence in support of the plaintiff’s position will be insuffi-
cient; there must be evidence on which the jury could reasonably
find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986). While it is admittedly not the duty of district
courts to weigh the credibility of the parties’ testimony at the
summary judgment stage, “in the rare circumstance where the
plaintiff relies almost exclusively on his own testimony, much
6
of which is contradictory and incomplete, it will be impossible
for a district court to determine whether ‘the jury could reason-
ably find for the plaintiff,’ and thus whether there are any
‘genuine’ issues of material fact, without making some assess-
ment of the plaintiff’s account.” Jeffreys v. City of New York,
426 F.3d 549, 554 (2d Cir. 2005) (citation omitted). Therefore,
we have held that summary judgment “is most likely when a
plaintiff’s claim is supported solely by the plaintiff’s own self-
serving testimony, unsupported by corroborating evidence, and
undermined either by other credible evidence, physical impossi-
bility or other persuasive evidence that the plaintiff has deliber-
ately committed perjury.” Johnson v. Wash. Metro. Area
Transit Auth., 883 F.2d 125, 128 (D.C. Cir. 1989) (emphasis
added); see also Law v. Va. Stage Lines, 444 F.2d 990 (D.C. Cir.
1971).
The sequence of events, according to Arrington’s account,
began with an officer slamming him into the fence, causing him
to drop the gun he was carrying. An officer then forced him to
the ground and handcuffed him. Next, he heard a “pop,” after
which officers beat him. Finally, he felt the dog “ripping” his
leg; “[t]he dog was like tearing my leg up.” No other witnesses
corroborated Arrington’s account. Two officers reported seeing
the muzzle flash at the end of Arrington’s extended arm. These
officers and others described their subsequent efforts to disarm
Arrington, who remained unrestrained—descriptions corrobo-
rated by contemporaneous radio transmissions and by civilian
witnesses who reported a struggle during which police sought to
“disarm” or “retrieve something from” Arrington.
Nor does the physical evidence support Arrington’s
assertion that the gun somehow fired spontaneously from the
ground long after he had dropped it. No tests conducted on the
gun were able to cause it to fire without the trigger being pulled.
More significantly, Daniels was shot in the face. If Arrington
7
dropped the gun before he was handcuffed, as he claims, and
then, after he was handcuffed, the gun fired spontaneously while
it was lying on the ground, the bullet could not have turned at a
90 degree angle to strike Daniels in the face. Thus, in order for
the jury to rule in Arrington’s favor, it would have to conclude
that Arrington’s enchanted gun not only fires of its own volition
but also fires magical bullets that can turn somersaults in midair.
Bullets behave in this fashion in cartoons; in real life, though,
bullets do not start, stop, and change directions. This is a law of
physics, not a question of credibility.
Moreover, it is not clear which officer could have
handcuffed Arrington at the time he claims he was handcuffed.
Officer Daniels did not possess the means to do so. The
handcuffs from his duty rig had been torn from his belt when he
was dragged by Arrington’s car, and they remained lying in the
street. The second set, still in its case, was recovered from
Daniels’s personal belongings when he was taken to the
hospital. Sergeant Murray, the only other person involved in the
initial confrontation, was off duty, wearing sweats, and had no
police equipment with him. Other officers did not reach
Arrington until after Daniels was shot.
There is simply no evidence in the record that corroborates
Arrington’s self-serving account. In fact, everything in the
record, including the physical evidence and the testimony of
several civilian witnesses, contradicts Arrington’s account.
When a plaintiff relies entirely on his own self-serving testi-
mony, which lacks any corroboration and is contradicted by all
the available physical evidence, a court is not obligated to
reward the plaintiff with a jury trial. Johnson, 883 F.2d at 128.
Rather, “when the facts alleged are so contradictory that doubt
is cast upon their plausibility, [the court may] pierce the veil of
the complaint’s factual allegations . . . and dismiss the claim.”
Jeffreys, 426 F.3d at 555 (alterations in original) (internal
8
quotation marks omitted) (quoting Shabazz v. Pico, 994 F. Supp.
460, 470 (S.D.N.Y. 1998)). To hold otherwise is to license the
mendacious to seek windfalls in the litigation lottery. Under the
majority’s rule, a plaintiff can obtain a jury trial simply by
testifying to the allegations in his complaint, no matter how
implausible they might be. The uncertainty and expense of a
jury trial will then frequently lead to nuisance settlements in
claims that should be defeated on summary judgment.
Arrington’s suit is a case in point. Considering what occurred
here, Arrington should be thankful the officers spared his life;
instead, he has sued, and the majority thinks his odd and fanciful
assertions are persuasive enough to be heard by a jury.
The majority apparently takes the position that if there is
any evidence in the record, from any source, from which some
tenuous inference can be drawn in favor of the nonmoving party,
summary judgment is improper. The import of Anderson,
Jeffreys, and Johnson is clearly otherwise. The question is not
whether any evidence supports the nonmoving party’s asser-
tions; rather, there must be evidence on which a jury could
reasonably find in that party’s favor. Anderson, 477 U.S. at
248-49; Jeffreys, 426 F.3d at 554; Johnson, 833 F.2d at 128.
“The inquiry performed is the threshold inquiry of determining
whether there is the need for a trial—whether, in other words,
there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.” Anderson, 477 U.S. at 250
(emphasis added). Therefore:
[Judges are no] longer required to submit a
question to a jury merely because some evidence
has been introduced by the party having the
burden of proof. . . . [The question is] not
whether there is literally no evidence [supporting
the nonmoving party], but whether there is any
9
upon which a jury could properly proceed to find
a verdict for the party producing it, upon whom
the onus of proof is imposed.
Id. at 251 (internal quotation marks omitted) (quoting Improve-
ment Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)).
The majority relies on Greene v. Dalton, 164 F.3d 671
(D.C. Cir. 1999), for the proposition that summary judgment is
improper if the parties’ sworn statements are in material
conflict. I read Greene, however, as staking out a more limited
ground: that a court may not grant a motion for summary
judgment when reasonable minds could differ as to the import
of the evidence. The sexual harassment allegations in Greene
were claims which a reasonable jury could have resolved either
way—a quintessential jury question. Here, by contrast, only a
runaway jury could return a verdict for Arrington based on his
testimony as to what occurred, and if a jury did return such a
verdict, appellees would be entitled to a directed verdict.
Because I agree with the trial court that appellees are entitled to
prevail on summary judgment, I respectfully dissent.