United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 7, 2007 Decided October 30, 2007
No. 05-7188
BRUCE FEIRSON AND
MARY FEIRSON,
APPELLANTS
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00905)
Fred T. Magaziner, pro hac vice, argued the cause for
appellants. On the briefs were Frank J. Eisenhart, Barrie A.
Dnistrian, and Christian A. Natiello.
David A. Hyden, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the cause
for appellee District of Columbia. With him on the brief were
Linda J. Singer, Attorney General, Todd S. Kim, Solicitor
General, and Edward E. Schwab, Deputy Solicitor General.
2
Thomas M. Hogan argued the cause and filed the brief for
appellee Michelle Smith-Jefferies, M.D., Taunya Brownlee,
M.D., and Craig Thorne, M.D.
Before: RANDOLPH and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
Concurring opinion filed by Senior Circuit Judge
WILLIAMS.
BROWN, Circuit Judge: Bruce Feirson, now a retired
Metropolitan Police Department (MPD) officer, sustained
serious neck and lower back injuries during an “attack exer-
cise”—part of a MPD training program. Feirson and his wife,
Mary, sued the District of Columbia and three physicians who
worked at the District’s Police and Fire Clinic. Feirson asserted
claims under 42 U.S.C. § 1983 and District of Columbia law.
Mary sought compensation for loss of consortium. In separate
orders, the district court granted summary judgment for the
District and the three physicians on all of the Feirsons’ claims.
The Feirsons now appeal. We affirm the district court’s various
grants of summary judgment.
I
Viewed in the light most favorable to Feirson, the facts are
as follows. Feirson had a history of back problems dating back
to 1979. His problems first became serious in 1985 when he
twisted his lower back while chasing a suspect. Feirson
underwent spinal surgery and returned to full duty several
months later. The following year he felt a snap in his back while
entering his car, and he again underwent spinal surgery. From
mid-1986 to mid-1988 it was medically uncertain whether
3
Feirson could function as a police officer. But in June 1988,
Feirson returned to full duty when the District’s Board of Police
and Fire Surgeons determined he could perform without
restrictions.
In 1999, the MPD required its officers to be certified to use
a new retractable baton made by Armament Systems & Proce-
dures, Inc. The baton, which MPD officers referred to as the
“ASP,” replaced the traditional “nightstick.” The MPD included
ASP certification training in its regular annual in-service
training program.
ASP training had three parts: two to three hours of class-
room instruction; two to three hours of physical conditioning
exercises, including drills on various strikes and deflection
moves; and a 90- to 120-second “attack exercise.” To success-
fully complete the attack exercise, the trainee had to use a foam-
covered version of the ASP to fend off an instructor pretending
to be a violent suspect. The trainee wore protective headgear
and a mouthpiece while his “attacker” wore a padded “hit suit”
to absorb the blows the trainee delivered with the ASP. The
attacker’s hands and feet were also padded. The exercise took
place on mats and within a ring formed by other trainees who
carried padded shields. The exercise was designed to simulate
a “code orange” situation—one level below a situation in which
an officer would be authorized to use deadly force. The attacker
charged toward the trainee aggressively, using pulled punches
and kicks, and grabbing, wrestling, or throwing the trainee.
In April 2000, Feirson’s supervisor ordered him to attend
annual in-service training. Concerned about his back after
hearing rumors that officers were being “beaten and assaulted”
during ASP training, Feirson asked his supervisor if he could
reschedule or avoid going altogether. Feirson’s supervisor,
apparently unmoved by his concerns, handed him a written order
4
to attend. After all, annual in-service training was required for
MPD officers, and Feirson had been deemed fit for full duty
after undergoing a medical examination two months earlier.
Feirson participated in ASP training on April 27, 2000.
Already winded from the preceding exercises, he tried to fake
his way through the attack exercise portion. First he tried to
clutch his attacker until the time ran out. By closing the
distance, Feirson thought he could muffle the attacker’s punches
and kicks. The instructor timing the exercise foiled this plan,
however, when he stopped the clock, separated Feirson and his
attacker, told Feirson to swing the ASP more, and then restarted
the exercise. Next Feirson tried, in his words, to “get back on
the rope.” He hoped to hide near the edge of the ring, but his
comrades shoved him back in when he came too close to their
shields. Meanwhile, the attacker pursued him, continuing to
throw punches and kicks. During the fray, the attacker struck
Feirson in the face, causing his head to jerk backward.
This entire episode lasted over a minute, but less than two.
It ended when the attacker, recognizing Feirson “had enough,”
stopped the exercise. Feirson felt some soreness and numbness,
but he did not report his symptoms to the Police and Fire Clinic
until the next day. As it turns out, Feirson suffered serious neck
and lower back injuries, requiring him to undergo spinal
surgery. Feirson became eligible for disability retirement
because of his injuries, and he subsequently retired.
Feirson and his wife sued the District and thirteen physi-
cians who staffed the Police and Fire Clinic, including Doctors
Michelle Smith-Jefferies, Taunya Brownlee, and Craig Thorne
(the “Physician Defendants”). The Physician Defendants
worked for PFC Associates, Inc., a private corporation that
operates the Police and Fire Clinic under a contract with the
District. The Feirsons never served process on the other ten
5
physicians, whom the Feirsons named “John and Jane Does, nos.
1–10.”
The district court granted summary judgment for the
District on Feirson’s § 1983 claims, concluding that his constitu-
tional rights were not violated. Feirson v. District of Columbia,
315 F. Supp. 2d 52 (D.D.C. 2004). Subsequently, the court
granted summary judgment for the Physician Defendants.
Feirson v. District of Columbia, 362 F. Supp. 2d 244 (D.D.C.
2005). The court dismissed Feirson’s § 1983 claims, relying on
its earlier conclusion that his constitutional rights were not
violated. Id. at 247. Moreover, finding no evidence of extreme
or outrageous conduct, and no duty on the part of the Physician
Defendants to protect Feirson, the court dismissed his inten-
tional infliction of emotional distress (IIED) and negligence
claims. Id. at 247–50. Because the Physician Defendants were
not liable to Feirson, the court dismissed Mary’s loss of consor-
tium claims. Id. at 254.
Finally, the district court granted summary judgment for the
District on the Feirsons’ remaining claims. Feirson v. District
of Columbia, No. 01-0905, 2005 WL 3211626 (D.D.C. Nov. 22,
2005). The court concluded that the Police and Firefighters’
Retirement and Disability Act (PFRDA), D.C. CODE §§ 5-701
et seq. (2001), was Feirson’s exclusive remedy against the
District.
II
We review a district court’s grant of summary judgment de
novo. Summary judgment is appropriate when the pleadings
and the evidence demonstrate that “there is no genuine issue as
to any material fact and that the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56(c). A dispute
about a material fact is “genuine” only “if the evidence is such
6
that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his favor.” Id. at
255.
A
To impose liability on the District under 42 U.S.C. § 1983,
Feirson must show “not only a violation of his rights under the
Constitution or federal law, but also that the [District’s] custom
or policy caused the violation.” Warren v. District of Columbia,
353 F.3d 36, 38 (D.C. Cir. 2004). Feirson claims his substantive
due process rights were violated when the instructor, acting
under MPD orders, attacked him “with a level of force that
exceeded any legitimate ‘training’ objective.” He also claims he
was twice “seized” in violation of the Fourth Amendment. The
first alleged seizure occurred when his supervisor ordered him
to attend the annual in-service training; the second occurred
during the attack exercise itself.
The district court concluded, and we agree, that Feirson’s
substantive due process rights were not violated. “[I]n a due
process challenge to executive action, the threshold question is
whether the behavior of the governmental officer is so egre-
gious, so outrageous, that it may fairly be said to shock the
contemporary conscience.” County of Sacramento v. Lewis, 523
U.S. 833, 847 n.8 (1998). Most likely to rise to that level is
“conduct intended to injure in some way unjustifiable by any
government interest.” Id. at 849. Although “negligently
inflicted harm is categorically beneath the threshold,” whether
recklessness or gross negligence will suffice “is a matter for
closer calls.” Id.
7
Feirson cites three assertions that his attacker applied
excessive force. The first is his own: “That was the most serious
assault I’ve ever encountered in . . . over 20 years on the police
department.” The second is from his training expert: “[T]he
speed, intensity and level of force . . . was grossly excessive,
without justification and outside the scope of reasonable and
effective training practices . . . .” The third is from another
training expert: “[I]f you go by [Feirson’s] description that [it]
was a beating of a lifetime . . . then you have misconduct on
every officer that was present and all the instructor staff.”
Moreover, Feirson emphasizes that the MPD’s physical skills
training was not calibrated to a trainee’s age, gender, or experi-
ence.
Nonetheless, at most a jury could find the instructors
negligent, which is “categorically beneath the threshold of
constitutional due process.” And even a finding of negligence
would be a stretch. The attack exercise followed several hours
of classroom and practical instruction on how to use the ASP.
Feirson wore protective headgear and a mouthpiece, and the
attacker’s hands and feet were padded. The exercise was timed
and took place on mats. When, after about a minute during
which Feirson had maneuvered to escape the blows, it appeared
he “had enough,” the attacker ended the exercise. Feirson
admits he suffered no cuts or bruises, and he had no reason to
believe the attacker was trying to hurt him. Although the
exercise was not geared to Feirson’s fitness level, that was
because it was designed to prepare police officers to handle real-
life situations.
Our conclusion is bolstered by the exercise’s extremely low
rate of injury. About three months prior to Feirson’s injuries,
more than 1300 officers had been trained and only seven
reported significant injuries. These “significant” injuries
8
included a broken foot, a knee injury, a broken finger, two
instances of bruised ribs, and two instances of dental trauma.
B
Feirson has also failed to state a Fourth Amendment
violation because he was not “seized” within the meaning of that
amendment. A seizure occurs “if, in view of all the circum-
stances surrounding the incident, a reasonable person would
have believed that he was not free to leave.” United States v.
Mendenhall, 446 U.S. 544, 554 (1980).
Here, Feirson asserts that a reasonable person would not
have felt free to disobey a direct order to attend annual training
when doing so would have jeopardized his career. That may be
true, but Feirson has not described a “seizure.” The relevant
inquiry is whether a reasonable person would have believed he
would be detained if he disobeyed his supervisor’s order—not
whether he feared negative consequences for his job. See Reyes
v. Maschmeier, 446 F.3d 1199, 1204 (11th Cir. 2006) (“[A]
claim that a government supervisor has seized a public em-
ployee in violation of the Fourth Amendment must allege
circumstances that implicate more than the obligations that arise
from the employment relationship.”); Driebel v. City of Milwau-
kee, 298 F.3d 622, 642 (7th Cir. 2002) (“Since the Fourth
Amendment does not protect against the threat of job loss, the
relevant constitutional inquiry must focus on whether reasonable
people in the position of the subordinate would have feared
seizure or detention if they had refused to obey the commands
given by their superior officers.”); Fournier v. Reardon, 160
F.3d 754, 757 (1st Cir. 1998) (negative consequences for
employment was “not an issue for [the court] to consider” in
determining whether a trainee was seized in violation of the
Fourth Amendment).
9
Taking a different tack, Feirson argues he was “seized”
during the attack exercise because he could not stop it. We
disagree. Feirson submitted to the exercise, and no evidence
would support a finding that the instructors would not have
stopped if Feirson asked them to do so. See Fournier, 160 F.3d
at 757 (a trainee was not seized when “no evidence presented
would support a finding that he was not free to leave at any
point during the scenario”).
C
We agree with the district court that the PFRDA bars
Feirson’s local law claims against the District. “Police and
firefighters in the District who are temporarily injured or
permanently disabled while performing their duties are provided
compensation under a scheme set forth in the . . . Act.” Ray v.
District of Columbia, 535 A.2d 868, 870 (D.C. 1987). The
PFRDA is “the exclusive remedy against the District of Colum-
bia for uniformed personnel.” Lewis v. District of Columbia,
499 A.2d 911, 915 (D.C. 1985).
Feirson does not deny the injuries he sustained made him
eligible for the PFRDA’s benefits. However, he reads two
cases, Mayberry v. Dukes, 742 A.2d 448 (D.C. 1999), and Grillo
v. National Bank of Washington, 540 A.2d 743 (D.C. 1988), to
create an exception “for the intentional tortious conduct commit-
ted by a plaintiff’s co-employee,” within which he contends this
case falls.
Mayberry addressed whether the PFRDA prevented a police
officer from suing a co-employee for injuries sustained in the
performance of duty. Because Feirson is suing the District,
Mayberry is inapplicable. Grillo recognized an intentional
injury exception to the District’s Workers’ Compensation Act
(WCA), which applies only when the employer specifically
10
intended to injure the employee. 540 A.2d at 747–48, 754.
Even if Grillo’s exception applied to the PFRDA, there is no
evidence the MPD specifically intended to injure Feirson.
III
Because Feirson’s constitutional rights were not violated, his
§ 1983 claims against the Physician Defendants must fail. His
IIED and negligence claims also fail because they both depend
on his mistaken belief that: (1) the Physician Defendants had
duties as his doctors to tell the MPD to modify ASP training; and
(2) they had contractual duties to report ASP training injuries to
the MPD.
Under District of Columbia law, “the question of whether a
defendant owes a duty to a plaintiff under a particular set of
circumstances is ‘entirely a question of law . . . [that] must be
determined only by the court.’” Croce v. Hall, 657 A.2d 307,
310 (D.C. 1995) (alterations in the original) (quoting W. PAGE
KEETON, PROSSER AND KEETON ON TORTS § 37, at 236 (5th ed.
1984)). There is “no duty generally to control the conduct of a
third person so as to prevent him . . . from causing physical harm
by criminal acts or intentional torts, absent a special relation-
ship” with the third person or his victim. Rhaney v. Univ. of Md.
E. Shore, 880 A.2d 357, 364 (Md. 2005);1 see also RESTATE-
MENT (SECOND) OF TORTS § 315 (1965). Relationships in which
there is a duty to protect “include landowner-invitee,
businessman-patron, employer-employee, school district-pupil,
1
“Our duty . . . is to achieve the same outcome we believe would
result if the District of Columbia Court of Appeals considered this
case.” Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902, 907
(D.C. Cir. 2006). That court may “take notice of the common law of
Maryland in the absence of contrary District of Columbia law.”
Griffin v. Acacia Life Ins. Co., 925 A.2d 564, 576 n.30 (D.C. 2007).
11
hospital-patient, and carrier-passenger.” Kline v. 1500 Mass.
Ave. Apartment Corp., 439 F.2d 477, 482–83 (D.C. Cir. 1970);
see also RESTATEMENT (SECOND) OF TORTS §§ 314A to 314B.
We reject Feirson’s contention that his relationship with the
Physician Defendants is a “special” one that imposed a duty on
their part to tell the MPD to modify ASP training.2 A duty to
protect arising from a special relationship is based on “the ability
of one of the parties to provide for his own protection” being
“limited in some way by his submission to the control of the
other.” Kline, 439 F.2d at 483. Here, Feirson fails to explain
how the Physician Defendants limited his ability to protect
himself by control they had over him, or, for that matter, how
they had any control over him. Feirson understood better than
anyone the fragility of his back. He was fully aware of the risk
posed by the attack exercise, and he took that risk voluntarily.
The Physician Defendants were in no better position to protect
Feirson than he was to protect himself. See Workman v. United
Methodist Comm. on Relief, 320 F.3d 259, 264 (D.C. Cir. 2003).
Indeed, nothing in the record suggests the Physician Defendants
had the power to order the MPD to change its training program,
or that a change (whatever it might be) would have prevented
Feirson’s injuries.
We also reject Feirson’s contention that the Physician
Defendants had a contractual duty to report injuries to the MPD.
The contract between the District and PFC Associates required
PFC Associates to implement a “Quality Assurance Plan.” To
fulfill this requirement, PFC Associates implemented the
“Continuous Quality Improvement Program.” Feirson invokes
one aspect of the Program in which the Clinic, on a monthly
2
Feirson has failed to raise the issue of whether a District
regulation imposes such a duty—a footnote citing the regulation
without explanation is insufficient.
12
basis, was to review “all charts with a particular ‘high volume’
or ‘high risk’ diagnosis.” Feirson imagines that the chart
reviews, which had not been done regularly, required the
Physician Defendants to report ASP training injuries. Not so.
The results from the chart reviews were to ensure the Clinic
provided treatment that met “acceptable standards of medical
care.”
Finally, Mary Feirson’s loss of consortium claims against
the District and the Physician Defendants must fail because
they depend on her husband’s claims. See Elliott v. Healthca-
re Corp., 629 A.2d 6, 10 (D.C. 1993).
The district court’s grants of summary judgment are
Affirmed.
WILLIAMS, Senior Circuit Judge, concurring: I agree
with the judgment and with the court’s opinion on all matters
but one. I take issue with the court’s grounds for rejecting
Feirson’s second seizure claim: The court writes that “no
evidence would support a finding that the instructors would
not have stopped if Feirson asked them to do so.” Maj. Op. at
9. The record is unclear on the matter. In the exercise,
instructors formed a ring of police officers with shields around
Feirson. The ring pushed Feirson back into the attack zone
whenever he attempted to elude his attacker. This suggests
that the instructors were prepared to compel Feirson’s
participation, regardless of his protests. And Feirson’s
supervisor had rejected his earlier effort to be excused from
attending the exercise. Thus, I think a reasonable jury could
infer that Feirson could not have induced the trainers to stop
(short of a real or feigned collapse, or similar manifestation of
serious injury).
Nonetheless, I don’t believe this confinement was an
invalid seizure under the Fourth Amendment. In any sort of
military or quasi-military training, periods may arise when, as
a practical matter, the nature of the training makes it
impossible or at least extremely risky for trainees to leave;
consider, for example, recruits under live machine gun fire in
basic training. Although the trainee cannot unilaterally decide
to exit the exercise, the resulting confinement is one to which
the trainee agreed when he chose to go ahead with the
exercise (or, in the case of the recruit, to join the military).
Thus it is either a seizure made lawful by consent, or not a
seizure at all within the meaning of the Fourth Amendment, a
distinction of no consequence here.