Hudson v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 2008 Decided March 3, 2009

No. 07-7078

GRACE HUDSON AND KARIM CLAYTON,
APPELLEES

v.

DISTRICT OF COLUMBIA ET AL.,
APPELLANTS

No. 07-7082

GRACE HUDSON,
CROSS-APPELLANT

V.

DISTRICT OF COLUMBIA ET AL.,
CROSS-APPELLEES

Appeals from the United States District Court
for the District of Columbia
(No. 02cv02217)
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James C. McKay, Jr., Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for the appellants/cross-appellees. Peter J.
Nickles, Attorney General, Todd S. Kim, Solicitor General, and
Donna M. Murasky, Deputy Solicitor General, were on brief.
Gregory L. Lattimer argued the cause for the appellees and
cross-appellant.
Before: SENTELLE, Chief Judge, and HENDERSON and
KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Appellants the
District of Columbia (D.C.), Metropolitan Police Department
(MPD) Officer Richard Merritt and former MPD Officer John
Hackley (collectively, District) appeal jury verdicts finding them
liable to Karim Clayton for assault and battery, false arrest and
malicious prosecution under D.C. law and for using excessive
force against Clayton in violation of section 1 of the Civil Rights
Act of 1871, as amended, 42 U.S.C. § 1983, and the Fourth
Amendment to the United States Constitution. We conclude that
the district court erred when it allowed Clayton’s counsel to
question Merritt about disciplinary actions allegedly brought
against him for “improper use of force” and filing “false reports”
and then to argue to the jury, in inflammatory terms and
unpalliated by a curative instruction, that Merritt acted in
conformity with his past “bad cop” conduct when he struck and
arrested Clayton here. Because the challenged questioning and
argument invited the jurors to find Merritt used excessive force
against and falsely arrested Clayton based on similar “prior bad
acts,” in violation of Federal Rule of Evidence 404(b)—an
invitation the jurors may well have embraced—we vacate the
verdicts in Clayton’s favor and remand for a new trial on the
underlying claims. In addition, we affirm the district court’s
post-trial grant of judgment as a matter of law setting aside the
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jury verdict in favor of Grace Hudson, Clayton’s grandmother,
on her claim of negligent infliction of emotional distress.
I.
Sometime during the evening of November 8, 2001, Merritt
and Hackley, who were patrolling in a marked police car,
stopped in the 600 block of Keefer St. NW and got out of their
car. There followed a confrontation between the officers and
two individuals, Clayton and his friend Gad Doreus, the details
of which were disputed at trial. It is undisputed, however, that
during the encounter Merritt gave chase to Doreus, Clayton and
Doreus escaped into Hudson’s nearby house, closing the door
behind them, and Merritt pursued them inside. A scuffle ensued
during which Hudson was knocked to her living room floor and,
in the end, Clayton was arrested on the charge of assaulting an
officer. At some point Merritt struck Clayton at least once. In a
subsequent criminal trial in D.C. Superior Court, Clayton was
acquitted of one count of assault and one count of possessing a
prohibited weapon.
On November 8, 2002, Clayton and Hudson filed the
complaint in this action, alleging causes of action for excessive
force, assault and battery, false arrest, malicious prosecution and
negligent or intentional infliction of emotional distress based on
Merritt’s and Hackley’s conduct the night of November 8, 2001.
On September 2, 2005, after an eight-day trial, a jury returned a
verdict against the District, awarding Hudson compensatory
damages of $25,000 on her claim of negligent infliction of
emotional distress and Clayton compensatory damages totaling
$81,000 and punitive damages totaling $15,000 on his claims of
excessive force, assault and battery, false arrest and malicious
prosecution.
On September 30, 2005, the District filed a motion for a new
trial on all of Clayton’s and Hudson’s successful claims, for
judgment as a matter of law on Clayton’s false arrest and
 4

malicious prosecution claims and for remittitur of Clayton’s false
arrest award. In a memorandum opinion and order filed April 2,
2007, the district court denied the motion as to Clayton’s claims
but granted judgment as a matter of law on Hudson’s claim for
negligent infliction of emotional distress, vacating her damage
award. Hudson v. District of Columbia, 517 F. Supp. 2d 40, 57
(D.D.C. 2007). The District and Hudson subsequently filed
notices of appeal.
II.
We address in turn the District’s and Hudson’s appeals.
A. The District
As a preliminary matter, Clayton challenges the court’s
jurisdiction on the ground that the District failed to file a timely
and effective notice of appeal pursuant to Federal Rules of
Appellate Procedure 3 and 4. We conclude that we have
jurisdiction over the District’s appeal.
Under Rule 4(a)(1)(A), the District was required to file a
notice of appeal in the district court “within 30 days after the
judgment or order appealed from”—that is, no later than May 2,
2007, 30 days after the April 2, 2007 order disposing of the
District’s post-trial motions. Fed. R. App. P. 4(a)(1)(A).
Clayton does not dispute that the District filed a timely notice of
appeal on May 2, 2007 but argues it was ineffective because it
did not comply with the directive in Rule 3(c) that the “notice of
appeal must . . . designate the judgment, order, or part thereof
being appealed.” Fed. R. App. P. 3(c)(1)(B). Clayton argues
the notice was defective because it designated for appeal “the
judgment of this Court (Collyer, J.) entered on the 2nd day of
April, 2007 against defendants and in favor of Grace Hudson,”
Notice of Appeal, Hudson v. District of Columbia, C.A. No. 02-
2217 (D.D.C. filed May 2, 2007), whereas their appeal was in
fact from the judgment against the defendants and in favor of
Karim Clayton. Clayton’s argument is hyper technical and
 5

ignores the rationale underlying Rule 3(c)’s requirements: to
ensure that an appellant provides “fair notice to the opposing
party and to the court,” Anderson v. District of Columbia, 72
F.3d 166, 168 (D.C. Cir. 1995). The District’s notice of appeal
provided adequate notice to both Clayton and this court that “the
judgment, order, or part thereof being appealed,” Fed. R. App. P.
3(c)(1)(B), was, as identified in the notice, “the judgment . . .
entered on the 2nd day of April, 2007 against defendants.”
Although the additional phrase “and in favor of Grace Hudson”
was not technically accurate, this defect “did not mislead or
prejudice” Clayton, Foman v. Davis, 371 U.S. 178, 181 (1962),
because the notice “unambiguously inform[ed] the opposing
counsel and the district court” of the particular order being
appealed, Anderson, 72 F.3d at 168. Moreover, it was obvious
to both Clayton and the court that the District intended to appeal
the designated order filed April 2, 2007 insofar as the order
favored Clayton (rather than Hudson) as this was the only respect
in which the order was adverse to, and therefore appealable by,
the District. Thus, the notice of appeal was effective and we
have jurisdiction to consider the merits of the District’s appeal.
Cf. Foman, 371 U.S. at 181-82 (finding notice of appeal from
denial of post-dismissal motion to vacate provided “effective,
although inept” notice of intent to appeal dismissal itself);
Anderson, 72 F.3d at 168 (“because it was obvious in which
court his appeal properly lay, [appellant] gave fair notice to the
opposing party and the court” notwithstanding notice of appeal
“improperly designated the United States Supreme Court as the
court to which the appeal was taken”); Torres v. Oakland
Scavenger Co., 487 U.S. 312, 316-17 (1988) (although
requirements of Rules 3 and 4 are jurisdictional, “if a litigant
files papers in a fashion that is technically at variance with the
letter of a procedural rule, a court may nonetheless find that the
 6

litigant has complied with the rule if the litigant’s action is the
functional equivalent of what the rule requires”).1
The District contends that the district court abused its
discretion when it denied the District’s motion for a new trial on
all of the claims notwithstanding Clayton’s counsel’s improper
“prior bad acts” cross-examination and closing argument.
Hudson, 517 F. Supp. 2d at 51-55; see Muldrow ex rel. Estate of
Muldrow v. Re-Direct, Inc., 493 F.3d 160, 166 (D.C. Cir. 2007)
(“We review the district court’s denial of [the] motion for a new
trial ‘only for an abuse of discretion.’ ” (quoting Daskalea v.
District of Columbia, 227 F.3d 433, 443 (D.C. Cir. 2000))). We
agree with the District that the trial court committed reversible
error and therefore remand for a new trial.
During Clayton’s counsel’s cross-examination of Merritt,
the following colloquy occurred:
Q: Before we go on any further, would it be fair to say
that you have issues with anger?
A: No.
Q. Would it be fair to say that you have issues with
your veracity?
A. No, no more than anyone else.
[Defense Counsel]: I object unless there’s
some good faith belief that he can give a
positive answer to these questions.
[Clayton’s Counsel]: We’re getting there.

1
In light of our disposition, we need not consider the District’s
contention that an amended notice of appeal, identified in the docket
as filed on May 3, 2007, was in fact filed after business hours on May
2, 2007.
 7

The Court: Well let us proceed. If there’s no
support for the questions, then we can direct
the jury.
Q. Now haven’t you in fact been disciplined for those
things? He can’t help you now.
[Defense Counsel]: Yes, I can because I
object. I don’t know what he is talking about.
I think we should take a proffer at the bench,
and then if he has some evidence because it’s
very prejudicial to imply stuff that he can’t
prove.
Transcript of Trial, Hudson v. District of Columbia, C.A. No. 02-
2217, 103 (D.D.C. Aug. 25, 2005) (8/25/05 Trial Tr.). During
the ensuing bench conference, Clayton’s counsel assured the
court he had “[e]vidence of [Merritt’s] two trial boards and what
[Merritt] was charged with”2 but stated he would show the
evidence to defense counsel and the court only if Merritt denied
being disciplined—if Merritt did so, Clayton’s counsel was
“going to impeach [Merritt] with his own deposition,” in which
Merritt “admitted . . . that he has trial boards.” Id. at 104-05.
Clayton’s counsel asserted to the court that one “trial board” was
“[f]or being involved in an altercation with a female outside of
[a] club,” prompting defense counsel to respond: “Is this
evidence of prior misconduct to show on this particular date that
he is inconsistent [sic]? That’s not allowed by the rules.” Id. at
105. An extended discussion among court and counsel followed
and the court sent the jury to the jury room until the dispute
could be resolved. In response to the court’s repeated requests

2
Under D.C. law, the mayor appoints “trial boards” to try
members of the MPD, D.C. Code § 5-133.06, and the chief of police
“refer[s] to a trial board for adjudication charges brought against any
member of the department,” D.C. Mun. Regs. tit. 6A, § 800.11.
 8

that he reveal what evidence he had, Clayton’s counsel instead
complained that at deposition Merritt refused to answer questions
about the trial board or his “administrative leave for disciplinary
purposes.” Id. at 110. In the end, Clayton’s counsel
“represent[ed]” to the court that Merritt’s trial board “found him
guilty of the specification that he was charged with” and the
court responded that “with that kind of a representation, . . . I
have to allow him to continue to ask his questions.” Id. at 113.
The court brought the jury back into the courtroom and Clayton’s
counsel then resumed his cross-examination:
Q. Officer Merritt, I was asking you isn’t it true that you
were brought up on charges based upon actions you took
relative to a female at a club?
A. Yes.
Q. And didn’t that involve accusations of you having taken
physical actions against her?
A. They were accusations.
Q. And you had a trial board about that, didn’t you?
A. Yes.
Q. And at that trial Board those accusations were sustained
were they not?
[Defense Counsel]: Objection, your Honor.
The Court: This is cross-examination. This is
legitimate cross-examination.[3]

3
It was at this point the trial judge erroneously opened the door
for Clayton’s counsel to ask wide-ranging questions about Merritt’s
prior bad acts—an invitation Clayton’s counsel exploited. Even if the
earlier questions were arguably proper as impeachment, the inquiry
into the trial boards’ substance—to which defense counsel plainly
objected—was unrelated to anything but Merritt’s prior misconduct,
 9

[To Clayton’s Counsel]: Continue . . . .
By [Clayton’s Counsel]:
Q. Were they not?
A. No, not all.
Q. Some of them were?
A. Just, just the acts unbecoming.
Q. Acts unbecoming of a police officer?
A. Right.
Q. How many?
A. One.
Q. Just one?
A. One. It covered the whole, covered the whole thing.
That one statement, that one acts unbecoming covers the
whole thing.
Q. Just one, nothing about false reports?
A. No, not that I can remember.
Q. And nothing about your use, your improper use of force?
A. Not that I can remember that, no.
Id. at 113-14.
During closing, Clayton’s counsel first purported to remind
the jurors that Merritt testified he had been suspended for

namely “improper use of force” and filing “false reports.” Allowing
such questioning lay the groundwork for Clayton’s counsel to exploit
the alleged prior misconduct in his closing as proof of conforming
misconduct in this case.
 10

“[m]aking a false statement” (which the court characterized as
“close to what the evidence was”) and “using . . . inappropriate
force on a woman outside of a night club.” 8/31/2005 Trial Tr.
at 88. The court overruled defense counsel’s objection to the
statements and refused his request to strike them. Clayton’s
counsel then continued (again over defense counsel’s objection):
That’s Merritt. He was only suspended for a year, a
year. As he says for conduct unbecoming an officer.
You’re kidding. Lying on a report and using
inappropriate force on a woman outside of a nightclub,
you’re right that its conduct unbecoming.
***
[B]efore coming back and getting on that beat, he had
been suspended for a year for misconduct.
Let me tell you something. You’re not a bad cop
on Monday and a good cop on Tuesday. It don’t work
like that. If you were a bad cop on Monday, you’re a
bad cop on Tuesday. You’re a bad cop on Wednesday,
you’re a bad cop on Thursday, and you’re a bad cop on
Friday. You may not get caught on Tuesday,
Wednesday, Thursday, and Friday, but you are a bad
cop nevertheless.
And you know from Officer Merritt himself that he
was a bad cop. And Officer Merritt can’t change and
become a good cop overnight. Good cops don’t get,
good cops don’t get suspended from work.
Id. at 88, 93-94. At this point defense counsel interjected:
“Objection, Your Honor. This is arguing from past misconduct
that there is a future inclination for that which is our objection to
the original evidence and it’s a continuation.” Id. at 94. The
court responded: “I think you made that point. Why don’t you
 11

just move on.” Id. Clayton’s counsel then continued his closing
argument.
After instructing the jury, the court asked counsel: “Is there
any other instructions that counsel wishes me to give the jury
before we release them to begin their deliberations?” 9/1/2005
Trial Tr. at 39. During the colloquy that followed, defense
counsel informed the court: “I just wanted to make a record
because we still have problems with [Clayton’s counsel]’s
argument yesterday that the cop is a bad cop on day one, day
two.” Id. at 41. The judge replied: “[Y]ou can expand on that
after the jury goes.” Id. The jury then retired to begin
deliberating. At that point, as directed by the judge, defense
counsel renewed his objection that Clayton’s counsel “made an
argument that [defense counsel did]n’t think is allowed under the
rules of evidence as propensity, that he’s claiming that the officer
had a propensity to be violent and to lie.” Id. at 44. In addition,
he requested a curative instruction, which the court denied
because it had “sustained” the defendants’ objection to the “bad
cop” argument and because she “d[id]n’t recall [a] request for a
curative instruction prior to the time that the jury retired to
deliberate” and she did not believe she could give such an
instruction at that time “without giving it unduly.” Id. at 45.
It was a violation of Rule 404(b) for the trial judge to permit
Clayton’s counsel to elicit testimony about Merritt’s purported
history of anger, using “improper use of force” and filing “false
reports.” 8/25/05 Trial Tr. at 103, 114. Such testimony is
evidence of prior bad acts introduced “to show action in
conformity therewith” and is therefore prohibited under Fed. R.
Evid. 404(b). Cf. United States v. Simpson, 992 F.2d 1224,
1228-29 (D.C. Cir. 1993) (permitting prosecutor to cross-
examine defendant about prior narcotics possession was
reversible error under Rule 404(b)). The court compounded its
error when it permitted Clayton’s counsel to exploit the 404(b)
questioning during closing to indict Merritt as a “bad cop” every
 12

day of the week and declined to provide a curative instruction
either sua sponte, in response to the District’s repeated
objections, or after the District expressly requested such an
instruction immediately after the jury retired to deliberate. See
United States v. Rhodes, 886 F.2d 375, 382 (D.C. Cir. 1989)
(noting prejudicial effect of prosecutor’s reference in closing
argument to impermissible 404(b) evidence). The cumulative
effect of the inadmissible evidence and the inflammatory
argument based on it is precisely what Rule 404(b) prohibits:
exhorting a jury to find against a defendant because he acted “in
conformity” with his bad acts—here, a purported history of
physical violence, “improper use of force” and filing “false
reports.” 8/25/2005 Trial Tr. at 113-14. And to all appearances,
the jury may well have been persuaded by the testimony. The
error cannot be deemed harmless as the trial was hotly contested
and turned largely on credibility.
Clayton and the trial court have asserted that the District
waived the Rule 404(b) objection by not making it at trial. See
Appellees’ Br. at 36; Hudson, 517 F. Supp. 2d at 52. But
defense counsel in fact made a timely objection during the trial.
As noted above, during the bench conference regarding the “trial
boards,” defense counsel addressed the court as follows: “Is this
evidence of prior misconduct to show on this particular date that
he is inconsistent [sic]? That’s not allowed by the rules.”
8/25/2005 Trial Tr. at 105. While the phrasing may have been
somewhat inartful (and perhaps mistranscribed), it was stated
with “enough specificity to alert the district court and opposing
counsel to the basis for the objection,” namely that the
examination violated Rule 404(b). United States v. David, 96
F.3d 1477, 1480 (D.C. Cir. 1996). Further, the District did not
waive the right to a curative instruction by waiting until after the
jury retired to request one. The trial court itself directed defense
counsel to wait until “after the jury goes” to “expand on” the
objection made after the instructions, see 9/1/2005 Trial Tr. at
41, and defense counsel merely obeyed the court’s directive.
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B. Hudson
Next, we address Hudson’s appeal from the district court’s
judgment as a matter of law on her claim for intentional
infliction of emotional distress and the vacatur of her damages
award.4 The court reviews de novo the trial court’s denial of a
motion for judgment as a matter of law and may reverse “only if
the evidence and all reasonable inferences that can be drawn
therefrom are so one-sided that reasonable men and women
could not have reached a verdict in plaintiff's favor.” Muldrow,
493 F.3d at 165 (internal quotation omitted). We conclude that
the district court correctly granted judgment on Hudson’s claim.
At trial, Hudson sought to recover for the emotional distress
she allegedly suffered as a result of watching her grandson
Clayton’s being beaten by Merritt. She testified that, while
watching the altercation, she felt “afraid for him,”
“apprehensive” and “worried” and that for two days afterward
(before she saw him again) she was “apprehensive,” “wondering
how he was doing” and “just worried about him and also
[her]self” but she felt “better” after seeing him in the hospital.
8/24/2005 Trial Tr. at 18, 20-21, 29. She also said she was
“despondent” and “just ready to cry” when she looked at the
blood in her living room carpet. Id. at 26. Finally, she testified
she did not want Clayton at her home as much as before the
incident because she felt “tense” that there were “so many police
around [her] house or coming up [her] street” and she would

4
There is no question that Hudson’s notice of appeal—filed on
May 15, 2007, within the 14-day window following the timely filing
of the District’s notice on May 2, 2007—was timely. See Fed. R.
App. P. 4(a)(3) (“If one party timely files a notice of appeal, any other
party may file a notice of appeal within 14 days after the date when
the first notice was filed, or within the time otherwise prescribed by
this Rule 4(a), whichever period ends later.”).
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“rather for him to stay with his mother and not come see
[Hudson] like he used to.” Id. at 30.
In the April 2, 2007 memorandum opinion and order, the
court granted judgment as a matter of law on Hudson’s claim,
concluding that her “feelings, though arising from lamentable
circumstances [we]re not of sufficient duration or severity to be
considered serious under District of Columbia law.” 517 F.
Supp. 2d at 48. We agree with the district court’s determination
because the trial record reveals only general, subjective feelings
of worry and concern and not the kind of serious, verifiable
emotional injury that D.C. law requires to support a claim of
emotional distress. See Williams v. Baker, 572 A.2d 1062, 1068
(D.C. 1990) (en banc) (“[I]n furtherance of the policy of
excluding recovery for trifling distress, the claimed distress must
be ‘serious’ and ‘verifiable.’ ”).
For the foregoing reasons, we affirm the district court’s
judgment as a matter of law on Hudson’s emotional distress
claim, vacate the verdicts in Clayton’s favor on the excessive
force, assault and battery, false arrest and malicious prosecution
claims and remand for a new trial on the four latter claims.
So ordered.