dissenting:
December 7, 1994 was Donzell W. Moorehead’s Pearl Harbor. On that date, according to Mr. Moorehead’s allegations, which we must credit in the present posture of the case, see infra pp. 151, 155, Moorehead was brutally assaulted without the slightest justification by District of Columbia Special Police Officer (SPO) Rodney Brown, who had accused Moore-head of stealing two bottles of Tylenol from a Rite Aid drug store. Moorehead alleges that Brown, using a lead-filled baton, fractured Moorehead’s cheek bone, broke one of Moorehead’s legs, and beat Moorehead into a bloody and semi-conscious pulp. Moorehead further claims that Officer James Koons of the Metropolitan Police Department (MPD), who was called to the scene, arrested Moorehead (the victim of the assault) without probable cause, while leaving Brown (the perpetrator) at liberty, and that Koons counseled Brown to fabricate evidence against Moorehead. Moorehead contends that both the SPO and the MPD officer were acting as agents of the District of Columbia, and that the District is therefore vicariously hable for their allegedly unlawful actions.
Notwithstanding the seriousness of his allegations of official misconduct and abuse of authority, Moorehead has not been permitted to present his evidence to a jury. On March 29, 1996, the trial judge granted the District’s motion for judgment on the pleadings with respect to the claim based on the beating of Moorehead by SPO Brown. On August 2, 1996, the judge granted summary judgment in favor of the District as to Moorehead’s claim that he was "arrested by Officer Koons without probable cause. The trial judge thus held that Moorehead has no recourse against the District, even if his allegations are entirely true. My colleagues in the majority affirm that judgment.
In my opinion, Moorehead’s case should have been permitted to go to trial. In ruling on the District’s motion for judgment on the pleadings, the trial court and this court were both required to credit the well-pleaded allegations of the complaint. In addressing a motion for summary judgment, both courts were obliged to view the record in the light most favorable to the plaintiff, and to draw every reasonable inference in Mr. Moorehead’s favor. As I see the case, the majority has failed to adhere to these standards and has not adequately considered certain allegations and evidence which are helpful to Moore-head’s case and which are important to the proper disposition of the appeal. In addition, I believe that the majority takes too restrictive a view of the circumstances under which vicarious liability may be imposed on the District and too permissive an approach as to what constitutes good faith belief and probable cause.
The consequence of the majority’s disposition is that a citizen’s potentiafiy meritorious claim of serious injury caused by official lawlessness has been prematurely consigned to judicial oblivion. In my opinion, a jury, properly instructed as to the applicable legal principles, ought to be permitted to pass on Mr. Moorehead’s allegations. Because my colleagues disagree, it is my duty to dissent.
*150I.
The record, viewed in the light most favorable to the plaintiff, reflects a profoundly disturbing series of events and a serious violation of the most fundamental liberty interests.
On December 7, 1994, William D. Moorehead was approximately four months short of his forty-eighth birthday. He was 5'3" in height and weighed 168 pounds. On that afternoon, according to his own account, Mr. Moorehead entered a Rite Aid Pharmacy to make a purchase. He placed his tote-bag near the front door. A few minutes later, before he bought anything, Moorehead saw a bus that he wanted to catch, and he left the premises. Shortly thereafter, realizing that he had left the tote-bag in the store, Moorehead re-entered the establishment. The bag, however, was not where he had placed it. Moorehead asked to see the manager, but suddenly, according to his account.
I was struck on the head from behind without warning. I turned around and was hit a second time. I raised my arms to cover my head as I fell to the ground and lost consciousness.
After Moorehead fell to the floor, his assailant dragged him to the back of the store and continued to beat him about the head, body, and legs. Moorehead was also handcuffed and searched, but no contraband was recovered from him. He suffered a fractured cheekbone, a broken leg, and other injuries. He claims that he subsequently incurred $30,000 in medical expenses.
The individual who inflicted the beating was SPO Rodney Brown, who was on duty at the pharmacy. Brown was forty-two years old. 5'10" in height, and weighed 230 pounds. He was thus five years younger than Moorehead, seven inches taller, and more than sixty pounds heavier. Brown testified on deposition that he is “aggressive in my approach to stopping shoplifters,” and he asserted that Rite Aid supervisors knew this to be so. Moore-head claimed in his answers to interrogatories that during the beating, which was administered with a baton.
Rodney Brown stated to me: “I’m going to teach you a lesson, you homeless motherfucker....”
When I asked that someone call the police, Rodney Brown stated to me: “I am the police.”
SPO Brown’s beating of Mr. Moorehead was witnessed in part by Darryl D. Washington, who was then the manager of the pharmacy.1 According to Mr. Washington,
the customers began to scream that the security guard was going to kill him. I thought Rodney had lost control, so I asked someone to call the police.
Someone evidently did call, for Officer James Koons of the MPD soon received a report of an assault with a dangerous weapon — blackjack. Koons and several other officers promptly reported to the Rite Aid Pharmacy.
In a pretrial deposition, Officer Koons described what he observed upon his arrival on the scene:
.... Walked into Rite Aid. In the back of the store, there was a man cuffed and an SPO there standing next to him.
I asked what happened. Roughly, the story was that he tried to steal some stuff out of there. Left, Left his bag there. The guy didn’t — the SPO did not catch him on the first exit.
He came back for his bag later on. That’s when the SPO tried to stop him and detain him. He resisted and assaulted or fought back against the SPO. The SPO then arrested him.
*151That’s the story I got from the SPO. But like I said, when I got there, he was cuffed and on the ground.
Although SPO Brown told Officer Koons that he (Brown) “had to use his baton to effect the arrest,” Koons was evidently skeptical. Brown alleged that Moorehead “started fighting me,” but, according to Koons, it was “clear who got the worst end of the stick, so to speak.” It seemed to Officer Koons, “in my experience, that [Brown] had gone a little overboard, [a]nd I wasn’t certain whether it was justifiable or not.” In fact, there was “a question whether or not the SPO was going to get locked up,” but Officer Koons evidently decided not to arrest Brown. Instead, Koons placed Moorehead under arrest on the basis of Brown’s assertion that Moore-head had tried to assault Brown.
Officer Koons did not ask Moorehead for his version of the encounter, and Moore-head did not volunteer any information. Koons also testified that he did not interview any other possible witnesses, including the store manager, because “any time you go on a scene and ask anybody ‘Did you see anything,’ everybody else says no.”
Officer Koons admitted that his investigation had been precipitated by a report of an assault with a blackjack. The only person suspected of such an assault was, of course, Rodney Brown. Koons acknowledged that in assault cases he ordinarily questioned both parties, and not merely the suspect. In this case, he spoke only to Brown.
The former store manager, Darryl Washington, provided additional information regarding the police investigation. According to Mr. Washington, Rodney Brown
stated that the gentleman had stolen something. The officer asked where was the stolen merchandise. Rodney stated that the gentleman had taken it out of the store and that he could not find it. The police officer stated something like, “Well, you’ve really done it this time. You know this just won’t stand.” Then the officer stated to Rodney something like, “You better make the stolen merchandise appear in his bag.”
Officer Koons later testified on deposition that he did not recall whether he suggested to Brown that Brown should charge Moorehead with assault.
II.
Moorehead contends that the District is vicariously liable for Rodney Brown’s alleged assault on him. The trial judge, as we have seen, granted the District’s motion for judgment on the pleadings in connection with this claim. The majority affirms, apparently concluding as a matter of law, that Brown was not the District’s agent. This conclusion is at least premature.
Motions for judgment on the pleadings are not favored. Lambert v. Inryco, Inc., 569 F.Supp. 908, 912 (W.D.Okla.1980) (citations omitted). Such a motion should not be granted unless it appears beyond doubt, i.e., to a certainty, that the plaintiff will be able to prove no facts in support of his claim which would entitle him to relief. George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir.1977); Brown v. Bullock, 194 F.Supp. 207, 228 (S.D.N.Y.), aff'd, 294 F.2d 415 (2d Cir.1961); Austad v. United States, 386 F.2d 147, 149 (9th Cir.1967). In this case, the District has not made the requisite showing.
Mr. Moorehead alleged in his complaint that “[d]efendant Brown is ... an agent of the District of Columbia.” To the extent that this is an allegation of fact, it must be taken as true for purposes of the District’s motion for judgment on the pleadings. See, e.g., Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61 (2d Cir.1985). “It has been generally held to be a question of fact for the jury whether, when a special police officer performs acts to which the master is sought to be held liable, he is acting in his capacity as a *152servant or as a public officer.” Colonial Stores, Inc. v. Holt, 118 Ga.App. 826, 166 S.E.2d 30, 32 (1968) (internal quotation marks omitted) (emphasis added); accord, Neallus v. Hutchinson Amusement Co., 126 Me. 469, 139 A. 671, 672 (1927). Although, in this case, the question is whether the SPO was acting as an agent of the District, the holdings of these cases are instructive by analogy.
This court has recently had occasion to articulate the standards for determining whether vicarious liability may be imposed:
Whether an agency relationship exists in a given situation depends on the particular facts of each case. District of Columbia v. Hampton, 666 A.2d 30, 38 (D.C.1995). The factors to be considered include “(1) the selection and engagement of the servant, (2) the payment of wages, (3) the power to discharge, (4) the power to control the servant’s conduct, (5) and whether the work is part of the regular business of the employer.” LeGrand v. Insurance Co. of North America, 241 A.2d 734, 735 (D.C.1968), cited in Hampton, 666 A.2d at 38; accord, Giles, 487 A.2d at 611; Safeway Stores, Inc. v. Kelly, 448 A.2d 856, 860 (D.C.1982). Of these factors, the determinative one is usually “whether the employer has the right to control and direct the servant in the performance of his work and the manner in which the work is done.” LeGrand, 241 A.2d at 735 (citation omitted); accord, Hampton, 666 A.2d at 38; Levy v. Currier, 587 A.2d 205, 209 n. 10 (D.C.1991); Safeway, 448 A.2d at 860; 53 Am. Jur. 2d Master and Servant § 2 (1970). The cases emphasize that the right to control, rather than its actual exercise, is usually dispositive of whether there is an agency relationship. See, e.g., Safeway, 448 A.2d at 860.
Judah v. Reiner, 744 A.2d 1037, 1040 (D.C.2000).
Applying the criteria set forth in Judah to Mr. Moorehead’s allegations in this case, it does not appear “beyond doubt” that there was no agency relationship. Considering in turn the first, second, third, and fifth Judah categories, I note (1) that Brown was appointed to his position by the Mayor, see D.C.Code § 4-114 (1994); (2) that Brown’s wages were paid by Rite Aid; (3) that the District retained the authority to revoke Brown’s commission, 6A DCMR § 1104.1 (1988);2 and (5) that arresting alleged shoplifters is part of the “regular business” of the District’s law enforcement authorities.
I turn now to the “determinative” fourth Judah criterion, namely, whether the District had the right to control and direct Rodney Brown in the performance of his work. It is noteworthy that the District, as the moving party, submitted no affidavits or other materials tending to show that it lacked the authority to control its special police officers. In addition, apart from the District’s failure to meet (or even attempt to meet) its factual burden, there is affirmative support for Moorehead’s contention that a relationship of principal and agent exists. Special Police Officers are “subject to such general regulations as the Council of the District of Columbia may prescribe.” D.C.Code § 4-114, and “amenable to the rules laid down for the government of the Metropolitan Police Force in so far as those rules are applicable.” 6A DCMR § 1100.6.3 The regula*153tions delineate an SPO’s duties, e.g., periodically checking doors and windows, etc., in the nature of a “watchman.” § 1101.6. The District regulates the clothing that its Special Police Officers must wear, as well as the size and material of their badges. §§ 1109.1-1109.7. The District permits SPOs to carry firearms and other weapons, but strictly controls the times and places where such weapons may be carried. §§ 1103.3, 1103.4. Finally, the MPD’s Manual for Special Police Officers includes provisions relating to the details of police procedure to be followed by SPOs, including the warnings to be given to suspected shoplifters, the steps to be taken upon the discovery of incriminating evidence, and, significantly, the appropriate and inappropriate use of a baton.4
According to the District,
the fact that SPOs — as is the case with other licensees in the District, e.g. architects, physicians, or accountants — are subject to disciplinary action by the respective Boards, [s]ee D.C.Code §§ 2-274, 2-3305.14, 2-115, does not render the District responsible for their professional activities.
My colleagues in the majority seem to agree with this reasoning, but I find the tendered analogy quite unpersuasive. Architecture, medicine and accounting are private activities which do not become public in nature simply because the District licenses practitioners. “Governmental licensing or extensive regulation of private activity alone does not warrant ascribing acts of the regulated entity to the state.” Woodward & Lothrop v. Hillary, 598 A.2d 1142, 1146 n. 6 (D.C.1991) (citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 177, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972)). An SPO, on the other hand, “shall have the same powers as a law enforcement officer to arrest without warrant for offenses committed within premises to which his jurisdiction extends ....” D.C.Code § 23-582(a) (1996). Unlike, e.g., architecture, arresting an individual is intrinsically a governmental function which falls within the police power of the state. “[Sjpecial officers [therefore] act as agents or instru-mentalities of the state in conducting searches and seizures incident to their power to arrest, and thus are subject to the restrictions of the Fourth Amendment.” Woodward & Lothrop, supra, 598 A.2d at 1145.5
This court held in Wade v. District of Columbia, 310 A.2d 857, 863 (D.C.1973) (en banc), that “the District ... may be sued under the common law doctrine of respondeat superior for the intentional torts of its employees acting within the scope of their employment.” In Wade, the employees were MPD officers who had allegedly assaulted the plaintiff and arrested him without probable cause. In the present case, the alleged employee was an SPO. Within the premises of the Rite Aid *154Pharmacy, however, Rodney Brown’s position was analogous for all practical purposes to that of an officer of the MPD. Like a regular officer, Brown was authorized to make arrests without a warrant. Like the officers in Wade, Brown was accused of abusing that authority. Wade thus constitutes persuasive, though not dispositive, authority for reversal here.
In Wells v. Washington Mkt. Co., 19 D.C. 385 (1890), the plaintiff, a customer at the Washington Market Company, was wrongfully accused of shoplifting, and he was arrested and handcuffed by one Cap-ner. Capner was paid by the Washington Market Company to collect rents and to maintain order. Upon the application of the market company, Capner had also received an appointment from the Metropolitan Police Force as a special officer, with authority to make arrests. Like Brown in this case, Capner received no pay from any public source.
Following his detention, the plaintiff sued the market company for false arrest. The jury returned a verdict in the plaintiffs favor in the amount of $160. The Supreme Court of the District of Columbia reversed. The court entertained “no doubt that a great outrage upon this poor man was committed, and somebody ought to suffer for it.” Id. at 389. The court held, however, that the market company was not hable, for Capner was not acting as the market company’s agent when he arrested the plaintiff. On the contrary, according to the court, Capner effected the plaintiffs arrest in the exercise of his authority as an officer of the Metropolitan Police Force. Neither the fact of Capner’s appointment to the force at the request of the market company, nor the market company’s payment of his entire wages, made the arrest attributable to the market company. Id. at 397-98.
The Wells decision does not stand for the proposition that the plaintiff could recover damages from the District. Indeed, at the time Weils was decided, a suit against the District would surely have been barred by sovereign immunity. See Wade, supra, 310 A.2d at 860-63. The court’s analysis in Wells strongly suggests, however, that an SPO such as Rodney Brown was just as much a state actor as a regular member of the MPD would have been, notwithstanding Rite Aid’s role in applying for his appointment as an SPO and the market company’s payment of his salary. Read together with Wade, Wells tends to support Moorehead’s position.
In Tezeno v. Maryland Cas. Co., 166 So.2d 351 (La.Ct.App.1964), the plaintiffs son was shot to death by Isadore, an employee of a movie theater, after the decedent had made a disturbance. According to the testimony of a police detective, Isa-dore was also a “special officer” of the City of Lafayette, apparently pursuant to an “honorary commission” issued by the Chief of Police. The plaintiff sued the City’s liability insurer for wrongful death, alleging that the employee had used excessive force and that the City was vicariously liable for the “special officer’s” conduct: The court held that
the City of Lafayette could not be held to be responsible for the actions of Isa-dore, even though his acts may have been designed to maintain peace and order, unless the City had authorized or empowered him to perform the duties usually performed by policemen or peace officers for the City, including the power to make arrests.
Id. at 356. The Tezeno decision is not precisely in point with respect to the issue before us, but the passage that I have quoted does suggest that the actions of an SPO such as Rodney Brown, who did have the authority to make arrests, could fairly be attributed to the municipality that appointed him.
The question whether the District is vicariously hable for SPO Brown’s actions is one of first impression in this jurisdiction. In my opinion, it should have been decided on a full factual record, and judgment on the pleadings was premature.
*155hi.
The trial judge granted summary judgment in favor of the District on Moore-head’s claim that the police arrested and detained him without probable cause. My colleagues conclude that summary judgment was warranted. I do not agree.
The standard for summary judgment is a familiar one. In order to prevail on its motion, the District was required to demonstrate that there was no genuine issue of material fact and that the District was entitled to judgment as a matter of law. Colbert v. Georgetown Univ., 641 A.2d 469, 472 (D.C.1994) (en banc). The court must view the record in the light most favorable to Mr. Moorehead, and draw all reasonable inferences in his favor. Id. Indeed, courts closely scrutinize the moving party’s papers, while according “indulgent” treatment to the materials presented by the non-moving party. See Fry v. Diamond Constr., Inc., 659 A.2d 241, 246 (D.C.1995) (citations omitted). The District cannot prevail under this exacting standard.
The trial judge concluded, as a matter of law, that Officer Koons had probable cause to arrest Mr. Moorehead. To sustain this defense, an arresting officer (or, here, the District, which stands in the officer’s shoes) must prove that the officer had a reasonable good faith belief that Moore-head committed the offense. Safeway Stores v. Kelly, 448 A.2d 856, 862 (D.C.1982). Unless probable cause is shown to exist as a matter of law, the issue should ordinarily be left to the jury. See District of Columbia v. Murphy, 631 A.2d 34, 37 (D.C.), reaff'd on rehearing, 635 A.2d 929 (D.C.1993).
“An arresting officer is required to conduct a reasonable investigation to establish probable cause.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir.), cert. denied, 525 U.S. 823, 119 S.Ct. 67, 142 L.Ed.2d 52 (1998) (quoting Tillman v. Coley, 886 F.2d 317, 321 (11th Cir.1989)). In order for probable cause to exist, an arrest must be “objectively reasonable under the totality of the circumstances.” Id. “Where it would appear to a cautious man that further investigation is justified before instituting a proceeding, liability may attach for failure to do so.” Id. at 1435-36 (citation omitted). The defense of probable cause may be “overcome by evidence that false testimony was the basis of the charge and that the falsity, if so, was discoverable upon reasonable investigation.” Moad v. Pioneer Fin. Co., 496 S.W.2d 794, 799 (Mo.1973) (citing Kvasnicka v. Montgomery Ward & Co., 350 Mo. 360, 166 S.W.2d 503, 510 (1942)). “In this land of freedom of liberty, with all of its concomitant constitutional rights and protections, if we wish to have our citizen population continue to respect the authority of police personnel performing their duties in a lawful manner, it is incumbent on law enforcement officials to make a thorough investigation and exercise reasonable judgment before invoking the awesome power of arrest and detention.” Moore v. The Marketplace Restaurant, 754 F.2d 1336, 1346 (7th Cir.1985).
In Moore, the plaintiffs were arrested in the middle of the night after the manager of a restaurant reported to the police that the plaintiffs had left the establishment without paying for their meal. Before arresting the plaintiffs, the police officers went to the restaurant and interviewed the manager, but they conducted no other investigation. In their complaint for false arrest, the plaintiffs claimed that they had been harassed by the restaurant’s personnel, that they had waited for two hours for a meal that never arrived, and that they had unsuccessfully attempted to pay for their drinks before leaving the restaurant. They alleged that the police had failed to elicit available evidence pointing to their innocence and had arrested the plaintiffs without probable cause. The trial court granted summary judgment in favor of the county. The Court of Appeals reversed. The court concluded that there was a genuine issue of material fact regarding the sufficiency of the police officers’ investigation, and that summary judgment was unwarranted:
*156This entire episode may have been avoided if the officer who received the original complaint and the arresting officers had used reasonable judgment and conducted a proper investigation.
[UJnder the circumstances of this case it is proper for the jury to consider all the evidence, including questions regarding the sufficiency of the deputies’ investigation at the scene, in determining whether there was enough evidence to establish probable cause to arrest for the crime of theft of services.
Id. at 1345-47.
I turn now to the present case. When Officer Koons arrived on the scene, Mr. Moorehead was bleeding from the head and severely injured. Koons suspected that Brown had used excessive force, and he considered arresting Brown as well as (or instead of) Moorehead. Nevertheless, and relying solely on Brown’s account, Koons exercised his “awesome power,” id. at 1346, to arrest Moorehead.
Even discounting the manager’s Rule 60(b) affidavit, see Part IV, infra, I believe that, at the very least, a jury question was presented regarding the reasonableness and sufficiency of Officer Koons’ investigation. Rodney Brown, as I have noted, was much taller, far heavier, and several years younger than Mr. Moorehead. Brown was armed at least with a baton. So far as the record shows, Moorehead was not armed at all. Under the circumstances, it would have been foolhardy at best for a small, unarmed, middle-aged man to assault a powerful armed adversary, especially one with police powers. Moreover, Moorehead had obviously been badly beaten and seriously hurt, while Brown sustained no injury.6 Officer Koons was thus confronted with an account from Brown which ought to have generated skepticism in a reasonable police officer. At the very least, an impartial jury could so find.7
Moreover, like the officers in Moore, Officer Koons made no investigation beyond obtaining SPO Brown’s account. Although the police had been called to the scene in connection with an assault with a blackjack, Koons never interviewed the victim of that alleged assault.8 By his own admission, Koons likewise failed to interview either the store manager or any customers, professing to believe that witnesses usually claim not to have' any knowledge of the events that have transpired. This curious explanation, if taken seriously, suggests that questioning of independent witnesses is futile and that Officer Koons does not bother with it. Viewing the record in the light most favorable to Mr. Moorehead, I cannot agree that Koons’ investigation was reasonable as a matter of law or that there was no genuine issue of material fact for a jury to decide.
This case is quite unlike United States v. Simpson, 330 A.2d 756 (D.C.1975), cited by the District, in which this court sustained a finding of probable cause on the basis of the complainant’s statement to the police. In Simpson, the complainant, Vines, told *157the police that Simpson had pointed a gun at Vines and had threatened to kill him. Id. at 757. The officer found Vines to be credible, and, as this court noted, “he prudently anticipated that the erstwhile armed assailant might be dangerous.” Id. at 758. Moreover, “a departure by the police to seek a warrant needlessly could have endangered Vines,” id. n. 4, and it was therefore important for the police to take Simpson into custody promptly. In the present case, the suspect, Moorehead, was already handcuffed, on the ground, and nursing his wounds following his involuntary encounter with SPO Brown’s baton. Each case turns on its own circumstances, and the significant factors in Simpson— the dangerousness of the suspect and the consequent need for a prompt decision to arrest — are simply absent here.
IV.
On August 2,1996, the trial judge granted summary judgment in favor of the District on Mr. Moorehead’s claim that he was arrested without probable cause. On August 19, 1996, Moorehead’s attorney filed a motion for reconsideration purportedly based on Super. Ct. Civ. R. 59(e), but actually cognizable under Super. Ct. Civ. R. 60(b).9 In support of his motion, counsel filed the affidavit of Darryl Washington (the manager of the pharmacy at the time of Moorehead’s arrest) from which we have quoted at p. 151, supra. According to Mr. Washington, a police officer advised SPO Brown, in effect, to cover up Brown’s own misconduct by planting evidence in Moorehead’s bag. Washington stated that this episode “made me lose some faith in the justice system.”
The trial judge denied Moorehead’s motion upon the following grounds:
Plaintiff fails to show that he exercised due diligence in attempting to discover this evidence in time to respond to Defendants’ motion for summary judgment and such evidence does not create a genuine issue of material fact in dispute.
In my opinion, neither of the court’s stated reasons can withstand critical scrutiny in light of the record in this case.
The contents of Mr. Washington’s affidavit are quite remarkable. This affiant, after all, was not Mr. Moorehead’s confederate in any shoplifting venture. On the contrary, if Moorehead was a thief, then Mr. Washington and his employer were Moorehead’s victims. Yet Washington— the person at whose request the police had been called — reported that a police officer had counseled an SPO who had grossly abused his authority to plant evidence on the SPO’s victim in order to save the SPO’s own skin. An impartial juror who credited this testimony would surely entertain grave doubt as to whether an officer who dispensed this disgraceful and sordid advice was acting reasonably and in good faith when he arrested Moorehead — the very person whom he was advising the SPO to frame. The affidavit was therefore highly probative, and at least potentially destructive of the probable cause/good faith defense.
“Rule 60(b) is to be given a liberal construction so as to do substantial justice and to prevent the judgment from becoming a vehicle of injustice.” MIF Realty L.P. v. Rochester Assocs., 92 F.3d 752, 755 (8th Cir.1996) (citation and internal quotation marks omitted). The Rule was intended “to preserve the delicate balance between the sanctity of final judgments ... and the incessant command of a court’s conscience that justice be done in light of all the facts.” Good Luck Nursing Home, Inc. v. Harris, 204 U.S.App. D.C. 300, 305, 636 F.2d 572, 577 (1980) (citations and internal quotation marks omitted).
In ruling on Rule 60(b) motions, courts apply equitable principles, and
*158[o]ne important equitable consideration is whether the litigants-received a ruling on the merits of them claim. “There is much more reason for liberality in reopening a judgment when the merits of the case never have been considered than there is when the judgment comes after a full trial on the merits.... ” In such cases, we must balance the policy favoring finality in judgments against the competing policy of granting parties a hearing on the merits of their claims.
MIF Realty, supra, 92 F.3d at 755 (citing 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2857, at 256-57 (2d ed.1995)). The present case was disposed of on the basis of pretrial motions before the first witness was called, and the considerations favoring finality are thus far less compelling than they would be if the motion had been filed in the wake of a full trial on the merits. Under these circumstances, “the incessant command of [the] court’s conscience,” Good Luck Nursing Home, supra, 204 U.S.App. D.C. at 305, 636 F.2d at 577, counsels against a grudging application of Rule 60(b). Rather, we should construe the Rule liberally to prevent injustice. MIF Realty, supra, 92 F.3d at 755.
With these considerations in mind, I turn to the trial judge’s determination that Moorehead’s attorney failed to exercise due diligence in securing Mr. Washington’s affidavit. The relevant facts are undisputed, and in my view they dispel any notion that counsel sat on his hands or fiddled while Rome burned. On the contrary, once the complaint had been filed, counsel devoted considerable time and effort to the task of locating Mr. Washington, who was no longer employed at Rite Aid, and who had moved from his previous address. Indeed, given that nobody appeared to know where Mr. Washington was,10 Moorehead’s attorney located him fairly promptly. The following chronology reflects the relevant facts:
December 7, 1994 Mr. Moorehead arrested and beaten. Mr. Washington provides police.with statement describing his observations.
November 13, 1995 Complaint filed.
April 9, 1996 Counsel for plaintiff receives Brown’s answers to interrogatories, which disclose that Mr. Washington was in the store during the incident. Brown’s answers disclose the telephone number of Washington’s grandmother, but according to the grandmother, Washington’s whereabouts are unknown.
May 1, 1996 Plaintiff serves notice on defendant Rite Aid directing that said defendant produce Mr. Washington for deposition.
May 17, 1996 Through discovery, counsel for plaintiff receives Mr. Washington’s statement to the police, which includes Washington’s last known address.
May 30, 1996 Counsel for Rite Aid advises counsel for plaintiff that Mr. Washington no longer works for Rite Aid. Counsel for plaintiff retains an investigator who makes several visits to Mr. Washington’s last known address, but is unable to locate Mr. Washington.
June 28, 1996 District of Columbia files a motion for summary judgment.
July 31, 1996 Counsel for plaintiff mails letter to Mr. Washington at his last known address.
August 5, 1996 Mr. Washington calls plaintiffs counsel.
August 6, 1996 Trial court grants summary judgment in favor of the District.
August 7, 1996 Plaintiffs counsel meets with Mr. Washington.
*159August 16, 1996 Mr. Washington signs affidavit.
August 19,1996 Plaintiff files motion for reconsideration.
In my opinion, the notion that counsel’s efforts, as outlined above, were so lacking in diligence that Washington’s affidavit should be excluded simply cannot be reconciled with the authorities construing Rule 60(b). If the affidavit is included in the probable cause/good faith calculus, then, in my view, the award of summary judgment in favor of the District on the probable cause/good faith issue becomes completely untenable.
V.
For the foregoing reasons, I would reverse the judgment and permit Moorehead to present his case to a jury.
. Mr. Washington’s account is contained in an affidavit filed by Mr. Moorehead's attorney in support of a motion to vacate the trial court’s order granting summary judgment. My colleagues apparently view the affidavit as not being properly before the court, and they do not address its contents. I disagree with the majority’s approach to this question. See Part IV. infra.
. The Chief of Police was also authorized to recommend discipline against Brown. 6A DCMR § 1110.1.
. Indeed, the Special Police Officer’s Manual issued by the MPD's "Security Officers Management Branch" lists several grounds for suspension or revocation of an SPO's commission, including "using unnecessary force in arresting or imprisoning any person or being discourteous toward any person or to the public.” (Emphasis added.) A special police officer’s commission may thus be revoked or suspended for the very kind of conduct that Moorehead alleges here. Another ground for suspension or revocation is "[fjailure to obey orders or directives issued by the Chief of Police.”
. Moorehead’s attorney did not bring the Manual to the attention of the trial court. On a motion for judgment on the pleadings, however, it was the obligation of the District to establish beyond doubt that no agency relationship existed. I believe that we can and should take judicial notice of the Manual — an official publication of the MPD — at least for the limited purpose of showing that if the case had gone to trial. Moorehead could have presented significant evidence tending to show that the District had the right to exercise control over Brown's activities as an SPO. See Poulnot v. District of Columbia, 608 A.2d 134, 141-42 & n. 12 (D.C.1992). Dean Thayer put it well more than a century ago:
Courts may judicially notice much that they cannot be required to notice. That is well worth emphasizing: for it points to a great possible usefulness in this doctrine, in helping to shorten and simplify trials.... The failure to exercise it tends daily to smother trials with technicality and monstrously lengthens them out.
James Thayer, Preliminary Treatise on Evidence 309 (1898).
. District of Columbia v. Hampton, 666 A.2d 30 (D.C.1995), cited by the majority, is distinguishable from the present case upon the same ground that I have distinguished situations involving architects, physicians, or accountants. The operation of a foster home, even an extensively regulated foster home, is not a state function in the sense that police activity is.
. Although Brown claimed that his clothes were mussed. Moorehead later swore that he was struck from behind and that he offered no resistance at all.
. In fact, Koons' deposition reveals that he was skeptical about Brown’s conduct.
. According to the majority. "Moorehead was present when Koons was talking with Brown and had plenty of opportunity to present his side of the story.” But especially if one views the record, in conformity with summary judgment principles, in the light most favorable to Moorehead, this "opportunity" was more illusory than real. At the relevant time. Moorehead was in handcuffs and in the presence of the SPO who had just beaten him into semi-consciousness. That SPO had told him that “I am the police,” and Officer Koons was siding with Brown by arresting Moore-head but leaving Brown at liberty. The situation, in other words, was a frightening one for Mr. Moorehead. An impartial jury could properly find it to be unreasonable for Officer Koons, under these circumstances, to expect the victim of the alleged beating to volunteer information when nobody had asked him for his account or expressed any interest in his side of the story.
. Because Moorehead presented new material for the court’s consideration, the motion is properly analyzed under Rule 60(b). See, e.g., Fleming v. District of Columbia, 633 A.2d 846, 848-49 (D.C.1993) (citations omitted).
. Rodney Brown testified on deposition that Mr. Washington was suspected of stealing money from his employer, and Mr. Moore-head’s attorney suspected that Washington might be "on the lam.”