United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 19, 2007 Decided July 24, 2007
No. 05-7152 & 05-7161
CARL HUNDLEY,
AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF BRIAN
E. HUNDLEY, APPELLEE/CROSS-APPELLANT, AND
LYNNE T. HUNDLEY,
APPELLEE
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLANTS/CROSS-APPELLEES
Appeals from the United States District Court
for the District of Columbia
(No. 02cv00638)
Holly M. Johnson, Section Chief, Office of Attorney
General for the District of Columbia, argued the cause for
appellants/cross-appellees. With her on the briefs were Robert
J. Spagnoletti, Attorney General, Todd S. Kim, Solicitor
General, and Edward E. Schwab, Deputy Solicitor General.
Gregory L. Lattimer argued the cause for appellees/cross-
appellant. With him on the briefs were Janell M. Byrd and
Donald M. Temple.
2
Before: GINSBURG, Chief Judge, and RANDOLPH and
KAVANAUGH, Circuit Judges.
KAVANAUGH, Circuit Judge: In the middle of a night in
March 2002, Brian Hundley and a woman were in a car parked
outside an apartment complex in Washington, D.C. Off-duty
Metropolitan Police Department Officer Marcus Gaines tapped
on the window of the car as he walked past. Hundley, who was
in the driver’s seat, began to drive the car in the direction of
Officer Gaines. Officer Gaines pulled his gun, yelled “police,”
and ordered Hundley to stop and get out of the car. Hundley
complied and exited the car. According to Officer Gaines, while
Hundley was standing outside the car, Hundley suddenly moved
his right hand from behind his back and began lunging toward
Officer Gaines, who was about 10 to 15 feet away. In apparent
self-defense, Officer Gaines shot and killed Hundley.
Hundley’s estate sued Officer Gaines, former police official
Terrance Gainer, and the District of Columbia and, as relevant
here, brought three claims: (i) a D.C. tort law claim of assault
and battery based on the fatal shot; (ii) a corresponding federal
§ 1983 claim of excessive force in violation of the Fourth
Amendment, also based on the fatal shot; and (iii) a D.C. tort
law claim of negligence based on the initial stop. The jury
found for defendants on the assault and battery and excessive
force claims, concluding that Officer Gaines was justified in
shooting Hundley in self-defense. At the same time, however,
the jury in a written interrogatory answer specifically rejected
Officer Gaines’s version of events regarding the self-defense
shooting. The jury found for plaintiffs on the negligence claim,
concluding the initial stop was unreasonable; the jury also
determined that the negligent stop proximately caused
Hundley’s death. The jury awarded damages of $242,400 to
plaintiffs.
3
On appeal, Hundley’s estate challenges the assault and
battery and excessive force verdict for the defense, arguing that
the jury’s verdict for defendants on those two claims was
inconsistent with the jury’s written interrogatory answer, in
which it directly rejected Officer Gaines’s version of events.
And defendants challenge the negligence verdict, arguing that
the negligent stop did not proximately cause the shooting death
that formed the basis for the damages award.
We agree with Hundley’s estate that the jury verdict on the
assault and battery and excessive force claims was inconsistent
with the jury’s answer to the written interrogatory. We agree
with defendants that the negligent stop, as a matter of law, did
not proximately cause the shooting death and thus cannot justify
the damages for the shooting death. We therefore reverse the
judgment of the District Court and remand for a new trial for
Hundley’s estate on the assault and battery and excessive force
claims.
I
At approximately 1:30 a.m. on March 23, 2002, off-duty
Metropolitan Police Department Officer Marcus Gaines was
riding in a car driven by his brother Ronald when they arrived
in the parking lot of Marcus Gaines’s apartment building near
6th and N Streets, N.W., in Washington, D.C.
According to Officer Gaines, the following events then
transpired. As Officer Gaines and his brother drove around the
lot looking for a place to park, Officer Gaines observed a man
and a woman engaging in sexual activity in a parked car. The
man was Brian Hundley (Hundley was previously unknown to
Officer Gaines); the woman was known by Officer Gaines to be
a prostitute. Ronald Gaines parked his car, and Officer Gaines
got out and walked ahead toward the apartment building. As
4
Officer Gaines walked behind Hundley’s car, Hundley began to
back out of his parking space – nearly hitting Officer Gaines.
Officer Gaines believed that Hundley, the driver of the car,
simply had not seen him. Officer Gaines tapped on the
passenger-side window of the car to alert Hundley and his
passenger to Officer Gaines’s presence.
Officer Gaines then continued walking toward his building.
Just after Hundley finished backing his car out of its parking
space, Officer Gaines passed in front of the car on his way to the
building. At that point, Hundley suddenly drove his car at a
rapid speed toward Officer Gaines. Officer Gaines jumped out
of the car’s path and drew his gun. He yelled “police” and
ordered Hundley to stop and get out of the car; Officer Gaines
based his decision to order Hundley out of the car on what he
described as Hundley’s attempted assault with a deadly weapon
(namely, assault with the car).
As soon as Officer Gaines ordered Hundley to stop and exit
the car, Hundley complied and stood outside of the car with his
hands in plain view. But then, according to Officer Gaines,
Hundley stopped complying with the officer’s orders. When
Officer Gaines first ordered Hundley to place his hands on his
car, Hundley instead put his hands in his pockets. Next, Officer
Gaines ordered Hundley to take his hands out of his pockets,
which Hundley did. But when Officer Gaines again ordered
Hundley to place his hands on the car, Hundley failed to comply
and acted as though he planned to re-enter his car. Officer
Gaines then two more times ordered Hundley to place his hands
on the car. The first time, Hundley instead put his hands behind
his back. The second time, Hundley, with his right arm behind
his back, suddenly moved his right hand as he lunged toward
Officer Gaines.
5
Officer Gaines then fired a single shot at Hundley, which
was fatal. Officer Gaines testified that he fired out of self-
defense based on Hundley’s lunge and sudden hand movement.
Two other witnesses saw at least some of the interaction
between Hundley and Officer Gaines and provided additional
accounts of that night’s events. Ronald Gaines did not testify at
trial, but his pre-trial statements about the incident were read to
the jury. Ronald stated that he observed none of the altercation
between Hundley and Officer Gaines until he saw Officer
Gaines yelling at Hundley to exit Hundley’s car. According to
Ronald, Officer Gaines yelled several times for Hundley to show
the officer his hands. Instead of following those orders,
Hundley reached inside his jacket, at which point Officer Gaines
shot him.
The prior testimony of a nearby resident, Linda Davis, was
also admitted at trial. According to Davis, Officer Gaines
seemed angry at Hundley and yelled three times for Hundley to
exit his car. As Hundley complied and stood outside the car
with his hands in the air, Officer Gaines shot him.
Hundley’s estate filed a lawsuit against Officer Gaines,
former Executive Assistant Chief of the Metropolitan Police
Department Terrance Gainer, and the District of Columbia. The
claims against defendants included assault and battery, a § 1983
claim of excessive force in violation of the Fourth Amendment,
and negligence. The first trial resulted in a hung jury.
At the second trial, the jury rejected plaintiffs’ assault and
battery and excessive force claims with respect to the shooting.
But the jury found in a written interrogatory that Hundley was
not “shot after placing his right hand behind his back and then
making a lunging motion toward Officer Marcus Gaines” – in
other words, the jury directly rejected Officer Gaines’s
6
testimony explaining that he had shot Hundley in self-defense.
See Verdict Form at 1, Hundley v. District of Columbia, No.
02cv638 (D.D.C. Dec. 6, 2004). The jury also found that
Officer Gaines had acted negligently in making the initial stop
of Hundley and that the negligent stop proximately caused
Hundley’s death. The jury awarded a total of $242,400 in
compensatory damages for Hundley’s death.
In this Court, Hundley’s estate challenges the assault and
battery and excessive force verdict, arguing that the jury’s
verdict was inconsistent with the written interrogatory answer.1
Defendants challenge the judgment for plaintiffs on the
negligence claim.
II
We turn first to the jury’s verdict for defendants on the
assault and battery and excessive force claims. An officer’s
unreasonable use of force violates the Fourth Amendment. See
Graham v. Connor, 490 U.S. 386, 388, 395-98 (1989). The
victim therefore may sue the offending officer for damages
under 42 U.S.C. § 1983. Such an unreasonable use of force also
is an assault and battery under D.C. law. See District of
Columbia v. Jackson, 810 A.2d 388, 392 (D.C. 2002).
Here, Officer Gaines testified that his use of force was
reasonable because Hundley, with his right hand behind his
back, suddenly lunged toward Officer Gaines – in other words,
Officer Gaines shot Hundley in self-defense. The plaintiffs
argued, with support from an eyewitness, that Officer Gaines
was lying and that Officer Gaines in fact shot Hundley without
justification.
1
Another plaintiff, Lynne Hundley in her individual capacity, did
not timely appeal the assault and battery and excessive force verdict.
7
In addition to asking the jury to render a verdict on the
assault and battery and excessive force claims, the judge also
instructed the jury to answer a written interrogatory: “Do you
find that Brian Hundley was shot after placing his right hand
behind his back and then making a lunging motion toward
Officer Marcus Gaines?” Verdict Form at 1, Hundley v. District
of Columbia, No. 02cv638 (D.D.C. Dec. 6, 2004). The written
interrogatory tracked Officer Gaines’s testimony regarding the
apparent self-defense shooting. The jury answered “No.” Id.
The jury thus rejected Officer Gaines’s testimony regarding the
events that would have justified the use of force in self-defense.
At the same time, however, the jury found that defendants were
not liable for assault and battery or excessive force, even though
defendants’ argument against such liability was self-defense
based on Officer Gaines’s testimony.
On appeal, Hundley’s estate argues that the jury’s written
interrogatory response is inconsistent with the jury’s findings for
defendants on the assault and battery and excessive force claims.
See Fed. R. Civ. P. 49(b). Claims that a jury verdict is internally
inconsistent “impose a special obligation on the court to view
the evidence in a manner that reconciles the verdicts if possible,
and to grant a new trial if not.” Smith v. District of Columbia,
413 F.3d 86, 97 (D.C. Cir. 2005); see Gallick v. Baltimore &
Ohio R.R. Co., 372 U.S. 108, 119 (1963) (courts have duty to
harmonize jury’s answers “if it is possible under a fair reading
of them: Where there is a view of the case that makes the jury’s
answers to special interrogatories consistent, they must be
resolved that way.”) (internal quotation omitted); see also 9
J AMES W M . M OORE ET AL ., M OORE ’ S F EDERAL
PRACTICE § 49.20[6][b][i] (3d ed. 1997); 9A CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2513 (3d ed. 1999).
8
Although successful claims of verdict inconsistency are
rare, rare does not mean never. And this case is a classic
example of an inconsistent verdict that cannot reasonably be
reconciled or sustained. Two distinct versions of events were
presented to the jury. The jury could conclude either that
Officer Gaines shot Hundley in self-defense as described by
Officer Gaines, or that he shot Hundley without justification. In
making their cases to the jury, both sides agreed that liability
turned on which version of events the jury believed. See, e.g.,
Trial Tr. at 86-87, Hundley v. District of Columbia, No. 02cv638
(D.D.C. Nov. 29, 2004) (defense counsel arguing to court and
referring to Linda Davis’s testimony and to Officer Gaines’s
testimony: “[T]hese are the only two scenarios that were
presented to the jury.”). Yet the jury found for defendants on
the assault and battery and excessive force claims while
simultaneously answering a written interrogatory indicating that
the jury did not believe Officer Gaines’s version of events. The
two answers cannot coexist; they make no sense in the context
of the evidence presented in this case.
Defendants gamely try to justify the verdict by arguing that
the jury could have concluded that Officer Gaines’s use of force
was reasonable while concluding that Officer Gaines’s
explanation for why he shot Hundley was inaccurate.
Defendants argue, for example, that the jury could have found
that Hundley lunged toward Gaines but did not place his hand
behind his back. Or perhaps the jury found that Hundley’s hand
was behind his back, but he did not lunge. Or perhaps Hundley
reached inside his jacket. Those hypothetical reconstructions
are utterly unpersuasive in light of the record in this case and the
way the case was tried to the jury. If the defendants thought the
evidence supported alternative self-defense scenarios other than
the one described by Officer Gaines and presented in the written
interrogatory, they should have timely made that point in the
9
district court, especially with respect to the written interrogatory
presented to the jury. Cf. Fed. R. Civ. P. 49(b), 51(c).
The bottom line is that the written interrogatory called for
the jury to decide whether Officer Gaines’s account was true.
And the jury rejected his account. Officer Gaines’s testimony
was the basis on which defendants argued they were not liable
for assault and battery and excessive force. The jury
nonetheless found defendants not liable for assault and battery
and excessive force. There is no coherent or reasonable way to
reconcile the jury’s two conclusions.
In an attempt to sustain the unsustainable, defendants resort
to the argument that Hundley’s estate waived its objection to the
irreconcilable verdict. This argument takes some chutzpah
given that plaintiffs repeatedly objected at trial to the proposed
written interrogatory. See Denny v. Ford Motor Co., 42 F.3d
106, 111 (2d Cir. 1994) (no Rule 49 waiver when defendant
objects to relevant jury instructions before jury deliberations);
see also Fed. R. Civ. P. 51(c). Indeed, even defense counsel
during the trial acknowledged and foreshadowed the potential
for inconsistency if the jury answered no to the written
interrogatory and no to assault and battery and excessive force –
in other words, found defendants not liable on assault and
battery and excessive force but rejected Officer Gaines’s version
of events. The scenario identified at trial by both plaintiffs’
counsel and defense counsel as a potential (if unlikely to occur)
problem is exactly what subsequently happened in the jury’s
verdict.
After the jury delivered its verdict, the District Court
dismissed the jury almost immediately. Consistent with
ordinary practice, the District Court did not ask the parties
whether they further “objected” in some way to that verdict. In
10
their post-trial motion, plaintiffs raised the argument that the
verdict was inconsistent.
Defendants have cited no case supporting waiver when:
(i) a party objected to a written interrogatory; (ii) the district
court dismissed the jury after receiving the verdict without
asking the parties whether they had any objections to the verdict;
and (iii) the party raised an inconsistent verdict argument –
based on the previously objected-to written interrogatory – in its
post-trial motion for a judgment as a matter of law or new trial.2
Under these narrow circumstances, we agree with Hundley’s
estate that a party has not waived its objection to an inconsistent
verdict caused in part by a written interrogatory. See Fed. R.
Civ. P. 49(b), 51(c).3
2
This Court has not resolved whether we can consider an
inconsistent verdict claim, other than for plain error, when a party
failed to object in any way before the district court’s entry of
judgment. Cf. Smith, 413 F.3d at 97. In light of the repeated objection
to the written interrogatory in this case, which was the source in part
of the inconsistent verdict, we again need not reach that question.
3
Because of our holding, we need not decide whether the
inconsistency in the verdict constituted plain error. Cf. Armstrong v.
Brookdale Univ. Hosp. & Med. Ctr., 425 F.3d 126, 136 (2d Cir. 2005)
(failure to object prior to jury dismissal is waiver “absent a showing
of fundamental error,” which occurs when error is “so serious and
flagrant that it goes to the very integrity of the trial or deprive[s] the
jury of adequate legal guidance to reach a rational decision”) (internal
quotations omitted) (alteration in original); Johnson v. ABLT Trucking
Co., Inc., 412 F.3d 1138, 1141 (10th Cir. 2005) (failure to object to
verdict inconsistency prior to discharge of jury is waiver “unless the
verdict is inconsistent on its face such that the entry of judgment upon
the verdict is plain error”) (internal quotation omitted); Strauss v.
Stratojac Corp., 810 F.2d 679, 683 (7th Cir. 1987) (noting that court
might in future “encounter a case where the inconsistency in the
special interrogatories is so obvious that it would be proper to hold
11
We hold that the assault and battery and excessive force
verdict was inconsistent with the written interrogatory answer
and that a new trial is warranted for Hundley’s estate on the
assault and battery and excessive force claims.
III
Even assuming defendants were not liable for assault and
battery and excessive force (because Gaines fired the shot in
self-defense), plaintiffs offered a separate theory of liability at
trial: that Officer Gaines was liable for the shooting death
because he was negligent in stopping Hundley in the first place,
and was therefore responsible for the harm that followed.
The jury found that defendants were not liable for assault
and battery and excessive force, but the jury found for plaintiffs
on the negligence claim – namely, that Officer Gaines acted
unreasonably in initially approaching Hundley in the parking lot.
The jury also found that the negligent stop proximately caused
Hundley’s death.
On appeal, defendants contend that the initial stop – even
if negligent – was not a proximate cause of Hundley’s death as
a matter of law. We agree.
Given the procedural posture of this case, the precise
question before us is whether plaintiffs can recover damages
arising out of Hundley’s death because of Officer Gaines’s
initial negligent stop even if defendants are not liable on the
assault and battery and excessive force claims – in other words,
that the trial judge had an independent responsibility to act despite
trial counsel’s silence”).
12
even if Officer Gaines shot Hundley in self-defense.4 We think
the answer to that question is quite clear: In such a scenario, it
cannot be said that Officer Gaines’s negligence in approaching
Hundley proximately caused the shooting death of Hundley. See
District of Columbia v. Price, 759 A.2d 181, 184 (D.C. 2000)
(proximate cause requires both (i) causal relationship between
negligent act and plaintiff’s harm and (ii) foreseeability of
injury); see also Butts v. United States, 822 A.2d 407, 418 (D.C.
2003). Rather, it was Hundley’s intervening intentional
misconduct that caused Officer Gaines’s intervening shooting,
which in turn caused the death of Hundley.
D.C. follows the black-letter tort law principle that an
intervening force breaks the chain of proximate causation when
that intervening force is sufficiently unforeseeable as to
constitute a superseding cause. See Butts, 822 A.2d at 418; see
also Majeska v. District of Columbia, 812 A.2d 948, 951 (D.C.
2002) (“We have held that a defendant may not be held liable
for harm actually caused where the chain of events leading to
the injury appears highly extraordinary in retrospect.”) (internal
quotations omitted); District of Columbia v. Carlson, 793 A.2d
1285, 1290 (D.C. 2002). It is only “where misconduct was to be
anticipated, and taking the risk of it was unreasonable, that
liability will be imposed for consequences to which such
intervening acts contributed.” W. PAGE KEETON ET AL.,
PROSSER AND KEETON ON THE LAW OF TORTS § 44, at 313 (5th
ed. 1984); see RESTATEMENT (SECOND) OF TORTS § 448 (1965)
(“The act of a third person in committing an intentional tort or
crime is a superseding cause of harm . . . unless the actor at the
time of his negligent conduct realized or should have realized
the likelihood that such a situation might be created, and that a
4
If the jury had found for plaintiffs on assault and battery and
excessive force, the negligence claim would be irrelevant because it
would add nothing to plaintiffs’ damages for the shooting death.
13
third person might avail himself of the opportunity to commit
such a tort or crime.”); see generally RESTATEMENT (SECOND)
OF TORTS §§ 440-453. Although cases applying that doctrine
typically involve the intervening acts of third parties, the
principles underlying the doctrine logically apply to this two-
party situation as well. As a matter of law, it is not ordinarily
reasonable to foresee that a citizen will react to a police stop by
attacking the detaining officer, thereby triggering a situation that
requires the officer to use deadly force in self-defense. On the
contrary, citizens have a duty to obey a police officer’s orders,
and officers are entitled to assume that citizens will comply with
their orders. Cf. Majeska, 812 A.2d at 951 (“There is a general
proposition that an individual is presumed to exercise reasonable
care and obey the law.”). And police officers could not protect
the public if tort law deterred them from approaching and
detaining potentially violent suspects. For purposes of D.C. tort
law, therefore, Hundley’s failure to comply with Officer
Gaines’s orders was akin to an intervening force that, as a matter
of law, was sufficiently unforeseeable that it constituted a
superseding cause breaking the chain of proximate causation
between the negligent stop and the shooting death.
The strained nature of plaintiffs’ negligence-and-proximate-
cause theory in this case is also underscored by comparison to
the contributory negligence doctrine. Under that doctrine, which
the District of Columbia follows, the plaintiff’s contributory
negligence ordinarily “bars recovery against a defendant whose
negligent conduct would otherwise make him liable to the
plaintiff for the harm sustained by him.” RESTATEMENT
(SECOND) OF TORTS § 467; see Massengale v. Pitts, 737 A.2d
1029, 1031-32 (D.C. 1999). If a plaintiff’s negligent act
eliminates a defendant’s liability for the plaintiff’s harm, it
follows that a plaintiff’s intentional wrongful act also eliminates
a defendant’s liability for the plaintiff’s harm. Any other
conclusion would be entirely illogical.
14
The flaw in plaintiffs’ negligence-and-proximate-cause
theory is perhaps best illustrated by a hypothetical rather than by
dry recitation of black-letter tort principles. Suppose, for
example, that A unintentionally but negligently drives into B’s
car. Suppose that B then gets out of his car and attacks A with
a knife. What can A do in those circumstances? Under
plaintiffs’ theory, A could not lawfully defend herself and thus
would be liable for any injuries she inflicted on B while fending
off B’s attack. Such a result is obviously absurd, and further
makes clear that the negligent stop here cannot be the basis for
plaintiffs to recover damages for the shooting death.
One final point warrants mention. Hundley’s estate cites
D.C. precedent indicating that officers may be liable when they
negligently approach or detain mentally ill or otherwise mentally
impaired individuals, who in turn cause a disturbance requiring
the use of force against them. See District of Columbia v.
Evans, 644 A.2d 1008, 1019, 1021-22 (D.C. 1994); cf. District
of Columbia v. Peters, 527 A.2d 1269, 1272-73 (D.C. 1987).
But that narrow exception does not apply here. No evidence
suggests that Hundley was mentally ill at the time of the stop, or
that Officer Gaines knew or should have known as much.
Therefore, this case is governed by general principles of tort
law: It was not legally foreseeable that Hundley would threaten
Officer Gaines as a result of Officer Gaines’s initial stop – and
the stop therefore cannot be a proximate cause of Hundley’s
death.
In sum, applying D.C. law, we conclude as a matter of law
that plaintiffs cannot establish that the initial negligent stop
proximately caused the shooting death.5
5
Even if Officer Gaines had shot Hundley without justification,
the negligent stop could not be considered the proximate cause of the
shooting death. Rather, in such a scenario, Officer Gaines’s
15
***
We reverse the judgment of the District Court and remand
for a new trial for Hundley’s estate on the assault and battery
and excessive force claims.
So ordered.
intentional shooting would be analogous to the intervening act. Of
course, this point is somewhat theoretical because defendants in such
a scenario would be directly liable for assault and battery with respect
to the wrongful intentional shooting.