United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 8, 2008 Decided June 20, 2008
No. 06-7136
JUAN JOHNSON,
APPELLANT
v.
DISTRICT OF COLUMBIA,
APPELLEE
______
CONSOLIDATED WITH 06-7180
______
Appeals from the United States District Court
for the District of Columbia
(No. 02cv01452)
Gregory L. Lattimer argued the cause and filed the briefs
for appellant.
William J. Earl, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellee. With him on the brief were
Linda J. Singer, Attorney General at the time the brief was
filed, Todd S. Kim, Solicitor General, and Donna M. Murasky,
Senior Assistant Attorney General. Edward E. Schwab,
Deputy Attorney General, entered an appearance.
2
Before: GINSBURG and GRIFFITH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Juan Johnson is a police officer
whose off-duty act of kindness to a stranger in distress landed
him in the middle of a drug bust in which he was repeatedly
kicked in the groin by a police officer who mistook him for a
criminal. Johnson claims he was a victim of police brutality
and sues both the officer alleged to have kicked him and the
District of Columbia. We consider whether the accused
officer is entitled to qualified immunity, and whether a local
statute displaces Johnson’s common law claims against the
District.
I.
The following version of events, which we accept as true
for purposes of this appeal, is based on Johnson’s account. On
July 23, 2001, Johnson stepped outside his apartment building
in southeast Washington, D.C. to check the mail. Except for a
police identification badge worn around his neck, Johnson
was dressed in civilian clothes that gave no indication he was
an officer of the Metropolitan Police Department (“MPD”).
As Johnson was walking through the courtyard of his
building, a stranger named Andre Clinton approached him
and exclaimed that he was being chased by “stick-up boys.”
Johnson helped Clinton get away from his pursuers by leading
him through the locked back door of the apartment building.
Once inside, Johnson told Clinton to wait downstairs while he
went to his third-floor apartment to get him a glass of water.
When Johnson came out of his apartment a moment later, he
3
was surprised to see Clinton running up the stairs toward him
with police officers giving chase.
Clinton was not running from robbers but from the
police, and Johnson had unwittingly aided his flight. Moments
before, Clinton had sold drugs to an undercover officer and
was now attempting to evade arrest. Officers monitoring
Clinton’s escape mistook Johnson for an armed accomplice
and broadcast a police radio report saying so. The officers
rushing up the stairs had no idea that Johnson was an off-duty
police officer not involved in the crime. To them, he was a
potentially dangerous criminal.
Leading the chase was Jeffrey Bruce, an MPD narcotics
officer. Bruce and his colleagues entered the apartment
building through the unlocked front door, charged up the
stairs with guns drawn, and ordered Johnson and Clinton to
put up their hands. Johnson, who was standing just outside his
apartment, immediately complied and tried to signal to Bruce
that he was a fellow police officer. When his signals failed,
Johnson realized that he could not easily resolve this case of
mistaken identity and feared that Bruce might shoot him in
the face or chest. With his hands still raised, Johnson turned
away from the gun and fell through the open doorway of his
apartment, landing face-down on the floor. While Johnson
was prone on the floor with his arms and legs spread, Bruce
repeatedly kicked and stomped his groin and buttocks.
Johnson protested, “What are you kicking me for? I’m the
police. I’m the police. Why are you kicking me, why are you
stomping me?” When the MPD identification badge around
Johnson’s neck finally came into view, Bruce stopped kicking
him.
The next day, Johnson visited the Police and Fire Clinic
complaining that Bruce’s kicking had caused him to pass
4
blood in his urine. Johnson was placed on “Performance of
Duty” (“POD”) paid leave for his physical injuries under the
Police and Firefighters Retirement and Disability Act, D.C.
CODE § 5-701 et seq., from July 24, 2001 until the middle of
August of that year.1 Johnson briefly returned to work but
went back on paid leave when his psychological injuries from
the kicking were also classified as POD. Johnson remained on
paid leave until December 28, 2004, when MPD reclassified
his psychological injuries as non-POD. He has since resumed
working as an MPD officer.
Johnson filed two complaints in the United States District
Court for the District of Columbia, which were consolidated
on July 20, 2005. In his complaint dated July 22, 2002,
Johnson sued the District of Columbia for police brutality,
assault and battery, and intentional infliction of emotional
distress (collectively, the “common law claims”). In his
complaint dated June 8, 2004, Johnson sued Bruce in his
individual capacity under 42 U.S.C. § 1983, alleging a
violation of his federal constitutional rights by use of
excessive force resulting in an unreasonable seizure under the
Fourth Amendment (“§ 1983 claim”).2 The district court had
federal-question jurisdiction over Johnson’s § 1983 claim, 28
U.S.C. § 1331, and supplemental jurisdiction over his
common law claims, id. § 1367.
In the course of discovery, Johnson and Bruce gave
conflicting accounts of what happened. Bruce testified at his
deposition that Johnson tried to escape by lunging into the
1
The parties agree that even though he was off-duty at the time of
the incident, Johnson was eligible for POD leave because an officer
is “always on duty, although periodically relieved from the routine
performance of it.” D.C. MUN. REGS. tit. 6A, § 200.4.
2
Johnson raised additional claims in his complaints, but we discuss
only those before us on appeal.
5
apartment and trying to crawl away, keeping his hands close
to his body. Bruce claimed he then ran into the apartment
after Johnson, holstered his weapon, and reached for
Johnson’s arms, at which point Johnson produced his police
badge and Bruce let him go. Bruce denied ever having kicked
or stomped Johnson.
Bruce and the District moved for summary judgment,
which the district court granted as to all claims in a
memorandum opinion and order of August 10, 2006. Johnson
appeals. We have jurisdiction under 28 U.S.C. § 1291. We
review the grant of summary judgment de novo. Arrington v.
United States, 473 F.3d 329, 333 (D.C. Cir. 2006).
II.
Johnson sued Bruce under § 1983 for seizing him with
excessive force in violation of the Fourth Amendment.3 See
U.S. CONST. amend. IV (“The right of the people to be secure
in their persons . . . against unreasonable . . . seizures, shall
not be violated . . . .”). Such a claim is “properly analyzed
under the Fourth Amendment’s ‘objective reasonableness’
standard,” Graham v. Connor, 490 U.S. 386, 388 (1989),
which tracks the constitutional text by asking “whether the
force applied was reasonable,” Wardlaw v. Pickett, 1 F.3d
1297, 1303 (D.C. Cir. 1993). Bruce responds that he is
entitled to qualified immunity, a defense we evaluate under
3
“Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .” 42 U.S.C. § 1983.
6
the two-step analysis set forth in Saucier v. Katz, 533 U.S.
194, 200–02 (2001). Under Saucier, we ask first whether the
officer’s alleged conduct violated a constitutional right, the
same question we ask to test the merits of Johnson’s § 1983
claim. If the facts alleged do not establish a constitutional
violation, we end the inquiry and rule for the officer. Int’l
Action Ctr. v. United States, 365 F.3d 20, 28 (D.C. Cir. 2004)
(Roberts, J.). If the facts alleged do establish that a
constitutional right was violated, we go on to ask whether that
right was “clearly established.” Saucier, 533 U.S. at 201.
The district court entered summary judgment against
Johnson on his § 1983 claim after concluding that Bruce
enjoyed qualified immunity. In the district court’s analysis,
the seizure was objectively reasonable or, at worst, derogative
of rights not yet “clearly established.” We will affirm a grant
of summary judgment only if we are persuaded that “there is
no genuine issue as to any material fact and . . . the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).
We look to the law that governs the claims asserted and the
defenses interposed to determine which of the disputed facts
are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). We must view the alleged material facts in the
light most favorable to the party resisting summary judgment,
Saucier, 533 U.S. at 201; Adickes v. S.H. Kress & Co., 398
U.S. 144, 158–59 (1970), and we cannot make credibility
determinations or weigh the evidence, Liberty Lobby, 477
U.S. at 249, 255.
Applying this standard, we reverse the judgment of the
district court. Bruce was not entitled to qualified immunity
against Johnson’s § 1983 claim at the summary judgment
stage because their conflicting deposition testimony gives rise
to genuine issues of fact material to both the § 1983 claim and
7
the qualified immunity defense. We look to Saucier to
determine the materiality of these factual issues.
A.
The first Saucier question asks, “Taken in the light most
favorable to the party asserting the injury, do the facts alleged
show the officer’s conduct violated a constitutional right?”
533 U.S. at 201. As noted above, we apply a standard of
objective reasonableness to determine the constitutionality of
Bruce’s alleged kicking under the Fourth Amendment.
Graham, 490 U.S. at 396. To assess the reasonableness of a
seizure, “[w]e must balance the nature and quality of the
intrusion on the individual’s Fourth Amendment interests
against the importance of the governmental interests alleged
to justify the intrusion.” United States v. Place, 462 U.S. 696,
703 (1983). In so doing, we must give “careful attention to the
facts and circumstances of [the] particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officer or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.” Graham, 490 U.S. at 396. As Judge Friendly
famously wrote, “Not every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chambers,
violates a prisoner’s constitutional rights.” Johnson v. Glick,
481 F.2d 1028, 1033 (2d Cir. 1973). Although Judge Friendly
was writing about the Due Process Clause, his reminder
carries equal force in the Fourth Amendment context.
Graham, 490 U.S. at 396 (quoting Judge Friendly’s Johnson
v. Glick opinion in a Fourth Amendment excessive force
case). We follow Judge Friendly’s lead in inquiring after
“such factors as the need for the application of force, the
relationship between the need and the amount of force that
was used, [and] the extent of injury inflicted.” Johnson v.
Glick, 481 F.2d at 1033.
8
And so now we must, in Justice Scalia’s words, “slosh
our way through the factbound morass of ‘reasonableness.’ ”
Scott v. Harris, 127 S. Ct. 1769, 1778 (2007). Based on the
police radio broadcast describing how Clinton and Johnson
ran away from the police and into the apartment building,
Bruce had reason to fear that Johnson was an armed
accomplice to a fleeing drug dealer. Bruce gave chase,
eventually cornering Clinton and Johnson on the third-floor
landing of the apartment building. With gun drawn, Bruce
ordered the suspects to put up their hands. Both complied.
Johnson alleges that he raised his hands, turned toward the
open door of his apartment, fell face-first to the floor, and
spread his arms and legs in a manner announcing submission.
Accepting Johnson’s allegation that he meant to surrender
peacefully, we may assume for the purpose of deciding this
appeal that Johnson acted in a submissive fashion. Such was
the rapidly developing situation Bruce allegedly encountered:
a potentially armed suspect surrenders to an officer who is
pointing a gun at him, falls to the floor, and lies there on his
belly with arms and legs spread.
In this scenario, we are convinced that a reasonable
officer would not have repeatedly kicked the surrendering
suspect in the groin. We arrive at this conclusion by balancing
the intrusion on Johnson’s Fourth Amendment interests
against the governmental interests served by Bruce’s use of
force. See Graham, 490 U.S. at 396 (citing Place, 462 U.S. at
703). We consider first the severity of the intrusion on
Johnson’s “right . . . to be secure in [his] person[].” U.S.
CONST. amend. IV. Striking the groin is the classic example
of fighting dirty. From the schoolyard scrapper to the
champion prizefighter, no pugilist takes lightly the threat of a
hit below the belt. What’s more, Bruce supposedly kicked a
man while he was down, hard enough to produce bloody
9
urine. Although the constable surely has authority to use
physical force in effecting an arrest, there are gradations of
appropriate violence. See Tennessee v. Garner, 471 U.S. 1, 7–
12 (1985) (holding deadly force to be a disproportionate and
unreasonable means of seizing a fleeing, non-dangerous
felon); Arrington v. United States, 473 F.3d 329, 331–33
(D.C. Cir. 2006) (holding, in a case where suspect was
punched, beaten with a baton, pistol-whipped, and attacked by
a police dog, that such violence was “more force than was
reasonably necessary” if the suspect had already been
disarmed and handcuffed). A kick to the groin tends toward
the vicious end of that scale. We have no trouble finding that
Bruce’s repeated kicks to Johnson’s groin were a serious
intrusion on his Fourth Amendment interests.
Next, we consider the countervailing governmental
interests. An officer in Bruce’s position has a legitimate and
substantial interest in apprehending an armed suspect and
protecting himself and the public from possible harm.
Although these are weighty interests, it is not clear how
kicking Johnson in the groin furthered either of them. The
question is whether the specific police behavior at issue —
here, repeatedly kicking a surrendering suspect in the groin —
produces some law enforcement benefit that might outweigh
the serious harm it causes. See Delaware v. Prouse, 440 U.S.
648, 659 (1979) (“The question remains, however, whether in
the service of these important ends the [method of seizure] is
a sufficiently productive mechanism to justify the intrusion
upon Fourth Amendment interests which such [seizures]
entail.”). At oral argument, counsel could not attest to the
usefulness of kicking Johnson in the groin. Neither can we.
This tips the balance toward illegality. Bruce’s alleged kick to
the groin of a prone man, which caused great personal harm to
Johnson without any corresponding public benefit, violated
the Fourth Amendment.
10
B.
“[I]f a violation could be made out on a favorable view of
the parties’ submissions, the next, sequential step is to ask
whether the [constitutional] right was clearly established.”
Saucier, 533 U.S. at 201. An officer is “shielded from liability
for civil damages insofar as [his] conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). We decide de novo whether
Johnson’s Fourth Amendment right to be free from Bruce’s
kicks to his groin was clearly established. Elder v. Holloway,
510 U.S. 510, 516 (1994).
We begin by establishing the appropriate level of
generality at which to analyze the right at issue. See, e.g.,
Wilson v. Layne, 526 U.S. 603, 615 (1999); Anderson v.
Creighton, 483 U.S. 635, 639–40 (1987). It will not do to ask
whether Johnson had a right to be secure in his person against
unreasonable seizures. Instead, “[t]he relevant, dispositive
inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Saucier,
533 U.S. at 202. On the facts as we have them on appeal, the
issue is whether a reasonable officer could have believed that
kicking Johnson in the groin after he had surrendered and
posed neither a risk of flight nor any danger was a lawful
means of effecting a seizure under the Fourth Amendment. If
Bruce’s use of force survives this test of “objective legal
reasonableness,” Harlow, 457 U.S. at 819, then he is entitled
to qualified immunity. See Malley v. Briggs, 475 U.S. 335,
341 (1986) (noting that “if officers of reasonable competence
could disagree on this issue, immunity should be
recognized”); Scott v. District of Columbia, 101 F.3d 748, 760
11
(D.C. Cir. 1996) (“[T]he proper inquiry here is whether the
officers’ actions were so excessive that no reasonable officer
on the scene could have believed that they were lawful.”).
Coming as it does on the heels of our determination that
the alleged kicking was unreasonable, our inquiry into legal
reasonableness may seem redundant. Cf. Saucier, 533 U.S. at
209–17 (Ginsburg, J., concurring in the judgment) (criticizing
“the duplication inherent in [Saucier’s] two-step scheme”).
Despite the similarity of phrasing, the two Saucier
reasonableness questions are distinct though overlapping.
Accordingly, Part II.A of this opinion asks whether it was
reasonable for Bruce to kick Johnson’s groin, while Part II.B
asks whether it was reasonable for Bruce not to know that it
was unlawful to kick Johnson’s groin. Saucier, 533 U.S. at
203–07 (majority opinion); see also RICHARD H. FALLON, JR.
ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND
THE FEDERAL SYSTEM 1129–30 & n.10 (5th ed. 2003)
[hereinafter HART & WECHSLER] (explaining the distinction
between the “reasonableness” inquiries).
In determining whether officers strayed beyond clearly
established bounds of lawfulness, we look to cases from the
Supreme Court and this court, as well as to cases from other
courts exhibiting a consensus view. Wilson, 526 U.S. at 617.
We need not identify cases with “materially similar” facts, but
have only to show that “the state of the law [at the time of the
incident] gave [the officer] fair warning that [his alleged
misconduct] . . . was unconstitutional.” Hope v. Pelzer, 536
U.S. 730, 741 (2002). Bruce is not entitled to qualified
immunity if the cases show that his kicking violated the
Fourth Amendment, because “a reasonably competent public
official should know the law governing his conduct.” Harlow,
457 U.S. at 819.
12
Our review of the cases convinces us that Bruce’s alleged
use of excessive force violated a clearly established rule: An
officer’s act of violence violates the Fourth Amendment’s
prohibition against unreasonable seizures if it furthers no
governmental interest, such as apprehending a suspect or
protecting an officer or the public. The cases show that
officers will not prevail if their use of force cannot be justified
under the circumstances. In Tennessee v. Garner, the
Supreme Court held that the Fourth Amendment prohibits the
use of deadly force to seize a non-dangerous fleeing felon,
noting that such force is not “a sufficiently productive means
of accomplishing” law enforcement goals. 471 U.S. at 10. In
DeGraff v. District of Columbia, we reversed a summary
judgment grant for the police because it was unclear what
legitimate interest could have been served by carrying a
suspect horizontally through the air and handcuffing her to a
mailbox. 120 F.3d 298, 302 (D.C. Cir. 1997).
Even in cases where officers have prevailed, we have
emphasized that the violence complained of was undertaken
in pursuit of a legitimate end. In Scott v. District of Columbia,
we found no Fourth Amendment violation where officers
struck a suspect once and pinned him to the ground, because
“[a]ll of the officers’ actions were reasonably calculated
toward the goal of securing [the suspect] and placing him in
handcuffs, while minimizing his opportunity to escape.
Nothing in the record indicates that they used more force than
reasonably appeared necessary to achieve that goal.” 101 F.3d
748, 760 (D.C. Cir. 1996). In Wardlaw v. Pickett, we ruled in
favor of a U.S. Marshal who punched a suspect in the face
and chest, because the Marshal had reason to fear an attack by
the suspect and stopped punching “[o]nce [the suspect] sat
down on the stairs and it became apparent that he was not
going to attack.” 1 F.3d at 1304. In Martin v. Malhoyt, we
ruled in favor of an officer who forced a driver to remain in
13
the driver’s seat and then closed the car door on the driver’s
leg, because we concluded that this rough treatment protected
the driver from oncoming traffic. 830 F.2d 237, 262 (D.C.
Cir. 1987) (R.B. Ginsburg, J.).
The cases add up to the sensible proposition that a police
officer must have some justification for the quantum of force
he uses. This is not to say that the judicial role in determining
what is “unreasonable” under the Fourth Amendment
transforms every judge into a police chief. “The
‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight,” Graham, 490
U.S. at 396, and we will “accord[] a measure of respect to the
officer’s judgment about the quantum of force called for in a
quickly developing situation,” Martin, 830 F.2d at 261. But as
the cases clearly establish, the state may not perpetrate
violence for its own sake. Force without reason is
unreasonable.4
4
That officers ought not to use more force than reasonably
necessary to advance a governmental interest was also evident from
local statutes and regulations. See D.C. CODE § 5-123.02 (“Any
officer who uses unnecessary and wanton severity in arresting or
imprisoning any person shall be deemed guilty of assault and
battery, and, upon conviction, punished therefor.”); D.C. MUN.
REGS. tit. 6A, § 207.1 (“It is the policy of the Metropolitan Police
Department that each member of the department shall in all cases
use only the minimum amount of force which is consistent with the
accomplishment of his or her mission . . . .”). While these materials
support our conclusion that Bruce’s use of force violated clearly
established law, we will not rely on them in light of conflicting
Supreme Court decisions concerning the use of state law to
determine what is clearly established law. See HART & WECHSLER,
supra, at 1131 n.11 (noting conflict). Compare Davis v. Scherer,
468 U.S. 183, 195–96 (1984) (rejecting suggestion that state
regulation demarcated clearly established law), with Hope, 536 U.S.
14
* * *
The district court erred in concluding that Bruce was
entitled to qualified immunity. Summary judgment was
premature because there exists a genuine issue of material
fact, namely, whether Johnson’s prone position was
threatening or suggested escape. That dispute can only be
resolved by evaluating the conflicting testimony of Johnson
and Bruce. See Saucier, 533 U.S. at 209–17 (Ginsburg, J.,
concurring in the judgment) (“Of course, if an excessive force
claim turns on which of two conflicting stories best captures
what happened on the street, Graham will not permit
summary judgment in favor of the defendant official.”); cf.
Patricia M. Wald, Summary Judgment at Sixty, 76 TEX. L.
REV. 1897, 1907 n.57 (1998) (noting “the example that
Professor Arthur Miller is reported to have used regularly in
his 1-L Harvard Law School civil procedure class of an earlier
time, that if a dozen Jesuit priests proffer identical testimony
regarding a street fight they all observed, and one disreputable
inebriate proffers contrary testimony, summary judgment is
inappropriate”). We reverse the district court’s judgment as to
Johnson’s § 1983 claim and remand the case for trial.
Johnson is not home free. His victory on appeal comes
from our having viewed the facts most favorably to him. Seen
in that light, the facts are egregious. Once the finder of fact
has established what really happened during the tense
exchange between Bruce and Johnson, it will be possible to
judge whether Bruce’s conduct was actually unlawful under
the Fourth Amendment. If Johnson’s behavior was
at 743–44 (treating state regulations as probative of clearly
established law). The cases discussed in the text set forth a clear
standard. We need look no further.
15
threatening, then Bruce’s use of force may be regarded as a
reasonable means of protecting himself against a possible
attempt to retrieve a weapon. See Wardlaw, 1 F.3d at 1304. If
Johnson appeared to flee, then Bruce’s use of force as a
means of preventing escape may be regarded as reasonable in
light of his suspicion that Johnson was an armed felon. See
Garner, 471 U.S. at 11. These issues await resolution in the
trial court.
III.
Johnson also presses various common law claims against
the District of Columbia. The district court granted summary
judgment for the District on these claims, concluding that the
Police and Firefighters Retirement and Disability Act
(“PFRDA”) barred Johnson’s suit. On this point we affirm.
The PFRDA is the exclusive remedy against the District
for police officers injured while performing their duties.
Feirson v. District of Columbia, 506 F.3d 1063, 1068 (D.C.
Cir. 2007) (citing Lewis v. District of Columbia, 499 A.2d
911, 915 (D.C. 1985)). This should end the inquiry. Johnson
cannot pursue his common law claims against the District
because his having been kicked is covered by the PFRDA.
But Johnson makes two arguments for why the PFRDA does
not apply. We reject them both.
Johnson’s first argument proceeds in three steps. The
PFRDA is similar to a workers’ compensation statute. In
thirty-four states, the workers’ compensation statute is not the
exclusive remedy for intentional torts committed by a co-
worker. See 6 ARTHUR LARSON, WORKERS’ COMPENSATION
LAW § 111.03[1], at 111-8 (2002). Therefore, the PFRDA is
not the exclusive remedy in this intentional tort case.
Johnson’s argument breaks down once we look at the
16
District’s statutes. The Workers’ Compensation Act of 1979
(“WCA”), D.C. CODE § 32-1501 et seq., covers only
“accidental injury or death arising out of and in the course of
employment . . . and . . . injury caused by the willful act of
third persons directed against an employee because of his
employment.” Id. § 32-1501(12) (emphases added). Thus the
statute excludes intentional torts of the employer, but the D.C.
Court of Appeals has explained that the WCA does cover
injuries intentionally caused by a co-worker: “From the
perspective of the employer” such an “injury is still
‘accidental’ and the employer is liable” under the WCA, but
not in tort, “so long as the injury arose out of and occurred in
the course of employment.” Grillo v. Nat’l Bank of Wash.,
540 A.2d 743, 748 (D.C. 1988); see also Tekle v. Foot Traffic,
Inc., 699 A.2d 410, 414 (D.C. 1997). Because the PFRDA
and the WCA are not identical, we doubt their coverage is.
See Ray v. District of Columbia, 535 A.2d 868, 870 (D.C.
1987) (noting that the PFRDA covers any injury incurred in
the performance of duty); Mayberry v. Dukes, 742 A.2d 448,
451 (D.C. 1999) (“[E]ven though the [PFRDA] and the WCA
serve similar purposes, we cannot just ignore differences in
the statutory language of the two acts.”). Even if their
coverage were identical, however, in light of Grillo, Johnson
could not sue the District for the intentional tort of one of its
employees. Nor does Johnson’s brief allege any intentional
wrongdoing by the District. Cf. Grillo, 540 A.2d at 748.
Consequently Johnson’s argument fails surely at the first step,
and almost surely at the second.
Johnson’s next argument, which is somewhat confusing,
tries to make much of a classification decision regarding
psychological injuries he claims to have suffered from the
kicking. MPD initially ruled these injuries POD and gave him
paid leave. But a new Stress Protocol, which defines the sorts
of psychological injuries covered under the PFRDA, led MPD
17
to reclassify the psychological injuries as non-POD. Johnson
argues that the incident and the injury are so intertwined that
reclassification of his psychological injuries as non-POD
somehow removed the kicking altogether from the PFRDA’s
coverage.
MPD reclassified Johnson’s psychological injuries as
non-POD under the Stress Protocol because they were not the
direct result of a uniquely stressful event — the kicking —
but were instead a consequence of stressors inherent to the
law enforcement profession. Simply put, the kicking and the
psychological injuries are not so intertwined as Johnson
argues. Johnson suffered his kicking in the performance of
duty and was compensated under the PFRDA for his resulting
injuries regardless of whether he was also compensated under
the PFRDA for job-related stress. Johnson cannot opt out of
the PFRDA regime and head to court just because he is
dissatisfied with the level of compensation provided. The
PFRDA was Johnson’s exclusive source of remedies against
the District, and the district court was correct to enter
summary judgment against his common law claims.
IV.
For the reasons stated in this opinion, we reverse the
district court’s judgment in favor of Bruce and remand for
trial of Johnson’s § 1983 claim, and affirm the judgment in
favor of the District as to Johnson’s common law claims.
So ordered.