Arrington, Derreck v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2006 Decided December 29, 2006

No. 05-5263

DERREK E. ARRINGTON

APPELLANT

v.

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv01391)

Richard H. Frankel, appointed by the court, argued the

cause as amicus curiae in support of appellant. With him on the

briefs were Steven H. Goldblatt, Director, and Ariana Torchin

and Elizabeth Glasgow, Student Counsel.

Derrek E. Arrington, pro se, filed a brief.

Beverly M. Russell, Assistant U.S. Attorney, argued the

cause for appellees. With her on the brief were Kenneth L.

Wainstein, U.S. Attorney at the time the brief was filed, and

Craig Lawrence, Assistant U.S. Attorney. Michael J. Ryan,

Assistant U.S. Attorney, entered an appearance.

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Stacy L. Anderson, Assistant Attorney General, Office of

Attorney General for the District of Columbia, argued the cause

for appellees. With her on the brief were Robert J. Spagnoletti,

Attorney General, Todd S. Kim, Solicitor General, and Edward

E. Schwab, Deputy Attorney General. Mary L. Wilson,

Assistant Attorney General, entered an appearance.

Before: TATEL and BROWN, Circuit Judges, and EDWARDS,

Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

Concurring and dissenting opinion filed by Circuit Judge

BROWN.

EDWARDS, Senior Circuit Judge: Derrek E. Arrington,

appellant, filed a lawsuit in District Court seeking relief under

the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b),

2671-2680 (2000), and 42 U.S.C. § 1983 (2000), for alleged

police brutality. The District Court granted summary judgments

in favor of appellees – the United States, on behalf of the

United States Park Police (“USPP”), and Sergeant Rick Murray

of the District of Columbia Metropolitan Police Department

(“MPD”) – and Arrington now appeals. Appellant also alleged

common law tort violations against the District of Columbia.

The District Court held that these claims against the District

were barred by appellant’s failure to file a timely D.C. CODE §

12-309 (2001) notice of intent to sue. Appellant does not

challenge that judgment on appeal.

Appellant acknowledges that he inappropriately engaged

police officers by fleeing from a lawful traffic stop. He claims,

however, that after he was pursued by officers, and eventually

captured, restrained, disarmed, and handcuffed, Murray and

members of the USPP beat him severely for approximately ten

minutes, in violation of District of Columbia law and his

constitutional rights. Appellees do not dispute using exceptional

3

force against appellant, but justify their actions as necessary to

disarm appellant, who they believed had just shot a USPP

officer.

The District Court also granted summary judgment in favor

of the United States, finding that “the undisputed material facts

establish that the police officers’ conduct was reasonable under

the circumstances.” Arrington v. U.S. Park Police, No. Civ. A.

01-1391, 2005 WL 1076186, at *1 (D.D.C. May 6, 2005). And,

finally, the District Court granted summary judgment in favor of

Sergeant Murray, holding that he was entitled to qualified

immunity. Arrington v. U.S. Park Police, No. Civ. A. 01-1391

(D.D.C. May 26, 2005).

The principal question in this case is whether the officers

who inflicted bodily harm on appellant employed more force

than was reasonably necessary. We find that the evidence

before the District Court, viewed in the light most favorable to

appellant, creates a genuine issue of material fact as to whether

appellant was severely beaten by the officers after he had been

captured, restrained, disarmed, and handcuffed. Obviously, if

appellant was completely detained and rendered helpless before

being brutally beaten, then a reasonable jury could return a

verdict for him. There is a genuine issue of material fact on this

matter. And because the resolution of this issue involves

credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts, it is

inappropriate for summary judgment. We therefore reverse and

remand.

I. BACKGROUND

In April 2000, a vehicle driven by appellant was stopped by

USPP officers John Daniels and Martin Yates when they noticed

that the car displayed no front license plate. After appellant was

stopped, the officers saw a cellophane “ziplock” bag on the

passenger side floorboard and thought that the bag might contain

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narcotics. Yates asked the passenger in appellant’s car to hand

him the bag. After the passenger complied, Yates confirmed

that the bag contained cocaine. Daniels then ordered appellant

to exit the vehicle. Instead of following the officer’s instruction,

appellant drove the car away from the scene of the stop,

dragging Daniels approximately 75 yards before the officer

could free himself. Once Daniels was free, he joined Yates in

their vehicle and pursued appellant. While driving at a high

speed, appellant lost control of his vehicle and collided with a

median. Appellant quickly abandoned the disabled vehicle and

ran from the pursuing officers, armed with a .380 caliber

firearm.

Sergeant Rick Murray, who was heading home in a marked

MPD police car, saw appellant crash his vehicle and then run,

followed by Daniels, also on foot. Murray stopped his vehicle

and joined the pursuit. The chase ended when Daniels caught

appellant trying to climb a fence into a residential backyard. At

this point, the stories diverge.

Appellant claims that Daniels caught him and slammed him

against the fence, causing appellant to drop his weapon to the

ground. Then, according to appellant, the officers threw him

face down on the ground, handcuffed him with his hands behind

his back, and proceeded to beat him about the ribs, back, and

head. Appellant says that he was absolutely helpless while

being beaten by several officers. He also claims that the beating

inflicted on him was so severe that it caused him to drift in and

out of consciousness. He allegedly awoke to the pain of a dog

biting his leg. By appellant’s account, the officers beat him

nonstop for approximately ten minutes. Appellant disclaims

shooting his weapon at officer Daniels. Rather, he maintains

that the gun he was carrying accidently discharged, resulting in

the officer’s gunshot wound.

Appellees offer a different account of the events at issue.

According to appellees, Daniels pulled appellant off of the fence

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and Murray punched appellant in the ribs two or three times in

order to restrain and handcuff him. Before the officers could

handcuff appellant, he allegedly raised his arm toward Daniels

and fired his weapon, shooting Daniels in the face. Murray

claims that he then tackled appellant to the ground and held him

in a bear hug but could not dislodge the weapon. Yates arrived

at the scene to find Daniels slumped against a fence and Murray

struggling with appellant. Murray allegedly told Yates to shoot

appellant, because appellant had a gun. Yates claims that

instead of shooting appellant, he struck him on the head a

number of times with his service weapon but still could not

disarm him. USPP Officer Russell Kidd then arrived at the

scene and allegedly saw appellant lying face down with both

Murray and Yates on top of him. Yates claims that he told Kidd

that appellant had a gun and Kidd, in yet another alleged attempt

to disarm appellant, struck appellant on the head with a

compressed telescopic baton. Appellees claim that, despite

these continuous beatings, appellant still refused to surrender his

weapon. Officer Michael Peer of the USPP Canine Unit joined

the four officers already on the scene with a patrol dog. Peer

allegedly instructed the dog to apply controlled bites to

appellant’s leg. Appellees say that it took almost ten minutes

before Murray could disarm appellant.

“On May 10, 2000, Arrington was indicted on four counts

of violating federal law. Count 1 charged him with using [his

vehicle as] a dangerous weapon to forcibly assault, resist,

oppose, impede, intimidate, or interfere with three federal

officers engaged in the performance of their duties, in violation

of 18 U.S.C. § 111(a) and (b). Count 2 charged him with

attempting to murder a federal officer, in violation of 18 U.S.C.

§ 1114. Count 3 accused Arrington of discharging a firearm

during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(iii). And Count 4 charged him with unlawfully

possessing a firearm as a convicted felon, in violation of 18

U.S.C. §§ 922(g) and 924(a)(2).” United States v. Arrington,

6

309 F.3d 40, 42 (D.C. Cir. 2002). “The jury convicted

Arrington on Counts 1 and 4, but deadlocked on Counts 2 and

3 – the attempted murder and discharging-a-firearm counts. The

latter two counts were retried twice (along with a new,

additional count), each trial ending in deadlock. After the third

trial, the government dismissed the outstanding counts.” Id. at

43.

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s decision to grant

summary judgment. George v. Leavitt, 407 F.3d 405, 410 (D.C.

Cir. 2005); Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir.

2004). Summary judgment may be granted only if “there is no

genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A

dispute over a material fact is “genuine” if “the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.” Id. at 248. And, with respect to materiality, “the

substantive law will identify which facts are material. Only

disputes over facts that might affect the outcome of the suit

under the governing law will properly preclude the entry of

summary judgment. Factual disputes that are irrelevant or

unnecessary will not be counted.” Id.

Although a jury might ultimately decide to credit the

version of the events described by defendants over that offered

by the plaintiff, “this is not a basis upon which a court may rest

in granting a motion for summary judgment.” George, 407 F.3d

at 413. “[A]t the summary judgment stage the judge’s function

is not himself to weigh the evidence and determine the truth of

the matter but to determine whether there is a genuine issue for

trial.” Anderson, 477 U.S. at 249. “Credibility determinations,

the weighing of the evidence, and the drawing of legitimate

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inferences from the facts are jury functions, not those of a

judge” ruling on a motion for summary judgment. Id. at 255.

And, in assessing a motion for summary judgment, a court must

view all of the evidence in the light most favorable to the

nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144,

158-59 (1970); Kaempe, 367 F.3d at 965.

B. Threshold Issues Regarding Jurisdiction and the Scope of

Review

Before undertaking our review of appellant’s challenge to

the summary judgments in favor of appellees, we must first

consider two threshold issues. First, the District of Columbia

and Sergeant Murray argue that this court lacks jurisdiction to

consider the District Court’s May 26, 2005 judgment in their

favor, because, in his notice of appeal, appellant challenged only

the judgment in favor of the United States. Second, the United

States argues that, because appellant never provided the District

Court with a statement of genuine issues in support of his

opposition to summary judgment as required by Local Civil

Rule 7(h), the facts as presented by appellees stand

uncontroverted. For the reasons noted below, we reject each of

these claims in turn.

1. This Court’s Jurisdiction To Review the Judgment

Rendered in Favor of Sergeant Murray

Murray seeks dismissal of the appeal against him on

jurisdictional grounds, claiming that appellant failed to file

timely notice of appeal. See FED. R. APP. P. 3. In particular, he

contends that appellant filed two notices of appeal, neither of

which purported to appeal the District Court’s May 26, 2005

grant of summary judgment in his favor. Therefore, according

to Murray, this court lacks jurisdiction, because appellant failed

to “designate the judgment, order, or part thereof being

appealed.” FED. R. APP. P. 3(c)(1)(B).

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Appellant, acting pro se, filed two documents titled “Notice

of Appeal,” one apparently self-created and the other using a

court template. Joint Appendix (“J.A.”) 113-15. The second

notice refers to the date of the order of summary judgment in

favor of the United States, but by its language appeals from an

order “in favor of [the] United States of America and the District

of Columbia.” J.A. 115. This was clearly adequate to satisfy

the requirements of Federal Rule of Appellate Procedure 3.

In Martinez v. Bureau of Prisons, 444 F.3d 620 (D.C. Cir.

2006), we recognized jurisdiction where we could reasonably

discern that a would-be appellant wished to appeal multiple

orders although his notice of appeal referred only to a single

order. The court, cognizant of the fact that “appellant was

proceeding pro se,” held that his “intention to appeal from both

rulings of the district court [could] be fairly inferred from his

notice of appeal and no appellee [was] prejudiced.” Id. at 623.

The same is true here. On appeal, Sergeant Murray is

represented by the Attorney General for the District of

Columbia, “who has presented [his] arguments and shown no

evidence that [he] would be prejudiced if appellant’s challenges

to the [May 26, 2005] order were addressed by this court.” Id.

On the record here, we can easily infer appellant’s intent to

appeal both orders of the District Court with respect to both

current appellees, so Federal Rule of Appellate Procedure

3(c)(1)(B) does not bar his appeal. See also 16A CHARLES

ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER,

FEDERAL PRACTICE AND PROCEDURE § 3949.4 (3d ed. 1999)

(“Defects in the wording of the notice of appeal are generally

overlooked if the true intentions of the appellant can fairly be

ascertained, if the courts have not been misled, and if the other

parties have suffered no prejudice.”).

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2. The Applicability of Local Rule 7(h) in Defining the

Scope of Review

The United States argues that “Appellant neither provided

a statement of genuine issues in support of his opposition to

summary judgment as required by Local Civil Rule 7(h), nor

urged a different standard. Accordingly, given Appellant’s

omission, the District Court was not presented with any factual

issues properly in dispute. And, because Appellant failed to

argue that a different standard should be applied, he waived this

new argument on appeal.” Br. for Appellee United States at 13

(internal citation omitted). This is a specious argument. The

United States readily concedes that “the District Court did not

treat Appellee United States’ statement of material facts not in

dispute as conceded, [but] instead, reviewed Appellant’s claims

on the merits in light of the evidence presented by the parties.”

Id. at 17. This concession says it all.

Rule 7(h) permits, but does not require, the District Court

to “assume that facts identified by the moving party in its

statement of material facts are admitted, unless such a fact is

controverted in the statement of genuine issues filed in

opposition to the motion.” LCVR 7(h). Appellant filed a

memorandum in opposition to the motion for summary

judgment, but the filing did not conform to the standards of the

rule. The District Court, however, did not limit its consideration

to, or treat as admitted, the facts contained in appellees’

statement of material facts. In assessing appellees’ motions for

summary judgment, the District Court acted within its discretion

in reviewing the entire record.

“This circuit has long upheld strict compliance with the

district court’s local rules on summary judgment when invoked

by the district court.” Burke v. Gould, 286 F.3d 513, 517 (D.C.

Cir. 2002); see also Jackson v. Finnegan, Henderson, Farabow,

Garrett & Dunner, 101 F.3d 145, 150-51 (D.C. Cir. 1996)

(discussing Rule 7(h)’s predecessor rule). But when, as here,

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the local rule “does not require the district court to enter

judgment because of the nonmoving party’s default in

complying with the local rule,” Burke, 286 F.3d at 518, “we

review the grant of summary judgment in light of [the]

requirements” of Federal Rule of Civil Procedure 56, id. at 519-

20. We therefore reject the claim by the United States that the

facts as presented by appellees stand uncontroverted.

C. Because There Is a Genuine Dispute As to a Material

Fact, Appellees Are Not Entitled to Summary Judgment

We review de novo the District Court’s grant of summary

judgment to appellees, viewing all of the evidence in the light

most favorable to appellant. To survive a motion for summary

judgment, the party bearing the burden of proof at trial – in this

case, appellant – must provide evidence showing that there is a

triable issue as to an element essential to that party’s claim. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The

principal legal issue in this case is whether the officers who

inflicted severe bodily harm on appellant violated his rights by

using more force than was reasonably necessary. The question

that we face is whether appellant has provided sufficient

evidence to show that there is a genuine issue of material fact

with respect to this legal claim.

The parties agree that appellant’s FTCA assault and battery

claim is governed by District of Columbia law. They also agree

that the controlling legal standard governing a claim against

police officers for assault and battery is set forth in Etheredge v.

District of Columbia, 635 A.2d 908 (D.C. 1993):

A police officer has a qualified privilege to use

reasonable force to effect an arrest, provided that the means

employed are not in excess of those which the actor

reasonably believes to be necessary. Moreover, any person,

including an officer, is justified in using reasonable force to

repel an actual assault, or if he reasonably believes he is in

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danger of bodily harm. Use of “deadly force,” however, is

lawful only if the user actually and reasonably believes, at

the time such force is used, that he or she (or a third person)

is in imminent peril of death or serious bodily harm.9

9.

“Deadly force” is force which is likely to cause death

or serious bodily harm.

635 A.2d at 916 & n.9 (internal citations and quotation marks

omitted). Etheredge also cites with approval the following

passage from Graham v. Connor, 490 U.S. 386 (1989):

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. . . .

The calculus of reasonableness must embody allowance for

the fact that police officers are often forced to make

split-second judgments – in circumstances that are tense,

uncertain, and rapidly evolving – about the amount of force

that is necessary in a particular situation.

Id. at 396-97 (internal citations omitted).

With this legal standard in mind, we must consider whether

the evidence before the District Court, viewed in the light most

favorable to appellant, creates a genuine issue as to any material

fact such that a reasonable jury could return a verdict for

appellant. We find that it does.

Appellees do not dispute that, in pursuing and subduing

appellant, the officers struck him with their fists, a telescopic

baton, and a pistol grip, and also ordered a trained police dog to

bite appellant’s leg. The facts that the parties do dispute – and

they are central – are whether, as appellees contend, force was

used to subdue appellant while he was armed and before he was

in handcuffs, or whether, as appellant contends, he was beaten

by police officers after he was captured, restrained, disarmed,

and handcuffed. If appellant’s hands were handcuffed behind

12

his back before the officers inflicted bodily harm on him, as

appellant claims, it stands to reason that appellant was disarmed

before he was beaten. Appellees do not suggest otherwise. And

the materiality of this factual dispute is obvious.

If appellant’s version of facts is accepted as true, there is

little doubt that a jury could find that he satisfies the “excessive

force” standard under Etheredge. In other words, if several

police officers severely and continuously beat up an unarmed

and virtually defenseless man for ten minutes, this would

constitute unlawful “deadly force.” Etheredge, 635 A.2d at 916

n.9. A severe beating for ten minutes is a long time. A single

round of boxing, involving two equally unrestrained combatants,

is only three minutes. A jury could certainly find that no

“reasonable officer” would believe that the brutality here would

be necessary under the circumstances alleged by appellant.

The depositions of the officers involved in appellant’s arrest

confirm the degree of force used. One officer admits repeatedly

striking appellant on the head with a compressed telescopic

baton “with as much force as [he] could muster,” Kidd Dep.

21:15-22:11, Oct. 27, 2004, J.A. 227-28, and another describes

striking appellant with the side of his handgun in a “violent” and

“fast” manner, Yates Dep. 69:12-15, Nov. 10, 2004, J.A. 309.

On the basis of these facts, a jury could reasonably find that the

officers violated District of Columbia law by exercising more

force than they reasonably believed necessary, see Etheredge,

635 A.2d at 916, and violated appellant’s Fourth Amendment

right against unreasonable seizure by using force not

“objectively reasonable in light of the facts and circumstances

confronting them,” Graham, 490 U.S. at 397 (internal quotation

marks omitted).

In its brief to this court, Appellee United States makes the

implausible argument that, even if appellant was handcuffed,

nothing in the record indicates that the officers had knowledge

of that fact. Br. for Appellee United States at 18 n.20. At oral

13

argument, however, counsel for the United States readily agreed

that at least one officer – the one who allegedly handcuffed

appellant – would have known that appellant was handcuffed

while beaten if in fact appellant’s story is true. Tr. of Oral

Argument at 16. Likewise, counsel for Murray conceded that

“it’s obvious that beating a handcuffed man presents a very,

very difficult case for [Sergeant Murray].” Id. at 23. Indeed,

counsel candidly acknowledged that Murray’s case “rise[s] and

fall[s] on the question of whether [appellant] was handcuffed.”

Id. We agree.

Whether other officers also knew that appellant was

handcuffed is a matter to be determined by a finder of fact. In

performing our review of the District Court’s grant of summary

judgment, we need only decide the materiality of the alleged fact

that the officers handcuffed appellant before the administration

of force. We find it unquestionably material.

Our inquiry does not end here, however. Having found a

material disputed fact, we must nonetheless uphold the grants of

summary judgments if there is no genuine dispute as to the

material fact. On this point, appellees argue that “[c]onclusory,

unsubstantiated statements of an opposing party which are

unsupported by specific facts are insufficient to overcome a

summary judgment motion,” Br. for Appellee Murray at 21,

citing Greene v. Dalton, 164 F.3d 671 (D.C. Cir. 1999).

Interestingly, appellant also cites Greene, for the accepted

proposition that a “non-moving party’s affidavit [is] sufficient

to defeat summary judgment in [the] face of contradicting

testimony.” Appellant’s Reply Br. at 25.

Appellant has the better of this duel, because Greene clearly

states that a plaintiff may defeat a summary judgment granted to

a defendant if the parties’ sworn statements are materially

different. On this point, the court stated:

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In granting summary judgment for the Navy on

Greene’s claim for sexual harassment, the district court

quite clearly invaded the province of the jury. Greene

submitted a sworn affidavit stating that Clause had harassed

and raped her, and that the proffered diary suggesting

otherwise was a forgery. If true, these allegations are

indisputably sufficient to support a verdict against the Navy

under Title VII. The allegations may, of course, be false.

That is a question not for the court, however, but for the

jury.

....

As the party moving for summary judgment, the Navy bears

the initial burden of identifying evidence that demonstrates

the absence of any genuine issue of material fact. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On the

record before us, however, we can determine neither the

point at which Clause’s harassment became severe or

pervasive nor when a reasonable person would have

reported his behavior. A jury may resolve both these issues

in favor of the Navy, but without improperly resolving

disputed issues of fact, we cannot.

Greene, 164 F.3d at 674, 675 (internal citation omitted). Later

in the opinion, the Greene decision notes that “[a]lthough, as a

rule, statements made by the party opposing a motion for

summary judgment must be accepted as true for the purpose of

ruling on that motion, some statements are so conclusory as to

come within an exception to that rule.” Id. at 675. The court

made this point in rejecting the plaintiff’s challenge to the

summary judgment granted in favor of the defendant on her

claim of retaliation. The court found the retaliation claim

“conclusory,” because plaintiff offered nothing more than a

“representation in her affidavit that she applied for summer jobs

in 1996 and 1997 and was not hired although ‘another student,

who had less experience and education was hired back’ in

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1996.” Id. The court’s affirmance of the summary judgment on

the retaliation claim is unsurprising, because, as the decision

notes, “a jury would be in no position to assess [her] claim of

[superior qualifications].” Id.

The evidence offered by appellant in this case is easily

distinguishable from the conclusory representations offered by

the plaintiff in Greene in support of her retaliation claim.

Appellant’s claim here that he was “thrown to the ground . . . ,

immediately dropped his gun,” and “was then handcuffed and

then beaten while face down,” Plaintiff’s Statement of Material

Facts in Dispute at ¶ 1, J.A. 131, finds support in sworn

deposition testimony filed in the District Court, Arrington Dep.

88:14-95:25, Nov. 16, 2004, J.A. 190-92. Thus, unlike the

plaintiff’s retaliation charge in Greene, appellant here provides

direct testimonial evidence of the violations he now alleges.

Possessed of this testimony, a jury can assess the validity of

appellant’s claims.

As the court noted in reversing the summary judgment for

the defendant with respect to the sexual harassment charge in

Greene, “[a] jury may resolve [the issue] in favor of the

[defendant], but without improperly resolving disputed issues of

fact, we cannot.” Greene, 164 F.3d at 675. The same is true in

this case. See also Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.

2003) (holding that, “[w]here the material facts specifically

averred by one party contradict the facts averred by a party

moving for summary judgment, the motion must be denied.”);

cf. Johnson v. Jones, 515 U.S. 304, 307-08 (1995) (In rejecting

an interlocutory appeal on police officers’ claim of qualified

immunity, the Court pointed to plaintiff’s “deposition, in which

he swore that officers (though he did not name them) had used

excessive force when arresting him and, later, in the booking

room at the station house.”).

On the record at hand, neither the District Court nor this

court can conclude that appellees’ story is truthful and

16

appellant’s story is a fabrication, at least not if all of the

evidence is viewed in the light most favorable to appellant as

required by Federal Rule of Civil Procedure 56(c). As noted

above, “[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts

are jury functions, not those of a judge” ruling on a motion for

summary judgment. Anderson, 477 U.S. at 255. There is a

genuine issue of material fact in this case which makes it clear

that appellees are not entitled to a judgment as a matter of law.

D. Officer Murray’s Claims of Qualified Immunity

Appellee Murray seeks affirmance of the District Court’s

judgment in his favor on the grounds of qualified immunity.

When applicable, “[q]ualified immunity under section 1983

shields a state or local official from personal liability.” Estate

of Phillips v. District of Columbia, 455 F.3d 397, 402 (D.C. Cir.

2006). However, qualified immunity does not shield

government officials who “violate clearly established statutory

or constitutional rights of which a reasonable person would have

known.” Wilson v. Layne, 526 U.S. 603, 609 (1999). In

Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court

enunciated a two-step analysis for determining whether qualified

immunity applies. First, the court must determine whether the

complainant alleges violations of constitutional rights. Id. at

201. If constitutional violations are alleged, the court must next

determine whether the right allegedly violated is clearly

established. Id.

Qualified immunity cannot be granted on summary

judgment, however, if there is a genuine issue as to a material

issue of fact. This point is frequently made in cases in which

defendants seek to file an interlocutory appeal challenging a

district court’s denial of their motions for summary judgment on

grounds of qualified immunity. See, e.g., Elliott v. Thomas, 937

F.2d 338, 342 (7th Cir. 1991) (“[T]he reason a court of appeals

examines the facts is to determine whether it was ‘clearly

17

established’ at the time that [the defendants’] deeds were

forbidden. It would extend [the qualified immunity doctrine]

well beyond its rationale to accept an appeal containing nothing

but a factual issue.”) (internal citation omitted); cf. Johnson, 515

U.S. 304 (holding that pretrial “evidence insufficiency” claims

made by public official defendants who assert qualified

immunity defenses are not immediately appealable).

Murray testified that he held appellant down on the ground

and ordered another officer to beat appellant and, at one point,

to shoot appellant in the head. Murray Dep. 31:13-35:14, Nov.

4, 2004, J.A. 264-65. Murray also testified that he restrained

appellant while another officer ordered his patrol dog to bite

appellant’s leg. Id. 35:18-36:9, J.A. 265. Murray made these

statements in describing a struggle to disarm appellant.

However, if we accept appellant’s sworn testimony that he was

handcuffed, and in reviewing a grant of summary judgment we

must, Salazar v. Wash. Metro. Area Transit Auth., 401 F.3d 504,

507 (D.C. Cir. 2005), we find that the actions taken by Murray

could persuade a reasonable jury that Murray committed

constitutional violations sufficiently significant to overcome the

qualified immunity bar set forth in Saucier v. Katz. In sum,

there is a genuine issue of material fact which makes it clear that

Murray is not entitled to summary judgment on his claim of

qualified immunity.

III. CONCLUSION

Appellant makes the claim, supported by sworn testimony,

that he was disarmed, thrown to the ground, handcuffed, and

severely beaten by appellees for ten minutes. Appellees

maintain, also by sworn testimony, that in order to disarm

appellant, who they believed had just shot a USPP officer in the

face, it was necessary to hold him down and beat him for ten

minutes, using their fists, a telescopic baton, and the grip of a

handgun, and then instruct a patrol dog to bite his leg. If all of

the evidence is viewed in the light most favorable to appellant,

18

as required by Rule 56(c), appellees surely are not entitled to

judgment as a matter of law. “[A]t the summary judgment stage

the judge’s function is not himself to weigh the evidence and

determine the truth of the matter but to determine whether there

is a genuine issue for trial.” Anderson, 477 U.S. at 249.

Because we find a genuine dispute concerning a material fact,

we hold that this case is unsuitable for disposition by grant of

summary judgment.

Our dissenting colleague may or may not be right in her

characterization of the facts. But fact finding is not the role of

the appellate court. That the dissent strains mightily in this

misplaced fact finding effort serves only to highlight the

existence of a genuine issue of material fact. It is also

noteworthy that three criminal juries have deadlocked on counts

charging Arrington with attempting to murder a federal officer

and discharging a firearm during a crime of violence. See

Arrington, 309 F.3d at 42. Obviously, the testimony of the

police officers is not as clear cut as the dissent would have it. In

any event, the trier of fact in this civil case will have an

opportunity to sort this out.

For the foregoing reasons, the grants of summary judgments

in favor of the United States and Sergeant Murray are hereby

reversed and remanded.

So ordered.

BROWN, Circuit Judge, concurring and dissenting: I agree

with the majority that we should affirm the grant of summary

judgment for the District of Columbia and that appellate

jurisdiction is proper despite defects in the notice of appeal.

However, I do not agree with the majority’s view that Derrek

Arrington’s deposition testimony creates a genuine issue of

material fact which precludes summary judgment. Maj. Op.

10-16. The majority acknowledges that Arrington’s testimony

lacks credibility but concludes it is for the jury to determine its

truthfulness. I disagree. This is not testimony about which

reasonable minds could differ; this is a confabulation Candide

would find suspect.

I

In this case the facts are important; so are the laws of

physics. Here both the facts and the physics support the district

court’s grant of summary judgment. Based on any remotely

reasonable reading of the record, the following is what hap-

pened. Arrington was stopped by Park Police for failure to

display a front license tag. Arrington presented license, registra-

tion, and temporary tags. In the course of that contact, one of

the officers, Martin Yates, spotted a clear plastic bag that

appeared to contain cocaine residue. Yates’s partner, John

Daniels, then asked Arrington to step out of the vehicle.

Arrington refused. When Daniels reached inside the vehicle to

physically extract Arrington, Arrington put his car in “drive”

and sped off, dragging Daniels seventy-five yards through an

intersection. The officer’s contact with the pavement was so

violent that his handcuffs left gouge marks in the pavement and

were torn from his belt. Mercifully, Daniels finally tumbled

free. He picked himself up and hurried back to his police

cruiser, in which he and his partner then gave chase.

Fleeing the scene at high speed, Arrington lost control

during a left turn and crashed into a median. Arrington, a thrice-

convicted felon carrying a .380 caliber pistol with a full clip,

2

climbed out of his wrecked car and ran into a residential yard.

Daniels and Yates exited their cruiser and pursued on foot. An

off-duty police officer, Sergeant Rick Murray, saw the crash and

joined the chase. Arrington easily vaulted over two fences but

then failed to surmount a third, taller fence. As Arrington tried

again to climb the third fence, Officer Daniels caught up with

him and pulled him from the fence, and a struggle ensued.

Murray, the off-duty officer, joined the melee. Both Murray and

Yates reported seeing Arrington push Daniels away with his left

hand and then fire a shot point blank into Daniels’s face with his

right hand extended. In the light from the muzzle flash, Yates

saw the shiny gun. Murray grabbed Arrington’s right arm and

wrapped him in a bear hug, and both men fell to the ground.

Daniels fell back against the fence. He went down to his knees,

tried to rise, and discovered he could not. He remained slumped

against the fence.

Not surprisingly, there was much screaming and commo-

tion. Officers and civilian witnesses alike report having heard

repeated commands, screams, and curses. “Let go of the gun; let

go of the damn gun.”1 “Drop the fucking gun, get the gun.”2

“Where’s the gun? Drop the gun.”3 “He’s too strong. I can’t

1

Civilian witness Runako Ellerby, resident of a back apartment

on 13th Street, NW. Mr. Ellerby said the officers surrounded the

suspect after he “heard the gun go off.” He could see several police

officers “struggling with [Arrington] trying to disarm him.” They

said, “Let it go drop the damn gun,” as they “repeatedly attempt[ed]

to get him to release the weapon.” Sergeant Moser, summarizing the

debriefing statements of Yates and Murray, recalled the same words.

2

Officer Daniels’s recollection of what he heard as he lay

slumped against the fence.

3

Civilian witness Louis Price, resident at 1223 Missouri Ave.,

NW #4. He was awakened by voices outside his window and then

heard a “pop” sound. He looked out and saw what he thought was a

police officer struggling with a man on the ground. The officers

appeared to be trying to retrieve something from the man.

3

get the gun away from him.”4 “Don’t leave me, I don’t have a

gun, you gotta come back here, this guy will kill us.”5 “Get the

gun out his hands; get the gun out of his hands.”6

Yates had entered that dark yard just in time to see his

partner shot. He drew his weapon. Murray and Arrington

crashed to the ground, but Arrington was “trying to raise

[himself] off the ground, thrusting his hips around and his

shoulders.” Murray urged Yates to shoot Arrington. He

explained that he was “scared to death[] and . . . just knew that

if [Arrington] got up, he was going to kill one of us.” Yates

placed his gun against Arrington’s head and took up the slack in

the trigger mechanism. Whether Arrington heard the gun cock

or merely felt the vibration, he stopped moving for a few

seconds. His arms remained beneath him, close to his body,

very tight. Arrington had stopped moving violently, but he

continued to resist. Because Murray and Arrington were

entangled, Yates did not shoot and settled for using the side of

his weapon to strike Arrington. Yates hit Arrington repeatedly.

It was “violent” and “fast,” but he failed to gain Arrington’s

compliance. Arrington “never went unconscious”; rather, he

“fought the whole time,”7 rolling and moving. Asked why he hit

Arrington repeatedly, Yates was clear: “I was determined to put

myself in a position where either [Arrington was] going to go

unconscious or I was going to have to shoot him . . . .” He

reasoned that if Arrington was allowed to get to his feet, still

armed, with a weapon he had already used, “that would just

invite him to shoot again.”

4

Officer Yates’s recollection of what Murray said. According to

Yates, Murray was excited and yelling.

5

Sergeant Murray’s plea to Officer Yates.

6

Civilian witness Tiyon Smith, who reports hearing the police

say this immediately after he heard a single gunshot.

7

Murray’s Dep. 37:4-5, Nov. 4, 2004.

4

Other officers arrived. Officer Kidd joined the fray, using

his police baton. Officer Peer, with his police dog Lazer on his

lead, repeatedly told Arrington to “give up the gun or I’m going

to put the dog on [you].” Arrington did not respond, so the dog

was instructed to perform controlled bites of Arrington exposed

leg, which it did. Soon after Lazer went to work, Sergeant

Murray announced he had the gun. Murray pulled Arrington’s

right hand out and stripped the gun from it, tossing it four or five

feet away from Arrington. Then, releasing a scream of

adrenalin-induced exultation, Murray walked a few paces away.

Officer Kidd was able to get control of Arrington’s left arm.

Together, he and Yates handcuffed Arrington.

Given the nature of the confrontation—a frantic and

desperate struggle in the dark—the sequence of events emerges

with remarkable clarity, and the physical evidence—right down

to the gouge marks from Officer Daniels’s handcuffs—is

completely consistent with the officers’ descriptions of what

happened, as well as with radio transmissions that provided

virtually a moment-by-moment commentary.

There is but one rip in this seamless web: Arrington’s

version of events. According to Arrington, he sped off from the

initial traffic stop because the officers had drawn their weapons

(or looked like they might). He was also in possession of a gun

and knew this violated his parole. Officer Daniels was nowhere

near the car, Arrington asserts, and certainly was not being

dragged through the streets. Arrington claims he was scaling the

fence with the gun in his hand in order to dispose of the gun, but

that when Daniels pulled him off the fence and then slammed

him, face first, back into it, he dropped the gun. Officers then

took him down to the ground and handcuffed him. Next, he

heard a “pop” sound. When he heard the pop, the gun was

already on the ground; Arrington claims he dropped it “way

before” he heard the pop. He also saw a flash, and he thought he

5

had been shot. He contends that, as he lay on the ground

handcuffed, disarmed, and helpless, the officers pistol-whipped

him, beat him with a baton, kicked and punched him, and finally

released the dog to attack his leg.

II

The majority identifies one material issue in dispute:

“whether, as appellees contend, force was used to subdue

appellant while he was armed and before he was in handcuffs,

or whether, as appellant contends, he was beaten by police

officers after he was captured, restrained, disarmed, and hand-

cuffed.” Maj. Op. 11. The majority insists, with respect to this

issue, that the court may not determine credibility, and that

therefore Arrington’s sworn testimony that the officers contin-

ued to attack him after he was handcuffed, no matter how self-

serving and implausible, entitles him to a jury trial. Maj. Op.

15. But the judge’s role in deciding a motion for summary

judgment is more robust and flexible than the majority con-

ceives.

To defeat summary judgment, nonmoving parties “must do

more than simply show that there is some metaphysical doubt as

to the material facts,” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986); the party “must offer

some hard evidence showing that its version of the events is not

wholly fanciful,” D’Amico v. City of New York, 132 F.3d 145,

149 (2d Cir. 1998). “The mere existence of a scintilla of

evidence in support of the plaintiff’s position will be insuffi-

cient; there must be evidence on which the jury could reasonably

find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986). While it is admittedly not the duty of district

courts to weigh the credibility of the parties’ testimony at the

summary judgment stage, “in the rare circumstance where the

plaintiff relies almost exclusively on his own testimony, much

6

of which is contradictory and incomplete, it will be impossible

for a district court to determine whether ‘the jury could reason-

ably find for the plaintiff,’ and thus whether there are any

‘genuine’ issues of material fact, without making some assess-

ment of the plaintiff’s account.” Jeffreys v. City of New York,

426 F.3d 549, 554 (2d Cir. 2005) (citation omitted). Therefore,

we have held that summary judgment “is most likely when a

plaintiff’s claim is supported solely by the plaintiff’s own self-

serving testimony, unsupported by corroborating evidence, and

undermined either by other credible evidence, physical impossi-

bility or other persuasive evidence that the plaintiff has deliber-

ately committed perjury.” Johnson v. Wash. Metro. Area

Transit Auth., 883 F.2d 125, 128 (D.C. Cir. 1989) (emphasis

added); see also Law v. Va. Stage Lines, 444 F.2d 990 (D.C. Cir.

1971).

The sequence of events, according to Arrington’s account,

began with an officer slamming him into the fence, causing him

to drop the gun he was carrying. An officer then forced him to

the ground and handcuffed him. Next, he heard a “pop,” after

which officers beat him. Finally, he felt the dog “ripping” his

leg; “[t]he dog was like tearing my leg up.” No other witnesses

corroborated Arrington’s account. Two officers reported seeing

the muzzle flash at the end of Arrington’s extended arm. These

officers and others described their subsequent efforts to disarm

Arrington, who remained unrestrained—descriptions corrobo-

rated by contemporaneous radio transmissions and by civilian

witnesses who reported a struggle during which police sought to

“disarm” or “retrieve something from” Arrington.

Nor does the physical evidence support Arrington’s

assertion that the gun somehow fired spontaneously from the

ground long after he had dropped it. No tests conducted on the

gun were able to cause it to fire without the trigger being pulled.

More significantly, Daniels was shot in the face. If Arrington

7

dropped the gun before he was handcuffed, as he claims, and

then, after he was handcuffed, the gun fired spontaneously while

it was lying on the ground, the bullet could not have turned at a

90 degree angle to strike Daniels in the face. Thus, in order for

the jury to rule in Arrington’s favor, it would have to conclude

that Arrington’s enchanted gun not only fires of its own volition

but also fires magical bullets that can turn somersaults in midair.

Bullets behave in this fashion in cartoons; in real life, though,

bullets do not start, stop, and change directions. This is a law of

physics, not a question of credibility.

Moreover, it is not clear which officer could have

handcuffed Arrington at the time he claims he was handcuffed.

Officer Daniels did not possess the means to do so. The

handcuffs from his duty rig had been torn from his belt when he

was dragged by Arrington’s car, and they remained lying in the

street. The second set, still in its case, was recovered from

Daniels’s personal belongings when he was taken to the

hospital. Sergeant Murray, the only other person involved in the

initial confrontation, was off duty, wearing sweats, and had no

police equipment with him. Other officers did not reach

Arrington until after Daniels was shot.

There is simply no evidence in the record that corroborates

Arrington’s self-serving account. In fact, everything in the

record, including the physical evidence and the testimony of

several civilian witnesses, contradicts Arrington’s account.

When a plaintiff relies entirely on his own self-serving testi-

mony, which lacks any corroboration and is contradicted by all

the available physical evidence, a court is not obligated to

reward the plaintiff with a jury trial. Johnson, 883 F.2d at 128.

Rather, “when the facts alleged are so contradictory that doubt

is cast upon their plausibility, [the court may] pierce the veil of

the complaint’s factual allegations . . . and dismiss the claim.”

Jeffreys, 426 F.3d at 555 (alterations in original) (internal

8

quotation marks omitted) (quoting Shabazz v. Pico, 994 F. Supp.

460, 470 (S.D.N.Y. 1998)). To hold otherwise is to license the

mendacious to seek windfalls in the litigation lottery. Under the

majority’s rule, a plaintiff can obtain a jury trial simply by

testifying to the allegations in his complaint, no matter how

implausible they might be. The uncertainty and expense of a

jury trial will then frequently lead to nuisance settlements in

claims that should be defeated on summary judgment.

Arrington’s suit is a case in point. Considering what occurred

here, Arrington should be thankful the officers spared his life;

instead, he has sued, and the majority thinks his odd and fanciful

assertions are persuasive enough to be heard by a jury.

The majority apparently takes the position that if there is

any evidence in the record, from any source, from which some

tenuous inference can be drawn in favor of the nonmoving party,

summary judgment is improper. The import of Anderson,

Jeffreys, and Johnson is clearly otherwise. The question is not

whether any evidence supports the nonmoving party’s asser-

tions; rather, there must be evidence on which a jury could

reasonably find in that party’s favor. Anderson, 477 U.S. at

248-49; Jeffreys, 426 F.3d at 554; Johnson, 833 F.2d at 128.

“The inquiry performed is the threshold inquiry of determining

whether there is the need for a trial—whether, in other words,

there are any genuine factual issues that properly can be

resolved only by a finder of fact because they may reasonably be

resolved in favor of either party.” Anderson, 477 U.S. at 250

(emphasis added). Therefore:

[Judges are no] longer required to submit a

question to a jury merely because some evidence

has been introduced by the party having the

burden of proof. . . . [The question is] not

whether there is literally no evidence [supporting

the nonmoving party], but whether there is any

9

upon which a jury could properly proceed to find

a verdict for the party producing it, upon whom

the onus of proof is imposed.

Id. at 251 (internal quotation marks omitted) (quoting Improve-

ment Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)).

The majority relies on Greene v. Dalton, 164 F.3d 671

(D.C. Cir. 1999), for the proposition that summary judgment is

improper if the parties’ sworn statements are in material

conflict. I read Greene, however, as staking out a more limited

ground: that a court may not grant a motion for summary

judgment when reasonable minds could differ as to the import

of the evidence. The sexual harassment allegations in Greene

were claims which a reasonable jury could have resolved either

way—a quintessential jury question. Here, by contrast, only a

runaway jury could return a verdict for Arrington based on his

testimony as to what occurred, and if a jury did return such a

verdict, appellees would be entitled to a directed verdict.

Because I agree with the trial court that appellees are entitled to

prevail on summary judgment, I respectfully dissent.