Pitt, Christopher v. DC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 28, 2007 Decided June 26, 2007

No. 05-7157

CHRISTOPHER G. PITT, SR. AND

TELA HANSOM-PITT,

APPELLANTS

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Consolidated with

05-7163 and 06-7009

Appeals from the United States District Court

for the District of Columbia

(No. 01cv02225)

William J. Mertens argued the cause for appellants/cross-

appellees. With him on the briefs was L. Barrett Boss.

Carl J. Schifferle, Assistant Attorney General, Office of

Attorney General for the District of Columbia, argued the cause

for appellees/cross-appellants. With him on the briefs were

Linda Singer, Attorney General, Todd S. Kim, Solicitor General,

and Edward E. Schwab, Deputy Solicitor General.

2

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: The events giving rise to this

case are troubling. After a violent robbery, the police arrested

the wrong person – plaintiff Christopher Pitt – then initiated

criminal proceedings against Mr. Pitt despite overwhelming

evidence of his innocence. Mr. Pitt and his wife subsequently

brought suit against the District of Columbia and three

individual police officers, seeking relief under federal law and

D.C. common law for malicious prosecution, false arrest, and

intentional infliction of emotional distress. After trial, the jury

returned a split verdict and the district court entered judgment

for the plaintiffs for $153,000. The defendants then moved for

judgment as a matter of law on all claims, which the district

court granted in part and denied in part. On appeal both sides

challenge the district court’s rulings on the motions for

judgment as a matter of law. We affirm in part, reverse in part,

and remand to the district court for further proceedings.

I.

A.

At approximately 12:00 p.m. on January 2, 2001, two senior

citizens – Henry and Gloria Feldman – were violently robbed in

their apartment building in Northwest Washington. The robber

had followed the Feldmans into their building and then into the

elevator. In the hallway outside the Feldmans’ apartment, the

robber “socked” Mr. Feldman in the face and took his wallet,

then grabbed Mrs. Feldman’s purse before escaping down a

nearby staircase. The Feldmans immediately called 911.

During the 911 call, Mrs. Feldman described the robber as a

black man around 5’8” tall with a medium complexion and dark

3

hair, who was wearing a black leather jacket and a “beige-y”

shirt. She told the operator that the perpetrator had not used a

weapon during the robbery.

Meanwhile, Keith Dade, an employee of the apartment

building, was notified of the robbery and saw the perpetrator

leaving the building. Mr. Dade followed the man and attempted

to ask him a few questions, but the robber told Mr. Dade to

“back up” and started to run away. Mr. Dade saw the robber

make a suspicious “gesture” as though he might have had a

weapon, but did not actually see a weapon. After following the

perpetrator out of the building and across the street, Mr. Dade

lost sight of him. Mr. Dade gave a description of the robber to

the police, who subsequently broadcast a lookout alert to

officers in the area.

Responding to the lookout alert, Officers Bryan Adams and

Steven Baxter arrived at the intersection where Mr. Dade last

saw the perpetrator. After conferring with other officers at the

scene, Officer Adams looked down the street and saw an

individual who matched the description of the perpetrator get

into a car and begin driving toward Rock Creek Park. The

individual spotted by Officer Adams was the plaintiff,

Christopher Pitt. Officers Adams and Baxter returned to their

vehicle and followed plaintiff through Rock Creek Park and

onto Calvert Street before pulling him over on the Taft Bridge

on Connecticut Avenue. During the officers’ pursuit, plaintiff

failed to fully stop at some of the stop signs, but he was not

speeding. After stopping the plaintiff, the officers told him that

he was a suspect in a robbery, asked him to step out of the

vehicle, and handcuffed him for their protection. The officers

confirmed that plaintiff’s clothes and physical characteristics

matched the description of the robber. Plaintiff permitted the

officers to search his vehicle, and during this search they found

a hunting knife and a BB gun. Mr. Pitt informed the officers

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that he worked as a courier, and that the knife and BB gun were

for his protection. Plaintiff also provided the police with a list

of the pickups and deliveries he had made that day, as well as

two receipts for recent deliveries to the embassies of Kuwait and

Qatar.

After being notified that a suspect had been apprehended,

other police officers brought the Feldmans and Mr. Dade to the

Taft Bridge for a “show-up” identification to determine whether

any of the eyewitnesses could identify plaintiff as the robber.

Mrs. Feldman told the officers she got a “good look” at the

robber, and that she was “certain” plaintiff was not the person

who had robbed them. Mr. Feldman told the police he “wasn’t

sure” whether plaintiff was the perpetrator, but that he “doesn’t

think so.” Mr. Dade thought plaintiff looked somewhat like the

robber, but he “couldn’t make a positive ID” because the

plaintiff’s hair was “longer and curlier” than the robber’s, and

the plaintiff – unlike the robber – was wearing a hat.

Lieutenant Josiah Eaves was at the Feldmans’ apartment

building reviewing the building’s security videotapes when he

heard over the radio that a suspect had been arrested.

Surveillance cameras had captured the robber’s image as he

entered the building behind the Feldmans. Lt. Eaves went to the

Taft Bridge to determine whether plaintiff was the person seen

on the tapes. Lt. Eaves told the officers on the scene that he was

confident plaintiff was the robber.

While the show-up identification was being conducted, two

other officers – Detectives Sean Caine and James Bovino –

conducted a brief investigation of plaintiff’s alibi that he was

making deliveries at a nearby embassy at the time of the

robbery. The two detectives questioned a guard at the Kuwaiti

Embassy about whether plaintiff had been there earlier that day,

but the details of this interaction are disputed. Detective Caine

5

testified at trial that the guard told him that “he hasn’t seen Chris

today.” However, the embassy guard testified that he told the

officers that a “Chris” had been at the embassy on the day of the

robbery.

After the show-up, Mr. Pitt was arrested and taken into

custody. The next day, Officers Adams and Baxter presented

the case to screening prosecutors from the U.S. Attorney’s

Office. Officer Adams gave the prosecutors an affidavit that

contained a detailed description of the robbery, but did not

mention the negative identifications or Mr. Pitt’s alibi. It is

disputed whether the officers’ handwritten notes – which did

describe the negative identification and alibi – were given to the

screening prosecutors along with the affidavit. The affidavit

also stated that a cell phone ear piece cover was found at the

scene of the robbery, and that Mr. Pitt’s cell phone ear piece was

“missing its cover.”

Based on the information contained in this affidavit, on

January 3, 2001, a Superior Court Magistrate Judge ordered Mr.

Pitt committed to a halfway house. Mr. Pitt spent ten days

incarcerated before being released on January 13, 2001. Six

days later, the government dismissed the criminal case against

Mr. Pitt.

B.

On October 29, 2001, Christopher Pitt and his wife Tela

Hansom-Pitt (“plaintiffs”) brought suit in U.S. District Court

against the District of Columbia, Officer Bryan Adams, Officer

Steven Baxter, and Detective James Bovino. In their complaint,

plaintiffs sought relief under 42 U.S.C. § 1983 for false arrest

and malicious prosecution, and under D.C. common law for

false arrest, malicious prosecution, intentional infliction of

emotional distress, and loss of consortium. Plaintiffs argued in

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district court that the defendants committed a laundry list of

tortious acts, including: (1) arresting Mr. Pitt and initiating

criminal proceedings against him even though at least two

eyewitnesses stated that he was not the robber; (2) arresting and

prosecuting Mr. Pitt even though he was clearly not the person

seen on the apartment building’s security videotape; (3) ignoring

the fact that Mr. Pitt could not have been the robber because he

was making a delivery at a nearby embassy at the time the

robbery took place; and (4) submitting an affidavit to the U.S.

Attorney’s Office that contained numerous misstatements and

omissions about the details of the robbery. As a result of this

conduct, plaintiffs contended that Mr. Pitt was wrongfully

incarcerated for ten days, was subjected to a strip-search and

body cavity search, lost his job, and suffered emotional distress.

After an eight-day jury trial, the defendants moved for

judgment as a matter of law on all of the plaintiffs’ claims. The

district court granted the defendants’ motion with respect to the

§ 1983 malicious prosecution claim, holding that there was not

a “clearly established” constitutional right to be free from

malicious prosecution, and thus the defendant officers were

entitled to qualified immunity on this claim. With respect to the

rest of the plaintiffs’ claims, the district court denied the motion

and sent the claims to the jury.

The jury found all three officers liable for false arrest under

§ 1983. However, the jury returned a defense verdict for the

three officers and the District on the common law false arrest

claims – on the special verdict form, the jurors found that the

officers lacked probable cause to arrest Mr. Pitt, but that they

were not liable for common law false arrest because they

“reasonably and in good faith” believed that their conduct was

lawful. On the common law malicious prosecution claims, the

jury returned a plaintiff’s verdict against the District and all

three officers. With respect to the common law intentional

7

infliction of emotional distress claims, the jury found the

District liable but the three officers not liable. The jury awarded

$100,000 to Mr. Pitt and $50,000 to Ms. Hansom-Pitt as

compensatory damages, and assessed $1,000 in punitive

damages against each officer.

After the verdict was received, the defendants renewed their

motion for judgment as a matter of law. In a memorandum

opinion and order, the district court granted the defendants’

motion with respect to the § 1983 false arrest claims, holding

that the three officers were entitled to qualified immunity. In

reaching this conclusion, the district court relied in part upon the

jury verdict on the common law claims, in which the jury found

that the officers were not liable for false arrest because they had

a reasonable good faith belief that their conduct was lawful. The

district court denied the defendants’ motion for judgment as a

matter of law on the common law malicious prosecution claims

and intentional infliction of emotional distress claims, and

refused to set aside the punitive damages award. Both sides now

appeal the district court’s rulings on the defendants’ motion for

judgment as a matter of law.

***

In Section II, we address the arguments raised by the

District and the three officers. The defendants argue that there

was insufficient evidence to hold all four defendants liable for

common law malicious prosecution, and to hold the District

liable for intentional infliction of emotional distress. Defendants

also argue that the evidence was insufficient to support an award

of punitive damages against the three officers. We reverse the

district court’s denial of the defendants’ motion for judgment as

a matter of law with respect to Ms. Hansom-Pitt’s intentional

infliction of emotional distress claim. We also hold that there

was insufficient evidence to find Detective Bovino liable for

8

malicious prosecution, and thus we reverse the district court on

this issue. However, we affirm the district court’s denial of the

defendants’ motion for judgment as a matter of law on each of

the other common law claims. We affirm the award of $1,000

in punitive damages against Officers Adams and Baxter, but we

set aside the punitive damage award against Detective Bovino.

In Section III, we address the arguments raised on appeal by

the plaintiffs. Plaintiffs argue that the district court erred by

holding that the three defendant officers were entitled to

qualified immunity on the false arrest and malicious prosecution

claims brought under 42 U.S.C. § 1983. We affirm the district

court with respect to the malicious prosecution claims, but we

reverse and remand on the false arrest claims.

II.

A. Common Law Malicious Prosecution Claims

To reiterate, after trial, the jury returned a verdict in favor

of the plaintiff against the District and each of the three officers

on the common law malicious prosecution claims. The

defendants moved for judgment as a matter of law, but the

district court denied the motion. Defendants now appeal,

arguing that the evidence received at trial was insufficient to

support the jury’s verdict for the plaintiff on the malicious

prosecution claims. We affirm the district court’s denial of the

defendants’ motion for judgment as a matter of law with respect

to the District and Officers Adams and Baxter, but we reverse

with respect to Detective Bovino.

Under District of Columbia law, there are four elements to

the tort of malicious prosecution: (1) termination of the

underlying suit in plaintiff’s favor; (2) malice on the part of the

defendant; (3) lack of probable cause for the underlying suit; and

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(4) special injury occasioned by plaintiff as a result of the

original action. Morowitz v. Marvel, 423 A.2d 196, 198 (D.C.

1980). The first and fourth elements are not contested on

appeal, and thus we address only the issues of probable cause

and malice.

***

To support an action for malicious prosecution in the

District of Columbia, the plaintiff must show that “the original

action was instituted . . . without probable cause.” Ammerman

v. Newman, 384 A.2d 637, 639 (D.C. 1978). In a civil action for

malicious prosecution, probable cause is defined as the existence

of “facts and circumstances as will warrant a cautious man in the

belief that his action and the means taken in prosecuting it are

legally just and proper.” Id. at 639-40. The issue in a malicious

prosecution case is not whether there was probable cause for the

initial arrest, but whether there was probable cause for the

“underlying suit.” Joeckel v. Disabled Am. Veterans, 793 A.2d

1279, 1282 (D.C. 2002). The existence of probable cause is a

mixed question of law and fact. Smith v. Tucker, 304 A.2d 303,

306 (D.C. 1973). “The existence of the facts [is] for the jury,

but their effect when found is a question for the determination

of the court.” Id. (citations omitted). Given that the jury has

found all four defendants liable for common law malicious

prosecution, we must view all disputed evidence in the light

most favorable to the plaintiff and “resolve [] all conflicts in

[plaintiff’s] favor.” Scott v. District of Columbia, 101 F.3d 748,

752-53 (D.C. Cir. 1996).

In this case, we agree with the district court’s conclusion

that the defendants initiated criminal proceedings against Mr.

Pitt without probable cause. Most importantly, both victims of

the crime told the police that Mr. Pitt was not the person who

had robbed them. The perpetrator followed the Feldmans into

10

the apartment building, then rode the elevator with them up to

the eighth floor before committing the robbery. Mrs. Feldman

got a “good look” at the robber while waiting for the elevator,

while getting off the elevator, and during the robbery. After

having observed the robber at close range, she told the police

“right away” that Mr. Pitt was not the perpetrator, and that she

was “very certain” of her identification. More specifically, she

“knew right away from the shape of his head and his physique

that it was not him.” Mrs. Feldman’s negative identification was

unqualified, and she emphasized that “I won’t forget that guy’s

face.” Mr. Feldman did not see the perpetrator as clearly as

Mrs. Feldman, but he also had doubts about whether Mr. Pitt

was the robber. He told the police that he “wasn’t sure, 50/50,

but I don’t think so.” Mr. Feldman also described his

identification as “more on the negative side than on the positive

side.” In sum, both victims of the crime provided negative

identifications of Mr. Pitt – Mrs. Feldman told the police she

was “certain” that Mr. Pitt was not the robber, and Mr. Feldman

stated that he “didn’t think so.”

Why the police chose to initiate criminal proceedings

against Mr. Pitt despite negative identifications by the victims

of the crime is somewhat baffling. As we have noted in

previous cases, show-up identifications are often problematic

because they are inherently suggestive. See, e.g., United States

v. Rattler, 475 F.3d 408, 413 (D.C. Cir. 2007). The fact that

both victims provided negative identifications of Mr. Pitt despite

the inherent suggestiveness of an identification in which only

one individual is shown to the eyewitness should have been

strong evidence of Mr. Pitt’s innocence. Defendants cite several

cases for the proposition that one exculpatory fact – such as a

negative identification – is insufficient to defeat probable cause.

However, those cases involved witnesses’ failure to identify a

suspect rather than an outright negative identification. See

Wilson v. Russo, 212 F.3d 781, 785, 791-92 (3d Cir. 2000) (one

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witness “could not say with certainty” that the robber’s picture

was included in a photo array); Olinger v. Larson, 134 F.3d

1362, 1365-66 (8th Cir. 1998) (witness was unable to identify

suspect based on a black-and-white videotape of the robbery).

The defendants have not cited a single case – from any

jurisdiction – in which a court held that there was probable

cause to arrest or prosecute a suspect notwithstanding a victim’s

unambiguous negative identification of the suspect. Of course,

it is likely that no such cases can be found because few law

enforcement agencies would arrest or prosecute a suspect after

a victim of the crime has stated without qualification that the

suspect was not the perpetrator.1

Defendants point to several other facts that purportedly

supplied probable cause to initiate the prosecution of Mr. Pitt.

First, they note that Mr. Pitt’s “clothing” and “physical

description” matched the description of the robber. However,

this fact has little probative value, given that the persons who

provided these descriptions – Mr. and Mrs. Feldman – both

provided negative identifications of Pitt during the show-up

identification. Second, defendants claim that Mr. Pitt left the

scene in a direction and manner “consistent with flight.” The

record does not support this contention. The officers saw Mr.

Pitt get into his car and drive away from the scene

approximately eight minutes after the robbery had taken place.

Had Mr. Pitt been “fleeing” – as the defendants now contend –

1

We can envision a scenario in which there may be probable

cause to arrest or prosecute a suspect despite a negative identification

from a victim – i.e., if other evidence of the defendant’s guilt is

overwhelming, or if the witness’s negative identification was based on

fear or intimidation. However, this is not such an extraordinary case.

The other evidence against Mr. Pitt was weak, and Mrs. Feldman

testified that she was composed and calm during the show-up and that

she was “certain” of her negative identification.

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he might well have been gone from the scene much faster than

that. Moreover, Officer Adams testified that Mr. Pitt was not

speeding, and that he pulled over “voluntarily” as soon as one of

the officers instructed him to stop. Based on the evidence in the

record, we cannot conclude that Mr. Pitt’s actions were

“consistent with flight.” Third, the police assert that they found

“instruments of robbery” – a knife and a BB gun – in Mr. Pitt’s

car. However, we fail to see the relevance of this evidence,

given that the victims did not allege that the robber had used a

weapon. And Mr. Pitt provided a reasonable explanation for

why he had these items – he was a courier who needed them for

his protection. Lastly, defendants contend that Mr. Pitt

resembled the images of the robber captured on security

videotapes from the Feldmans’ apartment building. Before

arresting Mr. Pitt, Lt. Eaves watched the tape and concluded that

Mr. Pitt was the perpetrator. However, there is a significant

factual dispute over how closely Mr. Pitt resembled the person

seen on the videotape. Lt. Eaves conceded that when he

compared a picture of Mr. Pitt to a still-frame photo from the

video during the trial, he had doubts about whether Mr. Pitt was

the person seen on the tape. Similarly, in his deposition, Officer

Baxter stated that when he viewed the tape, he “couldn’t make

a positive determination” of whether Mr. Pitt was the robber.

We have independently reviewed a still-frame scene from the

video, and we see several significant differences between the

perpetrator and Mr. Pitt – most notably, the perpetrator clearly

had a receding hairline, while Mr. Pitt has a full head of hair,

and the perpetrator appears stockier than Mr. Pitt. Drawing all

reasonable inferences in favor of the plaintiff, the video is at

least ambiguous, and might even be a significant piece of

exculpatory evidence.

Overall, in light of the negative identifications of Mr. Pitt

by the victims of the crime, we do not believe that any of the

aforementioned facts were probative enough to provide probable

13

cause to initiate criminal proceedings against Mr. Pitt.

***

Defendants also contend that the evidence offered at trial

was insufficient to establish malice. The determination of

malice is “exclusively for the factfinder,” and “the requisite

malice can be established from the existence of a willful,

wanton, reckless, or oppressive disregard for the rights of the

plaintiff.” Tyler v. Cent. Charge Serv., Inc., 444 A.2d 965, 969

(D.C. 1982).

Here, a reasonable jury could have concluded that Officers

Adams and Baxter acted with malice because the arrest report

and the affidavit submitted to prosecutors contained several

material misstatements and omissions. Most significantly, the

affidavit – which was signed by Officer Adams and largely

copied from the arrest report prepared by Officer Baxter –

contained absolutely no mention of the Feldmans’ negative

identifications. The affidavit contained minute details about the

robbery and about the stop of Mr. Pitt’s car, but it completely

omitted the fact that neither victim of the crime believed that

Mr. Pitt was the perpetrator. Defendants assert that the officers’

notes – which did describe the show-up identification with the

Feldmans – were included in the “jacket” of the case file that

was submitted to prosecutors from the U.S. Attorney’s Office.

However, during his deposition, Officer Baxter testified that he

did not recognize the notes, and that he did not know whether

the notes had been given to the screening prosecutors.

Similarly, AUSA Richard Tischner testified that “very many

times,” the officers’ notes are not included in the case jackets.

At the very least, there is a factual dispute over whether the

prosecutors actually received these notes, and given that the jury

returned a plaintiff’s verdict on the malicious prosecution

claims, we must resolve this factual question in favor of the

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plaintiff.

The affidavit also contained at least one statement that was

unambiguously false. According to the affidavit, an officer

observed Mr. Pitt getting into a car “within seconds” after a

building employee saw the robber leave the building. However,

Officer Adams testified that approximately ten minutes had

passed from the time the building employee lost sight of the

perpetrator until the officers saw Mr. Pitt. The affidavit gave the

false impression that the police were hot on the trail of the

robber when they observed Mr. Pitt getting into his car. On the

evidence, the perpetrator had been gone for at least eight

minutes by the time the police spotted Mr. Pitt in the area. In

sum, we agree with the district court that a reasonable jury could

have concluded that Officers Adams and Baxter acted with

malice in initiating criminal proceedings against Mr. Pitt.

Officers Adams and Baxter argue that they are protected

from liability for malicious prosecution because they acted in

reliance upon the advice of counsel – namely, the prosecutors in

the U.S. Attorney’s Office. “Proof that a person who institutes

a criminal proceeding placed the facts fully and fairly before

counsel and acted upon his advice is a good defense to the

charge of want of probable cause.” Jarett v. Walker, 201 A.2d

523, 526 (D.C. 1964). The burden of proof is on the defendant

to show by a preponderance of the evidence that he is entitled to

an affirmative defense. Cf. District of Columbia v. Sterling, 578

A.2d 1163, 1165 (D.C. 1990) (holding that defendants bear the

burden of proving contributory negligence by a preponderance

of the evidence). Here, defendants have not met their burden of

establishing that they are entitled to the “advice of counsel”

defense. AUSA Richard Tischner typed portions of the officers’

arrest report, but Mr. Tischner testified that the facts contained

in the report were based solely upon “what the police officers

have to tell us.” AUSA Tischner also testified that “every word”

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of a report is read back to the officer in order to ensure that it is

truthful and accurate. Moreover, the “advice of counsel”

defense only protects defendants who “place[] the facts fully and

fairly before counsel.” Jarrett, 201 A.2d at 526. As explained

above, there was evidence that the officers failed to tell

prosecutors several key facts regarding the arrest and show-up

identification. In light of the omissions and misstatements in the

affidavit prepared by the defendant officers, we cannot conclude

that the facts of the case were placed “fully and fairly” before

the Assistant U.S. Attorneys. Accordingly, we hold that

Officers Adams and Baxter are not entitled to the “advice of

counsel” defense, and we affirm the district court’s denial of

their motion for judgment as a matter of law on the common law

malicious prosecution claims.

***

Although we affirm with respect to Officers Adams and

Baxter, we reverse the district court’s denial of the defendants’

motion for judgment as a matter of law with respect to Detective

Bovino. There is no evidence in the record that Det. Bovino had

any role in initiating criminal proceedings against Mr. Pitt. Det.

Bovino did participate in the investigation of the robbery – he

took statements from eyewitnesses, watched the security

videotape, and investigated Mr. Pitt’s alibi. However, these

facts are insufficient to establish that Det. Bovino was

“responsible for the institution of the malicious proceedings.”

Malicious Prosecution, 52 AM. JUR. 2d § 21, at 154-55 (2000);

see also Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th

Cir. 2004) (noting that malicious prosecution actions may only

be brought against “persons who have wrongfully caused the

charges to be filed”). Police officers who “sign and swear to a

criminal complaint on which the public authorities base their

prosecution of the plaintiff” may be liable. 52 AM. JUR. 2d § 22,

at 155. For example, Officer Adams – who signed the false and

16

misleading affidavit upon which the prosecution was based –

could be held liable for malicious prosecution. But there is no

evidence in the record that Det. Bovino had any involvement in

this case beyond routine investigatory duties. He did not

prepare or sign the arrest report or the affidavit that was

presented to the prosecutors, and he did not speak to the

screening attorneys in the U.S. Attorney’s Office. In sum, based

on the evidence received at trial, no reasonable jury could find

Det. Bovino liable for malicious prosecution. Thus, we reverse

the district court on this issue and remand with instructions to

enter judgment for Detective Bovino on the common law

malicious prosecution claims.

B. Intentional Infliction of Emotional Distress Claims

On the intentional infliction of emotional distress (“IIED”)

claims, the jury returned a defense verdict for each of the three

police officers. However, the jury returned a verdict for the

plaintiffs – both Christopher Pitt and Tela Hansom-Pitt – against

the District. The District moved for judgment as a matter of law

on these claims, but the district court denied the motion. The

District now appeals. We affirm the district court’s denial of the

District’s motion for judgment as a matter of law with respect to

Mr. Pitt’s IIED claim, but we reverse with respect to Ms.

Hansom-Pitt’s claim.

Under District of Columbia tort law, a plaintiff seeking

relief for IIED must offer proof of “extreme or outrageous

conduct” that intentionally or recklessly causes the plaintiff to

suffer “severe emotional distress.” Joyner v. Sibley Mem. Hosp.,

826 A.2d 362, 373 (D.C. 2003) (quoting Kerrigan v. Britches of

Georgetowne, 705 A.2d 624, 628 (D.C. 1997)). The only issue

on appeal is whether a reasonable jury could have found the

District’s conduct to be “extreme and outrageous.” To establish

“outrageousness,” the plaintiff must prove that the defendant’s

17

conduct was “so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to

be regarded as atrocious, and utterly intolerable in a civilized

community.” Id. Given that the jury found the District liable

for IIED, we must allow the verdict to stand “unless the

evidence, together with all inferences that can be reasonably

drawn therefrom is so one-sided [in favor of the moving party]

that reasonable men could not disagree on the verdict.” Milone

v. Wash. Met. Area Transit Auth., 91 F.3d 229, 231 (D.C. Cir.

1996) (internal quotation marks and citation omitted).

Here, a reasonable jury could have returned a verdict for

Mr. Pitt on his IIED claim. As explained in the previous

section, the plaintiffs offered evidence that the officers’ affidavit

contained several glaring omissions and at least one false

statement. Similarly, the jury could have inferred from the

evidence that at least one officer tampered with evidence in an

attempt to link Mr. Pitt to the scene of the crime. During their

investigation, the police found an “ear piece cover for a cell

phone” at the scene of the robbery. In the affidavit that was

submitted to prosecutors, Officer Adams stated that Mr. Pitt’s

“ear piece was missing its cover.” Yet Mr. Pitt testified that his

cell phone ear piece was “brand new” and that the foam cover

was intact when the police seized his phone. From these facts,

a reasonable jury could conclude that an officer may have

removed the ear piece cover from Mr. Pitt’s cell phone in order

to link him to the scene of the robbery. Taking the evidence in

the light most favorable to the plaintiff, we agree with the

district court that a reasonable jury could have found the

District’s actions sufficiently “outrageous” to support a verdict

for Mr. Pitt on his IIED claim.

The District argues that the verdict should be set aside as

fatally inconsistent because the jury found the District liable for

IIED while finding the individual officers not liable. We reject

18

the District’s arguments. In both the civil and criminal contexts,

courts have held that inconsistency alone is not a sufficient basis

for setting aside a jury verdict. See United States v. Dykes, 406

F.3d 717, 722-23 (D.C. Cir. 2005) (holding that a “criminal

defendant convicted by a jury on one count cannot attack that

conviction because it was inconsistent with the jury’s verdict of

acquittal on another count” (citations omitted)); United States v.

Johnson, 440 F.3d 1286, 1295 (11th Cir. 2006) (holding that

“consistent verdicts are unrequired in joint trials for conspiracy:

where all but one of the charged conspirators are acquitted, the

verdict against the one can stand” (citation omitted)); Mosley v.

Wilson, 102 F.3d 85, 89-90 (3d Cir. 1996) (holding that it was

error for a district court to “enter[] judgment as a matter of law

solely on the basis of inconsistent verdicts”). In any event, the

verdicts here are not necessarily inconsistent. The jury found

each individual officer not liable, which means that the jury

could not conclude by a preponderance of the evidence that any

individual officer was liable for IIED. However, at the same

time, the jury could have reasonably concluded that the group of

police officers as a whole acted sufficiently “outrageously” or

“recklessly” that the District should be liable. As explained

above, several different officers were involved in Mr. Pitt’s

arrest and prosecution, and a reasonable jury could have

concluded that the department as a whole was liable, even if the

evidence was insufficient to impose IIED liability on any

individual officer.

***

Although we affirm the district court with respect to Mr.

Pitt’s IIED claim, we reverse the district court’s denial of the

District’s motion for judgment as a matter of law on Ms.

Hansom-Pitt’s IIED claim. The District of Columbia has

adopted the standard for intentional infliction of emotional

distress from the Restatement (Second) of Torts. See Sere v.

19

Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982)

(quoting Restatement for the elements of IIED); Abourezk v.

N.Y. Airlines, Inc., 895 F.2d 1456, 1459 (D.C. Cir. 1990) (per

curiam) (same). Section 46 of the Restatement states:

Where such [extreme and outrageous] conduct is directed

at a third person, the actor is subject to liability if he

intentionally or recklessly causes severe emotional distress

. . . to a member of such person’s immediate family who is

present at the time, whether or not such distress results in

bodily harm.

RESTATEMENT (SECOND) OF TORTS § 46(2) (1965). Thus, under

D.C. tort law, a family member can only recover for IIED if she

was “present” when the extreme or outrageous conduct took

place.

As explained above, the “extreme or outrageous” conduct

in this case was the filing of a false and misleading affidavit and

possible evidence tampering. Based on the evidence in the

record, it appears that the affidavit was prepared at the police

station and then presented to prosecutors from the U.S.

Attorney’s Office. It cannot be said that Ms. Hansom-Pitt was

“present at the time” of this conduct. In common parlance, the

word “present” connotes physical proximity. See WEBSTER’S

NEW INTERNATIONAL DICTIONARY 1793 (3d ed. 1961) (defining

“present” as “being in one place and not elsewhere; being within

reach, sight or call or within contemplated limits; being in view

or at hand”). We cannot hold that Ms. Hansom-Pitt was in any

way physically “present” at the location where this affidavit was

prepared or filed. Were we to allow Ms. Hansom-Pitt to recover

for IIED, we would be substantially expanding the scope of the

third-party IIED tort under District of Columbia law. Of course,

in considering common law claims, federal courts must apply

existing law – we have no power to alter or expand the scope of

20

D.C. tort law. See Tidler v. Eli Lilly & Co., 851 F.2d 418, 424

(D.C. Cir. 1988) (noting that a federal court adjudicating state

law claims “is not free to engraft onto those state rules

exceptions or modifications which may commend themselves to

the federal court, but which have not commended themselves to

the State in which the federal court sits” (quoting Day &

Zimmerman v. Challoner, 423 U.S. 3, 4 (1975)). Accordingly,

we reverse the district court and remand with instructions to

enter judgment for the District on Ms. Hansom-Pitt’s IIED

claim.

C. Punitive Damages

The jury assessed $1,000 in punitive damages against each

of the three defendant officers. The defendants moved to set

aside the punitive damages, arguing that the evidence offered at

trial did not show that the officers’ conduct was “outrageous or

egregious.” The district court denied the motion. We affirm

with respect to Officers Adams and Baxter but set aside the

punitive damage award against Detective Bovino.

Under District of Columbia law, “[p]unitive damages are

warranted only when the defendant commits a tortious act

accompanied with fraud, ill will, recklessness, wantonness,

oppressiveness, wilful disregard of the plaintiff’s right, or other

circumstances tending to aggravate the injury.” Butera v.

District of Columbia, 235 F.3d 637, 657 (D.C. Cir. 2001)

(quoting Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 938

(D.C. 1995)). In order to impose punitive damages, the jury

must find by clear and convincing evidence that the tortious act

“was accompanied by conduct and a state of mind evincing

malice or its equivalent.” Id. The jury may “infer the requisite

state of mind from the surrounding circumstances.” Id. (quoting

Jemison v. Nat’l Baptist Convention, 720 A.2d 275, 285-86

(D.C. 1998)).

21

In the instant case, a reasonable jury could have concluded

that Officers Adams and Baxter acted with “recklessness” or

“wilful disregard” of Mr. Pitt’s rights. As explained in greater

detail above, there was evidence that these two officers: (1)

initiated criminal proceedings against Mr. Pitt despite negative

identifications from the two victims; (2) omitted the negative

identifications from the arrest report and an affidavit submitted

to prosecutors; and (3) falsely stated in the arrest report and

affidavit that they saw Mr. Pitt get into his car “within seconds”

after a building employee saw the robber leaving the apartment

building. Based on these facts, a reasonable jury could find by

clear and convincing evidence that Officers Adams and Baxter

acted recklessly or with wilful disregard of Mr. Pitt’s rights.

Accordingly, we affirm the jury’s award of $1,000 punitive

damages against these two defendants.

However, we set aside the award of punitive damages

against Detective Bovino. As explained above, the evidence

offered at trial was insufficient to find Det. Bovino liable for

malicious prosecution. There was no evidence that Det. Bovino

was responsible for the prosecution of Mr. Pitt. He did not

prepare the arrest report or the affidavit, and he did not present

the case to screening prosecutors. And there was no evidence

that any of his notes from the investigation were false or

misleading. It cannot be said that Det. Bovino acted with

“malice,” “recklessness,” or “wilful disregard” of Mr. Pitt’s

rights. Thus, we set aside the $1,000 punitive damage award

against Detective Bovino.

III.

A. False Arrest Claims Under 42 U.S.C. § 1983

Plaintiffs argue that the district court erred in holding that

the defendants were entitled to qualified immunity on the claims

22

for false arrest under 42 U.S.C. § 1983. After trial, the jury

found the three individual officers liable for false arrest under §

1983, but not liable for common law false arrest. The

defendants then moved for judgment as a matter of law on the

§ 1983 false arrest claims. The district court granted the motion,

holding that the officers were entitled to qualified immunity on

these claims. The court noted that even though a reasonable jury

could have concluded that plaintiff was arrested without

probable cause, the defendants were nonetheless entitled to

qualified immunity. The jury had found that the defendants

were not liable for common law false arrest because they had a

reasonable, good faith belief that their conduct was lawful.

Thus, the court concluded that if the qualified immunity

question had been presented to the jury, “the jury necessarily

would have accepted the defendants’ qualified immunity

defense.” The district court noted that qualified immunity

depends on a standard of “objective reasonableness” rather than

“subjective good faith,” but nonetheless held that the qualified

immunity inquiry was “logically guided” by the jury verdict on

the common law false arrest claims. Thus, the court granted the

defendants’ motion for judgment as a matter of law on the §

1983 false arrest claims. We hold that the district court erred by

considering the jury verdict from the common law false arrest

claims in its qualified immunity analysis.

***

The Supreme Court has held that “government officials

performing discretionary functions generally are shielded from

liability for civil damages insofar as their 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); see also Wilson v. Layne,

526 U.S. 603, 614 (1999) (holding that qualified immunity turns

upon the “objective legal reasonableness of the officers’ action,

23

assessed in light of the legal rules that were clearly established

at the time the action was taken” (internal quotation marks and

citation omitted)).

Courts have emphasized that whether a § 1983 defendant’s

conduct violates the “clearly established” constitutional rights

of the plaintiff is a pure question of law that must be resolved by

the court. In Hunter v. Bryant, the plaintiff asserted that he had

been arrested without probable cause in violation of the Fourth

Amendment, but the defendant Secret Service agents argued that

they were entitled to qualified immunity. 502 U.S. 224, 224-27

(1991) (per curiam). The Ninth Circuit held that the trier of fact

must determine whether a reasonable officer could have

believed he had probable cause to make an arrest, but the

Supreme Court reversed. The Court held that the question of

qualified immunity “ordinarily should be decided by the court

long before trial,” and that the Ninth Circuit erroneously

“place[d] the question of immunity in the hands of the jury.” Id.

at 228. Similarly, as the Fourth Circuit cogently explained:

[A]lthough the jury may be suited for making factual

findings relevant to the question of qualified immunity, we

believe it far better for the court, not the jury, to answer the

ultimate legal question of whether a defendant is entitled to

qualified immunity. The nature of the analysis – requiring

an examination of current federal law and federal law as it

existed at the time of the alleged violation – makes for an

awkward determination by the jury, at best.

Knussman v. Maryland, 272 F.3d 625, 634 (4th Cir. 2001)

(internal citation omitted). See also Phillips v. Hust, 477 F.3d

1070, 1079 (9th Cir. 2007) (“Whether the right at issue in a

claim of qualified immunity is clearly established . . . is a pure

question of law . . . .”); Williams v. Ala. State Univ., 102 F.3d

1179, 1182 (11th Cir. 1997) (same); Warren v. Dwyer, 906 F.2d

24

70, 76 (2d Cir. 1990) (“The ultimate legal determination

whether, on the facts found, a reasonable police officer should

have known he acted unlawfully is a question of law better left

for the court to decide.”).

We reverse the district court’s order insofar as it grants the

defendants’ motion for judgment as a matter of law on the

plaintiff’s claim for arrest without probable cause under § 1983.

In this case, the district court erred by considering the jury

verdict from the common law false arrest claims in its qualified

immunity analysis. As explained above, whether a right is

“clearly established” – that is, whether an objectively reasonable

officer would have believed his conduct to be lawful, in light of

clearly established law – is a question of law that must be

resolved by the court, not the jury. We reverse the district court

on this issue and remand for a determination of whether the

defendants are entitled to qualified immunity on the § 1983 false

arrest claims. See Harlow, 457 U.S. at 820 (remanding to

district court for consideration of a qualified immunity issue

because “[t]he trial court is more familiar with the record so far

developed and also is better situated to make any such further

findings as may be necessary”). On remand, the district court

must determine whether the three officers’ actions in arresting

Mr. Pitt “violate[d] clearly established statutory or constitutional

rights of which a reasonable person would have known.” Id. at

818.

B. Malicious Prosecution Claims Under 42 U.S.C. § 1983

Plaintiffs also sought relief for malicious prosecution under

42 U.S.C. § 1983, asserting that the defendants deprived

plaintiffs of their constitutional rights by initiating criminal

proceedings against Mr. Pitt without probable cause. After trial,

the district court granted judgment as a matter of law to the

defendants on these claims. The court held that it is not “clearly

25

established” that malicious prosecution is a violation of

constitutional rights, and thus the defendants are entitled to

qualified immunity. We affirm.

Section 1983 creates a cause of action to remedy certain

deprivations of federal rights, but it is not a source of substantive

rights. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)

(noting that “[section 1983] is not itself a source of substantive

rights, but a method for vindicating federal rights elsewhere

conferred by those parts of the United States Constitution and

federal statutes that it describes”). To determine whether a

given right may be enforced through section 1983, we must look

to the underlying constitutional provision that the plaintiff seeks

to enforce. Here, the plaintiff asserts that the defendant officers

initiated a criminal prosecution against Mr. Pitt without probable

cause, in violation of his rights under the Fourth Amendment.2

This court has not yet addressed whether malicious

prosecution can give rise to a violation of the Fourth

Amendment. However, nearly every other Circuit has held that

malicious prosecution is actionable under the Fourth

Amendment to the extent that the defendant’s actions cause the

plaintiff to be “seized” without probable cause. See Britton v.

Maloney, 196 F.3d 24, 28-29 (1st Cir. 1999) (holding that “[f]or

a state actor to violate the Fourth Amendment by initiating a

2

Defendants argue that the plaintiffs have only asserted a

malicious prosecution claim under the Fifth Amendment’s due process

clause, not under the Fourth Amendment. We disagree. In their

complaint, plaintiffs allege that the defendants violated Mr. Pitt’s

Fourth Amendment rights by “seizing and detaining him without

reasonable articulable suspicion or probable cause.” This challenge

to his “detention” is sufficiently broad to encompass both the initial

arrest as well as his continued incarceration while the criminal case

was pending.

26

malicious prosecution against someone, the criminal charges at

issue must have imposed some deprivation of liberty consistent

with the concept of a seizure” (citation omitted)); Singer v.

Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995) (holding

that “[t]he Fourth Amendment right implicated in a malicious

prosecution action is the right to be free of unreasonable seizure

of the person”); Gallo v. City of Philadelphia, 161 F.3d 217, 222

(3d Cir. 1998) (holding that in a malicious prosecution action

under the Fourth Amendment, “the constitutional violation is the

deprivation of liberty accompanying the prosecution”); Brooks

v. City of Winston-Salem, N.C., 85 F.3d 178, 183-84 (4th Cir.

1996) (holding that “[a plaintiff’s] allegations that [the

defendant] seized him pursuant to legal process that was not

supported by probable cause and that the criminal proceedings

terminated in his favor are sufficient to state a § 1983 malicious

prosecution claim alleging a seizure that was violative of the

Fourth Amendment”); Castellano v. Fragozo, 352 F.3d 939,

953-54 (5th Cir. 2003) (en banc) (“The initiation of criminal

charges without probable cause may set in force events that run

afoul of explicit constitutional protection–the Fourth

Amendment if the accused is seized and arrested, for example

. . . .”); Gregory v. City of Louisville, 444 F.3d 725, 748 (6th Cir.

2006) (holding that “traditional claims for ‘malicious

prosecution’ [must] be pursued and treated as Fourth

Amendment violations when the gravamen of the complaint is

continued detention without probable cause”); Smart v. Bd. of

Trustees of Univ. of Ill., 34 F.3d 432, 434 (7th Cir. 1994) (“If

malicious prosecution . . . is committed by state actors and

results in the arrest or other seizure of the defendant, there is an

infringement of liberty, but we now know that the defendant’s

only constitutional remedy is under the Fourth Amendment . . .

.”); Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)

(noting that “in the § 1983 malicious prosecution context, [the

relevant] constitutional right is the Fourth Amendment’s right to

be free from unreasonable seizures”); Uboh v. Reno, 141 F.3d

27

1000, 1003 (11th Cir. 1998) (holding that malicious prosecution

is actionable under § 1983 where “the plaintiff, as part of the

commencement of a criminal proceeding, has been unlawfully

and forcibly restrained in violation of the Fourth Amendment

and injuries, due to that seizure, follow as the prosecution goes

ahead” (citation omitted)). To the best of our knowledge, only

one circuit has held that malicious prosecution claims do not

implicate any constitutional rights. See Kurtz v. City of

Shrewsbury, 245 F.3d 753, 758 (8th Cir. 2001) (explaining that

“this court has uniformly held that malicious prosecution by

itself is not punishable under § 1983 because it does not allege

a constitutional injury”).

We join the large majority of circuits in holding that

malicious prosecution is actionable under 42 U.S.C. § 1983 to

the extent that the defendant’s actions cause the plaintiff to be

unreasonably “seized” without probable cause, in violation of

the Fourth Amendment. As explained above, given the negative

eyewitness identifications and lack of any reliable evidence

linking Mr. Pitt to the robbery, there was not probable cause for

the officers to initiate criminal proceedings against him. And

there is little doubt that the officers’ actions effected a “seizure”

of Mr. Pitt. Based on the officers’ affidavit – which contained

several misstatements and omissions – Mr. Pitt was detained in

a halfway house for ten days before being released.

Accordingly, we hold that the evidence received at trial

sufficiently demonstrates that the defendant officers violated

Mr. Pitt’s Fourth Amendment rights.3

3

At first glance, it may appear unnecessary to reach this issue

at all, given that – as explained below – we hold that the officers are

entitled to qualified immunity on the malicious prosecution claims

brought under § 1983. However, the Supreme Court has expressly

stated that courts must determine whether a constitutional right has

been violated before moving to the analysis of whether a right was

28

***

Although prosecution without probable cause can give rise

to constitutional injury under the Fourth Amendment, the district

court correctly held that the three defendant officers are entitled

to qualified immunity on these claims because this right was not

“clearly established” at the time of the actions at issue in this

case.

Government officials being sued under § 1983 are protected

by qualified immunity unless the contours of the right being

asserted are “sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Wilson v.

Layne, 526 U.S. 603, 614-15 (1999). In other words, “in the

light of pre-existing law the unlawfulness must be apparent.” Id.

at 615. The Supreme Court has not addressed the precise scope

of a malicious prosecution action under § 1983. The Court has

held that malicious prosecution does not violate “substantive”

due process rights, but it left open the question whether such

claims implicate Fourth Amendment rights. Albright v. Oliver,

510 U.S. 266, 275 (1994). Earlier this year, the Court once

again stated that “[w]e have never explored the contours of a

Fourth Amendment malicious-prosecution suit under § 1983,

and we do not do so here.” Wallace v. Kato, 127 S. Ct. 1091,

“clearly established” at the time of the defendant’s actions. See

County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[T]he

better approach to resolving cases in which the defense of qualified

immunity is raised is to determine first whether the plaintiff has

alleged a deprivation of a constitutional right at all. Normally, it is

only then that a court should ask whether the right allegedly

implicated was clearly established at the time of the events in

question.”). See also Barham v. Ramsey, 434 F.3d 565, 572 (D.C. Cir.

2006) (noting that whether the defendant officers have violated a

constitutional right of the plaintiff is a “threshold question” in the

qualified immunity analysis).

29

1096 n.2 (2007) (citation omitted). Similarly, the last time this

Court addressed the issue, we noted that “it has not been clearly

established that malicious prosecution violates any

constitutional or statutory right.” Moore v. Valder, 65 F.3d 189,

195 (D.C. Cir. 1995).

Based on the aforementioned cases, we hold that at the time

of the officers’ actions, it had not been “clearly established” in

this Circuit that malicious prosecution was a violation of any

constitutional rights. Accordingly, the defendant officers are

entitled to qualified immunity on the malicious prosecution

claims brought under § 1983. We affirm the district court’s

grant of the defendants’ motion for judgment as a matter of law

on these claims.

IV.

The district court’s orders are affirmed in part, reversed in

part, and remanded for further proceedings consistent with this

opinion.

So ordered.