Feirson v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 7, 2007 Decided October 30, 2007

No. 05-7188

BRUCE FEIRSON AND

MARY FEIRSON,

APPELLANTS

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv00905)

Fred T. Magaziner, pro hac vice, argued the cause for

appellants. On the briefs were Frank J. Eisenhart, Barrie A.

Dnistrian, and Christian A. Natiello.

David A. Hyden, Assistant Attorney General, Office of

Attorney General for the District of Columbia, argued the cause

for appellee District of Columbia. With him on the brief were

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

General, and Edward E. Schwab, Deputy Solicitor General.

2

Thomas M. Hogan argued the cause and filed the brief for

appellee Michelle Smith-Jefferies, M.D., Taunya Brownlee,

M.D., and Craig Thorne, M.D.

Before: RANDOLPH and BROWN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

Concurring opinion filed by Senior Circuit Judge

WILLIAMS.

BROWN, Circuit Judge: Bruce Feirson, now a retired

Metropolitan Police Department (MPD) officer, sustained

serious neck and lower back injuries during an “attack exer-

cise”—part of a MPD training program. Feirson and his wife,

Mary, sued the District of Columbia and three physicians who

worked at the District’s Police and Fire Clinic. Feirson asserted

claims under 42 U.S.C. § 1983 and District of Columbia law.

Mary sought compensation for loss of consortium. In separate

orders, the district court granted summary judgment for the

District and the three physicians on all of the Feirsons’ claims.

The Feirsons now appeal. We affirm the district court’s various

grants of summary judgment.

I

Viewed in the light most favorable to Feirson, the facts are

as follows. Feirson had a history of back problems dating back

to 1979. His problems first became serious in 1985 when he

twisted his lower back while chasing a suspect. Feirson

underwent spinal surgery and returned to full duty several

months later. The following year he felt a snap in his back while

entering his car, and he again underwent spinal surgery. From

mid-1986 to mid-1988 it was medically uncertain whether

3

Feirson could function as a police officer. But in June 1988,

Feirson returned to full duty when the District’s Board of Police

and Fire Surgeons determined he could perform without

restrictions.

In 1999, the MPD required its officers to be certified to use

a new retractable baton made by Armament Systems & Proce-

dures, Inc. The baton, which MPD officers referred to as the

“ASP,” replaced the traditional “nightstick.” The MPD included

ASP certification training in its regular annual in-service

training program.

ASP training had three parts: two to three hours of class-

room instruction; two to three hours of physical conditioning

exercises, including drills on various strikes and deflection

moves; and a 90- to 120-second “attack exercise.” To success-

fully complete the attack exercise, the trainee had to use a foam-

covered version of the ASP to fend off an instructor pretending

to be a violent suspect. The trainee wore protective headgear

and a mouthpiece while his “attacker” wore a padded “hit suit”

to absorb the blows the trainee delivered with the ASP. The

attacker’s hands and feet were also padded. The exercise took

place on mats and within a ring formed by other trainees who

carried padded shields. The exercise was designed to simulate

a “code orange” situation—one level below a situation in which

an officer would be authorized to use deadly force. The attacker

charged toward the trainee aggressively, using pulled punches

and kicks, and grabbing, wrestling, or throwing the trainee.

In April 2000, Feirson’s supervisor ordered him to attend

annual in-service training. Concerned about his back after

hearing rumors that officers were being “beaten and assaulted”

during ASP training, Feirson asked his supervisor if he could

reschedule or avoid going altogether. Feirson’s supervisor,

apparently unmoved by his concerns, handed him a written order

4

to attend. After all, annual in-service training was required for

MPD officers, and Feirson had been deemed fit for full duty

after undergoing a medical examination two months earlier.

Feirson participated in ASP training on April 27, 2000.

Already winded from the preceding exercises, he tried to fake

his way through the attack exercise portion. First he tried to

clutch his attacker until the time ran out. By closing the

distance, Feirson thought he could muffle the attacker’s punches

and kicks. The instructor timing the exercise foiled this plan,

however, when he stopped the clock, separated Feirson and his

attacker, told Feirson to swing the ASP more, and then restarted

the exercise. Next Feirson tried, in his words, to “get back on

the rope.” He hoped to hide near the edge of the ring, but his

comrades shoved him back in when he came too close to their

shields. Meanwhile, the attacker pursued him, continuing to

throw punches and kicks. During the fray, the attacker struck

Feirson in the face, causing his head to jerk backward.

This entire episode lasted over a minute, but less than two.

It ended when the attacker, recognizing Feirson “had enough,”

stopped the exercise. Feirson felt some soreness and numbness,

but he did not report his symptoms to the Police and Fire Clinic

until the next day. As it turns out, Feirson suffered serious neck

and lower back injuries, requiring him to undergo spinal

surgery. Feirson became eligible for disability retirement

because of his injuries, and he subsequently retired.

Feirson and his wife sued the District and thirteen physi-

cians who staffed the Police and Fire Clinic, including Doctors

Michelle Smith-Jefferies, Taunya Brownlee, and Craig Thorne

(the “Physician Defendants”). The Physician Defendants

worked for PFC Associates, Inc., a private corporation that

operates the Police and Fire Clinic under a contract with the

District. The Feirsons never served process on the other ten

5

physicians, whom the Feirsons named “John and Jane Does, nos.

1–10.”

The district court granted summary judgment for the

District on Feirson’s § 1983 claims, concluding that his constitu-

tional rights were not violated. Feirson v. District of Columbia,

315 F. Supp. 2d 52 (D.D.C. 2004). Subsequently, the court

granted summary judgment for the Physician Defendants.

Feirson v. District of Columbia, 362 F. Supp. 2d 244 (D.D.C.

2005). The court dismissed Feirson’s § 1983 claims, relying on

its earlier conclusion that his constitutional rights were not

violated. Id. at 247. Moreover, finding no evidence of extreme

or outrageous conduct, and no duty on the part of the Physician

Defendants to protect Feirson, the court dismissed his inten-

tional infliction of emotional distress (IIED) and negligence

claims. Id. at 247–50. Because the Physician Defendants were

not liable to Feirson, the court dismissed Mary’s loss of consor-

tium claims. Id. at 254.

Finally, the district court granted summary judgment for the

District on the Feirsons’ remaining claims. Feirson v. District

of Columbia, No. 01-0905, 2005 WL 3211626 (D.D.C. Nov. 22,

2005). The court concluded that the Police and Firefighters’

Retirement and Disability Act (PFRDA), D.C. CODE §§ 5-701

et seq. (2001), was Feirson’s exclusive remedy against the

District.

II

We review a district court’s grant of summary judgment de

novo. Summary judgment is appropriate when the pleadings

and the evidence demonstrate that “there is no genuine issue as

to any material fact and that the moving party is entitled to a

judgment as a matter of law.” FED. R. CIV. P. 56(c). A dispute

about a material fact is “genuine” only “if the evidence is such

6

that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). “The evidence of the non-movant is to be believed, and

all justifiable inferences are to be drawn in his favor.” Id. at

255.

A

To impose liability on the District under 42 U.S.C. § 1983,

Feirson must show “not only a violation of his rights under the

Constitution or federal law, but also that the [District’s] custom

or policy caused the violation.” Warren v. District of Columbia,

353 F.3d 36, 38 (D.C. Cir. 2004). Feirson claims his substantive

due process rights were violated when the instructor, acting

under MPD orders, attacked him “with a level of force that

exceeded any legitimate ‘training’ objective.” He also claims he

was twice “seized” in violation of the Fourth Amendment. The

first alleged seizure occurred when his supervisor ordered him

to attend the annual in-service training; the second occurred

during the attack exercise itself.

The district court concluded, and we agree, that Feirson’s

substantive due process rights were not violated. “[I]n a due

process challenge to executive action, the threshold question is

whether the behavior of the governmental officer is so egre-

gious, so outrageous, that it may fairly be said to shock the

contemporary conscience.” County of Sacramento v. Lewis, 523

U.S. 833, 847 n.8 (1998). Most likely to rise to that level is

“conduct intended to injure in some way unjustifiable by any

government interest.” Id. at 849. Although “negligently

inflicted harm is categorically beneath the threshold,” whether

recklessness or gross negligence will suffice “is a matter for

closer calls.” Id.

7

Feirson cites three assertions that his attacker applied

excessive force. The first is his own: “That was the most serious

assault I’ve ever encountered in . . . over 20 years on the police

department.” The second is from his training expert: “[T]he

speed, intensity and level of force . . . was grossly excessive,

without justification and outside the scope of reasonable and

effective training practices . . . .” The third is from another

training expert: “[I]f you go by [Feirson’s] description that [it]

was a beating of a lifetime . . . then you have misconduct on

every officer that was present and all the instructor staff.”

Moreover, Feirson emphasizes that the MPD’s physical skills

training was not calibrated to a trainee’s age, gender, or experi-

ence.

Nonetheless, at most a jury could find the instructors

negligent, which is “categorically beneath the threshold of

constitutional due process.” And even a finding of negligence

would be a stretch. The attack exercise followed several hours

of classroom and practical instruction on how to use the ASP.

Feirson wore protective headgear and a mouthpiece, and the

attacker’s hands and feet were padded. The exercise was timed

and took place on mats. When, after about a minute during

which Feirson had maneuvered to escape the blows, it appeared

he “had enough,” the attacker ended the exercise. Feirson

admits he suffered no cuts or bruises, and he had no reason to

believe the attacker was trying to hurt him. Although the

exercise was not geared to Feirson’s fitness level, that was

because it was designed to prepare police officers to handle real-

life situations.

Our conclusion is bolstered by the exercise’s extremely low

rate of injury. About three months prior to Feirson’s injuries,

more than 1300 officers had been trained and only seven

reported significant injuries. These “significant” injuries

8

included a broken foot, a knee injury, a broken finger, two

instances of bruised ribs, and two instances of dental trauma.

B

Feirson has also failed to state a Fourth Amendment

violation because he was not “seized” within the meaning of that

amendment. A seizure occurs “if, in view of all the circum-

stances surrounding the incident, a reasonable person would

have believed that he was not free to leave.” United States v.

Mendenhall, 446 U.S. 544, 554 (1980).

Here, Feirson asserts that a reasonable person would not

have felt free to disobey a direct order to attend annual training

when doing so would have jeopardized his career. That may be

true, but Feirson has not described a “seizure.” The relevant

inquiry is whether a reasonable person would have believed he

would be detained if he disobeyed his supervisor’s order—not

whether he feared negative consequences for his job. See Reyes

v. Maschmeier, 446 F.3d 1199, 1204 (11th Cir. 2006) (“[A]

claim that a government supervisor has seized a public em-

ployee in violation of the Fourth Amendment must allege

circumstances that implicate more than the obligations that arise

from the employment relationship.”); Driebel v. City of Milwau-

kee, 298 F.3d 622, 642 (7th Cir. 2002) (“Since the Fourth

Amendment does not protect against the threat of job loss, the

relevant constitutional inquiry must focus on whether reasonable

people in the position of the subordinate would have feared

seizure or detention if they had refused to obey the commands

given by their superior officers.”); Fournier v. Reardon, 160

F.3d 754, 757 (1st Cir. 1998) (negative consequences for

employment was “not an issue for [the court] to consider” in

determining whether a trainee was seized in violation of the

Fourth Amendment).

9

Taking a different tack, Feirson argues he was “seized”

during the attack exercise because he could not stop it. We

disagree. Feirson submitted to the exercise, and no evidence

would support a finding that the instructors would not have

stopped if Feirson asked them to do so. See Fournier, 160 F.3d

at 757 (a trainee was not seized when “no evidence presented

would support a finding that he was not free to leave at any

point during the scenario”).

C

We agree with the district court that the PFRDA bars

Feirson’s local law claims against the District. “Police and

firefighters in the District who are temporarily injured or

permanently disabled while performing their duties are provided

compensation under a scheme set forth in the . . . Act.” Ray v.

District of Columbia, 535 A.2d 868, 870 (D.C. 1987). The

PFRDA is “the exclusive remedy against the District of Colum-

bia for uniformed personnel.” Lewis v. District of Columbia,

499 A.2d 911, 915 (D.C. 1985).

Feirson does not deny the injuries he sustained made him

eligible for the PFRDA’s benefits. However, he reads two

cases, Mayberry v. Dukes, 742 A.2d 448 (D.C. 1999), and Grillo

v. National Bank of Washington, 540 A.2d 743 (D.C. 1988), to

create an exception “for the intentional tortious conduct commit-

ted by a plaintiff’s co-employee,” within which he contends this

case falls.

Mayberry addressed whether the PFRDA prevented a police

officer from suing a co-employee for injuries sustained in the

performance of duty. Because Feirson is suing the District,

Mayberry is inapplicable. Grillo recognized an intentional

injury exception to the District’s Workers’ Compensation Act

(WCA), which applies only when the employer specifically

10

intended to injure the employee. 540 A.2d at 747–48, 754.

Even if Grillo’s exception applied to the PFRDA, there is no

evidence the MPD specifically intended to injure Feirson.

III

Because Feirson’s constitutional rights were not violated, his

§ 1983 claims against the Physician Defendants must fail. His

IIED and negligence claims also fail because they both depend

on his mistaken belief that: (1) the Physician Defendants had

duties as his doctors to tell the MPD to modify ASP training; and

(2) they had contractual duties to report ASP training injuries to

the MPD.

Under District of Columbia law, “the question of whether a

defendant owes a duty to a plaintiff under a particular set of

circumstances is ‘entirely a question of law . . . [that] must be

determined only by the court.’” Croce v. Hall, 657 A.2d 307,

310 (D.C. 1995) (alterations in the original) (quoting W. PAGE

KEETON, PROSSER AND KEETON ON TORTS § 37, at 236 (5th ed.

1984)). There is “no duty generally to control the conduct of a

third person so as to prevent him . . . from causing physical harm

by criminal acts or intentional torts, absent a special relation-

ship” with the third person or his victim. Rhaney v. Univ. of Md.

E. Shore, 880 A.2d 357, 364 (Md. 2005);1 see also RESTATE-

MENT (SECOND) OF TORTS § 315 (1965). Relationships in which

there is a duty to protect “include landowner-invitee,

businessman-patron, employer-employee, school district-pupil,

1

“Our duty . . . is to achieve the same outcome we believe would

result if the District of Columbia Court of Appeals considered this

case.” Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902, 907

(D.C. Cir. 2006). That court may “take notice of the common law of

Maryland in the absence of contrary District of Columbia law.”

Griffin v. Acacia Life Ins. Co., 925 A.2d 564, 576 n.30 (D.C. 2007).

11

hospital-patient, and carrier-passenger.” Kline v. 1500 Mass.

Ave. Apartment Corp., 439 F.2d 477, 482–83 (D.C. Cir. 1970);

see also RESTATEMENT (SECOND) OF TORTS §§ 314A to 314B.

We reject Feirson’s contention that his relationship with the

Physician Defendants is a “special” one that imposed a duty on

their part to tell the MPD to modify ASP training.2 A duty to

protect arising from a special relationship is based on “the ability

of one of the parties to provide for his own protection” being

“limited in some way by his submission to the control of the

other.” Kline, 439 F.2d at 483. Here, Feirson fails to explain

how the Physician Defendants limited his ability to protect

himself by control they had over him, or, for that matter, how

they had any control over him. Feirson understood better than

anyone the fragility of his back. He was fully aware of the risk

posed by the attack exercise, and he took that risk voluntarily.

The Physician Defendants were in no better position to protect

Feirson than he was to protect himself. See Workman v. United

Methodist Comm. on Relief, 320 F.3d 259, 264 (D.C. Cir. 2003).

Indeed, nothing in the record suggests the Physician Defendants

had the power to order the MPD to change its training program,

or that a change (whatever it might be) would have prevented

Feirson’s injuries.

We also reject Feirson’s contention that the Physician

Defendants had a contractual duty to report injuries to the MPD.

The contract between the District and PFC Associates required

PFC Associates to implement a “Quality Assurance Plan.” To

fulfill this requirement, PFC Associates implemented the

“Continuous Quality Improvement Program.” Feirson invokes

one aspect of the Program in which the Clinic, on a monthly

2

Feirson has failed to raise the issue of whether a District

regulation imposes such a duty—a footnote citing the regulation

without explanation is insufficient.

12

basis, was to review “all charts with a particular ‘high volume’

or ‘high risk’ diagnosis.” Feirson imagines that the chart

reviews, which had not been done regularly, required the

Physician Defendants to report ASP training injuries. Not so.

The results from the chart reviews were to ensure the Clinic

provided treatment that met “acceptable standards of medical

care.”

Finally, Mary Feirson’s loss of consortium claims against

the District and the Physician Defendants must fail because

they depend on her husband’s claims. See Elliott v. Healthca-

re Corp., 629 A.2d 6, 10 (D.C. 1993).

The district court’s grants of summary judgment are

Affirmed.

WILLIAMS, Senior Circuit Judge, concurring: I agree

with the judgment and with the court’s opinion on all matters

but one. I take issue with the court’s grounds for rejecting

Feirson’s second seizure claim: The court writes that “no

evidence would support a finding that the instructors would

not have stopped if Feirson asked them to do so.” Maj. Op. at

9. The record is unclear on the matter. In the exercise,

instructors formed a ring of police officers with shields around

Feirson. The ring pushed Feirson back into the attack zone

whenever he attempted to elude his attacker. This suggests

that the instructors were prepared to compel Feirson’s

participation, regardless of his protests. And Feirson’s

supervisor had rejected his earlier effort to be excused from

attending the exercise. Thus, I think a reasonable jury could

infer that Feirson could not have induced the trainers to stop

(short of a real or feigned collapse, or similar manifestation of

serious injury).

Nonetheless, I don’t believe this confinement was an

invalid seizure under the Fourth Amendment. In any sort of

military or quasi-military training, periods may arise when, as

a practical matter, the nature of the training makes it

impossible or at least extremely risky for trainees to leave;

consider, for example, recruits under live machine gun fire in

basic training. Although the trainee cannot unilaterally decide

to exit the exercise, the resulting confinement is one to which

the trainee agreed when he chose to go ahead with the

exercise (or, in the case of the recruit, to join the military).

Thus it is either a seizure made lawful by consent, or not a

seizure at all within the meaning of the Fourth Amendment, a

distinction of no consequence here.