Flythe Ex Rel. Estate of Flythe v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 20, 2015 Decided June 19, 2015

No. 14-7069

BETTY S. FLYTHE, PERSONALLY, AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF TREMAYNE G. FLYTHE,

APPELLANT

v.

DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-02021)

Gregory L. Lattimer argued the cause for appellant. With

him on the briefs was Ernest W. McIntosh, Jr.

Carl J. Schifferle, Assistant Attorney General, Office of

the Attorney General for the District of Columbia, argued the

cause for appellees District of Columbia. With him on the brief

were Eugene A. Adams, Interim Attorney General for the

District of Columbia, Todd S. Kim, Solicitor General, and

Loren L. AliKhan, Deputy Solicitor General.

Robert E. Deso argued the cause and filed the brief for

appellee Travis Eagan.

2

Before: TATEL, KAVANAUGH, and PILLARD, Circuit

Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In this civil action against two

police officers and the District of Columbia, appellant Betty S.

Flythe alleges that in violation of the Fourth Amendment and

D.C. law, each officer assaulted her son and one killed him.

Accepting as true the account of the officer who killed

appellant’s son, the district court found that the officer’s

actions were objectively reasonable and thus granted summary

judgment dismissing all claims against him. The claims against

the District and the other officer went to trial, and the jury

returned a verdict for Ms. Flythe. For the reasons set forth in

this opinion, we affirm the jury’s verdict. But because the

record reveals genuine issues of material fact with respect to

the actions of the officer who fired the fatal shots—thus

making himself the only surviving eyewitness to the actual

killing—we reverse the district court’s grant of summary

judgment in his favor.

I.

On Christmas Day in 2009, an unknown assailant threw a

brick through the window of a liquor store located on Georgia

Avenue in Northwest Washington, setting in motion a chain of

events that led to the death of Tremayne G. Flythe. The store’s

owner, Balbir Singh Hundal, reported the vandalism to the

District of Columbia Metropolitan Police Department and then

called again the next day to report that the same assailant had

tossed an empty bottle at a different window. Early in the

afternoon of December 26, Officers Angel Vazquez and Travis

Eagan arrived at the store and, acting on Hundal’s description

of the alleged vandal as a “black male wearing a black jacket

walking a dog,” they set off in separate cars to canvass the

neighborhood.

3

Officer Vazquez soon encountered Tremayne Flythe, an

African-American man walking a dog. In his deposition,

Vazquez testified that he parked his cruiser, approached

Flythe, and informed him that the police were doing an

investigation and wanted to ask him a few questions. Angel

Vazquez Dep. 25, Feb. 29, 2012. As directed by Vazquez,

Flythe tied the dog to a fence and began accompanying the

officer to the rear of the cruiser. Id. at 24. Vazquez testified that

as they approached the cruiser, Flythe’s “demeanor started

changing” and he “put[] his right hand on his black jacket,”

prompting the officer to ask “do you have anything on you that

I should know[?]” Id. at 25, 22. According to Vazquez, Flythe,

standing less than a foot away, responded, “yes, I got a knife,”

“pulled out a knife,” and attempted to stab the officer. Id. at 44,

41, 22. Vazquez testified that he then “pushed or kicked”

Flythe, drew his gun, ordered Flythe to drop the knife, and

fired two shots, at which point his gun jammed. Id. at 46, 47.

After clearing the jam, Vazquez fired two additional shots,

both of which missed. Id. at 49–50. Flythe then untied the dog

and ran away. Id. at 50.

Meanwhile, Officer Eagan, accompanied by store owner

Hundal, was patrolling the same neighborhood and heard the

following over the police radio:

OFFICER [VAZQUEZ]: Eagan. Four

hundred block of Kenyon.

OFFICER [VAZQUEZ]: Hey, (inaudible),

copy.

DISPATCHER: 3206 (phonetic).

OFFICER [VAZQUEZ]: Drop the knife.

OFFICER [VAZQUEZ]: Shot.

OFFICER [VAZQUEZ]: Drop the knife.

(Shot fired)

...

4

OFFICER [VAZQUEZ]: Tried to stab me,

ma’am. My gun jammed. Get official on this

location.

Radio Run Call 3–4, Dec. 26, 2009.

In his deposition, Eagan testified that shortly after hearing

the radio broadcast and seeing Officer Vazquez “running

in . . . a guard position . . . . [with] his weapon in his hand,” he

encountered Flythe and ordered him to “get on the ground . . .

now[.]” Travis Eagan Dep. 28, 33, Feb. 29, 2012. According to

Eagan, instead of obeying that order, Flythe continued running

“3 to 4 feet” past him before suddenly turning around,

“yell[ing] something loud,” and “ma[king] a motion towards

his waistband,” from which he pulled a knife and “advance[d]

towards” the officer. Id. at 35, 43, 34. Eagan fired his weapon,

striking Flythe in the leg and abdomen. Id. at 43. After

bleeding for more than twenty minutes on the sidewalk, Flythe

was taken to a hospital where he died.

Tremayne Flythe’s mother, Betty S. Flythe, brought suit in

the United States District Court for the District of Columbia

against Officers Vazquez and Eagan pursuant to 42 U.S.C.

§ 1983, alleging that both officers employed excessive force in

violation of the Fourth Amendment. See Monell v. Department

of Social Services of City of New York, 436 U.S. 658, 700–01

(1978) (section 1983 establishes a private “remedy, to be

broadly construed, against all forms of official violation of

federally protected rights”). Ms. Flythe also brought

common-law assault and battery, wrongful death, and survival

claims against both officers and the District of Columbia as

their employer. Finally, alleging that the District breached its

duty to properly train and supervise the two officers, Ms.

Flythe brought a common-law negligent supervision claim

against the city.

5

All defendants—the two officers and the District—moved

for summary judgment. Against the excessive force claim, the

officers asserted qualified immunity, which protects law

enforcement officials “from suit under 42 U.S.C. § 1983 unless

they have violated a statutory or constitutional right that was

clearly established at the time of the challenged conduct.” City

& County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774

(2015) (internal quotation marks omitted). With respect to

Officer Vazquez, the district court ultimately found “a genuine

issue of material fact as to whether Mr. Flythe did, in fact, pose

a threat of serious physical harm” justifying Officer Vazquez’s

use of force and thus denied summary judgment. Flythe v.

District of Columbia, 4 F. Supp. 3d 216, 221 (D.D.C. 2014).

This issue of material fact, the district court ruled, also

precluded summary judgment for Officer Vazquez on the

assault and battery claim “as a reasonable fact-finder could

conclude based on the evidence proffered by the plaintiff that

Mr. Flythe carried no weapon and did not otherwise threaten

Officer Vazquez during their encounter.” Flythe v. District of

Columbia, 994 F. Supp. 2d 50, 74 (D.D.C. 2013).

The district court reached a different conclusion as to

Officer Eagan. Given the radio transmission reporting that

Flythe had tried to stab Vazquez, and accepting as “fact[]” that

“Flythe did not stop [as Eagan ordered], but instead turned

around, yelled, [and] reached toward the waistband of his pants

which contained a knife,” the court found that Eagan “acted as

a reasonable officer would have confronted with the same

circumstances” and was thus entitled to qualified immunity. Id.

at 66, 67. Based on the “undisputed” evidence “that Mr. Flythe

had a knife that put Officer Eagan and third-party members of

the public in imminent peril of death or serious bodily injury,”

the district court further concluded that Officer Eagan “was

privileged to act, and therefore cannot be liable for battery.” Id.

at 74. The district court therefore granted summary judgment

dismissing all claims against Eagan.

6

Regarding the District’s alleged negligent supervision, the

district court held that Ms. Flythe had failed to “put forth any

evidence that the District knew or should have known that

Officer Vazquez was particularly dangerous or incompetent.”

Id. at 72. With respect to Officer Eagan, the district court found

it irrelevant that supervisors had questioned his fitness for duty

two months prior to the shooting and had ultimately fired him

after he tested positive for methamphetamines just four days

after killing Flythe. “[T]he District’s failure to properly

supervise Officer Eagan,” the court reasoned, “was not a

substantial factor in bringing about Mr. Flythe’s death because

any officer in Officer Eagan’s position would likely have shot

Mr. Flythe in the circumstances.” Flythe v. District of

Columbia, 19 F. Supp. 3d 311, 318 (D.D.C. 2014). The court

therefore granted summary judgment to the District on the

negligent supervision claim.

The district court denied summary judgment, however, on

the question whether the District was vicariously liable for any

assault and battery committed by its officers. “[A]ssess[ing]

both officers’ encounter with Mr. Flythe as a . . . single

transaction,” the court concluded that “Officer Eagan acted in

reliance on representations by Officer Vazquez in his

altercation with Mr. Flythe” and thus “a genuine dispute of

material fact [remained] as to whether Mr. Flythe presented a

danger throughout the encounter with both officers[.]” Flythe,

994 F. Supp. 2d at 75, 76.

To sum up, then, only the section 1983 and assault and

battery claims against Officer Vazquez, as well as the vicarious

assault and battery claim against the District, survived

summary judgment and proceeded to trial. In keeping with its

dismissal of Ms. Flythe’s negligent supervision claim, the

district court excluded expert testimony regarding the

District’s supervision of Officer Eagan. Flythe v. District of

Columbia, 4 F. Supp. 3d 222, 230 (D.D.C. 2014). And finding

7

that “evidence regarding Officer Eagan’s subjective judgment

is not probative on the issue of the objective reasonableness of

his actions,” the district court refused to permit expert

testimony or cross-examination regarding Officer Eagan’s

methamphetamine use or fitness for duty. Id. at 227.

Following a six-day trial, the jury found Officer Vazquez

liable for assault and the District vicariously liable for assault

and battery committed by both officers. The jury found no

liability, however, on the battery and section 1983 claims

against Officer Vazquez. Against the District only, the jury

awarded Ms. Flythe $187,300 in compensatory damages. But

because Tremayne Flythe’s final medical bills were paid by

Medicaid, the city asked the district court to reduce the

damages award by the cost of those bills in order to prevent his

mother from “receiv[ing] a windfall.” Defs.’ Reply to Pl.’s

Opp’n to Set-Off Mot. 2, Apr. 24, 2014. Granting the motion,

the district court reduced the jury award to $119,253.24.

Ms. Flythe now appeals, arguing that the district court

erred in granting summary judgment to Eagan on the section

1983 and assault and battery claims, as well as to the District

on the negligent supervision claim. Ms. Flythe also challenges

the district court’s exclusion of expert testimony and denial of

cross-examination regarding Officer Eagan’s fitness for duty

and drug use, as well as the court’s jury instructions and

reduction of the damages award.

II.

We begin with Ms. Flythe’s claim that the district court

erred in holding Officer Eagan immune from liability for his

use of deadly force. In order to protect law enforcement

officers from the “sometimes hazy border between excessive

and acceptable force,” Saucier v. Katz, 533 U.S. 194, 206

(2001) (internal quotations and citation omitted), qualified

immunity shields them “from damages suits for actions taken

8

while carrying out their official duties,” Fenwick v. Pudimott,

778 F.3d 133, 137 (D.C. Cir. 2015). This shield, however, is

not impenetrable, for officers enjoy no protection for violations

of clearly established constitutional rights. See Plumhoff v.

Rickard, 134 S. Ct. 2012, 2023 (2014) (“An official sued under

§ 1983 is entitled to qualified immunity unless it is shown that

the official violated a statutory or constitutional right that was

clearly established at the time of the challenged conduct.”).

Here, Ms. Flythe alleges that Officer Eagan killed her son

in violation of the Fourth Amendment. Apprehension of a

suspect through deadly force, i.e., killing him, qualifies as a

Fourth Amendment seizure, Tennessee v. Garner, 471 U.S. 1,

7 (1985), and is therefore unlawful unless “objectively

reasonable in light of the facts and circumstances confronting

[the officer],” Graham v. Connor, 490 U.S. 386, 397 (1989)

(internal quotation marks omitted). Ms. Flythe also contends

that Eagan’s actions amounted to assault and battery in

violation of D.C. law, which, like federal law, immunizes

officers to the extent their actions are reasonable. See

Etheredge v. District of Columbia, 635 A.2d 908, 916 (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.”) (internal quotation marks omitted).

Although deciding deadly force cases typically requires

that we “slosh our way through the factbound morass of

reasonableness,” Scott v. Harris, 550 U.S. 372, 383 (2007)

(internal quotation marks omitted), here we need consider only

one question: What happened when Tremayne Flythe turned to

face Officer Eagan? If, as Officer Eagan claims, Flythe

attacked him with a knife, then Eagan reasonably responded to

an imminent threat. See id. at 384 (officers may use deadly

force where a suspect “pose[s] an actual and imminent threat to

the lives of . . . the officers involved”). But if, as Ms. Flythe

9

contends, Tremayne obeyed Officer Eagan’s command to

“stop” and turned around to surrender, then Eagan’s actions

were patently unreasonable. See Garner, 471 U.S. at 11 (“A

police officer may not seize an unarmed, nondangerous suspect

by shooting him dead.”). On this question, we may affirm the

district court’s grant of summary judgment only if, after

viewing the facts in the light most favorable to Ms. Flythe and

drawing every reasonable inference in her favor, we can say

that no rational trier of fact could disbelieve Officer Eagan’s

account. See Scott, 550 U.S. at 378 (“[C]ourts are required to

view the facts and draw reasonable inferences in the light most

favorable to the party opposing the summary judgment

motion.”) (internal quotation marks and alterations omitted).

A.

An African proverb teaches that only when lions have

historians will hunters cease being heroes. Put another way,

history is usually written by those who survive to tell the tale,

and in this case the only survivor is Officer Eagan. Tremayne

Flythe is dead and, although several witnesses observed the

two men face each other, none can testify as to exactly what

happened between them. Under these circumstances, where

“the witness most likely to contradict [the officer’s] story—the

person [he] shot dead—is unable to testify,” courts, as the

Ninth Circuit has explained, “may not simply accept what may

be a self-serving account by the police officer.” Scott v.

Henrich, 39 F.3d 912, 915 (9th Cir. 1994). Instead, courts must

“carefully examine all the evidence in the record . . . to

determine whether the officer’s story is internally consistent

and consistent with other known facts.” Id. Courts “must also

look at the circumstantial evidence that, if believed, would tend

to discredit the police officer’s story, and consider whether this

evidence could convince a rational factfinder that the officer

acted unreasonably.” Id.

10

Every circuit to have confronted this situation—where the

police officer killed the only other witness to the

incident—follows this approach. For example, the Seventh

Circuit has explained that “[t]he award of summary judgment

to the defense in deadly force cases may be made only with

particular care where the officer defendant is the only witness

left alive to testify.” Plakas v. Drinski, 19 F.3d 1143, 1147 (7th

Cir. 1994). Accordingly, “a court must undertake a fairly

critical assessment of the forensic evidence . . . to decide

whether the officer’s testimony could reasonably be rejected at

a trial.” Id.; see also Jefferson v. Lewis, 594 F.3d 454, 462 (6th

Cir. 2010); Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191,

195 (4th Cir. 2006); O’Bert ex rel. Estate of O’Bert v. Vargo,

331 F.3d 29, 37 (2d Cir. 2003); Abraham v. Raso, 183 F.3d

279, 294 (3d Cir. 1999); Ludwig v. Anderson, 54 F.3d 465, 470

n.3 (8th Cir. 1995); Hegarty v. Somerset County, 53 F.3d 1367,

1376 n.6 (1st Cir. 1995).

B.

In this case, record evidence casting doubt on Officer

Eagan’s testimony abounds. Indeed, in several significant

respects Eagan’s testimony conflicts with that of every other

witness, as well as the physical evidence.

First, in his deposition, Eagan described his initial

encounter with Flythe. “As I exited my vehicle,” he testified,

“Flythe had gotten there and just as we met, he then proceeded

to pass me just a little bit.” Eagan Dep. 32, 33. According to

Eagan, it was immediately after this that Flythe turned around

and attacked him with a knife. Id. at 34.

Three individuals who witnessed the first moments of the

encounter, however, testified that the incident actually began

with Eagan chasing Flythe while firing his weapon. A nearby

neighbor, Ursula Edmonds, told police investigators that “as

soon as [Eagan’s] car pulled up, the police

11

officer . . . . [i]mmediately jumped out of the car, . . . started

running” and “shooting at the young man.” Ursula Edmonds

Interview 8, 9, Dec. 26, 2009. Another neighbor, Ivan Cloyd,

stated that he saw Flythe “running when the officer was

shooting at him.” Ivan Cloyd Interview 4, Dec. 26, 2009. And

store owner Hundal, who was riding in the cruiser with Eagan,

testified that the officer exited the car and chased Flythe while

shooting and “say[ing,] stop, stop.” Balbir Singh Hundal Dep.

77, 66, Oct. 5, 2012.

The testimony of these three witnesses finds support in the

physical evidence. Although only two bullets struck Flythe,

investigators recovered three additional bullets that had been

fired from Eagan’s weapon on the street where Flythe was

shot. This is consistent with the testimony of Edmonds, Cloyd,

and Hundal, all of whom said that Eagan repeatedly fired at

Flythe and missed.

Second, Eagan testified that Flythe, after running “3 to 4

feet” past him, suddenly “jumped through the air and changed

his momentum by doing a hop . . . and started coming towards

me,” causing the officer to begin “running backwards or

walking backwards, retreating.” Eagan Dep. 35, 34. Two

witnesses told a different story. Even with a clear view of

Flythe’s head and shoulders, store owner Hundal said nothing

at all about a mid-air hop or a backwards retreat. Rather, he

testified that after Eagan ordered Flythe to “stop,” Flythe

turned around and “went face to face with Officer Eagan.”

Hundal Dep. 90, 91. According to Hundal, he heard the fatal

shots immediately “[a]t that time.” Id. at 90. The other witness,

Officer Vazquez, said nothing at all about Flythe changing

direction. Instead, Vazquez testified that Eagan “exited his car”

as “Mr. Flythe was running towards Mr. Eagan.” Vazquez

Dep. 60. Vazquez “saw [Flythe] motion towards Officer

Eagan” and then “heard the two shots.” Id. at 62. Asked

12

whether prior to those shots, he “ever [saw] Flythe stop

running,” Officer Vazquez answered “[n]o, no.” Id. at 63.

Third, Eagan’s testimony about the knife conflicts in

critical respects with the testimony of other witnesses.

According to Eagan, Flythe raised the knife “with the blade

pointing down and the handle up.” Eagan Dep. 42; see also

Eagan Trial Test. 122 (“[Flythe] raised the knife above his

head”); id. at 114 (“[Flythe] raised it above his head and

advanced towards me”). Yet Hundal, who had a clear view of

both men’s heads and shoulders and who was questioned

intensely about what he saw, said nothing at all about Flythe

raising a knife. Officer Vazquez also had a clear view—he saw

a “motion towards Officer Eagan,” Vazquez Dep. 62—but

likewise said nothing about Flythe raising a knife.

Neighborhood resident Demetrius Moore, who observed the

scene immediately after the shooting, testified that despite

“looking[] and trying to see all [she] could see,” she saw no

knife near Flythe as he lay wounded on the ground. Demetrius

Moore Dep. 16, Apr. 2, 2012. True, the police ultimately

recovered a knife “six inches or a foot away from [Flythe’s]

foot,” Warren E. Jones Dep. 27, Mar. 23, 2012, but Flythe’s

fingerprints were never found on the knife, Raymond E. Bond

Dep. 48, Mar. 21, 2012. And for unknown reasons, the police

chose not to test the knife for Flythe’s DNA despite having

swabbed it for precisely that purpose. Id. at 48–49.

Moreover, and further undermining Eagan’s claim that

Flythe had a knife, all five witnesses to Officer Vazquez’s

confrontation with Flythe testified that Flythe had no knife at

that time. Despite Officer Vazquez’s command, heard on the

radio transmission, to “drop the knife,” all five witnesses

unequivocally stated that Flythe’s hands were empty. In fact,

three of the witnesses saw Flythe with his hands raised, palms

forward. Moreover, a passing driver, the witness most

supportive of Officer Vazquez’s account, testified that

13

although Flythe was “aggressive” and “rush[ed] towards

[Vazquez],” she “specifically saw [Flythe’s] hands as he

advanced at the police officer and did not see a weapon in his

hands.” Sabrina Shapiro Dep. 33, 7, 32, Apr. 2, 2012.

Finally, the record contains evidence that could lead a

reasonable juror to question Officer Eagan’s personal

credibility and his ability to observe, perceive, and recall the

shooting. Two months prior to the shooting, Eagan’s

supervisor, Lieutenant Madeline Timberlake, “noticed a

change in his work performance as well as his demeanor.”

Madeline Timberlake Mem., Oct. 15, 2009. Eagan told

Lieutenant Timberlake that “he had a sleeping disorder” for

which his doctor had prescribed “strong[] medication.” Id.

Believing “that Officer Eagan should be evaluated mentally as

well as physically to determine if he [was] capable of

performing his duties,” Lieutenant Timberlake revoked his

police powers and relieved him of his firearm pending a

fitness-for-duty examination. Id.; see also Notice of Duty &

Pay Status 1, Oct. 15, 2009. But just two weeks later, and

without having undergone any examination, Eagan’s police

powers were inexplicably restored and his gun returned. Notice

of Duty & Pay Status 1. Moreover, four days after killing

Tremayne Flythe, Eagan tested positive for

methamphetamines. Although claiming medication prescribed

by a doctor caused the positive test, Eagan “could not provide

any specific information on the dose, when he took it, and he

could not provide any evidence of it being given to him (no

prescription, no doctor record, no verbal confirmation from a

doctor, etc.).” Myron Weiner Expert Rep. 2, Oct. 19, 2012. The

District argues that the positive test is irrelevant because it

occurred four days after the killing, but in his deposition,

Eagan agreed that whatever substance he “took before [the]

drug test on December 30, 2009 is the same thing [he] took

before [he] shot Tremayne Flythe on December 26, 2009.”

14

Eagan Dep. 65. Indeed, the police department fired him after

concluding that he lied about using illegal methamphetamines.

The district court dismissed all of this evidence, finding

that “whether or not Mr. Flythe actually brandished a knife

against Officer Eagan is largely irrelevant” because given the

radio transmission indicating that Flythe attempted to stab

Officer Vazquez, “it was objectively reasonable for Officer

Eagan to believe that Mr. Flythe had a knife and was

dangerous—whether or not he actually ever saw the knife

himself (or whether or not the knife found near Mr. Flythe’s

body actually belonged to him).” Flythe, 994 F. Supp. 2d at 68.

We disagree. That an individual at one point posed a threat

does not grant officers an irrevocable license to kill.

Justification for deadly force exists only for the life of the

threat. As the Supreme Court has explained, “police officers

are justified in firing at a suspect in order to end a severe threat

to public safety . . . until the threat has ended.” Plumhoff, 134 S.

Ct. at 2022 (emphasis added). Here, the threat to Vazquez had

ended by the time Eagan confronted Flythe, and Eagan never

claimed that he viewed Flythe as an immediate threat. Quite to

the contrary, Eagan testified that his first instinct upon

encountering Flythe was “to holster [his] weapon” and

“engage[] in a foot pursuit[.]” Eagan Dep. 33.

Accordingly, whether Eagan acted reasonably does turn

on whether, as he alleges, Flythe attacked him with a knife.

And given all of the evidence discussed above—the

inconsistencies between Eagan’s testimony and the testimony

of other witnesses, the physical evidence, and the evidence

raising questions about Eagan’s personal credibility—and

drawing all inferences in Ms. Flythe’s favor, we believe that a

reasonable jury could conclude that Tremayne Flythe never

threatened Officer Eagan with a knife. True, a jury could also

conclude that he did, but “[c]redibility determinations, the

weighing of the evidence, and the drawing of legitimate

15

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

judge . . . on a motion for summary judgment.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). We shall

therefore reverse the district court’s grant of summary

judgment to Officer Eagan.

III.

We can easily resolve Ms. Flythe’s remaining arguments.

Although the jury returned a verdict in her favor in the trial

against Officer Vazquez and the city, and awarded her

compensatory damages, Ms. Flythe seeks a new trial on two

grounds.

First, Ms. Flythe contends that the district court

erroneously excluded expert testimony and precluded

cross-examination regarding Officer Eagan’s credibility. As

indicated above, we agree that the district court erred when it

found Eagan’s sleep disorder and drug use insufficient to place

his “ability to perceive or recall facts . . . legitimately at issue”

and irrelevant to the “question . . . whether both officers are

lying.” Flythe, 4 F. Supp. 3d at 227, 229. In order to set aside

the jury’s verdict on this ground, however, Ms. Flythe “must

explain why the erroneous ruling caused harm.” Shinseki v.

Sanders, 556 U.S. 396, 410 (2009). And having obtained a

favorable verdict despite the district court’s errors, Ms. Flythe

suffered no harm with respect to the jury’s liability finding, and

she never argued that the error affected the jury’s calculation of

compensatory damages.

Second, Ms. Flythe challenges the district court’s jury

instructions on the grounds that they were confusing and

misleading. But Ms. Flythe has forfeited this claim because she

has never—neither here nor in the district court—identified

any specific legal error in the instructions. See Palmer v.

Hoffman, 318 U.S. 109, 119 (1943) (“In fairness to the trial

court and to the parties, objections to a charge must be

16

sufficiently specific to bring into focus the precise nature of the

alleged error.”).

Ms. Flythe also argues that the district court should never

even have instructed the jury on whether Officer Vazquez’s

encounter with Tremayne Flythe constituted a Fourth

Amendment seizure. Such “a seizure occurs when physical

force is used to restrain movement or when a person submits to

an officer’s show of authority,” United States v. Brodie, 742

F.3d 1058, 1061 (D.C. Cir. 2014), and Ms. Flythe argues that

“it is undisputed” that this occurred in this case, Pl.’s Br. 48.

But the district court disagreed, finding that “there is a genuine

issue of fact as to whether Mr. Flythe momentarily submitted

to Officer Vazquez’s show of authority,” Flythe, 4 F. Supp. 3d

at 220, a ruling Ms. Flythe failed to appeal. We therefore find

no error in the district court’s submission of this factual

question and concomitant instructions to the jury.

In addition to challenging the jury’s verdict, Ms. Flythe

argues that the district court erroneously granted summary

judgment to the District on her negligent supervision claim.

But she has failed to show how compensatory damages—the

only type of damages recoverable against the District, see

Smith v. District of Columbia, 336 A.2d 831, 832 (D.C. 1975)

(“[A]s a general rule there can be no recovery of punitive

damages against a municipality absent a statute expressly

authorizing it. There is no such statute in [the District of

Columbia]”)—would differ had this theory of liability been

submitted to the jury. Unlike punitive damages, which are

intended to “punish the wrongdoer,” Brown v. Coates, 253

F.2d 36, 40 (D.C. Cir. 1958), compensatory damages are

assessed only to “make plaintiffs whole for the harms that they

have suffered as a result of defendants’ actions,” Hendry v.

Pelland, 73 F.3d 397, 402 (D.C. Cir. 1996). Here, the jury

valued Tremayne Flythe’s harm at $187,300, and “in the

absence of punitive damages a plaintiff can recover no more

17

than the loss actually suffered,” Medina v. District of

Columbia, 643 F.3d 323, 326 (D.C. Cir. 2011) (internal

quotation marks and citation omitted). In other words, Flythe’s

harm—his pain and suffering, mental anguish, and emotional

distress—cannot be increased just because there is more than

one theory under which the District is liable for his death.

Thus, even if the district court should have permitted

presentation of the negligent supervision claim to the jury,

along with the vicarious assault and battery claim, its failure to

do so was harmless because Ms. Flythe “cannot recover the

same [compensatory] damages twice, even though the

recovery is based on two different theories.” Id. And although

Ms. Flythe now argues that the jury’s compensatory damages

award is inadequate and nonsensical, she forfeited that claim

by failing to raise it in the district court. Ryen v. Owens, 446

F.2d 1333, 1334 (D.C. Cir. 1971) (“[A] motion for a new trial

must be made to the trial court if a party desires to attack on

appeal a judgment in a jury case on the ground that the

damages are inadequate.”).

Finally, Ms. Flythe challenges the district court’s

deduction of Tremayne Flythe’s medical costs from the jury’s

damages award. But D.C. law provides that “whenever the

District is a defendant in a proceeding brought by a

beneficiary, it shall have a right to set off from a judgment

against it any damages that represent compensation for the care

and treatment it has undertaken to provide or pay for as

health-care assistance.” D.C. Code § 4-603(a). Once the jury

determines “the amount of full, just compensation,” the trial

court must “thereafter adjust the verdict by the amount of any

applicable setoff.” Reid v. District of Columbia, 391 A.2d 776,

778 (D.C. 1978). In this case, the district court admitted the bill

for Tremayne Flythe’s final medical expenses into evidence,

and it is undisputed that the city paid that bill through

Medicaid. It was thus entitled to a setoff.

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IV.

For the foregoing reasons, we reverse the district court’s

grant of summary judgment on the section 1983 and assault

and battery claims against Travis Eagan and remand for further

proceedings consistent with this opinion. In all other respects,

we affirm.

So ordered.