Michele Hall v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 10, 2017 Decided August 11, 2017

No. 16-7056

MICHELE H ALL,

APPELLANT

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-00324)

Gregory L. Lattimer argued the cause and filed the briefs

for appellant.

Lucy E. Pittman, Assistant Attorney General, Office of the

Attorney General for the District of Columbia, argued the cause

for appellees. With her on the brief were Karl A. Racine,

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

L. AliKhan, Deputy Solicitor General.

Before: R OGERS, MILLETT and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

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PILLARD , Circuit Judge: This case arises from

restaurant patron Michelle Hall’s claims that employees of

Cities Restaurant and Lounge, and the Metropolitan Police

Department officers they summoned, reacted overly harshly

when she raised a question about her bill and temporarily left

the restaurant. Hall appeals the district court’s final judgment

against her resulting from dismissal of some of her damages

claims on the pleadings, and others on summary judgment.

Hall celebrated her birthday with friends at Cities. Near

the end of the evening, Hall was surprised by some of the

charges on her bill due to what turned out to be mis-

communication with the promoter who had set up the party for

her. Before the billing question was fully resolved or Hall’s

party disbanded, some additional people on Hall’s guest list

arrived late and texted her; rather than pay a cover charge to

join her at Cities, the late arrivals said they would go to a no-

cover-charge bar across the street and asked Hall to join them

for a quick drink. Hall then stepped out of Cities temporarily

to greet those friends at the bar opposite. When she did so,

Cities still held Hall’s credit card and driver’s license, and

several of Hall’s celebrants stayed at the table at Cities with the

bill, Hall’s purse, her phone, and her birthday gifts.

Cities employees responded as if Hall’s departure were an

attempt to avoid paying her bill. They called the police to

report felony theft of services. The responding officers located

Hall at the bar across the street and broke down the door of the

single-occupancy bathroom where Hall and a friend were

freshening their makeup and using the toilet. Without asking

her any questions about what happened at Cities, Hall

contends, the police handcuffed Hall, dragged her out of the

bar, and detained her on the sidewalk and then in a squad car

for about forty-five minutes. While she was sitting handcuffed

in the police cruiser, Hall asked a passing officer who had not

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been involved in her initial arrest why she was being held. The

officer replied that Hall had walked out on her bill. Hall

objected that she had not; indeed, Cities still had her credit card

and driver’s license. The officer, hearing that information for

the first time, went into the restaurant and came back with a

receipt charging the full amount of Hall’s bill to her credit card.

Hall promptly signed the receipt and the officer released her.

Hall brought this suit for damages against the District of

Columbia, its officers, Cities, and its manager. The district

court dismissed some of Hall’s claims on the pleadings and,

after discovery, granted summary judgment in defendants’

favor on the rest. We affirm in part, vacate in part, and remand

for further proceedings consistent with this opinion.

Background

Because Hall’s claims were dismissed either on the

pleadings or at summary judgment, the factual background

draws inferences in Hall’s favor from her complaint and from

facts revealed through discovery. See Mpoy v. Rhee, 758 F.3d

285, 287 (D.C. Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S.

662, 678-79 (2009)); Tolan v. Cotton, 134 S. Ct. 1861, 1863

(2014) (per curiam). Needless to say, where there are

evidentiary conflicts, jurors might well find the facts

differently. Our recitation of events, as definitive as it may

sound, is thus necessarily provisional due to the procedural

posture of the district court’s ruling.

In 2012, Michelle Hall, who lived and worked in

Washington, D.C., arranged through event promoter Ryan

White to have her twenty-ninth birthday party at Cities

Restaurant and Lounge, located at 919 19th Street Northwest.

White had coordinated Hall’s birthday party at Cities the

previous year, and Hall understood that she would again be

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served two free bottles of alcohol as incentive to bring her

business to Cities. When Hall arrived at Cities for the party on

March 17, Cities requested that Hall leave her credit card and

identification with restaurant employees, which she did.

Several hours later, after the group consumed three bottles

of alcohol and some food, a server presented Hall with a bill

for $1,104.74. It reflected a charge of $935.04 for the food and

all three of the bottles of alcohol the group had consumed, plus

a $169.70 tip. Because Hall had not expected to pay for the

first two bottles of alcohol, she texted her objection to Ryan

White, the party promoter, who responded that she was

mistaken; Cities had not agreed to provide any free bottles of

alcohol this time. Hall felt misled, and when White stopped

responding to Hall’s text messages, she spoke with manager

Seyhan Duru, who alerted the restaurant owner to the dispute.

Meanwhile, Hall’s party guests, who had agreed to contribute

money for the food and third bottle consumed, started putting

cash in a bill book towards paying the check.

While Hall’s friends remained at Cities and attempted to

work something out with Duru and Cities’ owner, Hall went to

a bar across the street to meet friends who had arrived at the

tail end of the party at Cities and did not wish to pay Cities’

forty-dollar cover charge to enter just as the group was

finishing up there. Because Cities had stamped Hall’s hand for

re-entry and the restaurant retained the credit card and driver’s

license she had handed over when she arrived, and because

Hall left her birthday presents, her purse, her cell phone, and

most of her friends at Cities, and had told the server to leave

the bill on the table as they were “still working on it,” J.A. 100,

she did not anticipate that the restaurant would have any

concerns about her temporarily leaving the premises.

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Shortly thereafter, however, a Cities employee called the

police to report that an “intoxicated female” wearing a yellow

sundress had refused to pay her bill. J.A. 165. The police

apparently registered the call as a report of “theft one of

services,” or felony theft in the first degree, meaning the value

of what was stolen exceeded $1000. Lee Dep., 25:16-18, Mar.

9, 2015; D.C. CODE § 22-3212(a). The call was puzzling given

the record evidence showing that Cities had swiped and

received approval for a $935.04 charge to Hall’s credit card

eleven minutes before the police report recorded the call from

Cities.

Police arrived and entered the bar opposite Cities.

According to Hall’s account, they found Hall in the bathroom,

announced themselves as the police and ordered Hall to open

up, almost immediately broke down the door, “slammed” her

against a wall, See Hall Dep., 49:1, Feb. 12, 2015, handcuffed

her, and dragged her out of the bar, all without asking her any

questions to verify Cities’ complaint. The police detained Hall,

restraining her in what Hall alleged and some of the evidence

confirmed to be varying positions of discomfort, for

approximately forty-five minutes.

Hall complained that her handcuffs were too tight. The

arresting officer, Alice Lee, responded by tightening the cuffs.

Lee forced Hall to her knees on the sidewalk, where Hall’s

underwear was exposed to passers-by and her knees scraped

and bruised by the concrete. Lee repeatedly tightened Hall’s

handcuffs, and even yanked Hall’s handcuffed arms behind

her. When Hall asked Lee “What’s going on?” Lee responded

“[Theft of] services.” Hall Dep. 49:18-50:4. Officer Lee did

not identify herself to Hall. Only after Lee had brought Hall

into the street could Hall read Lee’s badge number. Officer

Lee placed the handcuffed Hall in the back of a police cruiser.

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As noted above, what could be viewed as Cities’ and the

police’s over-reaction to Hall’s dissatisfaction about a liquor

charge she had not anticipated was quickly resolved as soon as

an officer listened to Hall’s version of events. While Hall was

sitting handcuffed in the police vehicle with the window down,

she asked another police officer why she was detained. When

the officer responded that Hall had walked out on her bill, Hall

objected that she most certainly had not; in fact, she had even

left her credit card with Cities’ staff. The officer went into

Cities, came out with a credit card receipt charging Hall for the

full bill and, when she promptly signed it, he released her.

Hall suffered emotional trauma, cuts and bruises, and an

injured wrist. She sued the District, Officer Lee and Lee’s

partner (an unknown John Doe officer), Cities, and its manager

Seyhan Duru. The complaint alleged excessive force and

assault and battery by Officers Lee and Doe, intentional and

negligent infliction of emotional distress by the officers and

Duru, negligence on the part of all defendants, conversion by

Cities, defamation by Cities and Duru, and false arrest and false

imprisonment in violation of state law and the United States

Constitution against the officers. Officer Doe does not seem to

have been identified and is not listed as a party on appeal. See

Appellant Br. Certificate as to Parties, Ruling, and Related

Cases.

The district court granted a motion to dismiss all claims

against the District and the officers except the common law

battery claim. Hall v. District of Columbia, 73 F. Supp. 3d 116

(D.D.C. 2014). Cities and its manager Seyhan Duru did not

file or join any motion to dismiss. The parties then conducted

discovery, deposing Hall, Officer Lee, Duru, two of Hall’s

friends—Kay Vollans and Gary Jones—who were at Cities

with her that night, and a radiologist who examined Hall’s

injured wrist after the incident Officer Lee, Cities, and Duru

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then moved for summary judgment on all remaining counts.

The court granted judgment to Officer Lee on the battery claim,

concluding that no reasonable jury could conclude that her use

of force was unjustified, and granted summary judgment to

Cities and Duru on the common law tort claims against them.

See Hall v. District of Columbia, No. 13-cv-324, 2016 WL

1452325 (D.D.C. Apr. 12, 2016). Hall appealed.

We affirm the dismissal of the intentional and negligent

infliction of emotional distress claims and the negligence

claims against Officer Lee and the District of Columbia. We

also affirm the grant of summary judgment to Duru on all

claims against him. We vacate the judgment on all remaining

claims and remand for further proceedings. The allegations of

the complaint suffice to make out claims under section 1983 of

false arrest and excessive force, as well as common law assault,

false arrest, and false imprisonment against Officer Lee. The

evidence suffices to create material factual disputes on the

common law battery claim against Officer Lee, and the

defamation, negligence, and conversion claims against Cities.

Analysis

We group the claims into three clusters for analysis, each

of which turns on one of three common issues. First, relevant

to the common law claims against Cities, did Cities employees

act reasonably and in good faith in calling the police to report

Hall’s alleged theft of services? Second, was the police arrest

and detention of Hall reasonable under the Fourth

Amendment? And, third, did police use excessive force against

Hall, or was their force justified by resistance on Hall’s part?

We apply settled District of Columbia law. Our analysis is not

intended to express any view on the ultimate resolution of

Hall’s claims, nor is it intended to modify D.C. law.

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I. Common Law Claims against Cities and Duru

Resolved on Summary Judgment

The viability of the first group of claims turns on whether

a reasonable jury would be required on the summary judgment

record to find that Cities, through its employees, acted

reasonably toward Hall, called the police in good faith, and

charged her only for what she owed, or whether Hall has triable

common law tort claims because the evidence could support

contrary determinations. The district court granted summary

judgment to Cities and its manager Seyhan Duru on all counts

against them. We review the grant of summary judgment de

novo, examining “the facts in the record and all reasonable

inferences derived therefrom in a light most favorable to” Hall.

Robinson v. Pezzat, 818 F.3d 1, 7-8 (D.C. Cir. 2016) (quoting

DeGraff v. District of Columbia, 120 F.3d 298, 299-300 (D.C.

Cir. 1997)). Because, as the district court correctly held, the

record contains no triable factual disputes material to the tort

claims against Cities employee Seyhan Duru, we affirm the

grant of summary judgment in his favor. As to Cities, however,

we conclude that material factual disputes preclude summary

judgment in its favor on all claims against it.

a. The Record Does Not Support Claims Against

Seyhan Duru

Hall’s tort claims against Duru charge him with

negligence, negligent and intentional infliction of emotional

distress, and defamation for calling the police and falsely

accusing Hall of theft. See Compl. ¶ 36. Discovery failed to

corroborate the allegation that Duru placed the 911 call.

Instead, the only record evidence directly on point identifies

manager Carla Urquhart as the Cities employee who called the

police to report that Hall refused to pay. See J.A.165; Lee Dep.,

62:6-16. Duru testified that he did not communicate with the

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police at all. See Duru Dep., 38:1-41:22, Mar. 9, 2015. The

record identifies Urquhart as someone to whom the responding

officers spoke in person. See Lee Dep., 62:6-16; see id. 29:22-

30:16. Hall failed in discovery to ask Urquhart whether Duru

or anyone else told her to call the police. In her own deposition,

Hall admitted that she had not been in a position to observe and

so could not testify who made the phone call. Hall did not

testify to any other interaction between Duru and the police.

See Hall Dep., 31:4-32:8.

Hall contends that Duru’s responsibility for calling or

directing an employee to call the police can be inferred from

Duru’s role as the manager with whom Hall spoke about the

bill. But the record does not support that inference. Hall

testified that she initially disputed the bill with Duru, and that

Duru then went to get the restaurant’s owner. The owner and

Duru then spoke with Hall’s friend, Kay Vollans, and later with

another of Hall’s friends named Alana Hill. Hall Dep. 20:20-

21:13; 23:7-25:19. Duru was not the only Cities employee to

speak with Hall or her party about the bill dispute, nor is there

any evidence that he directed anyone to call the police.

Accordingly, we affirm the district court’s grant of summary

judgment to Duru on the claims against him personally.

b. The Record Contains Triable Issues Supporting

Claims Against Cities

The district court granted summary judgment to Cities on

the ground that it was undisputed that Hall failed to pay the full

amount of her bill, making it reasonable for Cities to report her

to the police for theft of services. Hall, 2016 WL 1452325, at

*3. As we read it, however, the evidence could also support

the contrary conclusion. There are material disputes as to how

much, if anything, Hall owed when Cities reported her to the

police, how much she had paid in cash in addition to the credit

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card charges, and whether Cities acted in good faith in placing

the 911 call.

First, record evidence raises a genuine issue of material

fact as to whether Hall had left sufficient funds to cover her bill

before Cities called the police. Cities charged Hall’s credit

card $935.04—an amount that covered the food and drink

purchases on a $1,104.74 total bill but excluded a $169.70 tip.

A credit card transaction record appears to show that the credit

card company approved the charge at 9:24 p.m., eleven minutes

before police records indicated a call from Cities.

Second, the record does not establish that the tip was

mandatory. Cities’ brief in the district court contended that it

was, Hall, 2016 WL 1452325, at *3, but no witness so testified.

The record does not disclose the restaurant’s tipping policy nor

why, if the tip was mandatory, restaurant employees sought the

credit card company’s approval for only $935.04 rather than

$1,104.74. The restaurant receipt does not state that the tip is

mandatory, but ambiguously shows $169.70 on its own tip line,

before the subtotal, and invites “Add’l Tip.” J.A. 164.

Needless to say, if the tip was optional, Cities could not

reasonably have reported Hall to the police for any failure to

pay it.

Third, Hall testified that, before she went across the street,

members of her party had also put cash in the Cities bill book

to contribute toward the food and the third liquor bottle they

had ordered. Even if the tip were mandatory, a jury could

reasonably conclude the cash the guests had put in the bill

book—with the intention that Hall pocket it before paying the

whole bill with her card, or that it be subtracted from whatever

amount was ultimately charged to Hall’s credit card—sufficed

to cover the $169.70 shortfall. The record thus could support a

determination that Hall had left enough funds to pay her bill in

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full before the arrest, and that Cities knew or should have

known as much.

Fourth, there is a triable issue as to whether Hall had

abandoned the bill when the restaurant contacted police. Under

the law of the District of Columbia, leaving an establishment

without paying for services that one has reason to believe are

available only for compensation is prima facie evidence of

theft of services. D.C. CODE § 22-3211(c). Even a finding that

Hall walked out of the restaurant before the bill was paid would

not, however, obligate a jury to find theft of services. The

undisputed evidence of record could support a jury

determination that Hall did not abandon the bill because Cities

had her credit card, and that in any event she intended to return

to settle up. As noted above, when Hall went to the bar across

the street, she left her credit card and driver’s license with

Cities staff, and left birthday presents, her purse, and her cell

phone at the table in Cities, along with most members of her

party, who also consumed the food and drink that were charged

on the bill. Given all the indicia that the bill had not been

abandoned, Hall’s physical departure from Cities without her

credit card, driver’s license, other possessions, or guests is

hardly dispositive, especially given Cities’ practice of

stamping customers’ hands for re-entry.

Fifth, the record supports an inference that Cities in fact

received a windfall from Hall. Before the police released Hall

from custody, she signed a credit card receipt for $1,104.74—

the full amount of the bill, including tip. So, even if the tip

were mandatory and the cash in the bill book were less than

$169.70, the presence of some cash in the bill book that Cities

picked up and retained supports an inference that Cities

received more than the total on the bill: the $1,104.74 she

signed for in the police cruiser, plus whatever cash was in the

book.

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Sixth, the summary judgment record could support a

finding that Cities acted in bad faith by reporting felony theft—

“theft one”—defined as theft of property worth $1,000 or more.

See Lee Dep., 25:16-18 (“She was the only individual matching

that description for an alleged crime of theft one of services.”);

Lee Dep., 26:6-7 (“[W]e got the call for a theft one of services

from Cities . . . .”); compare D.C. CODE § 22-3212(a) (defining

theft in the first degree as theft of property worth $1,000 or

more and imposing penalty of up to ten years’ imprisonment),

with id. § 22-3212(b) (defining theft in the second degree as

theft of property of any value, carrying a maximum penalty of

180 days’ imprisonment). A jury could reasonably find that the

credit card company had authorized Cities’ charge of $935.04

before Cities called the police, which in turn could suggest that

Cities misrepresented to the police the amount of money that

Hall owed the restaurant: On the summary judgment record, a

reasonable jury could find that Hall arguably only owed a

maximum of $169.70 minus the cash in the book—potentially

a net negative, as just discussed, but at most a misdemeanor

amount.

The factual record, with inferences drawn in Hall’s favor,

defeats summary judgment on all claims against Cities.

Accordingly, we vacate the order granting summary judgment

to Cities and remand for further proceedings.

i. The Record Supports Defamation by

Cities

Hall has a viable defamation claim because a reasonable

jury could find on this record that Cities employees acted in

bad faith by reporting Hall to the police as having committed

felony theft. Defamation consists of:

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(1) . . . a false and defamatory statement concerning the

plaintiff; (2) that the defendant published . . . without

privilege to a third party; (3) [with] fault . . .

amount[ing] to at least negligence; and (4) either . . .

the statement was actionable as a matter of law

irrespective of special harm [i.e.the loss of something

having economic or pecuniary value caused by

someone other than the defamer,] or . . . its publication

caused the plaintiff special harm.

Williams v. District of Columbia, 9 A.3d 484, 491 (D.C. 2010);

see Charlton v. Mond, 987 A.2d 436, 438 n.4 (D.C. 2010)

(“Publication of defamatory matter is its communication . . . to

one other than the person defamed.”) (quoting RESTATEMENT

(SECOND) OF TORTS § 577(1) (1977)). A statement that falsely

imputes a criminal offense is defamatory per se. See Smith v.

District of Columbia, 399 A.2d 213, 220 (D.C. 1979); see also

Von Kahl v. Bureau of Nat’l Affairs, Inc., 934 F. Supp. 2d 204,

218 (D.D.C. 2013).

District of Columbia law provides a qualified privilege to

any person who reports a crime, as long as the “statement about

suspected wrongdoing is made in good faith to law

enforcement authorities.” Carter v. Hahn, 821 A.2d 890, 894

(D.C. 2003) (quoting Columbia First Bank v. Ferguson, 665

A.2d 650, 655 (D.C. 1995)). No privilege attaches to a

statement made “without just cause or excuse, with such a

conscious indifference or reckless disregard as to its results or

effects upon the rights or feelings of others as to constitute ill

will.” Id. (quoting Columbia First Bank, 665 A.2d at 656).

A jury could reasonably conclude that Cities acted in bad

faith when it called the police. As described above, the record

supports an inference that Cities reported Hall for theft of

services in the first degree—a felony that is triggered by theft

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of $1,000 or more. A reasonable jury could conclude that

Cities’ employees negligently made a false report, indifferent

to or reckless of its effects on Hall, for at least two reasons.

First, as discussed above, a reasonable jury could conclude that

Cities charged Hall in full or, indeed, that Cities overcharged

her by keeping the cash in the bill book as well as charging

Hall’s credit card, which a reasonable jury could also conclude,

Cities had already charged for the full amount of the party’s

food and alcohol. Second, given that the restaurant stamped

the hands of patrons upon entry in the apparent expectation that

they might come and go throughout the evening, Hall had not

retrieved the credit card and driver’s license she turned over

when the party arrived, and Hall’s friends and many of her

possessions were still at the table they had occupied with Hall

throughout the evening, a reasonable jury also could conclude

that Cities lacked any reasonable basis to believe that Hall’s

exit from the restaurant was anything but temporary.

Accordingly, we vacate summary judgment on Count VIII

alleging defamation against Cities.

ii. The Record Supports Cities’ Negligence

The same facts that support the defamation claim suffice

to create a triable issue regarding negligence. To prove a

negligence claim, a plaintiff must establish “(1) that the

defendant owed a duty to the plaintiff, (2) breach of that duty,

and (3) injury to the plaintiff that was proximately caused by

the breach.” Night & Day Mgmt., LLC v. Butler, 101 A.3d

1033, 1038 (D.C. 2014). “In the District of Columbia the

applicable standard for determining whether an owner or

occupier of land has exercised the proper level of care to a

person lawfully upon his premises is reasonable care under all

of the circumstances.” Id. (quoting D.C. Hous. Auth. v.

Pinkney, 970 A.2d 854, 866 (D.C. 2009)). Further, “[a]s a

general rule[,] the proprietor of a place of public resort is

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subject to liability to his business invitees by the acts of other

patrons or third persons if the proprietor by the exercise of

reasonable care could have known that such acts were being

done or were about to be done.” Grasso v. Blue Bell Waffle

Shop, Inc., 164 A.2d 475, 476 (D.C. 1960). There is no dispute

that Hall was lawfully at Cities and that Cities had a duty to

treat her reasonably under the circumstances. See Sandoe v.

Lefta Assocs., 559 A.2d 732, 738 (D.C. 1988). Under the

familiar respondeat superior doctrine, “an employer may be

held liable for the acts of his employees committed within the

scope of their employment.” Brown v. Argenbright Sec., Inc.,

782 A.2d 752, 757 (D.C. 2001). Thus, if Cities’ personnel

lacked grounds to conclude that Hall owed and refused to pay

an amount in excess of $1,000, then Cities may be liable for

their negligent act of reporting Hall to the police. See id. at

758.

The district court granted summary judgment to Cities on

the negligence claim because, in its view, Cities did not

proximately cause Hall’s injuries. Causation for purposes of

the negligence claim entails a two-pronged inquiry: (1)

whether the defendant’s alleged negligence was the “cause-in-

fact” of the plaintiff’s injury, and (2) whether the defendant

proximately caused the injury or instead, despite cause-in-fact,

should be relieved of liability because the “chain of events

leading to the plaintiff’s injury is unforeseeable or highly

extraordinary in retrospect.” Majeska v. District of Columbia,

812 A.2d 948, 950 (D.C. 2002) (quoting District of Columbia

v. Carlson, 793 A.2d 1285, 1288 (D.C. 2002)). Liability

attaches to one who sets in motion harmful conduct performed

by another—such as the police officers here—when “the

danger of an intervening negligent or criminal act should have

been reasonably anticipated and protected against.” Carlson,

793 A.2d at 1290 (quoting Lacy v. District of Columbia, 424

A.2d 317, 323 (D.C. 1980)).

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Based on the evidence of record, a reasonable jury could

find that Cities’ call actually caused the arrest, and that it was

foreseeable that police would arrest Hall based on Cities’ report

that Hall fled the establishment after having refused to pay a

bill that it said exceeded $1,000. There is certainly no evidence

that Duru, Urquhart, or anyone else working for Cities told the

police that arrest was unnecessary, or that they did anything but

invite and encourage it. Indeed, Hall testified that she saw

Duru standing outside staring at Hall when she was in

handcuffs in the squad car, and that he was nodding and

laughing at Hall, gloating over her arrest. See Hall Dep., 31:7-

11, 32:3-8. In sum, a jury could find both that Cities’

personnel’s call to the police was the cause-in-fact of Hall’s

arrest, and that they should have foreseen that their allegation

of facts amounting to felony theft would cause an arrest and

some associated harm, satisfying the proximate cause

requirement.

The district court further held that Cities could not have

reasonably foreseen that calling the police would result in

Officer Lee’s use of excessive force. See Hall, 2016 WL

1452325, at *3. But anticipation that the force would be

unlawfully excessive is not a prerequisite to Cities’ negligence

liability to Hall. A reasonable jury could find it foreseeable

that an unjustified arrest, even without excessive force, would

cause some modicum of the physical and emotional harm the

record suggests Hall experienced due to Cities’ 911 call. Arrest

without justification can be deeply disturbing, and arrest itself

often involves some physical discomfort, unnatural restraint,

and forceful handling.

For example, Hall testified that the arrest left her bruised

on her arm, chin, shoulder and knees, scraped at her knees, and

her wrist cut and bleeding as well as internally injured. Hall

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Dep., 80:4-82:20; J.A. 61-63. She also testified that the arrest

was a “very traumatic experience” causing her residual anxiety,

that she repeatedly remembers the day “too much for comfort,”

and that the arrest has had a “significant effect” on how and

how much she interacts with people. Hall Dep., 106:1-20. In

view of the record evidence capable of supporting a finding that

Cities’ negligent or reckless conduct proximately caused the

arrest, a jury that so found should be permitted to determine

what portion of Hall’s harm would have been reasonably

foreseeable had the arrest been unjustified but the force

reasonable. Indeed, Hall’s emotional distress alone could

support negligence liability: “[A] plaintiff may recover for

negligent infliction of serious emotional distress, even without

an accompanying physical injury, if the plaintiff was in the

zone of physical danger and was caused by defendant's

negligence to fear for his or her own safety . . . regardless of

whether plaintiff experienced a physical impact as a direct

result of defendant’s negligence.” Jones v. Howard Univ., Inc.,

589 A.2d 419, 423 (D.C. 1991) (alteration in original) (quoting

Williams v. Baker, 572 A.2d 1062, 1067 (D.C.1990) (en banc)).

iii. The Record Supports Conversion by

Cities

There is no dispute that Hall has now, at the very least,

paid Cities’ bill in full. Indeed, as noted above, there are

various ways in which the evidence could support a finding that

Hall overpaid Cities. First, the record evidence does not place

beyond dispute that the $169.70 tip on the final bill was

mandatory. A jury could find that the tip was optional, but that

Cities effectively extracted it from her with the aid of the

police, amounting to conversion. Second, even if Hall owed a

tip, the evidence showed she signed a credit card receipt for the

full amount, including that tip, and that Hall’s party also put in

the bill book cash which Cities never credited or returned to

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her. The evidence thus could readily support a determination

that Hall overpaid, having left cash, but also ultimately paying

the full amount of the bill, including tip, with her credit card.

Whether this claim is best analyzed under the conversion

doctrine as Hall asserts, see Chase Manhattan Bank v. Burden,

489 A.2d 494, 495 (D.C. 1985) (conversion doctrine imposes

liability for “any unlawful exercise of ownership, dominion or

control over the personal property of another in denial or

repudiation of his rights thereto”), or is more aptly viewed as a

claim of unjust enrichment, see Falconi-Sachs v. LPF Senate

Square, LLC, 142 A.3d 550, 556 (D.C. 2016) (unjust

enrichment occurs where “a person retains a benefit (usually

money) which in justice and equity belongs to another”), there

is a triable factual dispute over whether Hall unwillingly

overpaid Cities. The district court treated the tip as mandatory

and as unpaid, but there is no record evidence to require that

inference. See Hall, 2016 WL 1452325, at *4. Moreover, the

record could support a finding that the circumstances under

which Hall signed for the full amount of the bill—in handcuffs

in the back of a police cruiser—were coercive. See Hall Dep.

32:12-14; Appellant Br. at 22. Regardless of whether the tip

was required or Hall’s signature coerced, once Hall had signed

for $1,104.74, the cash left in the bill book was a clear windfall

to Cities. Count VII alleging conversion is thus remanded for

further proceedings.

II. Probable Cause-Related Claims Against Officer

Lee Dismissed on the Pleadings

The second cluster of claims turns on whether the police

arrested Hall without the requisite justification under the

Fourth Amendment and the common law. Unlike the claims

just discussed, which the district court disposed of at the

summary judgment stage, Officer Lee filed and the court

19

granted a motion to dismiss these claims on the pleadings under

Federal Rule of Civil Procedure 12(c). The court determined

that Hall’s own allegations supported probable cause, and that

in any event Officer Lee was entitled to qualified immunity on

the conduct alleged. It thus dismissed Hall’s section 1983 false

arrest and common law false arrest and imprisonment claims

for failure to state legally cognizable claims. Hall, 73 F. Supp.

3d at 121.

We review those determinations de novo, asking whether,

treating the plaintiff’s allegations as true and reading them in

the light most favorable to the plaintiff, the complaint shows

that defendants necessarily acted with probable cause to arrest

or, if not, whether Officer Lee would be entitled to qualified

immunity from liability for her actions. Mpoy, 758 F.3d at 287;

Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 129-30 (D.C.

Cir. 2012) (quoting Iqbal, 556 U.S. at 678). A Rule 12(c)

motion considers the defendants’ answers together with the

complaint, so we take into account Officer Lee’s Answer

asserting the affirmative defense of qualified immunity in

response to the section 1983 claims. See Defendant Officer

Alice Lee’s Answer to the Complaint at 12, 1:13-cv-00324

(filed July 11, 2013); Gomez v. Toledo, 446 U.S. 635, 640

(1980) (holding that defendant bears the burden of pleading

qualified immunity defense).

We hold that the complaint alleges action by Officer Lee

that no reasonable officer would have taken, and thus was in

violation of the Fourth Amendment and the common law. As

discussed in more detail below, we remand the false arrest and

imprisonment claims to the district court for further

proceedings. 1

1

Because she did not raise them in her briefs on appeal, Hall

forfeited her claims of intentional and negligent infliction of

20

a. Section 1983 False Arrest Claim Against

Officer Lee

Hall’s first count charged Officer Lee under 42 U.S.C.

§ 1983 with false arrest in violation of the Fourth Amendment.

Compl. ¶ 44. The Fourth Amendment requires probable cause

for any arrest. See Dunaway v. New York, 442 U.S. 200, 208-

09 (1979). Officers may conduct brief investigatory stops

supported only by reasonable suspicion, see Terry v. Ohio, 392

U.S. 1, 27 (1968), which is a “less demanding standard than

probable cause” in terms of both the reliability and the

extensiveness of the information required. Alabama v. White,

496 U.S. 325, 330 (1990); accord Navarette v. California, 134

emotional distress, and negligence by Officer Lee. See Terry v.

Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996). Hall argues that she

preserved those claims on appeal by broadly contending that “[t]he

trial [c]ourt had no legal basis to dismiss any of the Appellant’s

claims,” and that “absolutely no basis whatsoever existed for

judgment on the pleadings in any respect.” Appellant Br. at 5, 8; see

Reply Br. at 6-7. The first statement appeared in the summary of

argument and the latter in a section heading. Without any arguments

advancing the disputed claims, such blanket, conclusory assertions

are insufficient to preserve them. See Am. Wildlands v. Kempthorne,

530 F.3d 991, 1001 (D.C. Cir. 2008); see also Bryant v. Gates, 532

F.3d 888, 898 (D.C. Cir. 2008).

Hall also failed to preserve her negligence claim against the

District. Although she did include in her appellate brief a cursory

discussion of that negligence claim, see Appellant Br. at 11, Hall did

not defend it before the district court, see Hall, 73 F. Supp. 3d at 122;

see also Opposition to Motion for Judgment on the Pleadings, 1:13-

cv-00324 (filed May 6, 2014). It is therefore forfeited. See District

of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C. Cir.

1984) (“It is well settled that issues and legal theories not asserted at

the District Court level ordinarily will not be heard on appeal.”).

21

S. Ct. 1683, 1687 (2014). In her deposition, Officer Lee

characterized her encounter with Hall as a justified Terry stop.

See Lee Dep., 25:20-21. But the character of Officer Lee’s

seizure of Hall does not turn on whether she intended it to be

an arrest. And, tellingly, Officer Lee does not maintain on

appeal that the encounter was an investigative stop rather than

an arrest. Instead, she argues only that the facts pleaded

demonstrate that she acted with probable cause to arrest Hall.

See Appellee Br. 19.

For purposes of the Fourth Amendment, a stop that is

unduly prolonged or intrusive transforms from an investigative

stop into an arrest requiring probable cause. See United States

v. Sharpe, 470 U.S. 675, 685 (1985). The point at which an

investigative stop becomes an arrest is not marked with a bright

line. See id. Rather, the Court has “emphasized the need to

consider the law enforcement purposes to be served by the stop

as well as the time reasonably needed to effectuate those

purposes.” Id. In other words, investigative detention must last

“no longer than is necessary to effectuate the purpose of the

stop.” United States v. Hutchinson, 408 F.3d 796, 800 (D.C.

Cir. 2005) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)

(plurality opinion)).

Relevant to that inquiry, and particularly germane on these

alleged facts, is “whether the police diligently pursued a means

of investigation that was likely to confirm or dispel their

suspicions quickly, during which time it was necessary to

detain the defendant.” Sharpe, 470 U.S. at 686. An

investigatory stop “to maintain the status quo momentarily

while obtaining more information” would have been “most

reasonable in light of the facts known to [Lee] at the time.”

Adams v. Williams, 407 U.S. 143, 146 (1972). Hall’s complaint

alleges that Lee did not, however, undertake even the most

basic means of investigation that could “confirm or dispel [her]

22

suspicions quickly.” Sharpe, 470 U.S. at 686; accord Compl.

¶ 23. Officer Lee did not attempt to verify Cities’ contentions

before handcuffing Hall, forcibly removing her from the bar,

and putting her in the police cruiser. Compl. ¶¶ 23-28. And

Lee failed to ask simple questions that might have uncovered

that Hall had already provided her credit card, Cities may have

already charged $935.04 to that card, Hall never actually

refused to pay or left under circumstances suggesting she did

not intend to return to settle her bill, and Hall’s friends were

still present and might have had the authority and intention to

pay or to contact Hall to confirm her intentions. See Id. ¶¶ 19,

35. Moreover, Lee detained Hall for forty-five minutes, which

a jury could find to be far longer than reasonably necessary to

effectuate the purposes of an investigative stop, particularly

given that the police found Hall close to Cities and all the

relevant witnesses. On the facts as alleged, Officer Lee’s

detention of Hall amounted to an arrest.

We are mindful that courts should not indulge in

“unrealistic second-guessing” of an officer’s assessment in a

“swiftly developing situation.” Sharpe, 470 U.S. at 686. But

here, on the facts as pleaded, the matter was quickly resolved

once the police asked Hall a few, basic questions. In other

words, we need not indulge any counterfactuals. Another

officer’s actions at the scene show that, if Officer Lee had

simply asked Hall about the bill Cities claimed that Hall

refused to pay, Lee quickly would have discovered that Hall’s

arrest and detention were unnecessary and unjustified.

Having concluded that Hall’s detention was an arrest, not

a mere investigatory stop, we consider whether Officer Lee

acted with the requisite probable cause. Whether an officer

acted with probable cause is an objective inquiry, dependent on

whether the officer acted on the basis of “reasonably

trustworthy information . . . sufficient to warrant a prudent

23

[person] in believing that the [suspect] had committed or was

committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964).

The precise point at which probable cause arises is “fluid,” and

requires a “totality-of-the-circumstances analysis.” Illinois v.

Gates, 462 U.S. 213, 232, 238-39 (1983).

Probable cause to arrest requires at least some evidence

supporting each element of the offense. The complaint alleges

Officer Lee told Hall she was being detained for committing

“[t]heft of services.” Compl. ¶ 24. Prima facie evidence of

theft of services is evidence that “a person obtained services

that he or she knew or had reason to believe were available to

him or her only for compensation,” but the person “departed

from the place where the services were obtained knowing or

having reason to believe that no payment had been made for

the services rendered.” D.C. CODE § 22-3211(c). According

to the complaint, the officers acted on the basis of a phone call

from Cities accusing Hall of theft of services. See Compl. ¶ 36.

The complaint alleges the call was placed after Cities had

already charged Hall’s bill to her card and received approval

from the credit card company. The facts as alleged thus do not

support the reported theft of services. There are no allegations,

moreover, that officers took even the simplest steps to verify

the details of the ostensible payment refusal. Taking the

allegations of the complaint in the light most favorable to Hall

and in the absence of information to corroborate Cities’

assertions that Hall abandoned her bill, the district court could

not conclude as a matter of law that the police had probable

cause to conclude that Hall had committed or was committing

theft of services.

A phone call from a member of the public lodging a

complaint is not alone probable cause when the caller is not

known to the police as reliable and when the complaint could

readily be verified but is not (as here, where the police failed to

24

ask Hall whether she in fact refused to pay)—at least in a

circumstance such as the complaint Cities lodged here, which

did not implicate an emergency situation, threatening conduct,

a matter of public safety, or similar urgent concerns. See

Adams, 407 U.S. at 146-47 (known reliable informant’s tip

“that was immediately verifiable at the scene” supported

reasonable suspicion to justify a stop, but “may have been

insufficient for a[n] arrest or search warrant”); see also

Navarette, 134 S. Ct. at 1692 (describing as a “close case,” but

finding police had reasonable suspicion for a brief investigative

stop of vehicle based on anonymous 911 call reporting that a

specific vehicle had run caller’s car off the road); Florida v.

J.L., 529 U.S. 266, 272-73 (2000) (holding anonymous tip that

accurately described subject’s location and appearance, but did

not show reliability in its “assertion of illegality,” did not

provide reasonable suspicion, while acknowledging potential

“circumstances under which the danger alleged in an

anonymous tip might be so great as to justify a search even

without a showing of reliability.”). If it were otherwise,

members of the public could routinely call the police and, on

the caller’s word alone, get their enemies locked up.

The decisions of courts reviewing similar circumstances

reinforce the inadequacy of the facts as alleged to show

probable cause. In Moore v. Marketplace Rest., Inc., 754 F.2d

1336 (7th Cir. 1985), police responded to a call from a manager

at the Marketplace Restaurant who told them that five people

consumed drinks, soups, and salads and left without paying. Id.

at 1340. The manager described the suspects and their

vehicles, said the suspects were staying overnight at a nearby

camping area, and said they would press charges should the

suspects be apprehended. Id. Police went to the campground,

found the vehicles the manager had described, and knocked on

the doors of the campers in which the suspects were sleeping.

The officers entered the campers, asked whether the occupants

25

had been at the Marketplace Restaurant and, upon hearing they

had, arrested them all. The officers took the suspects to jail

where they detained them for approximately four hours. Id. at

1340-41.

The Moore court lamented that the “entire episode [might]

have been avoided if the officer[s] . . . had used reasonable

judgment and conducted a proper investigation, inquiring both

as to the plaintiffs’ presence in the restaurant and the dispute

over the bill.” Id. at 1345-46. The record showed the campers

presented no risk of flight nor any danger to officers. There

was no allegation of any serious crime; only a small dinner bill

was at stake in the claimed theft of services. Id. at 1345.

Therefore, the court determined, the deputies’ investigation at

the scene was potentially insufficient and the potential want of

probable cause remained an open jury question. Id. at 1347.

Similarly, in Allen v. City of Portland, 73 F.3d 232 (9th

Cir. 1995), a family of three attempted to use a half-price

coupon to pay for part of their $25 meal. Id. at 234. The

restaurant told them the coupon could not be used. Id. In

protest, the family left $15 and the coupon to cover the meal.

Id. The restaurant called 911 and reported a theft. Id. A

responding officer testified that the reported theft “did not seem

to be [of] a very large amount.” Id. Nonetheless, officers

tracked the family to a second restaurant where the family had

relocated, followed one of the family members into the

women’s restroom, and “after a brief discussion told [the

woman] that she was under arrest.” Id. Before the arrest, the

woman acknowledged that there had been a dispute over the

cost of the meal and did not claim to have paid the full price

demanded, but the court held that the officers lacked probable

cause to arrest. Id. at 234-35.

26

When pressed at oral argument for any more direct

support, the District of Columbia cited Royster v. Nichols, 698

F.3d 681 (8th Cir. 2012), but that decision also fails to support

a determination that the officers had probable cause in this

case. In Royster, the Eighth Circuit concluded that police had

probable cause to arrest Royster for theft of services after he

refused to sign his credit card receipt when prompted to do so

by the police. Id. at 684-86, 689-90. Here, Hall did just the

opposite.

Finally, Officer Lee asserts qualified immunity. Qualified

immunity shields officers from suit for false arrest when, “in

light of clearly established law and the information the

[arresting] officers possessed,” a reasonable officer could have

believed the arrest was lawful. Hunter v. Bryant, 502 U.S. 224,

227 (1991) (per curiam) (alteration in original) (quoting

Anderson v. Creighton, 483 U.S. 635, 641 (1987)); accord

Barham v. Ramsey, 434 F.3d 565, 573 (D.C. Cir. 2006). In

other words, “if a reasonable officer could have believed that

probable cause existed” to arrest Hall on the facts as Hall

alleged them, Officer Lee would be entitled to immunity.

Hunter, 502 U.S. at 228. Cities’ phone call giving a one-sided

and uncorroborated account of events was not “reasonably

trustworthy information . . . sufficient to warrant a prudent

[officer] in believing” that Hall committed theft of services. Id.

No reasonable officer would have arrested Hall for theft of

services, as Officer Lee did, without even attempting to verify

that Hall indeed refused and did not intend to pay her bill.

Because on the allegations of the complaint Lee’s

detention of Hall constituted a de facto arrest, and Lee acted

without probable cause or even a reasonable claim thereto,

judgment on the pleadings was not warranted on Hall’s section

1983 false arrest claim against Lee.

27

b. Common Law False Arrest and

Imprisonment Claims Against Officer Lee

The lack of probable cause for Hall’s arrest also supports

vacatur of the order dismissing on the pleadings Hall’s

common law false arrest and imprisonment claims.

Under D.C. common law, false arrest and false

imprisonment are as a practical matter indistinguishable.

Enders v. District of Columbia, 4 A.3d 457, 461 (D.C. 2010).

The essential elements of liability are “(1) the detention or

restraint of one against his or her will, and (2) the unlawfulness

of the detention or restraint.” Id. (quoting 32 AM. J UR. 2d § 7

(2007)); see also Harris v. U.S. Dep’t of Veterans Affairs, 776

F.3d 907, 911-12 (D.C. Cir. 2015). The central question here

is whether the arrest was justified—that is, whether it was

supported by probable cause. As we discussed above, the

allegations of the complaint do not show probable cause to

arrest Hall. Accordingly, judgment on the common law false

arrest and imprisonment claims against Officer Lee is vacated.

III. Excessive Force Claims Against Officer Lee

Finally, we turn to the third question in our analysis: Did

police use excessive force against Hall, or was their use of force

justified by resistance on Hall’s part? Hall’s complaint alleged

three counts that hinge on this question: Count I’s section 1983

excessive force claim, Count II’s common law assault claim,

and Count III’s common law battery claim. 2 The district court

2

The district court dismissed the entirety of Count I on the pleadings

based on its conclusion that the officers acted with probable cause to

arrest Hall, seemingly confining its analysis to a section 1983 false

arrest claim. Hall, 73 F. Supp. 3d at 120-21. It is not apparent why

the court did not read Count I to assert a section 1983 excessive force

28

dismissed the excessive force and assault claims on the

pleadings, and granted summary judgment against Hall on the

battery claim. We review both types of disposition de novo and

draw all inferences in Hall’s favor. For the former, we look

only to the facts as pleaded; for the latter, we have the benefit

of evidence produced during discovery. See Mpoy, 758 F.3d at

287; Robinson, 818 F.3d at 8.

a. Facts as Pleaded Support Claims of

Unconstitutional Excessive Force and

Common Law Assault

As pleaded, the facts relevant to Lee’s use of force are as

follows: Hall was in the bathroom of the bar across the street

from Cities when there was a knock at the door, to which Hall

responded, “Someone’s in here.” Compl. ¶ 21. Then came a

louder knock and the statement, “It’s the police.” Id.

“Immediately thereafter,” without awaiting a response, Lee and

her partner “broke down” the bathroom door, “threw [Hall] up

against the bathroom wall,” and handcuffed her. Id. ¶ 22. Lee

then “dragged” Hall out of the restaurant. Id. ¶ 24. Outside the

restaurant, Lee “continued to tighten the handcuffs on [Hall’s]

wrists to the point that [Hall] lost feeling in her thumb and hand

and told [Lee] that she was hurting [Hall], but [Lee] still

retained a firm grip on [Hall’s] upper right arm, enough to leave

a full handprint bruise.” Id. ¶ 26. Lee then “dragged” Hall to

a police cruiser and “threw” Hall in the back seat. Id. ¶ 28.

claim as well. The complaint spells out that “Defendants Lee and

John Doe substantially and meaningfully deprived Plaintiff of her

right to be secure in her person under the Fourth Amendment,

subjected Plaintiff to objectively excessive and excessive use of

force which were unreasonable and constitute[d] an unlawful

seizure.” Compl. ¶ 45.

29

i. Section 1983 Excessive Force

We analyze a section 1983 claim of excessive force in

violation of the Fourth Amendment under the constitutional

“objective reasonableness” standard. Cty. of Los Angeles v.

Mendez, 137 S. Ct. 1539, 1546 (2017) (quoting Saucier v. Katz,

533 U.S. 194, 207 (2001)); accord Graham v. Connor, 490

U.S. 386, 396 (1989). We assess whether the use of force was

reasonable by balancing the “nature and quality of the intrusion

on the individual’s Fourth Amendment interests against the

importance of the governmental interests alleged to justify the

intrusion.” Tolan, 134 S. Ct. at 1865 (quoting Tennessee v.

Garner, 471 U.S. 1, 8 (1985)). We pay “careful attention to

the facts and circumstances of [the] particular case, including

the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officer or others, and

whether [s]he is actively resisting arrest or attempting to evade

arrest by flight.” Johnson v. District of Columbia, 528 F.3d

969, 974 (D.C. Cir. 2008) (first alteration in original) (quoting

Graham, 490 U.S. at 396). “An officer’s act of violence

violates the Fourth Amendment’s prohibition against

unreasonable seizures if it furthers no governmental interest,

such as apprehending a suspect or protecting an officer or the

public.” Id. at 976. Because Officer Lee raised a defense of

qualified immunity, we analyze the excessive force claim with

an additional layer of protection for the officer, asking whether

the violated right was clearly established. See Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (per curiam); Saucier, 533

U.S. at 200-02.

The complaint alleges that Officer Lee “threw Plaintiff up

against the bathroom wall,” “dragged Plaintiff out of the [bar],”

“tighten[ed] the handcuffs on Plaintiff’s wrists to the point that

Plaintiff lost feeling in her thumb and hand,” “dragged Plaintiff

to an empty parked police cruiser . . . and threw Plaintiff in the

30

back seat.” Compl. ¶¶ 22, 24, 26, 28. It further alleges that

Officer Lee thereby injured Hall’s wrist. Id. ¶ 32. The

complaint contains no indication that Hall posed any threat to

Lee or others, or that Hall had committed a serious crime. On

the facts as the complaint describes them, Lee’s force was

without justification, and the excessive force claim should not

have been dismissed on the pleadings. We vacate the dismissal

and remand the claim for further proceedings.

ii. Assault

The same allegations that support the claim of excessive

force against Lee also require reversal and remand of the

district court dismissal of the assault claim. “An assault is an

intentional and unlawful attempt or threat, either by words or

by acts, to do physical harm to the victim.” Evans-Reid v.

District of Columbia, 930 A.2d 930, 937 (D.C. 2007) (internal

quotation marks omitted). The district court held that the

complaint fails to allege “that the officers made any threats of

harm which were objectively unreasonable.” Hall, 73 F. Supp.

3d at 121. We read the complaint to allege a course of conduct

that conveyed a threat to Hall, reasonably causing her to fear

for her safety. Officers broke down the bathroom door, threw

Hall up against a wall, dragged Hall around, and tightened her

cuffs when she protested that she was in pain. The officers did

so abruptly and without warning, ignored her queries and

objections, and refused to identify themselves or explain what

was going on. Those allegations are fairly read to claim not

only excessive use of force, but also a threatening message of

more brutality in store for Hall if she questioned the officers’

actions.

31

b. Facts Revealed Through Discovery Support

the Battery Claim Against Officer Lee

Hall’s testimony corroborated and added detail to the

complaint’s allegations; nothing in discovery indisputably

defeated any material aspect of the allegations that stated the

excessive force claims. For instance, Hall testified that, after

police knocked on the single-occupancy bathroom door and

yelled, “Open up, it’s the police,” Hall let out a “small giggle,”

but before she “even ha[d] time to think about opening the

door,” the officers broke it down and slammed Hall against the

wall. Hall Dep., 47:15-48:6. Hall testified that when she

complained to Officer Lee “that the handcuffs were too tight,”

Lee told Hall to “shut up” and then Officer Lee “pushed the

sides to tighten” the cuffs. Id. at 51:20-52:6. When Hall

complained again and stated that her thumb was going numb,

Lee told her to “[s]hut up” and “stop resisting.” Id. at 54:7-11.

Officer Lee twice tightened Hall’s handcuffs in response to

Hall’s complaints. Id. at 73:10-18. Officer Lee forced Hall

down on her knees on the concrete, scraping and bruising her.

Id. at 80:19-22. Lee held Hall there with her knee in Hall’s

back. Id. at 58:17-19. When Hall attempted to stand up with

her hands cuffed behind her, Officer Lee grabbed Hall by her

elbows behind her back and “yanked” her up. Id. at 54:22.

Eventually, Lee “drag[ged]” Hall to a police cruiser and threw

her in the backseat. Id. at 63:12-13.

Two of Hall’s friends who witnessed the scene

corroborated her testimony. Kay Vollans, who was with Hall

in the bathroom of the bar, testified that police kicked in the

door and that Lee dragged Hall out of the bar. Vollans Dep.,

23:15-23:17; 25:22-26:11, Mar. 19, 2015. Once outside,

Vollans testified, Lee forced Hall to her knees on the concrete

sidewalk, and lifted Hall’s hands behind her back and pointed

them to the sky while Hall was handcuffed. Id. at 29:17-20;

32

34:4-10. Hall’s complaints of pain throughout the interaction

were met with commands to shut up. Id. at 37:4-17. Gary

Jones also testified that Lee dragged Hall out of the bar and that

when Hall was on the ground, Lee put her knee in Hall’s back

while pulling Hall’s arms up behind her by the cuffs. Jones

Dep., 27:3-28:21; 36:16-18, Mar. 19, 2015.

Officer Lee’s testimony characterized the interaction

differently. She testified that her partner, a male officer, was

the one who “grabbed” Hall in the bathroom and handcuffed

her. Lee Dep., 25:1-8. Officer Lee testified that police

handcuffed Hall because she fit the description of a black

female wearing a yellow sundress who had reportedly

committed “theft one of services,” a felony. Id. at 25:14-18.

According to Lee, Hall was considered a flight risk because she

had left Cities. Id. at 26:4-16. Lee testified that she “placed”

Hall down on the sidewalk; she later testified that she did so for

fear that Hall might “stumble and fall,” given her high heels.

Id. at 65:18-66:2. And Lee testified that Hall was “screaming,

and shouting, and fighting, and pulling away,” and was

generally “not compliant.” Id. at 28:10, 65:15.

Finally, the parties devote multiple pages in their appellate

briefs to arguing over the severity of Hall’s wrist injury and its

relevance to the analysis. See Appellant Br. 13 (arguing that

Hall was diagnosed with and treated for a broken wrist);

Appellee Br. 31-33 (arguing the “undisputed medical records

show that Ms. Hall did not fracture her wrist”). The record

shows that Hall was initially diagnosed with a potential wrist

fracture, but that follow-up with a radiologist called that

diagnosis into question. In any event, a reasonable jury could

conclude on the summary judgment record that Hall

experienced pain, numbness, limited mobility in her wrist and

hand, and scrapes and bruises. The particular medical

diagnosis of Hall’s wrist injury is not determinative of whether

33

Officer Lee used excessive force. With the record evidence in

mind, we move to the battery claim, dismissed by the district

court at summary judgment.

Discovery corroborated Hall’s allegations that Lee used

force against her without justification, creating a jury issue on

the battery claim. A police officer is liable for battery when

she commits an “intentional act that causes harmful or

offensive bodily contact” and when the officer’s use of such

force was “in excess of [that] which the actor reasonably

believes to be necessary.” District of Columbia v. Chinn, 839

A.2d 701, 705-06 (D.C. 2003) (quoting Holder v. District of

Columbia, 700 A.2d 738, 741 (D.C. 1997)). “[T]he officer

must subjectively believe that he or she used no more force than

necessary, but the officer’s judgment is [also] compared to that

of a hypothetical reasonable police officer placed in the same

situation.” Scales v. District of Columbia, 973 A.2d 722, 730

(D.C. 2009).

The district court granted summary judgment to Officer

Lee on the battery claim, reasoning that Hall’s own testimony

put beyond dispute that she was resisting arrest sufficiently to

justify Lee’s use of force. In our view, however, a reasonable

jury could reject Officer Lee’s contention that, starting when

Hall did not immediately open the bathroom door in response

to the police directive to “[o]pen up,” Hall resisted the officers

and thereby justified their use of force. See Hall, 2016 WL

1452325, at *2. The record could support a jury determination

that the officers did not give Hall an opportunity to comply

with their command to open the bathroom door before

“bust[ing]” through the door. See Hall Dep., 48:3.

The district court also concluded that the record placed

beyond dispute that Hall resisted arrest after she was

handcuffed on the ground because, as the district court put it,

34

she “moved and behaved in ways that a police officer could

reasonably conclude were meant to defy arrest.” Hall, 2016

WL 1452325, at *3. The court recounted that Hall’s testimony

showed that she “tried to stand after Lee had forced her to

kneel, and moved abruptly, even ‘swing[ing] around,’ during

the arrest.” Id. Reasonable jurors could disagree, however,

whether Hall’s movements were resistant, and whether Officer

Lee’s use of force was an appropriate response. Hall testified

that she complained about her handcuffs being too tight, and

that Lee responded by tightening the handcuffs. Hall Dep.,

51:20-52:6. Hall tried to stand up because her knees were cut

from being forced to kneel on concrete, in response to which

Lee “grabbed [Hall by her] elbows and yank[ed her] up.” Id.

at 54:17-22. Hall’s friends both corroborated Hall’s testimony.

And, given Officer Lee’s failure to explain to Hall that she was

under arrest or to articulate why Hall was being detained—

beyond saying “theft of services,” which Hall apparently heard

as “[t]hat’s the services,” id. at 50:2-4—a jury could determine

that Hall’s attempts to view Lee’s badge number were

appropriate, non-resistant conduct. Most importantly, a

reasonable jury could find on these facts that Officer Lee

should have perceived that she could resolve the situation

without physical force. At summary judgment, when we are

required to view the record in the light most favorable to Hall,

we cannot say that a reasonable jury would be required to find

that, given Hall’s conduct, Officer Lee’s force was justified.

Conclusion

We affirm summary judgment on the negligence,

negligent and intentional infliction of emotional distress, and

defamation claims against Seyhan Duru. We affirm, as

forfeited on appeal, dismissal of the negligence claim against

the District and Officer Lee as well as the negligent and

intentional infliction of emotional distress claims against Lee.

35

We vacate the district court’s grant of summary judgment to

Cities on the negligence, conversion, and defamation claims

against it. We also vacate the dismissal of Hall’s section 1983

excessive force and false arrest, common law false arrest and

imprisonment, and assault claims against Officer Lee. Finally,

we vacate summary judgment on the battery claim against

Officer Lee. We remand the surviving counts to the district

court for further proceedings.

So ordered.