Petition for Writ of Certiorari — Arlington County v. Biscoe

Supreme Court brief1985

Ask Donna

What actually matters in this document.

Text

~~ | Oftice Supretne C vurt. U.S.

84-777 | FILED

' NOY 13 i984

No. :

IN THE past ae

Supreme Court of the United States

OCTOBER TERM, 1984

ARLINGTON COUNTY

and

MICHAEL KYLE,

: Petitioners,

ALVIN B. BISCOE, JR.

and

ELEANOR L. BISCOE,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

WILLIAM A. KAPLIN WILLIAM D. DOLAN, III

ROBERT A. DESTRO NINA A. PALA

4141 North Henderson Rd. DOLAN, TREANOR, MURRAY

Plaza Suite Three & WALSH

Arlington, Virginia 22203 4141 North Henderson Rd.

Plaza Suite Three

- aepming ahi = Arlington, Virginia 22203

DEWEY, BALLANTINE, BUSHBY, (703) 243-5000

PALMER & Woop CHARLES G. FLINN

1775 Pennsylvania Avenue, N.W. County Attorney

Suite 500 1400 North Courthouse Road

Washington, D.C. 20006 Arlington, Virginia 22201

Of Counsel (703) 558-2705

PAUL F. SHERIDAN

-SICILIANO, ELLIS, SHERIDAN

& DYER

10521 Judicial Drive

Suite 300

Fairfax, Virginia 22030

(703) 385-6692

Attorneys for Petitioners

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether the D.C. Circuit erroneously decided the

question that this Court reserved in Nevada v. Hall—

namely, whether a forum state is constitutionally free to

apply the forum’s law and ignore important sister state

law enforcement policies, when the forum state’s action

will interfere with the sister state’s “capacity to fulfill

its own sovereign responsibilities”?

2. Whether the D.C. Circuit misapplied this Court’s

decision in Nevada v. Hall (a) by imposing liability for

law enforcement activities committed within the sister

state’s borders, (b) by unconstitutionally imposing more

stringent liability rules on out-of-state police than those

applicable to D.C.’s own police officers, (c) by ignoring

the very strong interest of Virginia in enforcing its laws

through fresh pursuit of individuals who have committed

crimes within that State and then fled to D.C., (d) by

failing to acknowledge that D.C.’s policies do in fact sup-

port recognition of Virginia’s rules on immunity, and

(e) by ignoring Congressional intent in enacting the D.C.

Fresh Pursuit Act?

3. Whether the application of a higher standard of

liability to a foreign police officer performing his duties

within the forum state (at the invitation of the forum

state) than the standard which would be applied to a

forum state’s officer is violative of the Privileges and

Immunities Clause (Article IV, § 2) and the Equal Pro-

tection Clause (Amendment XIV) of the Constitution?

(i)

TABLE OF CONTENTS

Page

GUESTIONS PRESENTED ...............-.2.......-.-0000-00-0-00-s- i

TABLE OF AUTHORITIES .......... ; ISR Re hee Te iv

I csceenncustcuaneunenes 1

GROUNDS OF JURISDICTION ........020002002 eee. 2

STATUTES AND CONSTITUTIONAL PROVISIONS

Ks, en 1S RS TT ae RR _

Siemens OF fee GABE sB.............-..................... 3

REASONS FOR GRANTING THE WRIT .................... 4

1. The D.C. Circuit in this case has allowed a

forum state to interfere with a sister state’s

sovereign law enforcement responsibilities _....... 4

2. This case squarely raises the issue on which

this Court reserved decision in Nevada v. Hall

—which this Court should now decide ................ 7

3. The D.C. Circuit’s opinion misreads and mis-

applies Nevada v. Halil to such an extent that it

will foster serious clashes between sister states

if this Court does not correct the erroneous in-

a eaiianbiaaemeen 8

4. This Court should correct a growing tendency of

lower courts to misinterpret Nevada v. Hall to

permit a forum state to refuse to enforce a sister

state’s immunity rules even if such a refusal

interferes with a sister state’s capacity to fulfill

its own sovereign responsibilities -....................... 14

5. This Court should prevent the discriminatory

treatment of foreign police officers performing

their duties in another state as such treatment,

in violation of the Privileges and Immunities

and Equal Protection Clauses, impairs the fun-

damental unity of the Nation ............................ 17

a asian aot in ah epibiiantinysenicunetonprinenoncane 19

TABLE OF CONTENTS—Continued

APPENDIX Page

Opinion of the United States Court of Appeals for

the District of Columbia Circuit (July, 1984) .... la

Opinion of the United States District Court for the

District of Columbia (August, 1983) —................... 30a

ok Ro SS OM | een eens nen ene eee 39a

oe Fi Rt. AE Seeeeemrenneemmcanenenemnmnneennenr 39a

8 Gi" So © + A | RR naceneneen ee on 39a

TABLE OF AUTHORITIES

CASES Page

Allstate Ins. Co. v. Hague, 449 U.S. 302 (1980)... 8

Austin v. New Hampshire, 420 U.S. 656 (1975).... 17,18

Baldwin v. Montana Fish and Game Commission,

ee es ee worctinsctthcatenbicethtiedacebiaiens 17

Biscoe, et al. v. Arlington County, et al., 738 F.2d

Be Se Ce OD acetic en cccsececetere nese 1, 4, 9, 10, 12

Bolling v. Sharpe, 347 U.S. 497 (1954) ................. 18

Erie v. Tompkins, 304 U.S. 64 (1988) ....00...000000.2.. 6

Foley v. Connelie, 485 U.S. 291 (1978) ........000....... 4

Hicklin v. Orbeck, 487 U.S. 518 (1978) ........02....... 17, 18

Messina v. Burden, No. 81-1485, slip op. (Va. Oct.

SE EY cei sistecetesnicas dedhbetanababadadilathibantcesinesdommeniesines 4,5

Mianecki v. Second Judicial District Court, 658

P.2d 422 (Nev. 1983), cert. dismissed for want

of final judgment, USS. (| ae 15

Nevada v. Hall, 440 U.S. 410 (1979) _.000- ee. passim

Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) _...... 17

Peterson v. Texas, 635 P.2d 241 (Colo. App. 1981).. 15

Toomer v. Witsell, 334 U.S. 385 (1948)... 18

Troyer v. Town of Babylon, 483 F. Supp. 1135

(E.D. N.Y.), aff'd sub nom. Town of South-

ampton v. Troyer, 449 U.S. 988 (1980) ............. 18

Shapiro v. Thompson, 394 U.S. 618 (1969) ............. 18

Struebin v. Iowa and Illinois, 322 N.W.2d 84 (Iowa

BD ices FO ec ee 2 eS es | Se Se RO 16

United Building and Construction Trades Council

v. Camden, 465 U.S. ——, 104 S. Ct. 1020

aE REET eee Ree RROD OS COTE BOF eT 17

Wendt v. County of Osceola, Iowa, 289 N.W.2d

Br Is IT iscecctiiasiccctets Sie cshaccdininieaninstncidbecainn 16

CONSTITUTIONAL PROVISIONS

i YS A © Seance ae mene ran 2, 7, 8, 14,17

pis | Ye 8 Reeenenee pneer en uanmenTIaE te 2,17,18

Fi EI MING SIE Wo OF Bicciscscsic cca nssaccecccctvendcnscoctabaans 2,18

Eh, EONS eee SRR CNE ee nn 18

TABLE OF AUTHORITIES—Continued

STATUTES Page

United States Code

28 U.S.C. § 1264(1) (1962) ............................... 2

D.C. Code Annotated

D.C. Code Ann. § 23-901 (1981 ed.) ................. 2,10, 13

D.C. Court Reform and Criminal Procedure Act of

1970. Pub. L. No. 91-358, 84 Stat. 634 (1970)... 2

Virginia Code Annotated

TC TA, © TI xe essiincsceciernncinsstancernenicnss 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No.

ARLINGTON COUNTY

and

MICHAEL KYLE,

. Petitioners,

ALVIN B. BISCOE, JR.

and

ELEANOR L., BISCOE,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA C’RCUIT

Petitioner Arlington County prays that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Appeals for the District of Columbia Circuit in

this case.

OPINIONS BELOW

The opinion of the U.S. Court of Appeals for the Dis-

trict of Columbia Circuit is reported at 738 F.2d 1352

(D.C. Cir. 1984) and is included in the Appendix to this

petition at A-1. The order of the Court of Appeals deny-

ing rehearing sought by Petitioners, and the judgment of

the Court of Appeals was entered on August 17, 1984.

GROUNDS OF JURISDICTION

The original judgment of the U.S. Court of Appeals for

the District of Columbia Circuit was entered on July 6,

1984. Petitioners’ timely petition for rehearing was de-

nied on August 17, 1984, and this petition for certiorari

was filed within 90 days of that date. Jurisdiction of this

Court is conferred by 28 U.S.C. § 1254(1) (1982).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

This case involves an Act of Congress, the D.C. Fresh

Pursuit Act, which was enacted as part of the D.C. Court

Reform and Criminal Procedure Act of 1970. Pub. L.

No. 91-358, 84 Stat. 634 (1970):

Arrests in the District of Columbia

by officers of other States.

Any member of a duly organized peace unit of any

State (or county or municipality thereof) of the

United States who enters the District of Columbia in

fresh pursuit and continues within the District of

Columbia in fresh pursuit of a person in order to

arrest him on the ground that he is believed to have

committed a felony in such State shall have the same

authority to arrest and hold that person in custody

as has any member of any duly organized peace unit

of the District of Columbia to arrest and hold in cus-

tody a person on the ground that he is believed to

have committed a felony in the District of Columbia.

This section shall not be construed so as to make un-

lawful any arrest in the District of Columbia which

would otherwise be lawful.

D.C. Code Ann. § 23-901 (1981 ed.). This case also in-

volves the Full Faith and Credit and the Privileges and

Immunities Clauses of Article IV of the Constitution and

the Equal Protection Clause of the Fourteenth Amend-

ment to the Constitution. The relevant portions of these

constitutional provisions are found at p. 39a of the

Appendix.

STATEMENT OF THE CASE

This case involves the efforts of an Arlington County,

Virginia police officer to apprehend professional bank

robbers who had come from D.C. and robbed a savings

and loan in Arlington. The Arlington County officer,

Michael Kyle, stopped the robbers’ car on the E Street

ramp off the Theodore Roosevelt Bridge as the robbers

fled back to the District. The robbers then escaped from

the officer and fired shots at the officer as they resumed

their flight at high speed through the E Street Express-

way exit off the Roosevelt Bridge. The robbers’ car col-

lided with another car within one and a half blocks of

emerging from the E Street tunnel and injured a pedes-

trian. The Arlington County police car was well behind

the robbers’ car at the time of the accident and was not

involved in the collision. The entire series of events from

the stop on the bridge through the collision took less than

a minute.

The pedestrian and his wife sued the police officer and

Arlington County, alleging, inter alia, that Arlington

County negligently trained and supervised police officer

Kyle, that the police procedures utilized in the stop on

the bridge negligently allowed the robbers to escape and

that the pursuit of the robbers by officer Kyle for a few

hundred yards on the E Street Expressway was negligent.

The jury found that Arlington County was negligent

in its training and supervision of officer Kyle and that

officer Kyle was negligent in his conduct of the felony

stop and in his pursuit of the robbers’ vehicle. The jury

returned a verdict of $4 million for the plaintiff and $1

million for plaintiff’s wife. (The verdict in favor of the

wife was reduced to $350,000 on remittitur. )

REASONS FOR GRANTING THE WRIT

1. The D.C. Circuit in this case has allowed a forum

state to interfere with a sister state’s sovereign law

enforcement responsibilities.

This case involves one of the most important (if not

the most important) function of a sovereign state—the

enforcement of the state’s criminal laws. This Court has

specifically recognized that law e forcement is “one of the

basic functions of government, especially in a complex

modern society where police presence is pervasive. The

police function fulfills a most fundamental obligation of

government to its constituency.” Foley v. Connelie, 435

U.S. 291, 297 (1978).

As the Court of Appeals itself recognized, a state’s im-

munity policy in the area of law enforcement “no doubt

. . . reflects the state’s concern that the prospect of lia-

bility will deter police officers from proper performance

of their duties.” 738 F.2d at 1360. Thus Virginia’s rule

of law that counties are absolutely immune from suit with

respect to acts of county police officers’ reflects, in the

area of criminal law, a strong state policy to avoid deter-

ring vigorous law enforcement.

As the Virginia Supreme Court has recently stated:

... the doctrine of sovereign immunity is ‘alive and

well’ in Virginia. Though this Court has, over the

1 Virginia has made it clear that the individual employee, of an

immune local government, must share in that immunity:

... in order to fulfill those purposes [of sovereign immunity!

the protection afforded by the doctrine cannot be limited solely

to the sovereign ... . limiting protection to the [county] itself

does nothing to insure that officials will act without fear.

Messina v. Burden, No. 81-1485, slip op. at ——— (Va. Oct. 12, 1984).

In Messina, the Virginia Supreme Court held that County employees

must be afforded immunity when their activities involve “judg-

ment and discretion,” the County exercises administrative control

over them and has a clear interest in the work performed by them.

years, discussed the doctrine in a variety of contexts

..., we have never seen fit to abolish it. Nor does

the General Assembly want it abolished... .

. without the doctrine there would exist incon-

venience and danger to the public in the form of pub-

lic officials being fearful and unwilling to carry out

their public duties.

Messina v. Burden, No. 81-1485, slip op. at —— (Va.

Oct. 12, 1984).

Yet the decision of the D.C. Circuit in this case would

allow a lay jury in the forum state to second guess pro-

fessional police decisions made by the police of a neigh-

boring state such as:

® the way the police officer positioned his police car

when he stopped the suspects’ vehicle;

®the steps the officer took—or failed to take—to

secure the suspects following the stop;

® the actions of the dispatcher in allowing the stop

to proceed without waiting for back-up units;

® the training and supervision of the officer with re-

spect to these matters.

It is particularly notew: -thy that the forum state jury

was allowed to review—and judge—the quality and ade-

quacy of the training and supervision provided by an-

other state in that state to that state’s own police officers.

It is frankly difficult to imagine an example of more

direct interference in sovereign law enforcement policies

of one sovereign state by the courts of another. From the

point of view of this Court, the question is not whether

such interference through the imposition of civil negli-

gence liability is good policy or bad policy. The issue for

this Court is the clash of interests between two sovereign

states. In the present case, the D.C. Circuit takes the

position (1) that the District of Columbia permits lsy

juries to impose liability based on review of these types

of police decisions made by D.C. police officers;? (2) that

Virginia does not permit lay juries to impose liability

based on this type of review; but (3) that the forum state

—in this case, the District of Columbia—may impose the

views of its lay juries on the law enforcement authori-

ties of Virginia. The authority cited for this proposition

is this Court’s decision in Nevada v. Hall, 440 U.S. 410

(1979).

The ironic result of the D.C. Circuit’s reasoning will

be that Maryland and the District of Columbia will set

the standards for the training and supervision of Vir-

ginia state and county policemen while Virginia courts

are foreclosed from such standard setting. Such a result

with respect to the sovereign exercise of law enforcement

powers is simply not consistent with the cooperative fed-

eralism established by the Constitution.

2 It is worth noting for the record that the D.C. Circuit’s inter-

pretation of D.C. law in fact dramatically expands the exposure of

the District to negligence lawsuits. The law in the District of

Columbia has always distinguished between “discretionary” activi-

ties immune from suit and “ministerial” activities that are subject

to suit. The D.C. Circuit’s opinion distorts this ministerial /discre-

tionary dichotomy essentially beyond recognition to achieve an ex-

traordinary expansion of the types of actions of D.C. police officers

that would be subject to suit. The D.C. Circuit does so by utilizing

selective quotations from the language of various opinions to

emphasize a distinction—created entirely by the D.C. Circuit’s

opinion—between “day-to-day operational matters” and “planning

and policy.” It is precisely by abandoning the established test for

distinguishing “discretionary” from “ministerial” actions—and

moving to an exclusive emphasis on “operational” decisions con-

trasted with “policy” decisions—that the D.C. Circuit has so

radically extended the liability to which police officers and their

employers are and will be subject. Even aside from the fact that

the D.C. Circuit has no authority to revise the substantive tort law

of the District of Columbia and has usurped the authority of the

D.C. Court of Appeals, see Erie v. Tompkins, 304 U.S. 64 (1938),

the D.C. Circuit’s new formulation plainly subjects——for the first

time ever—every “operational” police decision made on the streets

to negligence lawsuits.

The very fact that such interference in the internal

law enforcement activities of another state has been ap-

proved—for the first time in any case petitioners can find

—is reason enough for review by this Court.

2. This case squarely raises the issue on which this Court

reserved decision in Nevada v. Hall—which this Court

should now decide.

Section 1 of Article IV of the United States Constitu-

tion provides, in pertinent part, that: “Full Faith and

Credit shall be given in each State to the public Acts,

Records and judicial Proceedings of every other State.”

In Nevada v. Hall, supra, a California resident had been

injured in a traffic accident in California through the

negligence of an employee of the University of Nevada

driving a vehicle owned by the state of Nevada. This

Court held there was no constitutional impediment to a

California court permitting suit to be brought against

Nevada in California and refusing to apply Nevada’s law

relating to governmental immunity:

the Full Faith and Credit Clause does not require a

State to apply another State’s law in violation of its

own legitimate public policy.

440 U.S. at 422.

But the majority opinion explicitly made clear that the

statement quoted above applied only to factual circum-

stances similar to those in that case. In response to dis-

sents by Justice Blackmun and Justice Rehnquist that

asserted the majority in Nevada v. Hall was undermining

our federal system, Justice Stevens wrote a critically im-

portant footnote to his majority opinion:

California’s exercise of jurisdiction in this case poses

no substantial threat to our constitutional system of

cooperative federalism. Suits involving traffic acci-

dents occurring outside of Nevada could hardly in-

terfere with Nevada’s capacity to fulfill its own sov-

ereign responsibilities. We have no occasion, in this

case, to consider whether different state policies, ei-

ther of California or of Nevada, might require a

different analysis or a different result.

440 U.S. at 424 n.24.

Nor can there be any doubt that this footnote was im-

portant to the majority opinion in Nevada v. Hall. For

in Allstate Ins. Co. v. Hague, 449 U.S. 302 (1980), Jus-

tice Stevens—the author of Nevada v. Hall—specifically

emphasized that the Full Faith and Credit Clause should

invalidate a state court’s choice of forum law if “that

choice threatens the federal interest in national unity by

unjustifiably infringing upon the legitimate interests of

another State.” 449 U.S. at 323 (concurring opinion).

In making this statement, Justice Stevens specifically

quoted footnote 24 from Nevada v. Hall and noted that

Nevada v. Hall “‘pose[d] no substantial threat to our

constitutional system of cooperative federalism.’” Id.

The present case plainly is a case in which the D.C.

Circuit has allowed the forum state’s choice of law deci-

sion to “interfere with [Virginia’s] capacity to fulfill its

own sovereign responsibilities” to enforce its own crimi-

nal laws and those of the United States. Petitioners sub-

mit that the Full Faith and Credit Clause prohibits this

result. This Court specifically reserved decision in Ne-

vada v. Hall on the question whether the Full Faith and

Credit Clause required a Forum State to apply a sister

state’s law when that law did not frustrate the public

policy at the Forum State. This Court should now resolve

this issue.

3. The D.C. Circuit’s opinion misreads and misapplies

Nevada v. Hall to such an extent that it will foster

serious clashes between sister states if this Court does

not correct the erroneous interpretation.

The D.C. Circuit accurately set out petitioners’ strongly

stated position that “the District’s failure to apply Vir-

ginia’s immunity rules in this case undermines the Coun-

ty’s capacity to fulfill its law enforcement responsibili-

ties.” 738 F.2d at 1358.

The Court of Appeals rejected this argument by turn-

ing this Court’s opinion in Nevada v. Hall into a virtually

unlimited license for a forum state to apply its law with-

out regard to its impact on the sovereign policies of its

sister state. In effect, the D.C. Circuit simply announces

that footnote 24 to Nevada v. Hall has no force or effect.

The D.C. Circuit set out two grounds for its view that

footnote 24 was simply surplusage.

First, the Court of Appeals explicitly acknowledged that

this Court’s opinion in Nevada v. Hall stated that “the

facts of Nevada v. Hall did not threaten Nevada’s sov-

ereign responsibilities.” 738 F.2d at 1358, quoting 440

U.S. at 424 n.24. But the Court of Appeals—in an ex-

traordinary example of judicial legerdemain—blythly as-

serts that the Nevada v. Hall Court’s emphasis of that

point “does not in any respect limit the holding to the

facts of that case. Nor does the footnote suggest an ex-

ception must ever be made to the principles articulated

in the opinion.” Jd. In other words, the D.C. Cireuit’s

first preference is simply to ignore this Court’s explicit

limitation of what was decided in Nevada v. Hall.

Second, the D.C. Circuit takes an alternative position.

Even if this Court meant to suggest “an exception to the

broad principle that the opinion [in Nevada v. Hall]

establishes—to wit, that the constitution does not man-

date interstate comity”, the D.C. Circuit concludes that

such an exception was limited to “exceptional” cases. Jd.

Petitioners submit that the D.C. Circuit is simply re-

fusing to admit what this Court said in Nevada v. Hall

and has fundamentally misstated the question that this

Court reserved in footnote 24 of its opinion in Nevada

v. Hall. The simple fact is that both Virginia and D.C.

as well as the federal government have an interest in

seeing that law breakers do not evade capture by fleeing

across borders. To that end, the Congress has enacted

the D.C. Fresh Pursuit Act, D.C. Code Ann. § 23-901,

and Virginia has enacted its own fresh pursuit statute.

Va. Code Ann. § 19.2-79. The D.C. Circuit denigrates the

importance of these law enforcement activities (without

ever mentioning either of the two statutes cited above)

by claiming the only issue is whether “application of

Virginia’s policy of immunity would . . . frustrate Dis-

trict policies in favor of deterrence and compensation.”

738 F.2d at 1358. (As discussed below, D.C.’s policies

would not be fustrated by a different result.) But, more

importantly from a constitutional point of view, these

District policies are not central to D.C.’s “sovereign re-

sponsibilities”’ while law enforcement is plainly central

to Virginia’s sovereign responsibilites. Nor is the D.C.

Circuit’s analysis at all responsive to the central concern

of both the majority and the dissenters in Nevada v. Hall

—namely, the effect of these decisions on cooperative

federalism.

With respect to the considerations set out in Nevada v.

Hall, this case differs in five critical respects.

(a) In this case the sister state’s sovereignty is se-

verely infringed because important sovereign interests

are at stake here, when they were not at stake in Nevada

v. Hall. The Court in Nevada v. Hall made it crystal

clear that its holding was limited to situations where

application of the forum state’s immunity law posed no

threat to the foreign state’s sovereign interests. In that

case, an employee of the University of Nevada had driven

to California to pick up an order of television parts, and

was involved in a traffic accident there. Subsequently, a

California jury awarded a verdict of $1,150,000 against

his employer, the State of Nevada, applying California

law of unlimited liability. Nevada law would have limited

the state’s liability under the same circumstances to

$25,000.

While the employee in Nevada v. Hall was in Cali-

fornia on state business, he was not performing any func-

tion which was central to the state’s ability to govern.

The instant case is totally different. The Arlington

County police officer was in the District of Columbia on a

far different mission than the Nevada employee in Cali-

fornia. He had entered the District in fresh pursuit of

persons whom he believed to have committed a felony in

Virginia. The interception and arrest of these wrong-

doers were important to Virginia. The police officer’s

purpose was to enforce the felony laws of Virginia and

the United States, a function crucial to the ability of the

State of Virginia to govern. Virginia’s obvious and

strong interest in enforcing its criminal laws plainly in-

volves the state’s sovereign interests. Such was not the

case in Nevada v. Hall.

(b) Many of the law enforcement activities on which

liability was based in this case occurred in the sister

state, and not exclusively in the forum state—a critically

important difference from Nevada v. Hall. The police

officer’s training and supervision, the approval of his ac-

tions and dispatch of back-up assistance—all critical

aspects of Virginia’s essential function of enforcing its

law—took place in Virginia. The D.C. Circuit’s opinion

allows D.C. juries and D.C. courts to assess and pass

judgment on law enforcement practices of Virginia police

departments that occurred in Virginia and that are im-

mune from suit in Virginia. In Nevada v. Hall, in con-

trast, the only act challenged was the negligent driving

committed entirely in California, and both the majority

and dissenters in that case sought “to confine [the

Court’s] holding to . . . torts committed outside the de-

fendant State.” 440 U.S. at 429 (dissenting opinion) ;

440 USS. at 424 n.24 (majority opinion).

state differently than it would have treated itself—pre-

cisely the reverse of the situation in Nevada v. Hall. In

Nevada v. Hall the California court treated the state of

Nevada exactly as it would have treated the state of Cali-

‘fornia under the same circumstances. The California

statute in question provided that a public entity was

liable for injuries resulting from the negligent operation

of motor vehicles by public employees within the scope of

their employment. It applied equally to California and

foreign state entities. The majority in Nevada v. Hall

specifically emphasized that California had adopted a

single compensation policy that would apply to all—

“whether those others be residents or nonresidents, agents

of the State, or private citizens.” 440 U.S. at 426.

In the present case, precisely the reverse is true.

The District of Columbia has waived its immunity for

torts committed in the operation of emergency vehicles

only in cases of gross negligence by its employees. But

the D.C. Circuit refused to apply that standard to the

operation, within the District, of an emergency vehicle

operated by an employee of a Virginia county. The D.C.

Cireuit’s opinion asserts that the statute in question

should be interpreted to apply only to District vehicles

and that non-District vehicles should be held to a higher

standard. Thus the D.C. Circuit held not merely that

Arlington County was liable for injuries resulting from

the operation of its emergency vehicle in the District, but

also that Arlington County should be held to a higher

standard of care:

Against this clear legislative statement of an intent

to limit the applicability of the gross negligence

standard to District liability for damages caused by

District vehicles, we would be hard put to accept de-

fendants’ argument that the standard applies to

them. This is especially true given the natural con-

cerns—proved accurate in this case—that District

emergency vehicles have both a greater responsibility

and a greater ability to respond to emergencies in

the District, and particularly in crowded metropoli-

tan areas at lunchtime, than do non-District vehicles.

728 F.2d at 1364.

The anomalous result of this interpretation of the law

is that Arlington County is not only in a worse position

than it would have been if the accident had occurred in

Virginia, where it is immune from suit. It is in a worse

position than the District would have been if the accident

had involved a District police officer and had occurred in

the District. Such discriminatory overreaching by a forum

state can only lead to friction and retaliatory measures

betwen jurisdictions, and cannot have been contemplated

by Nevada v. Hall. The four cases discussed at pp. 14-

17 below demonstrate that this friction is in fact ma-

terializing.

(d) In this case the forum state’s policies would not

have been frustrated by application of the sister state’s

immunity law—a critically important difference from

Nevda v. Hall. Two separate but related policies of the

District of Columbia are relevant. First, the District has

demonstrated that it weighs law enforcement more heavily

than compensation by waiving its own sovereign immun-

ity for negligent police chases only when a policeman has

been grossly negligent. Second, by Act of Congress, the

District has expressly approved and encouraged entry

into the District by Arlington County police officers in

pursuit of escaping felons in the District’s Fresh Pursuit

Act. D.C. Code Ann. § 23-901. Thus, Congress has de-

clared it to be D.C. policy to support cooperative law

enforcement efforts by out-of-state law enforcement agen-

cies engaged in fresh pursuit of criminals. Thus, ap-

plication of Virginia’s sovereign immunity rules would

be consistent with the District’s policy to encourage inter-

state law enforcement and to recognize that compensation

interests must yield in some circumstances to law en-

forcement interests.

(e) The D.C. Circuit’s opinion interferes with the fed-

eral interest in promoting cooperative interstate law en-

forcement. The Arlington County officer was acting in

furtherance of federal interests in this case in at least

three respects. (a) The officer was seeking to enforce

federal criminal law against bank robbery. (b) The officer

was acting to apprehend felons who were crossing state

lines to avoid arrest, in violation of federal laws against

such interstate flight. (c) The officer was acting pursuant

to an Act of Congress specifically addressed to promoting

law enforcement by fresh pursuit of felons into the Dis-

trict. These considerations were not present in Nevada v.

Hall. The essence of the Full Faith and Credit Clause is

to preserve cooperative federalism in the service of the

common federal interest of the Nation. Yet the D.C. Cir-

cuit’s interpretation of Nevada v. Hall and the Full Faith

and Credit Clause frustrates rather than advances the

federal interest in this case.

Nevada v. Hall clearly permits the District to hold

foreign governments of their agents liable for acts com-

mitted within the District where those acts do not impli-

cate fundamental state interests of the foreign state’s

law and where enforcement of the foreign state’s law is

obnoxious to the policies of the forum state. But the

District cannot constitutionally hold Virginia to a higher

standard than that to which it holds itself. The Full

Faith and Credit Clause requires that the foreign state’s

laws be enforced where the acts of the foreign state are

essential to the protection of its sovereign interests, and

where enforcement of the foreign state’s law is consistent

with, not obnoxious to, policies of the forum state. That

is the case here.

In sum, the D.C. Circuit’s opinion creates precisely the

“substantial threat to our constitutional system of co-

operative federalism,” 440 U.S. at 424 n.24, that was

not present in Nevada v. Hall.

4. This Court should correct a growing tendency of lower

courts to misinterpret Nevada v. Hall to permit a

forum state to refuse to enforce a sister state’s im-

munity rules even if such a refusal interferes with a

sister state’s capacity to fulfill its own sovereign

responsibilities.

The issue presented by this case is of far reaching

importance both to individual states and to the basic

system of cooperative federalism embodied in the Consti-

tution. Increasingly, state courts have taken this Court’s

opinion in Nevada v. Hall as a license to impose liability

on the governmental acts of a sister state without regard

to whether such liability interferes with the sister state’s

capacity to carry out its sovereign responsibilities. In

particular, state courts have relied on this Court’s opin-

ion in Nevada v. Hall as authority to impose liability on

a sister state’s exercise of important sovereign func-

tions as well as authority to impose liability for acts

carried out by the sister state within the geographic

confines of the sister state.

Four examples demonstrate this trend and argue ur-

gently for consideration of this issue by this Court.

(a) The Nevada Supreme Court has ruled that Ne-

vada courts may impose liability on the State of Wis-

consin based on allegations that Wisconsin parole officers

negligently discharged their duties in Wisconsin (with

respect to a parolee living in Nevada) even though Wis-

consin law provided immunity from suit with respect to

such decisionmaking. Mianecki v. Second Judicial Dis-

trict Court, 658 P.2d 422 (Nev. 1983), cert. dismissed

for want of final judgment, ——- U.S. —— (1983).

(b) The Colorado Court of Appeals has ruled that

Colorado courts may impose liability on the State of

Texas based on the alleged negligence of state employees

in Texas in supervising two juveniles who were in Colo-

rado on a juvenile rehabilitation program. The Colorado

court wrote:

We approve the reasoning of the California court [in

Nevada v. Hall] and hold that where the injured

party is a citizen of this state, injured in this state

and sues in the courts of this state, there is no im-

munity, by law or as a matter of comity, covering a

sister state’s activities in this state.

Peterson v. Texas, 635 P.2d 241, 243 (Colo. App. 1981).

Minnesota courts may impose liability on an Iowa county

based on the alleged negligence of the Iowa county in

failing to signpost adequately an Iowa county road. The

Minnesota court’s entire discussion of any constitutional

limits consisted of two sentences:

There is no barrier to asserting personal jurisdiction

over Osceola County because of its status as a politi-

cal subdivision of the State of Iowa. In Nevada v.

Hall, the Supreme Court held that a state was not

constitutionally immune from suit in the courts of

another state.

Wendt v. County of Osceola, Iowa, 289 N.W.2d 67, 69

(Minn. 1979). Thus Nevada v. Hall became a blank

check despite the fact that all actions occurred in the

sister state and the fact that core governmental func-

tions were at stake.

(d) The Supreme Court of Iowa held that the State

of Illinois could be sued in Iowa state court in a wrong-

ful death action brought for the alleged negligence of the

State of Illinois in improperly maintaining a bridge over

the Mississippi River. Struebin v. Iowa and Illinois, 322

N.W.2d 84 (Iowa 1982). The State of Illinois argued

that Nevada v. Hall should not be read to allow “state

court jurisdiction over sister states where liability is al-

leged based on the sister state’s exercise of a govern-

mental function.” 322 N.W.2d at 86. The Iowa Su-

preme Court, however, rejected Illinois’ argument con-

cluding that Nevada v. Hall enunciated “an authorita-

tive general principle that the Constitution does not man-

date interstate comity” and that footnote 24 of Nevada

v. Hall “does not necessarily limit the holding to the

Hall facts.” 322 N.W.2d at 86.

In short it is plain that forum states have begun to

assert the authority to impose liability standards on

actions of a sovereign sister state that go to the core of

j 17

the governmental and sovereign activities of the sister

state. Forum states have even asserted this authority

when all acts by the sister state have occurred in the

sister state. Petitioners submit that these decisions

create precisely the type of clashes between sovereigns

that the Full Faith and Credit Clause should prevent.

Nevada v. Hall never intended to sanction such decisions

and such overreaching by forum states. This Court must

step in to correct this developing threat to the federalism

embodied in the Constitution.

5. This Court should prevent the discriminatory treat-

ment of foreign police officers performing their duties

in another state as such treatment, in violation of the

Privileges and Immunities and Equal Protection

Clauses, impairs the fundamental unity of the Nation.

The Privileges and Immunities Clause, U.S. Const.

art. IV, § 2, “imposes a direct restraint on state action

in the interests of interstate harmony” thus reflecting

“concerns of central import to the Framers [of the Con-

stitution]” United Building and Construction Trades

Council v. Camden, 465 U.S. . , 104 S. Ct.

1020, (1984) ; Austin v. New Hampshire, 420 U.S.

656, 560 (1975). Indeed, analysis of the Clause by this

Court has

emphasized nationalism, the proscription of discrimi-

nation, and the assurance of equality of all citizens

within any state: ‘... It has been justly said that

no provision in the Constitution has tended so

strongly to constitute the citizens of the United

States one people as this.’

Baldwin v. Montana Fish and Game Comm’n, 4386 U.S.

371, 380-81 (1978) (quoting Paul v. Virginia, 75 U.S.

(8 Wall.) 168, 180 (1869)) (footnotes omitted). Yet

the decision of the court below strikes at the heart of

the function of the Privileges and Immunities Clause.

See Hicklin v. Orbeck, 437 U.S. 518 (1978). By ap-

plying a higher standard of liability to 4 Virginia police

officer than would be applied to a D.C. officer (and a

higher standard of liability to Arlington County than

would be applied to D.C.), the court below engages in

the type of parochial legislation, and invites the type of

legislative and judicial retaliation, that the Privileges

and Immunities Clause was intended to prevent. See

Austin v. New Hampshire, supra, 420 U.S. at 662-63;

Toomer v. Witsell, 334 U.S. 385 (1948). Such a warp-

ing of the functions and purposes of the Privileges and

Immunities Clause should not be tolerated.

Furthermore, the court below, by applying a higher

standard of liability to Officer Kyle, discriminated

against petitioner Kyle merely because he works for an

out-of-state municipality. Such discrimination offends

the principles of the Equal Protection Clause, U.S. Const.

amend. XIV, §1.* This Court has applied that Clause

to strike down differences in treatment based upon

whether individuals were from in-state or out-of-state.

See generally Hicklin v. Orbeck, supra; Shapiro v.

Thompson, 394 US. 618 (1969); Troyer v. Town of

Babylon, 483 F. Supp. 1135, 1140 (E.D.N.Y.), aff'd, 628

F.2d 1346 (2d Cir.), aff'd sub nom. Town of Southamp-

ton v. Troyer, 449 U.S. 988 (1980). This case presents

for decision the issue of whether discriminatory treat-

ment of an out-of-state police officer violates the Equal

Protection Clause and demonstrates the need for such

protection.

* The principles of the Equal Protection Clause are made ap-

plicable to the District of Columbia through the Due Process

Clause, U.S. Const. amend V. See Bolling v. Sharpe, 347 U.S. 497

CONCLUSION

For the reasons set out above, petitioners respectfully

pray that this Court grant this petition and issue a Writ

of Certiorari to the United States Court of Appeals for

the District of Columbia Circuit in this case.

Respectfully submitted,

WiiuiaM A. KAPLIN WiLuiaM D. DOLAN, III

Ropert A. Destro NINA A. PALA

4141 North Henderson Rd. DOLAN, TREANOR, MURRAY

Plaza Suite Three & WALSH

Arlington, Virginia 22203 4141 North Henderson Rd.

Plaza Suite Three

peeeeeonef gia Arlington, Virginia 22203

Dewey, BALLANTINE, Busnpy, (708) 243-6000

PALMER & Woop CHARLES G. FLINN

1775 Pennsylvania Avenue,N.W. County Attorney

Suite 500 1400 North Courthouse Road

Washington, D.C. 20006 Arlington, Virginia 22201

Of Counsel (708) 558-2705

PAUL F. SHERIDAN

SICILIANO, ELLIS, SHERIDAN

& Dyer

10521 Judicial Drive

Suite 300

Fairfax, Virginia 22030

(708) 385-6692

Attorneys for Petitioners

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 83-1965

ALVIN B. BISCOE, JR.,

ELEANOR L. BISCOE, HIS WIFE

Vv.

ARLINGTON COUNTY,

Appellant

ARLINGTON COUNTY POLICE DEPARTMENT, et al.

No. 83-1966

ALVIN B. BISCOE, JR.,

ELEANOR L. BISCOE, HIS WIFE

ARLINGTON COUNTY, et al.

MICHAEL KYLE,

ARLINGTON COUNTY POLICE DEPARTMENT,

Appellant

Appeals from the United States District Court

for the District of Columbia

(Civil Action No. 80-0766)

Argued April 16, 1984

Decided July 6, 1984

William D. Dolan, III, with whom William A. Kaplin

and Charles G. Flinn were on the brief for appellant,

Arlington County, in No. 83-1965.

Paul F. Sheriden, for appellant, Kyle, in No. 83-1966.

Joseph H. Koonz, Jr., with whom Carolyn McKenney,

Roger C. Johnson and Patrick M. Regan were on the

brief for appellees, Alvin Biscoe, et al., in Nos. 83-1965

and 83-1966. Jill Robinson and William P. Lightfoot

also entered appearances for appellees.

Before TAMM and EDWARDS, Circuit Judges, and

HAYNSWORTH,* Senior Circuit Judge, United States

Court of Appeals for the Fourth Circuit.

Opinion for the Court filed by Cirewit Judge mvWARDS.

EDWARDS, Circuit Judge: This case involves the li-

ability of Arlington County, Virginia, and one of its

police officers, for serious injuries to an innocent by-

stander arising out of a negligent high-speed police pur-

suit of a suspected bank robber into the District of Co-

lumbia. As a result of the negligent pursuit, the plain-

tiff, Alvin Biscoe, had one of his legs severed and the

other severely injured, ultimately requiring amputation.

A jury returned a verdict in favor of the injured plain-

tiff and his wife, and the County and its officer have

appealed. We affirm.

I. BACKGROUND

Late in the morning of September 29, 1979, Lyntellus

Brooks and Orlando Durantes robbed the Arlington, Vir-

ginia branch of the Washington-Lee Savings & Loan As-

sociation. Shortly thereafter, an alarm was broadcast to

all Arlington County Police Department (“ACPD”)

units; some of these units went to the robbery scene, and

others to probable escape routes in the County. Police

* Sitting by designation pursuant to 28 U.S.C. § 294(d) (1982).

radio broadcasts alerted units to look for the persons who

had been involved the previous day in a robbery of the

Potomac Savings and Loan Association, and informed

them that the car used in that robbery was a green

Dodge Dart or Plymouth Duster, with a District of

Columbia license plate.

Officer Michael Kyle responded to the alert by position-

ing his cruiser eastbound along Route 50. About nine

minutes after the initial bank alarm transmission, he

spotted a light green car driven by a man who resembled

pictures of a suspect from the Potomac bank robbery

that Kyle had seen the day before. A woman was seated

beside the driver. Kyle radioed his suspicion regarding

the driver and began to follow the green car along Route

50, with each car traveling within the speed limit. Kyle

followed the car onto the Theodore Roosevelt Bridge

(which connects Virginia with the District of Columbia),

pulled in behind it, and turned on his overhead lights and

siren. The car took the E Street Ramp off the Bridge

into the District of Columbia, slowed to a stop in the

breakdown lane of the ramp, and came to rest three car

lengths in front of the police car. Before the stop, the

ACPD dispatcher broadcast that the District of Columbia

(“D.C.” or “District”) and United States Park Police

were being notified. Also before the stop, Kyle radioed

that the car appeared to have a third passenger—another

woman—in the back seat.

Once stopped, Brooks, the driver of the car, immedi-

ately got out of his vehicle and walked toward Kyle with

his hands in the air, leaving his car door open. Kyle got

out of his cruiser, with his portable radio in hand, and

notified the dispatcher that he had made the stop.

Whether the officer also had his revolver drawn at this

time was a matter of considerable dispute at trial. Kyle

turned Brooks around, walked him back to his car, had

him put his hands on the trunk, and ordered him to

stay there.

According to plaintiffs’ evidence, Kyle did not tell

Brooks to turn off the car motor, throw his keys to the

ground, or shut the car door; he did not instruct him to

lie on the ground; and he did not handcuff or frisk him.

Instead, the officer turned to the passenger side of the

ear to look in the back seat, and, with his hand radio,

broadcast his location and requested a clothing descrip-

tion of the bank robbery suspects. While Kyle was so

preoccupied—Jeaving Brooks wholly unattended and un-

restrained—Brooks ran to his side of the car, jumped in

and drove off. Brooks testified that he was able to make

a quick escape because he had left the engine running

and the car door ajar. Trial Transcript (“Tr.”) at 31.

Kyle informed his dispatcher of the departure and re-

turned to his car. With his lights flashing and his siren

blaring, he pursued Brooks down the E Street Express-

way and through the tunnel. Kyle radioed that a fourth

passenger in the car was shooting at him, and also that,

“T don’t know where I’m at.” Tr. at 332-33. Brooks,

who by now was well within the city limits of the Dis-

trict of Columbia and traveling at more than 70 to 80

m.p.h., drove through a red light at 20th Street and sped

toward the 19th and E Street intersection. The speed

limit over this distance was 30 m.p.h. until one and a

half blocks before the intersection, at which point it

dropped to 25 m.p.h. Kyle, who knew neither his speed

nor the speed limit, followed. Tr. at 332-33, 338. Plain-

tiffs contend that the officer averaged 55.38 m.p.h. over

this distance and that his speed during the chase in-

creased to 80 m.p.h. Defendants dispute this assertion,

but do not deny that Kyle was traveling well in excess

of the speed limits.

As Brooks approached the intersection, he saw a car

traveling south on 19th Street into the intersection.

Brooks’ car struck that vehicle and careened off into the

southeast corner of the intersection, where it pinned a

pedestrian, Alvin Biscoe, against a light pole. The im-

pact, which knocked Biscoe in the air, severed one of his

legs and severely injured the other, ultimately requiring

amputation.

Officer Kyle, who had by then arrived on the scene,

saw Brooks flee from his car. Kyle removed his shotgun

and followed. When Kyle reached Brooks, the suspect

had been restrained by pedestrians. Kyle hit Brooks on

the right side of his head with the butt of the shotgun.

Soon thereafter, other police from various jurisdictions,

as well as the United States Park Police helicopter,

arrived on the scene.

Alvin Biscoe and his wife Eleanor filed a suit for dam-

ages against numerous parties, including Officer Kyle,

Arlington County, and Brooks. They asserted that from

the time Kyle first stopped Brooks’ car on the E Street

Ramp in the District of Columbia, the officer committed

violations of a series of generally accepted police stand-

ards—in particular, in his conduct of the felony stop and

the high-speed pursuit—which resulted in the accident.

Moreover, they claimed that Officer Kyle violated Arling-

ton County regulations that specifically prohibit its of-

ficers from engaging in high speed chases—defined as

greater than 20 m.p.h. above the speed limit—in the Dis-

trict of Columbia.’ In addition, they aileged that Arling-

1 Arlington County Police Department, Departmental Directive

No. 74-4, provides in relevant part:

I. PURPOSE: The purpose of this directive is to announce

Departmental policy and describe procedures for “hot pur-

suit” of violators of the criminal and trafiic laws of the

Commonwealth and the County.

II. POLICIES:

A. Pursuit in Arlington County

1. It is the policy of this Department that pursuit at

high speeds is justified only in those instances where

the officer has personal knowledge or reasonable cause

to believe that the person being pursued has com-

mitted or attempted to commit a felonious act which

ton County’s negligent training and supervision of Offi-

cer Kyle were a cause of the accident that injured Alvin

Biscoe. After an 11-day trial, a jury returned a verdict

resulted in or could have resulted in death or serious

bodily injury.

2. Pursuit at lesser speeds is permitte?, where necessary,

to apprehend other felons, misdemeanants, and traffic

violators. High speed pursuit of such violators in an

area as geographically compact and heavily populated

as Arlington County would be potentially more haz-

ardous than permitting the violator to escape appre-

hension.

8. High speeds are defined for the purpose of this direc-

tive as speeds more than 20 miles per hour in excess

of posted speed limits. This definition is in the nature

of a guideline and must be interpreted in light of road

conditions, weather, time of day, density and flow of

traffic, and the nature of the surrounding area. The

decision to initiate, continue and terminate pursuit

must be at the discretion of the officer after due con-

sideration of the seriousness of the offense, possible

consequences and safety of all concerned. Where a

pursuit has occurred, the absence of evidence to the

contrary will be presumptive evidence that the officer

was in compliance with Departmental orders, rules

and regulations.

B. Pursuit Elsewhere in Virginia

C. Pursuit in the District of Columbia

1. Under no circumstances will an officer pursue a mis-

demeanant or traffic offender into the District of Co-

lumbia. An officer from this Department has no au-

thority to arrest in the District for a misdemeanor or

traffic violation and may not request the assistance of

a District officer in making such an arrest.

2. When pursuing a known felon or a person whom the

officer has reasonable cause to believe has committed

a felony, and the pursuit appears likely to enter the

District of Columbia, all possible means will be utilized

to notify the District police of such fact and to de-

scribe in detail the vehicle and, where possible, the

finding that defendant Kyle was negligent in his conduct

of the felony stop on the bridge and negligent in his high-

speed pursuit of Brooks’ vehicle, and that his employer,

Arlington County, was similarly liable on a theory of

respondeat superior. The jury also found that defendant

Arlington County was negligent in its training and su-

pervision of Kyle, and that defendant Brooks was negli-

gent as well. The jury additionally found that all de-

fendants’ acts and omissions proximately caused the in-

juries to the plaintiffs. It awarded $4 million to Alvin

Biscoe and $1 million to Eleanor Biscoe; the award to

Eleanor Biscoe was reduced on remittitur to $350,000.

II. DISCUSSION

Defendants Kyle and Arlington County appeal the

judgments against them on a number of grounds, prin-

cipally involving pure questions of law. We have care-

fully reviewed each claim and have found none to merit

reversal or remand. Accordingly, we affirm.

occupants. High speed pursuit in the District is pro-

hibited. Pursuit at reduced speeds is permissible un-

til the vehicle can be stopped or until District officers

join the pursuit. At such time as District officers

begin pursuit, the Arlington unit will discontinue di-

rect pursuit and proceed, without emergency equip-

ment, in the direction of the pursuit or to the scene of

the apprehension as directed by the dispatcher.

8. Only the immediately pursuing officer will enter the

District of Columbia unless other units are dispatched

to assist an officer in trouble.

4. An arrest for a felony committed in Virginia may be

made in the District by an Arlington officer. Under

no circumstances, however, will such person be re-

turned to Arlington without being processed through

the District of Columbia judicial system.

D. Pursuit into Maryland

Pursuit into Maryland will be governed by the foregoing

rules for the District of Columbia.

A. Immunity Issues

1. Sovereign Immunity

Initially, defendant Arlington County asserts that the

District Court improperly declined to recognize the im-

munity from tort claims that the County retains und-r

Virginia law. In support of this assertion, Arlington

County argues that the United States Constitution’s Full

Faith and Credit Clause, U.S. Const. art. IV, § 1, com-

pels application of Virginia immunity in this case, that

principles of comity require that Virginia’s immunity be

recognized in the District, and that the District’s choice

of law rules require adoption of that aspect of Virginia

law.

The first of these arguments may be readily dismissed

on the basis of the Supreme Court’s decision in Nevada

v. Hall, 440 U.S. 410 (1979), which held that federal

constitutional law does not prohibit one state’s courts

from entering a judgment against or asserting jurisdic-

tion over another sovereign state. In Hall, plaintiffs

sued Nevada in a California court for injuries suffered

in a traffic accident allegedly caused by a Nevada state

employee driving in California. Nevada had argued that

under the Constitution it was immune from suit in

courts of another state, but the California Supreme

Court decided that the issue of Nevada’s immunity from

suit in California was controlled solely by California law,

and that California would not extend immunity to

Nevada as a matter of comity. Hall v. University of

Nevada, 8 Cal. 3d 522, 503 P.2d 1868, 105 Cal. Rptr.

355 (1972) (en banc), cert. denied, 414 U.S. 820 (1978).

After a remand and trial, the United States Supreme

Court affirmed the California court’s judgment against

Nevada, broadly holding that nothing in the federal Con-

stitution requires a state to accord immunity to another,

and therefore that the Constitution imposes no special

limits on states’ power to authorize their courts to as-

sert jurisdiction over another state? It rejected argu-

ments both that the Constitution implicitly gives states

immunity in courts of other states, and that the Full

Faith and Credit Clause requires a forum state to resort

to the law of the defendant state to determine its amena-

bility to suit. Justice Stevens responded to Nevada’s

Full Faith and Credit Clause claim with the explanation

that the clause does not require a state to apply the law

of another state in violation of its own legitimate public

policy. Nevada v. Hall, 440 U.S. at 422. Finally, the

Court made clear, a forum state might defer to a sister

state’s retained immunity, even though it need not do so.

To determine whether the Full Faith and Credit Clause

requires that the District apply Virginia’s law regarding

the immunity of its counties, we must ascertain the Dis-

trict’s policies and determine whether they would be vio-

lated by application of Virginia law. See Nevada v.

Hall, 440 U.S. at 422 (“[T]he Full Faith and Credit

Clause does not require a State to apply another State’s

law in violation of its own legitimate public policy.”’) ;

Mianecki v. Second Judicial District Ceurt, —— Nev.

, 658 P.2d 422, 424 (holding that clause does not

require recognition of Wisconsin’s immunity rules when

they conflict with Nevada’s policies), cert. dismissed, 104

S. Ct. 195 (1983). Under Virginia law, counties are

fully immune from suit in tort, at least in Virginia

2 Nevada v. Hall was initially a state court action and therefore

did not implicate the Eleventh Amendment, which by its terms ap-

plies only to federal courts. Similarly, because the case we consider

involves 2 suit against a county, the Eleventh Amendment is not

implicated. See P. BATOR, P. MISHKIN, D. SHAPIRO & H. WECHSLER,

HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL

SysTEM 690 (2d ed. 1973) (“A suit against a county, a municipality,

or other lesser governmental unit is not regarded as a suit against

a state within the meaning of the Eleventh Amendment.”) (citing

Cowles v. Mercer County, 74 U.S. (7 Wali.) 118 (1869) ; Markham

v. City of Newport News, 292 F.2d 711 (4th Cir. 1961) ). No party

suggests otherwise.

10a

courts. Mann v. County Board, 199 Va. 169, 98 S.E.2d

515 (1957); Fry v. Cowsty of Albemarle, 86 Va. 195,

9 S.E. 1004 (1889). Under District of Columbia law,

the Distric’. enjoys immunity from suit only if the ac-

tions in question are committed in the exercise of a “dis-

cretionary” function. Wade v. District of Columbia, 310

A.2d 857, 860 (D.C. 1973) (en banc). Since the plain-

tiffs’ claims against the appellant County are based on

its negligent performance only of nondiscretionary acts,’

had those acts been committed by the District of Colum-

bia Metropolitan Police Department, sovereign immunity

would not bar suit against the District. Forced applica-

tion of Virginia’s law would therefore frustrate the

policies that underlie the District’s immunity rules; un-

der Nevada v. Hall, the District is not required to honor

Virginia’s claim of sovereign immunity under such cir-

cumstances. See Mianecki, —— Nev. at ——, 658 P.2d

at 424 (applying Nevada v. Hall in this way) ; Struebin

v. State, 322 N.W.2d 84, 85-86 (Iowa) (same), cert.

denied, 459 U.S. 1087 (1982). We need not decide, as

the Supreme Court did not, whether the clause requires

application of a sister state’s immunity rules when they

are not in conflict with policies of the forum state.

The potential sweep of the Supreme Court’s holding—

which, as Justice Blackmun pointed out in dissent, Ne-

vada v. Hall, 440 U.S. at 428-29 (Blackmun, J., dis-

senting), could be read to authorize suit in a foreign

forum against a state for acts committed within its own

territory—led the Court to assure, in a footnote, that

California’s exercise of jurisdiction in this case

poses no substantial threat to our constitutional sys-

tem of cooperative federalism. Suits involving traf-

fie accidents occurring outside of Nevada could

hardly interfere with Nevada’s capacity to fulfill its

* See section II(A) (2), infra.

lla.

own sovereign responsibilities. We have no occasion,

in this case, to consider whether different state pol-

icies, either of California or of Nevada, might re-

quire a different analysis or a different result.

440 U.S. at 424 n.24. Arlington County urges this foot-

note upon us as support for its position that under the

facts of this case, the Full Faith and Credit Clause

requires the application of Virginia’s immunity rules.

Overlooking the considerable and significant similarities

between the District’s interest in this case and that of

California in Nevada v. Hall—in both cases, the forum

state is the site of a traffic accident involving an em-

ployee of a foreign jurisdiction—Arlington County main-

tains that the District’s failure to apply Virginia’s

immunity rules in this case undermines the County’s

capacity to fulfill its law enforcement responsibilities.

We find the County’s position to be seriously flawed.

First, the cited footnote points out that the facts of

Nevada v. Halli did not threaten Nevada’s sovereign re-

sponsibilities, but does not in any respect limit the hold-

ing to the facts of that case. Nor does the footnote sug-

gest that an exception must ever be made to the prin-

ciples articulated in the opinion. Second, to the extent

that the footnote was meant to carve out an exception

to the broad principle that the opinien establishes—to

wit, that the Constitution does not mandate interstate

comity—we have no doubt that this is not the kind of

exceptional case the footnote was meant to address. For

one, Arlington County itself expressly recognizes that

its law enforcement interests weaken—and will yield to

other interests—when it acts outside Virginia’s borders.

The County’s prohibition on high-speed police chases in

Maryland and the District of Columbia makes this recog-

nition pristinely clear. See note 1, supra. Also, the situ-

ation in this case, in which a Virginia county acted

outside Virginia territory, obviously is wholly different

12a

from one in which a Virginia county has acted within its

borders, or those of the state, and is sued in the courts

of a sister state. The activity at issue here represents

an extremely narrow slice of the County’s law enforce-

ment endeavors and, most importantly, unlike much else

that the County police do, this activity also directly im-

plicates the sovereignty of another entity. The result is

that the threat to the County’s sovereignty is consider-

ably less, and the threat to another entity’s sovereignty

is considerably greater than in the scenario just de-

scribed, where a state has acted only within its borders.

In sum, application of Virginia’s policy of immunity

would clearly frustrate District policies in favor of de-

terrence and compensation, and the facts of this case

warrant no further inquiry into the meaning of the

quoted footnote. See Struebin v. State, 322 N.W.2d at 86

(considering Nevada v. Hall footnote, concluding that

Illinois is not immune from suit in Iowa for alleged

failure to maintain bridge); see also Peterson v. Texas,

635 P.2d 241 (Colo. Ct. App. 1981) (Texas not immune

from Colorado suit based on alleged tort of youth par-

ticipating in Colorado in a Texas juvenile rehabilitation

program); Wendt v. County of Osceola, 289 N.W.2d 67

(Minn. 1979) (Iowa county not immune from suit in

Minnesota for alleged failure to post adequate road

signs). Accordingly, we hold that the federal Constitu-

tion does not require recognition of Virginia’s immunity

rules in this case, and that resolution of the issue is left,

as in Nevada v. Hall, to state law.

We turn then to the County’s second argument—that

it is immune from suit in the District under principles

of comity. Nevada v. Hall left open the possibility that

a state might, as a matter of comity, recognize another

state’s immunity. The District of Columbia Court of Ap-

peals, sitting en banc, has expressly declined to do so,

however, and, as a court with diversity jurisdiction, we

are bound to that determination. In Qasim v. Washing-

13a

ton Metropolitan Area Transit Authority, 455 A.2d 904,

906 (D.C.) (en bane), cert. denied, 103 S. Ct. 2090

(1983), the court of appeals considered and rejected an

argument that WMATA, as an agency of each sovereign

signatory to the interstate compact that created it, is

clothed with the sovereign immunity granted by the

Eleventh Amendment to its parent states. Without de-

ciding whether WMATA would, in a proper case, be

protected by the Eleventh Amendment, the court wrote,

[T]he doctrine does not bestow immunity in another

sovereign’s courts. Such a claim necessarily impli-

cates the power and authority of a second sovereign.

Immunity in the courts of another sovereign “must

be found either in an agreement, express or implied,

between the two sovereigns, or in the voluntary de-

cision of the second to respect the dignity of the first

as a matter of comity.” Nevada v. Hall, 440 U.S.

410, 416, 99 S.Ct. 1182, 1186, 59 L.Ed.2d 416

(1979). The WMATA Compact contains no agree-

ment, express or implied, granting immunity to a

signatory from suits involving WMATA brought in

the courts of the other two signatories. Thus Mary-

land and Virginia do not have sovereign immunity

from suits brought in the District of Columbia

courts.

455 A.2d at 906 (emphasis added). We could scarcely

imagine a more straightforward statement that the Dis-

trict of Columbia courts, whose rules on comity we must

follow in a diversity action, will decline to recognize the

sovereign immunity of Virginia or its counties. See also

Daughtry v. Arlington County, 490 F. Supp. 307, 312-13

(D.D.C. 1980) (declining to recognize the County’s im-

munity claim). We therefore decline to do so. Against

this background, we simply have no reason to believe

that the District of Columbia courts would give effect to

Virginia’s law out of deference or respect, when that

law is contrary to the policies of the District. See Mia-

14a

necki, —— Nev. at diet 658 P.2d at 425 (declining, as

a matter of comity, to adopt policy of Wisconsin that is

contrary to policy of Nevada).

Finally, the County argues, proper application of the

District’s choice of law principles requires application of

Virginia’s rules on the immunity of its counties. The

District of Columbia Court of Appeals’ treatment of im-

munity in Qasim leaves us uncertain whether choice of

law principles are even applicable in this context, or

whether our inquiry under D.C. law properly ends after

resolution of the comity issue. The Qasim court did not

identify District of Columbia and Virginia laws on the

immunity of agents of the sovereign; it simply concluded

that it need not, and would not, import any immunity

Virginia might retain in its own courts for its agents.

We also note that state courts faced with claims of

immunity either by sister states, or by their lesser gov-

ernmental units, have resolved the issue by reference to

the forum state’s policy on comity, not by rigid applica-

tion of choice of law rules. See, e.g., Mianecki v. Second

Judicial District Court, —— Nev. ——, 658 P.2d 422,

cert. dismissed, 104 §. Ct. 195 (1983) ; Struebin v. State,

322 N.W.2d 84 (lIowa}, cert. denied, 459 U.S. 1087

(1982) ; Peterson v. Texas, 685 P.2d 241 (Colo. Ct. App.

1981) ; Ehrlich-Bober & Co. v. University of Houston, 49

N.Y.2d 574, 404 N.E.2d 726, 427 N.Y.S.2d 604 (1980).

The rationale for this approach is not entirely clear. One

explanation might be that each state’s immunity law is

perceived as addressing only its immunity in its own

courts, and therefore is not susceptible to application in

the courts of another state. This explanation would be

consistent with the view, espoused by the California

Supreme Court in Hall v. University of Nevada, 8 Cal.3d

§22, 105 Cal. Rptr. 355, 503 P.2d 1363 (1972) (en banc),

cert. denied, 414 U.S. 820 (1973), that the sovereignty of

one state does not extend into that of another state, so

as to create immunity from suit there, but instead ends

15a

at the state boundary. Another possible source of the

state courts’ analytical framework is the proposition that

once a state court concludes that another state’s im-

munity rule conflicts with its own, and will not apply as

a matter of comity, the outcome of the state’s choice of

law analysis is inevitable.* It is also possible that de-

fendant states have waived immunity at home, albeit not

in sister states, and, therefore, their laws on immunity

are not truly in conflict with those of the sister states.

Finally, it is conceivable that the state courts view im-

munity as a threshold issue, to be resolved along with

certain procedural and jurisdictional matters, solely by

reference to forum state rules.

The District of Columbia courts have not expressly

considered whether choice of law principles are relevant,

as a matter of D.C. law, to the decision whether to recog-

nize a sister state’s immunity rules; the parties have not

raised this issue at all but instead simply have assumed

that choice of law analysis applies. Nor must we resolve

the question here, because we have no doubt that under

the District’s choice of law rules, District of Columbia

law applies on this issue. Accordingly, in the belief that

the question is one that the District of Columbia Court

of Appeals should properly resolve in the first instance,

we will simply assume arguendo that the local court

would resolve this issue by reference to its choice of law

rules.

4 Of course, under the lez loci delicti choice of law rule directing

courts to apply the law of the site of the wrong, this result is not

inevitable. Indeed, that scenario counsels against application of

choice of law principles to resolve the immunity issue. Virginia fol-

lows lex loci delicti principles in determining which law to apply.

See McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662 (1979).

Yet, had this case been brought in Virginia state court, we would

not expect that Virginia would apply District rules on immunity to

the County to determine its suability, but instead would treat the

issue as a threshold one of amenability to suit controlled by Virginia

law.

16a

The District of Columbia adopts the governmental in-

terest analysis approach to resolve choice of law ques-

tions. Williams v. Williams, 390 A.2d 4, 5 (D.C. 1978).

This approach requires a court “to evaluate the govern-

mental policies underlying the applicable conflicting laws

and to determine which jurisdiction’s policy would be

most advanced by having its law applied to the facts of

the case under review.” Id. at 5-6 (footnote omitted).

When the policy of one state would be advanced by appli-

cation of its law, and that of another state would not be

advariced by application of its law, a false conflict ap-

pears and the law of the interested state prevails.° Where

each state would have an interest in application of its

own law to the facts, a true conflict exists and the law

of the jurisdiction with the stronger interest will apply.

See, e.g., Mazza v. Mazza, 475 F.2d 385, 392 (D.C. Cir.

1973) (applying the law of the jurisdiction whose inter-

est, on balance, was more significant).

There can be no doubt that this case presents a true

conflict, and that the District Court properly resolved

that conflict in favor of the law of the District. As a

general matter, the immunity of Virginia’s counties pri-

marily reflects the state’s concern for the financial in-

tegrity of its counties—a concern which, we have little

doubt, can amply be met with the purchase of liability

insurance. Immunity no doubt also reflects the state’s

concern that the prospect of liability will deter police offi-

cers from proper performance of their duties. These con-

cerns generally might give Virginia a strong interest in

its counties’ continued immunity. However, that inter-

est is considerably weakened when viewed in light of both

the facts of this case and Virginia’s official and govern-

mental immunity scheme. First, Virginia’s police officers

are not immune from liability in this context, and their

personal amenability to suit no doubt accomplishes at_

5 See Milhollin, The New Law of Choice of Law in the District of

Columbia, 24 CATH. U.L. REV. 448, 450 (1975).

17a

least some of the deterrence that it is feared would re-

sult were the County liable as well. See Gregoire v. Bid-

dle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 USS.

949 (1950). Second, under District law the County is

liable only for negligent performance of nondiscretion-

ary acts, which by definition leave to the Government

actor little choice on procedure; the only actions deterred

would be violations of a state’s orders to its employees.

Third, much as the prospect of liability might thwart dis-

cretionary decisionmaking, it may also deter misconduct,

particularly in a nondiscretionary context. Fourth, the

state of Virginia recently has waived its immunity from

suit in tort in certain cases, although limiting the amount

recoverable. See Virginia Tort Claims Act, VA. CODE

§ 8.01-195.1 (1983 Supp.). This enactment, although not

applicable to the counties, displays Virginia’s awareness

of the modern trend away from, and the absence of a

need for sovereign immunity. See Taylor, A Re-Exami-

nation of Sovereign Tort Immunity in Virginia, 15 U.

Ricu. L. Rev. 247 (1981). Thus, in the context we con-

front, the concern for deterrence is weak, if existent, and

we are only left with Virginia’s concern for the economic

well-being of its counties. This concern, limited to the

rare tort suit arising out of acts outside Virginia, simply

is not an especially compelling one, particularly given the

availability of liability insurance.

In contrast, the District’s interest is plainly signifi-

cant. Generally, a governmental entity’s waiver of im-

munity signifies its dual interests in deterrence of poten-

tial tortfeasors and compensation of injured parties.

Given the facts of this case, the former is strongly im-

plicated, and the latter less so. First, as the site of most

of the relevant conduct and all the injury, the District

has a strong interest in deterring conduct of this kind.

See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 146

comment d (1971) (When conduct and injury occur in

the same state, that state usually will be the state of

dominant interest, since the two principal elements of

18a -

the tort, conduct and injury, occurred within its terri-

tory. “The state where the defendant’s conduct occurs

has the dominant interest in regulating it and in deter-

mining whether it is tortious in character. Similarly, [it]

will, usually at least, have the dominant interest in deter-

mining whether the interest affected is entitled to legal

protection.” ). The defendants’ acts “created the precise

danger to District life and property” * that various Dis-

trict and Arlington County regulations sought to prevent,

and liability would discourage such acts. Moreover, while

a compensatory policy “has the greatest relevance to

cases when the mishap occurs in the District and when

District residents are plaintiffs,” Gaither v. Myers, 404

F.2d 216, 223 (D.C. Cir. 1968), this court has previously

recognized the special and largely unique interest of the

District in protecting persons who live in the surround-

ing suburbs and work in the District. As we have ob-

served,

[T]o confine the benefits of the . . . rule to the terri-

tory ceded by the states of Maryland and Virginia

to form the Nation’s Capital would be to shun the

present reality of the economically and socially inte-

grated greater metropolitan area. It is commonplace

that residents of Maryland are part of the Washing-

ton Metropolitan trading area, and that District resi-

dents and businesses have an interest in the well-

being of these citizens of the Free State.

Id. at 223. In other words, when a plaintiff such as Dr.

Biscoe, who is a Maryland resident working in the Dis-

trict, is injured in the District, District of Columbia

courts have recognized a strong local interest in protect-

ing that plaintiff. See also RESTATEMENT (SECOND) OF

CONFLICT OF LAWS § 146 comment e (1971) (“The local

law of the state where the personal injury occurred is

most likely to be applied when the injured person has a

settled relationship to that state, either because he is

6 Milhollin, note 5, supra, at 454.

19a

domiciled or resides there or because he does business

there.”’).

Nor does the foregoing complete our review of inter-

ests the District has in application of its liability rules.

In Qasim, the District evidenced an unwillingness to em-

brace Virginia’s sovereign immunity rules; thus, to the

extent they have spoken, District of Columbia courts

have established a local policy against application of this

key aspect of Virginia law. The court’s rulings on Vir-

ginia’s immunity in that case, if not dispositive, are

surely entitled to great weight. This is especially so

when we look to Virginia ‘choice of law rules to ascer-

tain the interest of Virginia in application of its law to

the facts of this case. See Tramontana v. S.A. Empresa

De Viacao Aerea Rio Grandense, 350 F.2d 468, 473-75

(D.C. Cir. 1965) (looking to choice of law rules of Mary-

land, an interested state, to determine which state’s sub-

stantive law it would apply), cert. denied, 383 U.S. 943

(1966). Under Virginia law, the law of the site of the

wrong applies. McMillan v. McMillan, 219 Va. 1127, 253

S.E.2d 662 (1979) (reaffirming Virginia’s adherence to

the rule of lex loci delicti—the law of the state where the

tort occurs governs the substantive elements of the cause

of action). Thus, to the extent that choice of law prin-

ciples properly determine questions of immunity, Vir-

ginia would either apply the District’s rules or have to

fashion an exception based on its own policies. On bal-

ance, we conclude, the District’s policies would be sub-

stantially more seriously thwarted by nonapplication of

its law in this context than would those of Virginia, and

we affirm the District Court’s choice of law ruling.

2. Official Immunity

In an argument adopted by Officer Kyle, the County

argues that Officer Kyle is immune from liability in tort

for his conduct. Despite its vehement argument that Vir-

ginia immunity rules control the issue of the County’s

20a

immunity, the County is absolutely silent on the applica-

tion of Virginia law to the question of an officer’s im-

munity from suit. Nor is this surprising. Under Vir-

ginia law, employees of the state may be held liable for

negligent conduct. See Elder v. Holland, 208 Va. 15, 155

S.E.2d 369 (1967) (state employee liable); Wynn v.

Gandy, 170 Va. 590, 197 S.E. 527 (1938) (county em-

ployee liable) ; see also James v. Jane, 221 Va. 43, 267

S.E.2d 108 (1980) (recognizing that in some contexts

state employees may be immune from suit in negligence)

(rereported at 282 S.E.2d 864 (1980)). Under District

of Columbia law, municipal employees are immune only

for tortious conduct in the performance of discretionary

functions. See, e.g., Rieser v. District of Columbia, 563

F.2d 462, 475 (D.C. Cir.), vacated, 563 F.2d 482 (D.C.

Cir. 1977) (en banc), majority opinion reinstated in

relevant respects, 580 F.2d 647, 658 (D.C. Cir. 1978)

(en banc). Thus, on this issue, defendants are content

not to challenge t..e District Court’s application of Dis-

trict of Columbia law. Instead, the defendant County

asserts that Officer Kyle’s acts were discretionary, and

that he therefore is immune under the District’s law.

It similarly claims that the acts of which it is accused

independently were discretionary, and that it is immune

if District of Columbia law applies.

We believe the actions at issue were clearly ministerial

and operational, as those terms are defined by the Dis-

trict courts, and that neither Officer Kyle nor the County

was immune from suit under local law. District Court

Judge Harold Greene ruled against the County on this

issue before permitting the case to go to trial, and we

agree with his determination.

In the District of Columbia, both official and govern-

mental immunity depend on the ministerial-discretionary

dichotomy. The term ministerial “connotes the execution

of policy as distinct from its formulation.” Eigin v. Dis-

trict of Columbia, 337 F.2d 152, 154-55 (D.C. Cir. 1964).

In contrast, “If policy considerations were involved and

‘2la

no statutory or regulatory requi:ements limited the exer-

cise of policy discretion, . . . immunity would bar suit.”

Chandler v. District of Columbia, 404 A.2d 964, 966

(D.C. 1979). In other words,

there are certain decisions made in the exercise of

the discretionary functions of government for which

there is no reason to believe a jury would render a

sounder decision than those officials chosen, qualified,

and prepared to make them. It is these that are

labeled “discretionary” and which constitute policy

decisions deemed immune from suit because there is

no legal standard by which a judge or jury could

gauge their arbitrariness and capriciousness or lack

thereof.

Id.

Under existing precedent in this Circuit, we have no

doubt that the activities at issue here—supervising and

instructing officers, conducting a felony stop, and con-

ducting a felony pursuit—are m*‘nisterial, not discre-

tionary, acts. They involve day-to-day operational mat-

ters, not planning and policy. Thus, addressing the first

of these activities, supervision and instruction, it has

been aptly noted that,

From the very nature of these activities, it is clear

that they do not involve the kind of policy-formulat-

ing, judgment-making processes encompassed by the

term “discretionary.” Once the decisions have been

made to have a police department, to organize it in

a particular way, and to hire a specific individual to

be a member of that department, the acts of train-

ing, instructing, supervising and controlling the in-

dividual officer are merely “ministerial.”

Thomas v. Johnson, 295 F. Supp. 1025, 1031 (D.D.C.

1968) ; cf. Muskopf v. Corning Hospital District, 55 Cal.

2d 211, 11 Cal. Rptr. 89, 359 P.2d 457 (1961) (en

22a

banc).” Similarly, regardless whether the initial decision

of a police office: to stop or pursue a car is ministerial or

discretionary, a police officer’s execution of such activi-

ties is ministerial. See Mason v. Bitton, 85 Wash.2d 321,

534 P.2d 1360, 1365 (1975) (en banc). This is especially

so where, as here, the officer is constrained both by regu-

lations and clearly established policy and standards, about

which experts can, and have testified. The judgment

that limits must be imposed—as for example, on the

speed of a vehicle in hot pursuit—indicates that the

ACPD already had made the decision to limit the offi-

cer’s exercise of discretion; imposition of such limits also

suggests that effective law enforcement would not be

hindered by enforced adherence to such regulations. Sim-

ilarly, established procedures for the conduct of a felony

stop, once the stop has been made, curtail an officer’s

need or opportunity to make policy decisions on the

scene. We therefore need not be concerned that tort lia-

bility for such operational actions would “pose threats

to the quality and efficiency of government.” Spencer v.

General Hospital, 425 F.2d 479, 482 (D.C. Cir. 1969)

(en banc); see Carter v. Carlson, 447 F.2d 358, 362-63

& nn.8-9 (D.C. Cir. 1971) (no immunity from suit for

tort committed in course of making an arrest), rev’d in

part on other grounds, 409 U.S. 418 (1973); Wade v.

District of Columbia, 310 A.2d 857 (D.C. 1973) (en

banc). Accordingly, we conclude that the particular acts

of which plaintiffs complain are ministerial, and that

both Officer Kyle and the County were properly found to

be liable for damages.

7 Of course, not all actions having to do with training police offi-

cers are necessarily operational or ministerial, see Carter v. Carl-

son, 447 F.2d 358, 363-64 (D.C. Cir. 1971) (training and supervi-

sion have both ministerial and discretionary components), rev'd in

part on other grounds, 409 U.S. 418 (1973), but we have no reason

to believe, as Judge Greene did not, that plaintiffs’ allegations con-

cern anything but the operational aspects of such activity.

ORI AI TIPE oF

23a

B. Standard of Care

The record and briefs in this case reflect an extraor-

dinary degree of confusion surrounding the proper stand-

ard of care to be applied to the felony stop and pursuit.

We conclude that the proper standard for the District of

Columbia is that of due care, as limited by the guide

lines applicable to Officer Kyle’s conduct. See Mason v.

Bitton, 85 Wash.2d 321, 534 P.2d 1360 (1975) (en banc)

(under statute with same language as D.C. regulations,

police and other officers have duty to act with due re

gard for the safety of all persons and property while

operating emergency vehicles) ; Myers v. Town of Harri-

son, 488 F.2d 293 (2d Cir.) (same), cert. denied, 404

U.S. 828 (1971). We also conclude that whatever chal-

lenge is now raised is waived for failure to preserve it

below.

Defendants assert that the proper standard of care to

which they should be held is gross negligence. The basis

for this argument is a provision of the D.C. Code that

expressly waives the immunity of the District for the

negligent operation of District-owned vehicles by District

employees, except for claims “arising out of the opera-

tion of an emergency vehicle on an emergency run,” D.C.

CopE ANN. § 1-1212 (1981), for which the District is

liable only for gross negligence.* The Code defines “emer-

8 D.C. CopDE ANN. § 1-1212 (1981) provides in relevant part:

Hereafter the District of Columbia shall not assert the de-

fense of governmental immunity in any suit at law in which a

claim is asserted against it for money only on account of dam-

age to or loss of property or on account of personal injury or

death caused by the negligent or wrongful act or omission of

any employee of the District occurring as the result of the op-

eration by such employee, within the scope of his office or em-

ployment, of a vehicle owned or controlled by the District:

Provided, that in the case of a claim arising out of the opera-

tion of an emergency vehicle on an emergency run the District

shall be liable only for gross negligence.

24a

gency run” to refer to the movement of District-owned

vehicles and “employee” to mean an officer or employee of

the District. D.C. Cope ANN. § 1-1211(4), (6) (1981).

Against this clear legislative statement of an intent to

limit the applicability of the gross negligence standard to

District liability for damages caused by District vehicles,

we would be hard put to accept defendants’ argument

that the standard applies to them. This is especially true

given the natural concerns—proved accurate in this case

—that District emergency vehicles have both a greater

responsibility and a greater ability to respond to emer-

gencies in the District, and particularly in crowded

metropolitan areas at lunchtime, than do non-Dietrict ve-

hicles. Moreover, the gross negligence standard of D.C.

Code Ann. § 1-1212 obviously does not protect employees,

as opposed to the municipality, and surely does not cover

Officer Kyle.

That a statute expressly limited to employer liability

for damages caused by District vehicles is not intended

to apply to non-District vehicles is made particularly ap-

parent by the existence of another regulation explicitly

applicable to drivers of both District and non-District

vehicles. Under this second provision, Officer Kyle, as the

driver of an authorized emergency vehicle, was bound to

exercise “due regard for the safety of all persons,” 18

D.C.M.R. § 2002.4 (1981) (previously found at 17

D.C.R.R. $6), and was not protected from the conse-

quences of his reckless disregard for the safety of oth-

ers. Id. The municipal regulations define an authorized

emergency vehicle as the vehicle of any police depart-

ment, 18 D.C.M.R. § 9901, presumably including that of

Arlington County; under District law the regulation

therefore applies to Kyle and imposes on him a duty to

act with due care for the safety of others while driving

an emergency vehicle in the District. See also Tetro v.

Town of Stratford, 189 Conn. 601, 458 A.2d 5 (1983)

(liability permissible on a finding of negligence, based

25a

on language similar to that in the District regulation) ;

Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360 (1975)

(en bane) (statute with language like that in the Dis-

trict regulation imposes actionable duty to exercise due

care during felony pursuit) ; Myers v. Town of Harrison,

438 F.2d 293 (2d Cir. 1971) (same). See generally

Annot., 4 A.L.R. 4th 865 (1981) (citing numerous cases

on state, county and municipal liability for injury to

innocent persons as a result of police chases).

Apart from our finding that the proper standard is

that of due care, we also find that defendants have

waived whatever challenge they might have had to the

instruction on standard of care. They did not offer an

instruction below that was refused, did not state grounds

for any objection they might have had to the instruction

given, and did not clearly object. See Fep. R. Civ. P. 51.

In his memorandum and order denying defendants’ mo-

tion for judgment notwithstanding the verdict, Judge

Greene wrote,

It may be noted, too, that defendants submitted

only the sketchiest of instructions on this as on other

issues (Tr. 1775); they did not renew their request

on this issue after the Court apprised the parties on

how it would instruct (Tr. 1789-1800); nor did they

renew the objection after the Court completed its

charge (Tr. 1885-86).

Biscoe v. Arlington County, No. 80-0766, Mem. Op. at 3

n.2 (D.D.C. Aug. 5, 1983, reprinted in Joint Appendix

(“J.A.”) 87, 89. 7

In its Reply Brief, Arlington County nonetheless as-

serts that it did challenge the instruction. The trial rec-

ord and transcript suggest otherwise. First, the County

neither produces nor points to any proferred instruction

containing the gross negligence standard. Second, in the

one instance when the County’s attorney suggested that

the proper standard might be gross negligence, the court

responded,

26a

I must say in all candor nobody really submitted

any instructions about this case, so we have worked

up some instructions which are being typed now

and which I have to look over some more and will

take a while to get them in final form and I will dis-

tribute them to the parties and I think some of the

questions we are talking about now are simply in

the abstract and you can talk more appropriately in

the concrete when my proposed instructions are com-

pletely finalized. That will take about 45 minutes

to an hour, so we will at least have some instruc-

tions we can talk about rather than just saying well,

this is appropriate and that is not, and so forth, so

that is what I propose to do.

Tr. at 1775-76. Thereafter, counsel for the defendants

raised numerous issues, but did not challenge the in-

structions setting forth a negligence standard. Rule 51

states with unmistakable clarity that “[nJo party may

assign as error the giving or the failure to give an in-

struction unless he objects thereto before the jury retires

to consider its verdict, stating distinctly the matter to

which he objects and the grounds of his objection.” The

County has not demonstrated that it objected at any

stage to the instruction offered by Judge Greene, and

surely never did so with any explanation. We therefore

decline to consider the argument on appeal, particularly

in the absence of plain error. See Hobson v. Wilson, No.

82-2159, slip op. at 55-56 (D.C. Cir. June 8, 1984) (de-

clining to address challenge to jury instruction when ob-

jection was not properly preserved at trial).

C. Existence of a Cause of Action

Defendants contend that District of Columbia courts

do not recognize the causes of action on which the Bis-

coes based their action. However, the cases on which de-

fendants rely for this argument are plainly inapplicable;

accordingly, we reject their contention as being wholly

without merit.

27a

Initially, there is no question that the District recog-

nizes a cause of action for negligent training and super-

vision of police officers. This court has expressly so held.

Marusa v. District of Columbia, 484 F.2d 828, 830-31

(D.C. Cir. 1973); Carter v. Carlson, 447 F.2d at 368.

Nor should there be any question that a police officer’s

improper conduct of a felony stop and pursuit may give

rise to a suit in damages.’ Defendants nevertheless rely

on cases establishing the general proposition that no

cause of action exists against police officers who fail to

prevent crime, see, ¢e.g., Morgan v. District of Columbia,

468 A.2d 1306 (D.C. 1983) (en banc), to argue that no

cause of action exists here. However, Morgan expressly

distinguished cases of the kind we confront, in which a

police officer, having exercised discretion and chosen to

act fails to act reasonably, see id. at 1313, thereby proxi-

mately causing injury to another. Cases such as Morgan

involve a failure to assist when assistance might prevent

or cut short ongoing criminal] activity; they do not in-

volve a situation like the one here, in which police activ-

ity, affirmatively undertaken and negligently handled,

directly contributes to creation of a dangerous situa-

tion.” In the former instance, courts have found that

police officers have no individualized duty to prevent

crime, and that failure to do so is not actionable. The

* Indeed, to uphold the judgment here we need only determine

that defendants are jointly and severally liable for either of these

acts. We focus on the felony pursuit in the belief that it provides

the starkest contrast to the line of cases on which the defendants’

rely and readily exposes the flaw in defendants’ reliance on those

cases.

mitting a jury to second-guess a decision on allocation of police

resources. Particularly when, as in the instant case, the police offi-

cer acts in violation of specific regulations and standards established

to prevent precisely the consequence that has occurred, and when

testimony establishes a proper course of action against which to

measure a defendant’s conduct, we find Morgan wholly inapplicable.

28a

situation we confront is of a different kind altogether,

involving officers with a duty to exercise due care for

the safety of innocent persons, and is not controlled by

Morgan." This point is amply highlighted by the fact

that numerous jurisdictions have recognized a cause of

action for negligent conduct of a high-speed chase, where

the pursued vehicle strikes and injures an innocent third

party. See, e.g., Fiser v. City of Ann Arbor, 417 Mich.

461, 339 N.W.2d 413 (1983); Tetro v. Town of Strat-

ford, 189 Conn. 601, 458 A.2d 5 (1983); City of Sacra-

mento v. Superior Court, 131 Cal. App. 3d 395, 182 Cal.

Rptr. 443 (Ct. App. 1982); Selkowitz v. County of Nas-

sau, 45 N.Y.2d 97, 408 N.Y.S.2d 10, 379 N.E.2d 1140

(1978) ; Reed v. Winter Park, 253 So.2d 475 (Fla. App.

1971); Myers v. Town of Harrison, 438 F.2d 293 (2d

Cir.), cert. denied, 404 U.S. 828 (1971); Mason v. Bit-

ton, 85 Wash.2d 321, 534 P.2d 1360 (1975) (en banc);

Schatz v. Cutler, 395 F. Supp. 271 (D. Vt. 1975). See

generally Annot., 4 A.L.R. 4th 865 (1981) (citing nu-

merous cases on government liability for injury to in-

nocent persons as a result of a police chase).

D. Remaining Issues

Defendants raise several other issues, which were not

pressed at oral argument, and we find no merit to them.’*

11 See Joyner v. District of Columbia, 109 Daily Wash. L. Rptr.

869 (Mar. 2, 1981) (recognizing a cause of action of the kind filed

by the Biscoes).

12 Briefly, as to defendants’ claims regarding personal jurisdic-

tion, we affirm on the basis of Judge Greene’s memoranda denying

defendants’ motion for summary judgment and their motion for

judgment notwithstanding the verdict. See J.A. 66-69, 87-88. As

to Officer Kyle’s efforts to relitigate the jury’s conclusions on proxi-

mate cause, we believe the evidence adduced at trial was more than

sufficient to send the issue to the jury, and we surely have no basis

on which to conclude that the jury’s conclusions were so wholly un-

reasonable as to require reversal. See Calloway v. Central Charge

Service, 440 F.2d 287, 289 & n.2 (D.C. Cir. 1971). Finally, as to the

29a

In short, having reviewed the entire record in this case

with great care, we find that the jury’s verdict was fully

justified by the evidence. Furthermore, we can find no

basis to overturn any of the challenged evidentiary or

legal rulings of Judge Greene.

CONCLUSION

For the foregoing reasons, we affirm the court’s judg-

ment.

So ordered.

expert economic testimony of which defendants complain, we be-

lieve an evidentiary predicate existed for admission of the testi-

mony as solicited by Judge Greene, and, having read the colloquy

among counsel in the trial transcript, we conclude that Judge

Greene’s reformulation of the proffered testimony adequately ad-

dressed defendants’ concerns. See Tr. at 742-61.

30a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 80-0766

ALVIN B. BISCOE, et al.,

Plaintiffs,

ARLINGTON COUNTY, et al.,

Defendants.

[Filed Aug. 5, 1983]

MEMORANDUM

Defendants make a number of arguments in support

of their motions for judgment notwithstanding the ver-

dict and for a new trial but, except for the request for a

remittitur with respect to Mrs. Biscoe, none has merit.

1. It is claimed that the Court lacked jurisdiction over

Arlington County under the longarm statute. D.C. Code

§ 13-423. Jurisdiction is present on several bases.

First, section 423(a) (3) of title 13 vests jurisdiction

in the courts in the District of Columbia for tortious in-

jury in the District caused by the defendant either di-

rectly or through an agent. Officer Kyle’s activities,

which were alleged and proved to have caused injury to

the plaintiffs did, of course, occur in this District. Sec-

ond, there is jurisdiction because Arlington County has

engaged in a persistent course of conduct in the District.

Section 423(a)(4)). This is evidenced, at a minimum,

ial

3la

by County regulations establishing the procedures to be

followed when suspects are pursued into the District as

well as by proof that County officers regularly confer by

telephone with the Metropolitan Police Department.*

Third, once where, as here, a claim involves acts occur-

ring in the District of Columbia, there is jurisdiction

even if some portion of the transaction (i.e., negligent

training and supervision) occurred elsewhere. See

Cohane v. Arpeja-Calijornia, Inc., 385 A.2d 153, 158-59

(D.C. App. 1977). Finally, the negligent training and

supervision claim against the County is properly before

the Court under the doctrine of pendent jurisdiction. See

Wright & Miller, Federal Practice and Procedure: Civil

§ 3567, at 445.

2. Defendants contend that under D.C. Code § 1-121

the standard of care by which they should have been

judged was that of “gross negligence.” However, the

cited provision applies only to claims against “an em-

ployee of the District,” and even then only with regard to

matters occurring as a result of his operation of a “vehi-

cle owned or controlled by the District.” Neither factual

predicate is present here.”

3. Arlington County claims that there was a failure

of proof with regard to proximate cause—an argument

that appears to be based principally upon the theory that

the actions of the defendant Britton may have been a

proximate and superseding cause. The basic problem

1 These conversations apparently refer to visits by County police

officers to exchange prisoners and the like.

2It may be noted, too, that defendants submitted only the

sketchiest of instructions on this as on other issues (Tr. 1775);

they did not renew their request on this issue after the Court

apprised the parties on how it would instruct (Tr. 1789-1800) ;

nor did they renew the objection after the Court completed its

charge (Tr. 1885-86). As to the proper standard of care with

respect to the officers’ conduct, see Morgan v. District of Columbia,

449 A.2d 1102 (D.C. App. 1982).

32a

with that contention is that Arlington County abandoned

any reliance on the possible negligence of Britton as

early as August 1982. See Tr. 1058-61; see also the

Magistrate’s pretrial order of November 19, 1982; and

the County’s Response to the Court’s Trial Order.

In this connection, defendants also claim tha. the

Court erred when it permitted one of plaintiffs’ experts

to give his conclusion regarding the proximate cause of

the accident “thus invading the province of the jury.”

Memorandum of Points and Authorities, p. 9. There is

no merit whatever to this contention. See Rule 704, Fed-

eral Rules of Evidence.

4. Defendants argue that under Warren v. District of

Columbia, 444 A.2d 1 (D.C. App. 1981) and similar deci-

sions * Officer Kyle did not owe a duty to plaintiffs such

that a breach would result in liability. In Warren, two

women had telephoned the police to report the presence of

an intruder in their rooming house. The police arrived

but departed shortly thereafter without conducting any

significant investigation. Eventually, the women were

abducted, raped, and robbed. The District of Columbia

Court of Appeals upheld a trial court dismissal of their

action against the District, holding that “government and

its agents are under no general duty to provide public

services such as police protection to any individual citi-

zen.” 444 A.2d at 3. The instant case, however, involves

more than a mere generalized failure to provide police

protection; rather, it presents a situation where an officer

failed to comply with regulations—such as that govern-

ing speedy pursuits into the District—promulgated to

avoid the very type of accident that here occurred and to

protect individuals situated as are these plaintiffs.‘

3 See Westminster Investing Corp. v. G. C. Murphy Co., 484 F.2d

521 (D.C. Cir. 1970).

* The court in Warren recognized that any additional element to

the general duty to provide police protection may give rise to lia-

bility. 444 A.2d at 3 n.2.

33a

In Morgan v. District of Columbia, 449 A.2d 1102

(D.C. App. 1982), decided subsequent to Warren, the

Court of Appeals made clear the distinction between au

amorphous, general duty and the kind of duty the breach

of which may give rise to a cause of action. In that case,

a police officer first threatened and then shot his wife and

several others. The District of Columbia was sued on the

theory that it was negligent by failing to act, through its

agents, after receiving a report of an officer’s gun threat.

In response to the argument, similar to that made in this

case, that the Police Department owed the plaintiffs no

duty the breach of which could be regarded as negligence,

the Court of Appeals stated in language directly relevant

here that the Department did owe a duty to the public to

use reasonable care in supervising and controlling the

officers in its employ. 449 A.2d at 1108. Significantly,

the court relied heavily on the duty of the Department to

abide by its own regulations (449 A.2d at 1109 n.9), and

it noted and distinguished Warren, supra.®

5. Defendants claim that the Court should have ad-

mitted the testimony of two of their witnesses notwith-

standing that the information required by Rule 26(b)

(4), Fed. R. Civ. P., concerning these persons had not

been furnished. The proffer made with respect to these

witnesses was that they would testify regarding plain-

tiffs’ experts. Since the requisite Rule 26(b) (4) material

was not provided at any time, the Court refused to allow

the witnesses to proceed. Defendants’ subsequent claim

that the testimony would be more factual than expert in

nature is not compelling.®

5449 A.2d at 1108. Defendants also contend that the proof was

insufficient to support a jury finding of County negligence in train-

ing and supervising Officer Kyle, but there was ample evidence on

this issue. See, Carter v. Carlson, 447 F.2d 358, 368 (D.C. Cir.

1971), rev’d on other grounds, 409 U.S. 418 (1978).

6In any event, this testimony was marginal and cumulative. See

also, Tr. 1763-64.

344

6. Defendants have brought to the Court’s attention a

document entitled “Metropolitan Washington Council of

Governments Police Mutual Aid Agreement” in support

of their argument that Arlington County is possessed of

sovereign immunity. The Compact does not apply to the

situation here involved, for it deals only with “imminence

of fire, flood, epidemic, war, internal disorder, or other

public disaster.” Indeed, subsequent to its adoption, the

Compact may have been amended’ to include the ex-

change of narcotics investigators across jurisdictional

lines, suggesting under the doctrine of expressio unius

est exclusio alterius that a high-speed chase in the context

of a robbery is not included under the Compact. In any

event, none of these matters was or could have been

explored at the trial because the Compact was not pro-

duced at any time prior to the filing of the current

motions. The Compact, an official document, obviously

was always available to defendants, and they may not

proffer it now for the first time in support of a request

for a new trial.

7. The Court has examined defendants’ other claims,®

including those regarding the sufficiency of evidence to

support the jury’s verdict,® and it finds them all to lack

merit.

7 The copy submitted to the Court contains neither signatures

nor a date.

8 F.g., the claims regarding future lost wages; the mistrial mo-

tions; the claim regarding the sufficiency of the evidence to support

negligence and proximate cause with regard to negligent supervi-

sion and training; the admissibility of expert testimony on the issue

of negligent supervision and training; and the various additional

grounds listed in Officer Kyle’s motion.

®See Vander Zee Vv. Karabatsos, 589 F.2d 723, 728 (D.C. Cir.

1978); Webster v. M. Loeb Corp., 400 A.2d 319, 320 (D.C. App.

1979).

35a

The defendants request a new trial, or in the alterna-

tive a remittitur, on the ground that the jury verdict

with respect to Mr. Biscoe and Mrs. Biscoe is so excessive

as to indicate a jury motivated by passion and prejudice.

The D.C. Court of Appeals has recently reiterated the

standards which must be applied in evaluating a verdict

against this kind of attack. Phillips v. District of Colum-

bia, 458 A.2d 722 (D.C. App. 1983). Briefly summar-

ized, these standards are as follows. When a jury verdict

is excessive, the court may grant a remittitur. A verdict

is deemed to be excessive if it is so large as to be beyond

all reason, so great as to shock the conscience of the

court, or so large as obviously to exceed the maximum

limit of a reasonable range within which the jury may

properly operate. See also Wright & Miller, Federal

Practice and Procedure, Civil, §§ 2807, 2815; Williams v.

Stewart Motor Co., 494 F.2d 1074 (D.C. Cir. 1974).

1. The damages awarded by the jury to Mr. Biscoe

are clearly not excessive under these standards. This

plaintiff is a fifty-year old man with a further life ex-

pectancy of 25 years. A Ph.D. in economics, he has had a

substantial earnings history in various professional jobs.

As a consequence of the accident, he lost both legs (one

at the scene itself, the other by amputation), and because

of the nature of the injuries and the amputations, he is

unable to walk, even with crutches, but must use a wheel-

chair. Plaintiff has had and is in further need of sub-

stantial psychiatric care and assistance. There was evi-

dence from which the jury could reasonably have found

that his medical and hospital expenses, medical equipment

needs, repair of a home to accommodate his present con-

dition, past lost earnings, and other special damages

amount to close to $700,000. There was also evidence

from which the jury could have concluded that Mr.

Biscoe’s state of health is so fragile that it is likely that

86a

he will lose substantial amounts in future earnings over

his remaining lifetime. On the basis of these special

damages, it was not unreasonable for the jury to return

a verdict of $4 million, including damages for pain and

suffering as to which there was substantial evidence.”

2. The situation is different with regard to Mrs. Bis-

eoe. That plaintiff testified to the difficulties she is

experiencing due to her husband’s condition, including

her need to care for him, the adjustments she has had to

make and will continue to have to make, and the psy-

chotherapy treatments she has received. Counsel’s closing

arguments aptly summarized the damages testimony on

her behalf by asking the jury to “consider what she has

gone through’; that her husband could not now help her

around the house; and that the couple will be unable to

go out together the way other persons do. Tr. 1833-34.

There is no question that the evidence sustains these

statements, and that these factors impose a substantial

burden and a significant hardship on Mrs. Biscoe. In-

deed, it would not be difficult to speculate that no amount

of money could, for Mrs. Biscoe, replace her husband’s

health. But that, of course, is not the test under the law.

Loss of consortium consists, broadly speaking, of loss

of services, loss of companionship, and interference with

sex relationships. See generally, Stein, Damages and

Recovery in Personal Injury and Death Actions, pp. 417-

27. None of these—except in some instances loss of serv-

ices—is susceptible of precise quantification in monetary

terms. It does not follow, however, that awards of dam-

ages under these rubrics may not be found to be unrea-

sonable. Indeed, grants of a new trial and remittiturs

occur typically where special damages are fully ascer-

tained while damages for pain and suffering—in a sense

10 Defendants made no effort, either by way of evidence, or in

closing argument, to refute the damages evidence adduced on be-

half of Mr. Biscoe.

37a

as intangible as loss of consortium—are found to be

unreasonably high.

One way to establish reasonableness in this necessarily

amorphous area is to consider what kind of damage ver-

dicts have been returned in other, somewhat comparable

situations. According to 2 Personal Injury Valuation

Handbook 1206-1216 (1976), the average award for loss

of services during the 1969-76 time period in the United

States" was $9,270.% The largest loss of consortium

verdict noted was $195,000 which was awarded to a

woman whose husband suffered permanent brain damage

in a car-train collision, and whose daughter was killed in

the same accident. Martin, et al. v. Ann Arbor Railroad

Co., et al., No. 6785 (Mich. March 1974). See also, Hall

v. General Motors Corporation, 647 F.2d 175 (D.C. Cir.

1980) (loss of consortium award to husband whose wife

had been rendered a quadriplegic reduced from $1.5 mil-

lion to $500,000); Manning v. Mobile Aerial Towers,

Inc., 488 F.2d 127 (6th Cir. 1973) {loss of consortium

award to wife where husband lost both hands and a por-

tion of both arms, reduced from $75,000 to $30,006).

It is also of significance that there was substantial

evidence at the trial concerning the care Mrs. Biscoe is

now obligated to render to her husband. See, e.g., Tr.

11 According to the Handbook,

[T]he injury and expectancy and liability probability tables

are based upon over 75,000 personal injury verdicts collected

from all areas of the United States .... The accuracy of the

tables has been scientificaily validated.

se S235

12 This includes loss of services sustained by wives, by husbands,

and by parents for the loss of their children’s services. The average

award for the loss of services sustained by wives as a consequence

of physical injury to their husbands was $10,751, and that awarded

to husbands was $12,659.

1255, 1258-59." On the other hand, the testimony re-

garding injury to Mrs. Biscoe as a result of loss of serv-

ices from Mr. Biscoe is, relatively speaking, scant. Evi-

dence of services Mrs. Biscoe must render to her husband

of course supports in part the $4 million verdict for Mr.

Biscoe; it does not also support the verdict in favor of

Mrs. Biscoe for loss of consortium.

For the reasons stated, the Court is of the opinion that

the $1 million awarded to Mrs. Biscoe exceeds the range

of the reasonable. Upon consideration of all the circum-

stances, as revealed by the testimony of the witnesses and

the other evidence, the Court concludes that any amount

larger than $350,000 to Mrs. Biscoe would be excessive.

The Court will therefore grant defendants’ motion for a

new trial with respect to Mrs. Biscoe unless she agrees to

a reduction of the jury award to $350,000."

/s/ Harold H. Greene

HAROLD H. GREENE

United States District Judge

Dated: August 5, 1983

“ While that testimony was admitted to support Mr. Biscoe’s

claim, it must have influenced the jury in regard to the award to

Mrs. Biscoe.

* See Linn v. United Plant Guard Workers of America, 383 U.S.

53 (1966); Hulett v. Brinson, 229 F.2d 22 (D.C. Cir. 1955).

39a

U.S. Const. art. IV

Section 1. Full Faith and Credit shall be given in each

State to the public Acts, Records, and judicial Proceed-

ings of every other State. And the Congress may by

general Laws prescribe the Manner in which such Acts,

Records and Proceedings shall be proved, and the Effect

thereof.

Section 2. (1) The Citizens of each State shall be en-

titled to all Privileges and Immunities of Citizens in the

several States.

U.S. Const. amend. XTV

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.