United States Court of Appeals, District of Columbia Circuit
March 10, 2017
from the United States District Court for the District of
Columbia No. 1:13-cv-00324
Gregory L. Lattimer argued the cause and filed the briefs for
E. Pittman, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the
cause for appellees. With her on the brief were Karl A.
Racine, Attorney General, Todd S. Kim, Solicitor General, and
Loren L. AliKhan, Deputy Solicitor General.
Before: Rogers, Millett and Pillard, Circuit Judges.
PILLARD, CIRCUIT JUDGE.
case arises from restaurant patron Michelle Hall's claims
that employees of Cities Restaurant and Lounge, and the
Metropolitan Police Department officers they summoned,
reacted overly harshly when she raised a question about her
bill and temporarily left the restaurant. Hall appeals the
district court's final judgment against her resulting
from dismissal of some of her damages claims on the
pleadings, and others on summary judgment.
celebrated her birthday with friends at Cities. Near the end
of the evening, Hall was surprised by some of the charges on
her bill due to what turned out to be mis-communication with
the promoter who had set up the party for her. Before the
billing question was fully resolved or Hall's party
disbanded, some additional people on Hall's guest list
arrived late and texted her; rather than pay a cover charge
to join her at Cities, the late arrivals said they would go
to a no-cover-charge bar across the street and asked Hall to
join them for a quick drink. Hall then stepped out of Cities
temporarily to greet those friends at the bar opposite. When
she did so, Cities still held Hall's credit card and
driver's license, and several of Hall's celebrants
stayed at the table at Cities with the bill, Hall's
purse, her phone, and her birthday gifts.
employees responded as if Hall's departure were an
attempt to avoid paying her bill. They called the police to
report felony theft of services. The responding officers
located Hall at the bar across the street and broke down the
door of the single-occupancy bathroom where Hall and a friend
were freshening their makeup and using the toilet. Without
asking her any questions about what happened at Cities, Hall
contends, the police handcuffed Hall, dragged her out of the
bar, and detained her on the sidewalk and then in a squad car
for about forty-five minutes. While she was sitting
handcuffed in the police cruiser, Hall asked a passing
officer who had not been involved in her initial arrest why
she was being held. The officer replied that Hall had walked
out on her bill. Hall objected that she had not; indeed,
Cities still had her credit card and driver's license.
The officer, hearing that information for the first time,
went into the restaurant and came back with a receipt
charging the full amount of Hall's bill to her credit
card. Hall promptly signed the receipt and the officer
brought this suit for damages against the District of
Columbia, its officers, Cities, and its manager. The district
court dismissed some of Hall's claims on the pleadings
and, after discovery, granted summary judgment in
defendants' favor on the rest. We affirm in part, vacate
in part, and remand for further proceedings consistent with
Hall's claims were dismissed either on the pleadings or
at summary judgment, the factual background draws inferences
in Hall's favor from her complaint and from facts
revealed through discovery. See Mpoy v. Rhee, 758
F.3d 285, 287 (D.C. Cir. 2014) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009)); Tolan v.
Cotton, 134 S.Ct. 1861, 1863 (2014) (per curiam).
Needless to say, where there are evidentiary conflicts,
jurors might well find the facts differently. Our recitation
of events, as definitive as it may sound, is thus necessarily
provisional due to the procedural posture of the district
2012, Michelle Hall, who lived and worked in Washington,
D.C., arranged through event promoter Ryan White to have her
twenty-ninth birthday party at Cities Restaurant and Lounge,
located at 919 19th Street Northwest. White had coordinated
Hall's birthday party at Cities the previous year, and
Hall understood that she would again be served two free
bottles of alcohol as incentive to bring her business to
Cities. When Hall arrived at Cities for the party on March
17, Cities requested that Hall leave her credit card and
identification with restaurant employees, which she did.
hours later, after the group consumed three bottles of
alcohol and some food, a server presented Hall with a bill
for $1, 104.74. It reflected a charge of $935.04 for the food
and all three of the bottles of alcohol the group had
consumed, plus a $169.70 tip. Because Hall had not expected
to pay for the first two bottles of alcohol, she texted her
objection to Ryan White, the party promoter, who responded
that she was mistaken; Cities had not agreed to provide any
free bottles of alcohol this time. Hall felt misled, and when
White stopped responding to Hall's text messages, she
spoke with manager Seyhan Duru, who alerted the restaurant
owner to the dispute. Meanwhile, Hall's party guests, who
had agreed to contribute money for the food and third bottle
consumed, started putting cash in a bill book towards paying
Hall's friends remained at Cities and attempted to work
something out with Duru and Cities' owner, Hall went to a
bar across the street to meet friends who had arrived at the
tail end of the party at Cities and did not wish to pay
Cities' forty-dollar cover charge to enter just as the
group was finishing up there. Because Cities had stamped
Hall's hand for re-entry and the restaurant retained the
credit card and driver's license she had handed over when
she arrived, and because Hall left her birthday presents, her
purse, her cell phone, and most of her friends at Cities, and
had told the server to leave the bill on the table as they
were "still working on it, " J.A. 100, she did not
anticipate that the restaurant would have any concerns about
her temporarily leaving the premises.
thereafter, however, a Cities employee called the police to
report that an "intoxicated female" wearing a
yellow sundress had refused to pay her bill. J.A. 165. The
police apparently registered the call as a report of
"theft one of services, " or felony theft in the
first degree, meaning the value of what was stolen exceeded
$1000. Lee Dep., 25:16-18, Mar. 9, 2015; D.C. Code §
22-3212(a). The call was puzzling given the record evidence
showing that Cities had swiped and received approval for a
$935.04 charge to Hall's credit card eleven minutes
before the police report recorded the call from Cities.
arrived and entered the bar opposite Cities. According to
Hall's account, they found Hall in the bathroom,
announced themselves as the police and ordered Hall to open
up, almost immediately broke down the door,
"slammed" her against a wall, See Hall
Dep., 49:1, Feb. 12, 2015, handcuffed her, and dragged her
out of the bar, all without asking her any questions to
verify Cities' complaint. The police detained Hall,
restraining her in what Hall alleged and some of the evidence
confirmed to be varying positions of discomfort, for
approximately forty-five minutes.
complained that her handcuffs were too tight. The arresting
officer, Alice Lee, responded by tightening the cuffs. Lee
forced Hall to her knees on the sidewalk, where Hall's
underwear was exposed to passers-by and her knees scraped and
bruised by the concrete. Lee repeatedly tightened Hall's
handcuffs, and even yanked Hall's handcuffed arms behind
her. When Hall asked Lee "What's going on?" Lee
responded "[Theft of] services." Hall Dep.
49:18-50:4. Officer Lee did not identify herself to Hall.
Only after Lee had brought Hall into the street could Hall
read Lee's badge number. Officer Lee placed the
handcuffed Hall in the back of a police cruiser.
noted above, what could be viewed as Cities' and the
police's over-reaction to Hall's dissatisfaction
about a liquor charge she had not anticipated was quickly
resolved as soon as an officer listened to Hall's version
of events. While Hall was sitting handcuffed in the police
vehicle with the window down, she asked another police
officer why she was detained. When the officer responded that
Hall had walked out on her bill, Hall objected that she most
certainly had not; in fact, she had even left her credit card
with Cities' staff. The officer went into Cities, came
out with a credit card receipt charging Hall for the full
bill and, when she promptly signed it, he released her.
suffered emotional trauma, cuts and bruises, and an injured
wrist. She sued the District, Officer Lee and Lee's
partner (an unknown John Doe officer), Cities, and its
manager Seyhan Duru. The complaint alleged excessive force
and assault and battery by Officers Lee and Doe, intentional
and negligent infliction of emotional distress by the
officers and Duru, negligence on the part of all defendants,
conversion by Cities, defamation by Cities and Duru, and
false arrest and false imprisonment in violation of state law
and the United States Constitution against the officers.
Officer Doe does not seem to have been identified and is not
listed as a party on appeal. See Appellant Br.
Certificate as to Parties, Ruling, and Related Cases.
district court granted a motion to dismiss all claims against
the District and the officers except the common law battery
claim. Hall v. District of Columbia, 73 F.Supp.3d
116 (D.D.C. 2014). Cities and its manager Seyhan Duru did not
file or join any motion to dismiss. The parties then
conducted discovery, deposing Hall, Officer Lee, Duru, two of
Hall's friends-Kay Vollans and Gary Jones-who were at
Cities with her that night, and a radiologist who examined
Hall's injured wrist after the incident Officer Lee,
Cities, and Duru then moved for summary judgment on all
remaining counts. The court granted judgment to Officer Lee
on the battery claim, concluding that no reasonable jury
could conclude that her use of force was unjustified, and
granted summary judgment to Cities and Duru on the common law
tort claims against them. See Hall v. District of
Columbia, No. 13-cv-324, 2016 WL 1452325 (D.D.C. Apr.
12, 2016). Hall appealed.
affirm the dismissal of the intentional and negligent
infliction of emotional distress claims and the negligence
claims against Officer Lee and the District of Columbia. We
also affirm the grant of summary judgment to Duru on all
claims against him. We vacate the judgment on all remaining
claims and remand for further proceedings. The allegations of
the complaint suffice to make out claims under section 1983
of false arrest and excessive force, as well as common law
assault, false arrest, and false imprisonment against Officer
Lee. The evidence suffices to create material factual
disputes on the common law battery claim against Officer Lee,
and the defamation, negligence, and conversion claims against
group the claims into three clusters for analysis, each of
which turns on one of three common issues. First, relevant to
the common law claims against Cities, did Cities employees
act reasonably and in good faith in calling the police to
report Hall's alleged theft of services? Second, was the
police arrest and detention of Hall reasonable under the
Fourth Amendment? And, third, did police use excessive force
against Hall, or was their force justified by resistance on
Hall's part? We apply settled District of Columbia law.
Our analysis is not intended to express any view on the
ultimate resolution of Hall's claims, nor is it intended
to modify D.C. law.
Common Law Claims against Cities and Duru Resolved on
viability of the first group of claims turns on whether a
reasonable jury would be required on the summary judgment
record to find that Cities, through its employees, acted
reasonably toward Hall, called the police in good faith, and
charged her only for what she owed, or whether Hall has
triable common law tort claims because the evidence could
support contrary determinations. The district court granted
summary judgment to Cities and its manager Seyhan Duru on all
counts against them. We review the grant of summary judgment
de novo, examining "the facts in the record and
all reasonable inferences derived therefrom in a light most
favorable to" Hall. Robinson v. Pezzat, 818
F.3d 1, 7-8 (D.C. Cir. 2016) (quoting DeGraff v. District
of Columbia, 120 F.3d 298, 299-300 (D.C. Cir. 1997)).
Because, as the district court correctly held, the record
contains no triable factual disputes material to the tort
claims against Cities employee Seyhan Duru, we affirm the
grant of summary judgment in his favor. As to Cities,
however, we conclude that material factual disputes preclude
summary judgment in its favor on all claims against it.
The Record Does Not Support Claims Against Seyhan
tort claims against Duru charge him with negligence,
negligent and intentional infliction of emotional distress,
and defamation for calling the police and falsely accusing
Hall of theft. See Compl. ¶ 36. Discovery
failed to corroborate the allegation that Duru placed the 911
call. Instead, the only record evidence directly on point
identifies manager Carla Urquhart as the Cities employee who
called the police to report that Hall refused to pay.
See J.A.165; Lee Dep., 62:6-16. Duru testified that
he did not communicate with the police at all. See
Duru Dep., 38:1-41:22, Mar. 9, 2015. The record identifies
Urquhart as someone to whom the responding officers spoke in
person. See Lee Dep., 62:6-16; see id.
29:22-30:16. Hall failed in discovery to ask Urquhart whether
Duru or anyone else told her to call the police. In her own
deposition, Hall admitted that she had not been in a position
to observe and so could not testify who made the phone call.
Hall did not testify to any other interaction between Duru
and the police. See Hall Dep., 31:4-32:8.
contends that Duru's responsibility for calling or
directing an employee to call the police can be inferred from
Duru's role as the manager with whom Hall spoke about the
bill. But the record does not support that inference. Hall
testified that she initially disputed the bill with Duru, and
that Duru then went to get the restaurant's owner. The
owner and Duru then spoke with Hall's friend, Kay
Vollans, and later with another of Hall's friends named
Alana Hill. Hall Dep. 20:20-21:13; 23:7-25:19. Duru was not
the only Cities employee to speak with Hall or her party
about the bill dispute, nor is there any ...