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District of Columbia v. Chinn12/31/2003
boundary line of the privilege itself, and it matters not whether it is exceeded because of the deliberate intention of the officer or through a mistake as to the limit of objectively reasonable allowable force. Liability is imposed by the very nature of the limitation of the privilege itself. So here, where the battery began with the clear intent of the officers to initiate a seizure, the battery did not transmogrify into negligence by the fact that the officers may have in the process mistakenly crossed the line of permissible force. Any "negligence" was inherent in the battery itself, which remained a battery but now unprivileged.
D.
It is true that in perhaps somewhat unguarded language, we have suggested that a negligence action can be based on the provision of D.C. Code § 4-176 (1994), now §5-123.02 (2001), that provides: "Any officer using unnecessary and wanton severity in arresting or imprisoning any person shall be deemed guilty of assault and battery and, upon conviction, punished therefor." See, e.g., Holder, supra, 700 A.2d at 741 (citing White, supra). The problem is that if "unnecessary severity" is equated with "excessive force," the provision adds nothing to liability already existing under the privilege doctrine. Indeed, the standard is far higher than that of the limit of the privilege, in that the statute requires "wanton" severity. Using the statute, standing alone, as a basis for an alternative negligence count in a setting of a plain battery situation can only lead to obfuscation and confusion. No rational jury could find no battery by a police officer (that is, no use of excessive force) and yet find "negligence" on the basis of the statute alone. The White case, the seminal case discussing the use of this statute as prescribing a negligence standard of care, itself relied in the first instance on a distinct standard found in the police department's own regulation dealing with the use of firearms and the application of deadly force. No case to our knowledge has relied upon the statutory provision standing alone.
This consideration, however, does bear directly on the appropriate remedy in this case. As already indicated, Chinn and ultimately the trial court relied upon § 4-176 as setting a standard of care permitting the submission of a negligence count to the jury, and statements in our prior cases provided some support for such reliance. In the absence of any independent grounds for finding negligence, the jury may have speculated that if it determined that the officers acted in the mistaken belief that the amount of force they were using was reasonable, the proper verdict was to hold in favor of negligence rather than battery. But we cannot know this, and other misconceptions that would undercut application of the privilege may have flowed from the inclusion of negligence considerations, especially since the instruction did not expressly confine the jury to the statute in determining negligence. It could, of course, be argued that having pushed for the giving of an erroneous negligence instruction, appellee made his bed and now must lie in it. However, given all the circumstances, we think that "counsel should not be faulted too heavily for failing to anticipate our analysis." Etheredge, 635 A.2d at 921. Accordingly, we vacate the judgment appealed from and remand the case for a new trial on the assault and battery count alone.
So ordered.
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