Appeal from the United States District Court for the District of Columbia (No. 92cv01715)
Before: Buckley, Williams and Sentelle, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the court filed by Circuit Judge Williams.
Because of the rising crime rate in the District of Columbia, the United States and the District in August 1989 formed a Joint Fugitive Apprehension Team of FBI agents and Metropolitan Police Department ("MPD") officers, charged with the task of arresting the most dangerous wanted people in the District. Two team members, Agent Dennis Rasmussen and MPD Officer Joseph O'Donnell, were assigned to arrest Orlando Stinson, who was wanted on six warrants, one for homicide. Their inquiries into Stinson's whereabouts led them into contact with Stinson's mother, Juanita Kirkland, and his girlfriend and her mother, Monice and Georgia Brown. Out of those encounters arose claims against the United States and the District of Columbia made by Kirkland and Georgia Brown (for herself and as next friend of Monice) for intentional infliction of emotional distress. Ultimately the team tracked Stinson down to an address on N Street, S.E. When he fled, team members shot him, fatally, asserting a belief, shown to have been mistaken, that he was armed and a threat to their lives. From this arose a claim against defendants by Kirkland, as personal representative of the Stinson estate, for negligence in causing the death.
The claims against the United States were tried to the district court, which entered judgment in favor of the United States on all counts, finding that the Browns and Kirkland were not credible witnesses, and that the FBI agents acted reasonably in firing on Stinson. Plaintiffs have not appealed. The claims against the District of Columbia were tried to a jury, which awarded $200,000 to Juanita Kirkland personally, $30,000 to Georgia Brown (but nothing to Monice Brown), and $2,500 to Kirkland as personal representative.
On appeal by defendants, we reverse the judgments in favor of Kirkland and Georgia Brown for intentional infliction of emotional distress; plaintiffs failed to provide adequate notice to D.C. under D.C. Code 12-309. We affirm the judgment in favor of Kirkland as personal representative, finding no error in the court's denial of judgment as a matter of law.
I. Claims for Intentional Infliction of Emotional Distress: Defective Notice
Two members of the joint team, Agent Dennis Rasmussen and Officer Joseph O'Donnell, twice visited Juanita Kirkland at work at Howard University Hospital in March 1990 in their efforts to locate her son. Their first visit was unsuccessful. Before their second visit, O'Donnell ran a computer check on Kirkland, which revealed that a Juanita Kirkland of approximately the same description was wanted on two warrants for felony uttering of bouncing checks. Rasmussen and O'Donnell visited Kirkland again at her workplace on March 14, 1990. They asked her where her son was, and she said she didn't know. They then arrested Kirkland on the warrants, but it turned out that they were for a different person with the same name. Kirkland later alleged that during this incident the two threatened to kill her son, thereby inflicting emotional distress. *fn1 The two team members also tried to discover Stinson's whereabouts by visiting 802 Bellevue Street, where his girlfriend Monice Brown lived with her mother Georgia. Testimony conflicts as to the number of times the team members visited, with the Browns claiming eight to ten times, and the team members saying they visited twice. The Browns allege the team members engaged in intimidating and insulting conduct toward them, including putting a gun to the head of Georgia Brown's young son, inflicting emotional distress. The team members' testimony sharply contradicts this account, as well as Kirkland's version of the threats against her son allegedly expressed to her.
To maintain a tort action for damages against the District of Columbia, a plaintiff must, within six months of the injury, give "notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage." D.C. Code Section(s) 12-309.
On August 21, 1990, Bernard Grimm, a lawyer acting on behalf of Kirkland and the Browns, sent the following letter to the Mayor of D.C.: This letter is to notify you under Title 12 Section(s) 309 of the D.C. Code that my clients, Juanita Kirkland, Monique [sic] Brown and Georgia Brown, intend to sue the United States Federal Government, the District of Columbia Government, the Metropolitan Police Department and several unknown and unnamed officers for the wrongful death by them of my clients' husband [sic], son and father [sic], Orlando Stinson. The shooting occurred on or about July 13, 1990, at approximately 6:30 a.m. at 2506 N Street, S.E., Washington, D.C. Mr. Stinson was shot and killed without provocation or without probable cause for his arrest.
In a separate and independent law suit I am hereby placing you on notice that Ms. Juanita Kirkland is also filing a Complaint against the District of Columbia government and Metropolitan Police Department and the Federal Bureau of Investigation for false imprisonment, false ...