Pleading Errors in Police Excessive Force Cases

Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996). Opinion by Tatel, joined by Buckley and Ginsburg.

FACTS: Atchinson was walking down the street one day holding a machete he had just bought. He heard someone shout, "Freeze," turned around, and was shot almost immediately by a uniformed police officer. He sued the District, the Mayor, the Chief of Police, the officer who shot him (Collins) and others for common-law violations and claims under 42 U.S.C. § 1983. Complaint stated that "defendants who are individuals are sued solely in their official capacity." Trial court threw out case against city for failing to allege with specificity an unconstitutional policy, custom or procedure responsible for his injuries. Trial court also refused to let the plaintiff amend his complaint to sue Officer Collins in his individual capacity.

OUTCOME: Dismissal REVERSED in part.

HOLDING: (1) Plaintiff in an excessive force case need not allege specific custom, policy or procedure that caused his injuries in order to state a claim against the municipality under Section 1983, as long as complaint alleges failure to train officers and shows an individual instance of misconduct so serious as to raise doubts about the city's training policies.

(2) Trial court had discretion under Rule 15 to deny amendment of complaint to assert individual claim against shooter where initial complaint had specifically disclaimed such a claim, and where amendment was sought just before trial and officer could have been prejudiced by late amendment by being unable to obtain personal counsel and pursue different litigation strategy.

Practice tip: (1) Case is well worth reading before any plaintiff's counsel drafts a police excessive force complaint if complaint is intended to allege more than simple common-law claims.

(2) It pays to know what "sued in his official capacity" really means. "Official capacity" means a suit against that person's title or position, and means for all practical purposes, against the official's agency or the government itself. "Individual capacity" is just that -- a suit against an individual for his/her own conduct.

Lawyer's Breach of Fiduciary Duty Entitles Client to Payback of Fees Even if Client Not Hurt by Breach

Hendry v. Pelland, 73 F.3d 397 (D.C. Cir. 1996). Opinion by Tatel, joined by Ginsburg and Rogers.

FACTS: Five members of a family -- spanning three generations -- agreed to sell a historic parcel of land that they owned as tenants in common to a developer who wanted to build a retirement home. When a zoning change necessary to the deal was denied, the developer proposed and ultimately won county approval of a different project for the site, to build private homes on it. But some and then all of the family owners decided not to sell. The developer sued the family members for breach of contract and unjust enrichment, claiming he had added value to the property by winning the zoning change. Lawyer who had originally represented only one of the five owners then represented all of them in the developer's suit, and ultimately talked all of them into settling the case. Three of the clients then sued the lawyer for negligence and breach of fiduciary duty, seeking damages plus return of $86,000 in paid fees. Lawyer and his firm counterclaimed for unpaid fees. Trial court threw out breach of fiduciary duty claim and entered judgment for lawyer and firm on jury's verdict in their favor for negligence and unpaid fees.

OUTCOME: Judgment REVERSED in part and REMANDED for new trial.

HOLDING: Where clients show enough evidence that their lawyer breached his fiduciary duty of loyalty, by representing multiple clients with conflicting interests, clients need not show specific injury from disloyalty to obtain disgorgement of at least some of the fees paid to the lawyer.

COMMENT: Expert testified for plaintiffs that lawyer could not represent all five owners adequately since members of different generations of the family had conflicting interests in the disposal of the land. This violated DR 5-105. Court reasons: "Because a breach of the duty of loyalty diminishes the value of the attorney's representation as a matter of law, some degree of forfeiture is thus appropriate without further proof of injury." Slip op. at 9. Court is careful to narrow its holding: (1) it points out that it doesn't decide whether breaches of ethical rules to act competently and zealously also can constitute breaches of fiduciary duty; (2) it doesn't decide extent of disgorgement to which clients are entitled. Other courts have held disloyal lawyer must give up: (1) all fees, or (2) all fees after breach committed, or (3) an amount that depends on facts of the case.

Libel: Freelance Writer's Malice Can't Be Imputed to Magazine

McFarlane v. Esquire Magazine, ___ F.3d ____ 1996 WL 31984 (D.C. Cir. 1996). Opinion by Williams, joined by Ginsburg and Randolph.

FACTS: Esquire published an article by freelance writer Craig Unger suggesting that Robert McFarlane had secretly worked for the Israelis in an alleged 1980 conspiracy to delay release of the American hostages in Iran until after the presidential election. McFarlane sued Esquire and Unger for libel in federal court in the District of Columbia, saying the article made him out to be a spy and a traitor. Unger disputed personal jurisdiction, and McFarlane failed to file a separate suit where Unger lived before limitations ran. Trial court threw out case on summary judgment after discovery for lack of personal jurisdiction against Unger and for lack of clear and convincing evidence of actual knowledge of falsity, or reckless disregard for the truth, by Esquire employees.

OUTCOME: Judgment for defendants AFFIRMED.

HOLDING: (1) Writer who wrote article in New York and delivered it to magazine editors there cannot be sued in D.C. just because the plaintiff was injured in D.C. (following Moncrief v. Lexington Herald-Leader Co., 807 F.2d 217 (D.C. Cir. 1986)); writer's having written two other articles in Washington publications did not establish persistent type of conduct needed for jurisdiction under D.C. Code § 13-423(a)(4).

(2) District court had discretion to dismiss for lack of personal jurisdiction, rather than grant transfer under 28 U.S.C. § 1406(a). Dismissal was plaintiff's own fault because of "his counsel's inexplicable failure to file a protective suit."

(3) Magazine's malice is provable only through evidence of what its own employees knew and did, not what the independent contractor writer may have known or did.

(4) Plaintiff failed to show clear and convincing evidence of magazine's malice despite a number of problems with the story.

COMMENT: Case shows virtual impossibility of a public figure plaintiff winning a libel case.

Practice Tip: Where there is any doubt about personal jurisdiction over a defendant in the chosen forum, plaintiff needs to file (and move to stay) a protective suit in an indisputable forum before statute of limitations runs.