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07/06/84 Alvin B. Biscoe, Jr., v. Arlington County

July 6, 1984

ALVIN B. BISCOE, JR., ELEANOR L. BISCOE, HIS WIFE

v.

ARLINGTON COUNTY, APPELLANT ARLINGTON COUNTY POLICE DEPARTMENT, ET AL.; ALVIN B. BISCOE, JR., ELEANOR L.

BISCOE, HIS WIFE

v.

ARLINGTON COUNTY, ET AL. ; MICHAEL KYLE, ARLINGTON COUNTY POLICE



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

DEPARTMENT, APPELLANT

Appeals from the United States District Court for the District of Columbia (Civil Action No. 80-0766). 1984.CDC.191

APPELLATE PANEL:

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 Circuit Judge EDWARDS.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDWARDS I. BACKGROUND

Late in the morning of September 29, 1979, Lyntellus Brooks and Orlando Durantes robbed the Arlington, Virginia branch of the Washington-Lee Savings & Loan Association.Shortly thereafter, an alarm was broadcast to all Arlington County Police Department units; some of these units went to the robbery scene, and others to probable escape routes in the County. Police 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 positioning 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 Columbis ("D.C." or "District") and United States Park Police were being notifed. 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, immediately 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 car to look in the back seat, and, with his hand radio, broadcast his location and requested a clothing description of the bank robbery suspects. While Kyle was so preoccupied -- leaving Brooks wholly unattended and unrestrained -- 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 returned to his car. With his lights flashing and his siren blaring, he pursued Brooks down the E Street Expressway and through the tunnel. Kyle radioed that a fourth passenger in the car was shooting at him, and also that, "I don't know where I'm at." Tr. at 332-33. Brooks, who by now was well within the city limits of the District 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. Plaintiffs contend that the officer averaged 55.38 m.p.h. over this distance and that his speed during the chase increased 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 pedestrain, Alvin Biscoe, against a light pole. The impact, which knocked Biscoe in the air, servered 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 damages 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 standards -- 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 Arlington County regulations that specifcally prohibit its officers from engaging in high speed chases -- defined as greater than 20 m.p.h. above the speed limit -- in the District of Columbia. *fn1 In addition, they alleged that Arlington County's negligent training and supervision of Officer Kyle were a cause of the accident that injured Alvin Biscoe. After an 11-day trial, a jury returned a verdict 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 supervision of Kyle, and that defendant Brooks was negligent as well. The jury additionally found that all defendants' acts and omissions proximately caused the injuries 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. ARGUMENT

Defendants Kyle and Arlington County appeal the judgments against them on a number of grounds, principally involving pure questions of law. We have carefully reviewed each claim and have found none to merit reversal or remand. Accordingly, we affirm.

A. Immunity Issues

1. Sovereign Immunity

Initially, defendant Arlington County asserts that the District Court improperly declined to recognize the immunity from tort claims that the County retains under 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, ยง 1, compels 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, 59 L. Ed. 2d 416, 99 S. Ct. 1182 (1979), which held that federal constitutional law does not prohibit one state's courts from entering a judgment against or asserting jurisdiction 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 Consitution 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 1363, 105 Cal. Rptr. 355 (1972) (en banc), cert. denied, 414 U.S. 820, 38 L. Ed. 2d 52, 94 S. Ct. 114 (1973). 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 Constitution 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 assert jurisdiction over another state. *fn2 It rejected arguments 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 amenability 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 District's policies and determine whether they would be violated by application of Virginia law. See Nevada v. Hall, 440 U.S. at 422 ("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."); Mianecki v. Second Judicial District Court, 99 Nev. 93, 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, 464 U.S. 806, 78 L. Ed. 2d 171, 104 S. Ct. 195 (1983). Under Virginia law, counties are fully immune from suit in tort, at least in Virginia courts. Mann v. County Board, 199 Va. 169, 98 S.E.2d 515 (1957); Fry v. County of Albemarle, 86 Va. 195, 9 S.E. 1004 (1889). Under District of Columbia law, the District enjoys immunity from suit only if the actions in question are committed in the exercise of a "discretionary" function. Wade v. District of Columbia, 310 A.2d 857, 860 (D.C. 1973) (en banc). Since the plaintiffs' claims against the appellant County are based on its negligent performance only of non-discretionary acts, *fn3 had those acts been committed by the District of Columbia Metropolitan Police Department, sovereign immunity would not bar suit against the District. Forced application of Virginia's law would therefore frustrate the policies that underlie the District's immunity rules; under Nevada v. Hall, the District is not required to honor Virginia's claim of sovereign immunity under ...


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