The U.S. Court of Appeals for the D.C. Circuit today affirmed a $97,500 judgment in favor of a woman who claimed she was unlawfully arrested in retaliation for making comments critical of police officers here.
The District of Columbia had appealed the verdict, arguing the trial judge gave a jury instruction that corrupted the integrity of the trial and was unfairly prejudicial against the city. In a 2-1 decision, the appeals court found that although the trial judge was wrong to give the instruction, the error was harmless and didn’t affect the outcome of the case.
A spokesman for the D.C. Office of the Attorney General, Ted Gest, said via email the city was reviewing the opinion. The city has the option of asking for a rehearing before the full appeals court. A lead attorney for the plaintiff, John Moustakas of Goodwin Procter, said he expected his client would be "elated that we're one step closer to this chapter in her life being finally put to rest."
The plaintiff, Lindsay Huthnance, was arrested in November 2005 and charged with disorderly conduct. Huthnance and the arresting officers offered very different versions of events. Huthnance said she wasn't making a scene when she encountered police at a convenience store, but was hassled and arrested after questioning what the officers were doing. Huthnance also argued more broadly that the city failed to take steps to stop police from making unlawful retaliatory arrests, also known as "contempt of cop" arrests.
The officers, on the other hand, said Huthnance was yelling obscenities, blocking the entrance to the store, and attracting attention from passersby. When she refused to calm down and leave the scene, they said, they arrested her.
Following a trial, a jury found the city and two of the arresting officers liable for $97,500 in damages for false arrest, emotional distress and other constitutional violations committed during the course of Huthnance's arrest and imprisonment. A third officer was found not liable.
On appeal, the city argued U.S. District Chief Judge Royce Lamberth improperly gave the jury a "missing evidence” instruction shortly before deliberations. Referencing witness testimony during the trial about a police radio log related to Huthnance's arrest, Lamberth told the jury the log was never entered into evidence. Before the trial started, Lamberth barred the city from introducing the radio log because it wasn't listed on the city's pre-trial exhibit list.
"You may infer that the dispatcher’s report was not introduced into evidence because it does not exist or because it contains information that would have been unfavorable to the defendants’ case," Lamberth told the jury, according to briefs.
The appeals court ruled that Lamberth was correct to exclude the radio log from the trial. However, the court found Lamberth was wrong to give the missing evidence instruction and lead the jury to infer that the reason it wasn't introduced was because it would be unfavorable to the city's case. Since Lamberth knew what the radio log was and that its contents supported the city's timeline of events, the court said, he shouldn't have told the jury they could infer the evidence would have hurt the defense.
"We cannot squeeze an adverse inference from these facts; there is simply no evidence the District—the only appellant subject to any charges of fault—sought to hide the ball," said D.C. Circuit Judge Janice Rogers Brown, who wrote the majority opinion.
Still, the court found the instruction was harmless in the end because the radio log wasn't central to the dispute over what happened when Huthnance was arrested. The radio log supported the city's position as far as when the altercation took place, Brown wrote, but even if the jury believed the city's timeline, it still could have found the arrest was unlawful.
In a one-paragraph dissenting opinion, Judge Brett Kavanaugh wrote that the instruction was "very damaging" to the defendants and warranted a new trial.
Senior Judge A. Raymond Randolph also heard the case.