United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 2000 Decided January 9, 2001

No. 00-7008

Terry E. Butera, Individually, and as Personal

and Legal Representative of the Estate of

Eric Michael Butera, deceased,

Appellee

v.

District of Columbia, et al.,

Appellants

Appeal from the United States District Court

for the District of Columbia

(No. 98cv02794)

Charles F.C. Ruff argued the cause for appellants. With

him on the briefs were Kevin C. Newsom, Robert R. Rigsby,

Corporation Counsel, Charles L. Reischel, Deputy Corpora-

tion Counsel, and Donna M. Murasky, Assistant Corporation

Counsel.

Daniel A. Rezneck, General Counsel, was on the brief for

amicus curiae District of Columbia Financial Responsibility

& Management Assistance Authority.

Paul Mogin argued the cause for appellee. On the brief

were Brendan V. Sullivan, Jr., John G. Kester, Peter C.

Grenier and James M. Ludwig. J. Alan Galbraith entered

an appearance.

Before: Edwards, Chief Judge, Rogers and Garland,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: This appeal arises from the tragic

death of 31-year-old Eric Butera while he served as an

undercover operative for the Metropolitan Police Department

of the District of Columbia. Mr. Butera's mother, Terry

Butera, sued, on her own behalf and on behalf of her son's

estate, the District of Columbia and the four police officers

who engineered the undercover operation, alleging that they

recklessly failed to provide adequate protection for her son.

She alleged violations of her son's and her own civil rights

under 42 U.S.C. s 1983 (1994), negligence under the District

of Columbia Survival Act, D.C. Code s 12-101 et seq. (1995

Repl.), and the District of Columbia Wrongful Death Act,

D.C. Code s 16-2701 et seq. (1997 Repl.), and at common law

for intentional infliction of emotional distress. The jury

returned verdicts against the officers on the constitutional

claims and against the officers and the District of Columbia

on the statutory claims, and awarded Terry Butera

$70,530,000 in compensatory damages and $27,570,000 in pu-

nitive damages.

On appeal, the District of Columbia and the four officers

(collectively, "the District of Columbia") contend that the

district court erred in denying their motion for judgment as a

matter of law under Fed. R. Civ. P. 50, or alternatively for a

new trial under Fed. R. Civ. P. 59, or for remittitur. See

Butera v. District of Columbia, 83 F. Supp. 2d 25 (D.D.C.

1999) ("Butera II"). With respect to the civil rights claims,

the District of Columbia contends that the officers did not

violate either Eric Butera's or Terry Butera's substantive due

process rights, because no such rights existed. Alternatively,

the District of Columbia contends that the officers are enti-

tled to qualified immunity because, even if Eric and Terry

Butera could assert substantive due process rights, it was not

clearly established prior to Eric Butera's death that the

officers' conduct would violate these rights. In this regard,

the appeal presents two questions of first impression in this

circuit: (1) whether the District of Columbia can be held

constitutionally liable for failing to protect an individual who

is not in custody from harm inflicted by a third party, and (2)

whether a parent has a constitutionally-protected interest in

the society and companionship of her adult son. In addition

to challenging the civil rights claims, the District of Columbia

disputes the lawfulness of imposing punitive damages against

it and the sufficiency of the evidence to support the punitive

damages awards against the four officers. Finally, the Dis-

trict of Columbia challenges the sufficiency of the evidence to

support the statutory claims, and the denial of its request to

substitute an expert witness for a disqualified expert.

We affirm in part and reverse in part. On the civil rights

claims, we hold that the "State endangerment" concept,

through which Eric Butera might have succeeded in proving a

constitutional violation, was not clearly established prior to

his death; hence, the officers were entitled to qualified immu-

nity. We also hold that there is no parental due process right

to the company of an adult child who is independent; conse-

quently, Terry Butera had no grounds for asserting a consti-

tutional violation. Therefore, the officers were entitled to

summary judgment on all claims brought under 42 U.S.C.

s 1983. We further hold, consistent with recent precedent in

this circuit, that the evidence did not amount to the "extraor-

dinary circumstances" necessary to award punitive damages

against the District of Columbia. For these reasons, we

vacate the $70 million compensatory award on the civil rights

claims and the $27 million punitive damages award against

the District of Columbia. In all other respects, we affirm the

judgment awarding $530,000 in compensatory damages under

the Survival and Wrongful Death Acts, and a total of $570,000

in punitive damages against the four officers.

I.

A. Background. On November 16, 1997, Eric Butera

telephoned the Metropolitan Police Department of the Dis-

trict of Columbia ("MPD") to provide information about the

highly publicized triple homicide at the Starbucks coffee shop

that had occurred July 7, 1997. He told Detective Anthony

Patterson, one of the MPD's homicide detectives assigned to

the Starbucks investigation, that on two separate occasions,

while he was purchasing or using crack cocaine at a house in

the Greenleaf Gardens housing complex in Southwest Wash-

ington, D.C., he overheard someone talking about the Star-

bucks murders. He also said he had seen firearms at the

house. Detective Patterson and his partner met with Eric

Butera that same day. Both detectives found him to be

credible and trustworthy. Eric Butera told Detective Patter-

son that he had come forward with this information because

"he was no longer taking drugs, he was attempting to get his

life in order and he wanted to do the right thing." On

November 23, 1999, Eric Butera went to the homicide branch

and identified from mug shots the person whom he had

overheard talking about the Starbucks murders.

In addition to Detective Patterson, Lieutenant Brian McAl-

lister and Sergeant Nicholas Breul were assigned to the

Starbucks investigation. To advance the investigation, the

officers decided to stage an undercover drug purchase at the

house where Eric Butera had overheard the conversation and

seen the drugs and firearms. The officers asked Eric Butera

to assist them by conducting the undercover drug purchase,

and Eric Butera agreed. For purposes of the Butera drug

purchase, Lieutenant McAllister supervised the officers, Ser-

geant Breul was in charge of the operation, and Detective

Patterson was the lead detective. They also enlisted the

participation of Detective Anthony Brigidini, who was familiar

with the Greenleaf housing complex.

On December 4, 1997, officers Patterson, Brigidini, and

Breul met with Eric Butera to plan and execute the drug

purchase. The officers planned the operation to resemble as

closely as possible Eric Butera's previous visits to the Green-

leaf Gardens house. Eric Butera told them that usually he

would enter and exit through the back door of the house, and

that the entire transaction generally took "anywhere from

one minute to ten minutes, maybe fifteen minutes." Eric

Butera and the officers agreed to follow this same pattern,

with one exception: Eric Butera would exit through the front

door and meet the officers at a pre-arranged location. The

officers assured Eric Butera that the MPD would "exercise

proper care to ensure that he would not be harmed," and that

they would "carefully watch and monitor him throughout the

process." They supplied him with $80 in marked twenty

dollar bills to make the drug purchase.

After the debriefing, the officers decided that Detective

Brigidini would drive Eric Butera to the house, and Detective

Patterson and Sergeant Breul would follow in a separate car

for surveillance and backup. Detective Brigidini drove Eric

Butera to the house around 9:20 p.m., and watched as Eric

Butera approached the back door. As Eric Butera knocked

on the door, Detective Brigidini drove away and parked

approximately one hundred fifty feet from the house. Detec-

tive Brigidini testified that he was attempting to mirror the

practices of those who had driven Eric Butera to the location

in the past, by circling the area until Eric Butera emerged

from the house to be picked up. Detective Brigidini also

intended to place himself in a position where he could see the

front of the house (from which he expected Eric Butera to

emerge) and the rear opening of the walkway behind the

house; from his location, however, he was unable to see the

back of the house. Meanwhile, Detective Patterson and

Sergeant Breul parked their car, with their windows down, in

a location that enabled them to see only part of the back alley

of the housing complex.1 As a result, none of the officers was

__________

1 At that time, Sergeant Breul joked to Detective Patterson

that they should keep the windows down so they could "hear any

gunshots or screams."

in a position to see (or otherwise monitor) Eric Butera when

he attempted to enter the house.

After approximately fifteen minutes had passed since Eric

Butera approached the house, Detective Brigidini, who had

not seen Eric Butera, notified Sergeant Breul and Detective

Patterson that he was becoming uneasy. Detective Brigidini

began driving around the block to look for him, and after

circling the streets, he returned to his original position.

Sergeant Breul and Detective Patterson also began to look

for Eric Butera. Approximately thirty minutes after Detec-

tive Brigidini dropped off Eric Butera, uniformed police

officers from the MPD First District who were unrelated to

the Starbucks investigation appeared at the scene; they were

responding to a "911" call by a civilian reporting an uncon-

scious person in the rear walkway of the house where Detec-

tive Brigidini had left Eric Butera. Detective Brigidini chose

to remain inside his car when he saw the uniformed officers,

for fear of compromising the operation.

Shortly after seeing the uniformed officers, the detectives

heard an MPD First District radio report of a man down in

the alley behind the house that Eric Butera attempted to

enter. Approximately forty minutes had passed since Detec-

tive Brigidini had last seen Eric Butera. Because the officers

had left Eric Butera at the rear of the house, they were

unaware that he had never gained entry; rather, Eric Butera

was accosted by three men, who robbed and stomped him to

death in the alley behind the house. Sergeant Breul and

Detective Patterson drove to the alley and found a uniformed

First District officer standing with a flashlight over Eric

Butera, who was bleeding from the back of his head. An

ambulance took Eric Butera to George Washington Universi-

ty Hospital, where he was pronounced dead by reason of

blunt force trauma to the head; he was 31 years old.

At trial, the parties presented conflicting evidence concern-

ing (1) the purpose of the undercover operation, (2) the

manner in which Eric Butera came to participate in the

undercover drug buy, (3) the degree to which the officers

made Eric Butera aware of the risks involved, and (4) the

adequacy of the measures that the officers took to ensure

Eric Butera's safety. The District of Columbia made a

number of admissions, which were read to the jury. Terry

Butera presented evidence that the officers gave conflicting

versions of the purpose of using Eric Butera in this operation:

While the District of Columbia admitted that the purpose of

the operation was to obtain a search warrant, the individual

officers testified that the operation was intended to test Eric

Butera's reliability as an informant, to learn the name of the

person whom Eric Butera heard talk about the Starbucks

murders, and to acquire drugs or information from individuals

at the house.2 As to the origin of Eric Butera's participation

in the undercover plan, Terry Butera presented evidence that

the police officers devised the undercover plan and actively

solicited Eric Butera, who had ceased being a drug user, for

this operation. The District of Columbia presented evidence

that, from the outset, Eric Butera volunteered to return to

the Greenleaf Gardens house, which he had visited on numer-

ous occasions (and whose residents he knew) to "get more

information."

The evidence was also in conflict regarding the degree to

which the officers made Eric Butera aware of the dangers

associated with the undercover operation. Terry Butera

presented evidence that the officers did not notify Eric But-

era of a drug bust that had occurred at the house on the

previous evening (December 3, 1999), of the activities of two

violent criminal gangs in the area, of the violent crimes that

were being investigated in the area, or of the risks associated

with the undercover operation. The District of Columbia

responded with evidence that Eric Butera knew the people in

the area and did not think that the environment was danger-

ous for him. The District of Columbia admitted, however,

that Lieutenant McAllister did not fully advise Eric Butera of

the potential risks of physical harm.

__________

2 At trial, the District of Columbia admitted that the officers

could have obtained a search warrant without the aid of Eric

Butera.

Finally, Terry Butera introduced evidence disputing the

adequacy of the measures taken to ensure Eric Butera's

safety. Specifically, Terry Butera submitted evidence that

the officers failed to (1) use surveillance equipment and wires;

(2) make arrangements for safety and danger signals; (3) set

time limits for the operation; or (4) enlist the assistance of

the MPD's First District, where the undercover operation

was to occur, or of specialized MPD narcotics, special investi-

gations, and electronic surveillance units. Through admis-

sions by the District of Columbia, she presented evidence that

the officers had planned the undercover operation recklessly

without conducting a full assessment of the need to use a

citizen in a controlled drug buy, and that Sergeant Breul had

admitted to the MPD's Office of Internal Affairs that, in

carrying out the undercover operation, Eric Butera's safety

was not the officers' principal concern. In response, the

District of Columbia introduced evidence that Eric Butera did

not want to wear a wire, and that he insisted that he was

"comfortable with going to the area" because "[e]verybody

down there knew him." The District of Columbia admitted,

however, that other precautions could have been taken to

ensure Eric Butera's safety.

B. Procedural History. Terry Butera, on behalf of her-

self and the estate of Eric Butera, sued the District of

Columbia, and Lieutenant McAllister, Sergeant Breul, Detec-

tive Patterson, and Detective Brigidini ("the officers"), for

negligence under the District of Columbia Wrongful Death

Act and the District of Columbia Survival Act, for violation of

her son's and her own constitutional rights under 42 U.S.C.

s 1983, and at common law for negligence and intentional

infliction of emotional distress. The District of Columbia

moved for summary judgment under Fed. R. Civ. P. 56,

arguing that the civil rights claims under s 1983 should be

dismissed as a matter of law because neither Eric Butera nor

his mother could assert a substantive due process violation

and, in any event, the officers were entitled to qualified

immunity. In addition, the District of Columbia argued that

punitive damages could not be awarded against the District of

Columbia as a matter of law, and, alternatively, that even if

punitive damages were so recoverable, no such award was

justified by the evidence.3

The district court denied the motion for summary judg-

ment. See Butera v. District of Columbia, 83 F. Supp. 2d 15

(D.D.C. 1999) ("Butera I"). The court concluded that both

Eric and Terry Butera could assert substantive due process

claims, based on Eric Butera's right to life and Terry But-

era's right to her son's companionship. See id. at 19 & n.3.

The district court also ruled that the allegations in the

complaint "present[ed] circumstances upon which a jury

might find the existence of 'extraordinary circumstances' "

necessary to award punitive damages against the District of

Columbia. Id. at 22.

After trial, the jury returned a verdict against the District

of Columbia and the four officers on the Survival Act and

Wrongful Death Act claims (but not on Terry Butera's claim

for intentional infliction of emotional distress), and against the

four officers (but not the District of Columbia) under 42

U.S.C. s 1983, and awarded Terry Butera compensatory and

punitive damages.4 The District of Columbia moved for

__________

3 The District of Columbia and the officers also argued that

they were entitled to summary judgment because (1) Eric Butera's

negligence claims were barred by the doctrine of assumption of

risk; (2) Terry Butera's intentional infliction of emotional distress

claim failed as matter of law, and (3) Terry Butera's claims of

negligent training and supervision by the District were barred

because she had already sued to hold the District of Columbia

vicariously liable on a theory of respondeat superior. Terry Butera

subsequently abandoned, and the district court dismissed, her

claims of negligent training and supervision. See Butera I, 83

F. Supp. 2d at 18 n.1.

4 The jury awarded the following damages:

Compensatory Damages

Survival Act Claim $ 462,000

Wrongful Death Act Claim $ 68,000

Civil Rights Claim of Eric Butera $36,000,000

Civil Rights Claim of Terry Butera $34,000,000

Punitive damages

Against District of Columbia $27,000,000

Against the four Officers

($142,500 for each officer) $ 570,000

judgment as a matter of law under Fed. R. Civ. P. 50, or for a

new trial and vacatur or remittitur of the damages awards

under Fed. R. Civ. P. 59. The district court denied the

motion. See Butera II, 83 F. Supp. 2d at 27-38.

II.

On appeal, the District of Columbia contends that the

district court erred in denying it judgment as a matter of law,

or alternatively a new trial or remittitur, for essentially three

reasons: First, the officers are not constitutionally liable to

Eric or Terry Butera on their s 1983 claims because (A) the

officers did not have a constitutional duty to protect Eric

Butera from private violence, (B) Terry Butera had no consti-

tutional interest in the companionship of her adult son, and

(C) even if such rights existed, the officers were entitled to

qualified immunity because it was not clearly established

prior to Eric Butera's death that their conduct would violate

the Due Process Clause.5 Second, the punitive damages

awards should be vacated because (A) there is no allegation

that the officers intended to injure or expose Eric Butera to

harm by third parties, nor is there evidence that the officers

acted with evil motive or actual malice, and (B) as a matter of

District of Columbia law, punitive damages cannot be award-

ed against the District of Columbia; alternatively, if punitive

damages against the District of Columbia were permissible,

there was no evidence of extraordinary circumstances to

justify such an award. Third, the damages awards under the

Survival and Wrongful Death Acts must be set aside because

(A) Terry Butera failed to establish a national standard of

care, and (B) the district court's refusal to allow a substitute

for the District of Columbia's disqualified expert was prejudi-

cial.

__________

5 Alternatively, the District of Columbia contends that the $36

and $34 million compensatory awards on the civil rights claims are

excessive and should be remitted.

We address in Part II the District of Columbia's challenge

to the constitutional claims. In Part III, we address the issue

of punitive damages. Finally, in Part IV, we address the

evidentiary issues regarding the statutory claims.6

Constitutional Claims. Section 1983 allows a plaintiff to

seek money damages from government officials who have

violated her constitutional rights. See 42 U.S.C. s 1983.7

Qualified immunity, on the other hand, generally shields State

__________

6 Terry Butera relies on District of Columbia v. Air Florida,

Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984), in contending that the

District of Columbia is barred from raising certain issues on appeal

because it did not raise exactly the same theories in the district

court. By contrast with Air Florida, however, the record estab-

lishes that the District of Columbia, with one exception, is not

presenting entirely new contentions on appeal. See Butera II, 83

F. Supp. 2d at 30-33; Butera I, 83 F. Supp. 2d at 18-22. We do

not reach the exception--the District of Columbia's constitutional

and evidentiary challenges to the amount of the punitive damages

award against it--because we vacate this award as a matter of law.

See infra Part III.B.

7 Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdic-

tion thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other

proper proceeding for redress....

42 U.S.C. s 1983. Claims of substantive due process violations by

State officials are generally analyzed under the Due Process Clause

of the Fourteenth Amendment, which provides that "[n]o State shall

... deprive any person of life, liberty, or property, without due

process of law." U.S. Const. amend. XIV, s 1. While the District

of Columbia is not a state, it is subject to the Due Process Clause of

the Fifth Amendment, which also states that "[n]o person shall be

... deprived of life, liberty, or property, without due process of

law." U.S. Const. amend. V. See Bolling v. Sharpe, 347 U.S. 497,

499 (1954).

officials from liability for their discretionary functions "inso-

far as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable per-

son would have known." Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). To evaluate a substantive due process claim in

which State officials have raised the defense of qualified

immunity, and particularly where defendants can be spared

the burdens of long trials and where the court can provide

clarity in standards for official conduct, the Supreme Court

has instructed that courts ordinarily follow a two-prong analy-

sis. See Wilson v. Layne, 526 U.S. 603, 609 (1999); County

of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998); Har-

bury v. Deutch, No. 99-5307, 2000 WL 1769100, at *5-6 (D.C.

Cir. Dec. 12, 2000); Kalka v. Hawk, 215 F.3d 90, 95-98 (D.C.

Cir. 2000). First, courts must address the threshold issue in

any action brought under s 1983: "whether the plaintiff has

alleged the deprivation of an actual constitutional right at all."

Wilson, 526 U.S. at 609 (quoting Conn v. Gabbert, 526 U.S.

286, 290 (1999)); see also Sacramento, 523 U.S. at 841 n.5;

Baker v. McCollan, 443 U.S. 137, 146-47 (1979). In this

stage, courts must not define the relevant constitutional right

in overly general terms, lest they strip the qualified immunity

defense of all meaning:

For example, the right to due process of law is quite

clearly established by the Due Process Clause, and thus

there is a sense in which any action that violates that

Clause (no matter how unclear it may be that the partic-

ular action is a violation) violates a clearly established

right. Much the same could be said of any other consti-

tutional or statutory violation. But if the test of "clearly

established law" were to be applied at this level of

generality, it would bear no relationship to the "objective

legal reasonableness" that is the touchstone of Harlow.

Plaintiffs would be able to convert the rule of qualified

immunity that our cases plainly establish into a rule of

virtually unqualified liability simply by alleging violation

of extremely abstract rights.

Anderson v. Creighton, 483 U.S. 635, 639 (1987). Conse-

quently, the court must define the right to a degree that

would allow officials "reasonably [to] anticipate when their

conduct may give rise to liability for damages," thus preserv-

ing "the balance that [Supreme Court] cases strike between

the interests in vindication of citizens' constitutional rights

and in public officials' effective performance of their duties."

Id. (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)).

Put otherwise, the constitutional right must be identified

"at the appropriate level of specificity" for a court to deter-

mine the second prong of the inquiry: whether the right was

"clearly established." Wilson, 526 U.S. at 615. A constitu-

tional right was "clearly established" at the time of the events

in question only if "[t]he contours of the right [were] suffi-

ciently clear that a reasonable officer would understand that

what he [was] doing violate[d] that right." Anderson, 483

U.S. at 640; see also Harris v. District of Columbia, 932 F.2d

10, 13 (D.C. Cir. 1991); Martin v. Malhoyt, 830 F.2d 237, 253

(D.C. Cir. 1987). As the Court stated in Anderson, "[t]his is

not to say that an official action is protected by qualified

immunity unless the very action in question has previously

been held unlawful, but it is to say that in the light of pre-

existing law the unlawfulness must be apparent." 483 U.S. at

640 (citation omitted).

The district court ruled in denying summary judgment to

the District of Columbia that Eric Butera had a constitutional

right to "life," and that Terry Butera had a "constitutionally-

protected liberty interest" in the companionship of her son.

Butera I, 83 F. Supp. 2d at 19 & n.3. At trial, the district

court instructed the jury that Eric Butera's right to "life,"

"personal security," "bodily integrity," and "personal priva-

cy," and Terry Butera's right to her son's companionship,

were "clearly-established constitutional rights as of the date

of the incident, December 4, 1997."8 On appeal, the court

__________

8 Having declared that the constitutional rights were clearly

established, the district court allowed the jury to determine wheth-

er a reasonable police officer could have believed that his conduct

did not violate the clearly-established constitutional rights and

reviews de novo the district court's legal conclusion that the

constitutional rights allegedly violated existed and that they

were clearly established as a matter of law in December 1997.

See Mitchell v. Forsyth, 472 U.S. 511, 528 n.9 (1985); United

States v. Popa, 187 F.3d 672, 674 (D.C. Cir. 1999).

Under the first stage of the Wilson inquiry--whether the

plaintiff has asserted the relevant constitutional rights at the

appropriate level of specificity--we conclude, consistent with

the Supreme Court's instructions in Anderson and Wilson,

that the district court erred by defining the constitutional

rights as Eric Butera's right to life, bodily integrity, personal

security, and personal privacy, and as Terry Butera's "liberty

interest" in the companionship of her son. Although courts

have acknowledged the existence of these general rights in

certain circumstances, see, e.g., Ingraham v. Wright, 430 U.S.

651, 674-75 (1977); Stanley v. Illinois, 405 U.S. 645, 651

(1972); Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d Cir. 1996);

Wood v. Ostrander, 879 F.2d 583, 589 (9th Cir. 1989), they are

overly broad where a qualified immunity defense is asserted.

Applying the standards of Wilson and Anderson, we conclude

that the relevant inquiries are (1) whether Eric Butera has a

constitutional right to protection by the District of Columbia

from danger that it created or enhanced that resulted in harm

by third parties, and (2) whether Terry Butera has a liberty

interest in the society and companionship of her independent

adult child. This narrower definition of the rights allows a

reasonable police officer to anticipate whether his actions

amount to a constitutional violation.

A. State Endangerment. As a general matter, a State's

failure to protect an individual from private violence, even in

the face of a known danger, "does not constitute a violation of

the Due Process Clause." DeShaney v. Winnebago County

Dep't of Soc. Servs., 489 U.S. 189, 197 (1989); see also Harris,

932 F.2d at 13. The Due Process Clause, the Supreme Court

has emphasized, is "phrased as a limitation on the State's

__________

whether, for purposes of qualified immunity, the officers' conduct

was sufficiently egregious to constitute a due process violation. See

Butera I, 83 F. Supp. 2d. at 19.

power to act, not as a guarantee of certain minimal levels of

safety and security." DeShaney, 489 U.S. at 195. Thus, the

Due Process Clause "generally confer[s] no affirmative right

to governmental aid, even where such aid may be necessary

to secure life, liberty, or protect property interests of which

the government itself may not deprive the individual." Id. at

196. It followed in DeShaney that the State was not constitu-

tionally liable for the permanent brain damage to a child who

was beaten severely by his father, notwithstanding evidence

that the State was aware of the child's physical abuse yet

failed to remove the child from his father's custody. See id.

at 202.

Despite this general rule, the DeShaney Court acknowl-

edged that, in "certain limited circumstances[,] the Constitu-

tion imposes upon the State affirmative duties of care and

protection with respect to particular individuals." Id. at 198.

One such circumstance, the Court stated, arises when the

State "takes a person into its custody and holds him there

against his will," hence depriving him of liberty. Id. at 199-

200; see also Youngberg v. Romeo, 457 U.S. 307, 317 (1982);

Estelle v. Gamble, 429 U.S. 97, 103-04 (1976); LaShawn v.

Kelly, 990 F.2d. 1319, 1325 (D.C. Cir. 1993). In this circuit,

the custody exception is narrowly construed: Mere police

interaction with or assistance to an individual, for example,

does not necessarily amount to custody. See Harris, 932

F.2d at 14-15. Thus, in Harris, the court held that police

officers did not have a constitutional obligation to provide

medical care to a victim of a drug overdose whom they

encountered on the street and placed in restraints for his own

safety. See id. at 13-15. In so holding, the court noted that

the Due Process Clause is "phrased in the negative--'[n]o

State shall deprive any person'--and does not easily admit of

a construction imposing on government officials the duty

affirmatively to do anything." Id. at 13. Unlike cases in

which the Supreme Court declared the State's "affirmative

duty to protect" individuals in custody, see, e.g., Revere v.

Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983); Young-

berg, 457 U.S. at 315-16; Estelle, 429 U.S. at 104,9 the court

stated, "Harris had not been formally committed, either by

conviction, involuntary commitment, or arrest, to the charge

of the District"; hence, "the government had not entered into

a special relationship with Harris." Harris, 932 F.2d at 14.

Consequently,

any affirmative constitutional duty on the District offi-

cials to look after [Harris'] medical needs would ... have

to arise not ... 'from the limitation which [they] ...

imposed on [Harris'] freedom to act on his own behalf,'

but from the limitation which they imposed (by locking

him in the police van) on the possibility of others learning

of Harris' condition and coming to his aid.

Id. at 14 (quoting DeShaney, 489 U.S. at 200). The court

continued, "it is no longer the 'deprivation of liberty' which

causes the injury, as was deemed crucial in DeShaney to

trigger due process protections, so much as the 'deprivation

of visibility' or the appearance of helplessness." Id. at 15.

Moreover, the court observed, "we are not at all confident

that it will be subsequently determined by the Supreme

Court (or other federal courts) that the Youngberg line [i.e.,

the custody definition,] will be extended to this kind of

situation." Id.

In addition to custody, the DeShaney Court left open the

possibility that, under a second set of circumstances, the

State could be liable for harm inflicted to an individual by

third parties. In explaining the absence of constitutional

liability for the child's physical abuse by his father, the Court

stated:

__________

9 In Estelle, the Supreme Court held that the cruel and unusual

punishment clause of the Eighth Amendment obliges the State to

provide medical care to prisoners. See 429 U.S. at 103-04. Young-

berg extended this obligation as a matter of substantive due process

to mental patients who were involuntarily committed. See 457 U.S.

at 315-16. In Revere, the Supreme Court held that the Due

Process Clause also requires the State to provide medical care to

persons who were injured while being apprehended by the police.

See 463 U.S. at 244.

While the State may have been aware of the dangers that

Joshua faced in the free world, it played no part in their

creation, nor did it do anything to render him more

vulnerable to them.

DeShaney, 489 U.S. at 201. All circuit courts of appeals,

except this circuit, have by now relied on this passage in

DeShaney to acknowledge that there may be possible consti-

tutional liability under s 1983 "where the state creates a

dangerous situation or renders citizens more vulnerable to

danger."10 Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir.

1993), cert. denied, 510 U.S. 947 (1993).11 In Reed, police

officers arrested a presumably sober driver and left behind

an obviously intoxicated passenger, who subsequently drove

the car and was involved in a collision with the victims. The

Seventh Circuit held that the victims of the collision stated a

substantive due process claim because "[p]olice officers who

remove sober drivers and leave behind drunk passengers with

__________

10 See, e.g., Frances-Colon v. Ramirez, 107 F.3d 62, 64 (1st Cir.

1997); Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993);

Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d Cir. 1996); Pinder v.

Johnson, 54 F.3d 1169, 1175-77 (4th Cir. 1995) (en banc), cert.

denied, 516 U.S. 994 (1995); Johnson v. Dallas Indep. Sch. Distr.,

38 F.3d 198, 200-01 (5th Cir. 1994), cert. denied, 514 U.S. 1017

(1995); Kallstrom v. City of Columbus, 136 F.3d 1055, 1066-67 (6th

Cir. 1998); Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993),

cert. denied, 510 U.S. 947 (1993); Gregory v. City of Rogers, 974

F.2d 1006, 1010 (8th Cir. 1992) (en banc), cert. denied, 507 U.S. 913

(1993); Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir. 1989),

cert. denied, 498 U.S. 938 (1990); Uhlrig v. Harder, 64 F.3d 567,

572 & n.7 (10th Cir. 1995), cert. denied, 516 U.S. 1118 (1996); Wyke

v. Polk County Sch. Bd., 129 F.3d 560, 567 (11th Cir. 1997).

11 Even before DeShaney, several courts of appeals had recog-

nized a State's constitutional duty to protect an individual whom the

State placed in a situation of heightened danger. See, e.g., Wells v.

Walker, 852 F.2d 368, 370-71 (8th Cir. 1988); Escamilla v. City of

Santa Ana, 796 F.2d 266, 269 (9th Cir. 1986); Estate of Gilmore v.

Buckley, 787 F.2d 714, 722 (1st Cir. 1986); Jones v. Phyfer, 761

F.2d 642, 646 (11th Cir. 1985); Bowers v. DeVito, 686 F.2d 616, 618

(7th Cir. 1982).

keys may be said to create a danger."12 Id. at 1125. Similar-

ly, in Wood, a police officer arrested a drunk driver at 2:30

a.m. and impounded his vehicle, leaving the driver's female

passenger by the side of the road in a high-crime area. The

passenger, who was five miles from her home, accepted a ride

from a stranger, who raped her. See 879 F.2d at 586. The

Ninth Circuit held that the passenger had "raised a triable

issue of fact as to whether [the police officer] affirmatively

placed [her] in a position of danger." Id. at 589-90 (citation

omitted). Additionally, in Kallstrom v. City of Columbus, 136

F.3d 1055 (6th Cir. 1998), city officials released personal

information from the files of undercover police officers (in-

cluding names, addresses, and telephone numbers of the

officers and their families) to defense counsel for the alleged

drug conspirators whom the officers had investigated. The

Sixth Circuit held that "the City's actions placed the officers

and their family members in 'special danger' by substantially

increasing the likelihood that a private actor would deprive

them of their liberty interest in personal security." Id. at

1067.

The circuit courts have adopted the State endangerment

concept in a range of fact patterns concerning alleged miscon-

__________

12 Like this court in Harris, which refused to adopt an expand-

ed definition of "custody," the Seventh Circuit in Reed was reluctant

to "expand any existing duties for police officers," 986 F.2d at 1127.

Nonetheless, the court imposed a duty where officers "knowingly

and affirmatively create a dangerous situation for the public and fail

to take reasonable preventative steps to diffuse that danger." Id.

In Gregory v. City of Rogers, 974 F.2d 1006 (8th Cir. 1992) (en

banc), the Eighth Circuit reached a different conclusion on a

somewhat similar fact pattern. In Gregory, a police officer de-

tained the designated driver of a drinking group and allowed him to

follow the officer to the police station. The driver entered the

police station, leaving the keys inside the car; one of the intoxicated

passengers drove away and had an accident. See id. at 1007-08.

The court concluded that the police officer had not taken the

requisite affirmative actions to trigger liability under the State

endangerment concept, because it was the designated driver (and

not the police officer) who placed the passengers in danger by

leaving the keys in the car. See id. at 1012.

duct by State officials.13 Regardless of the conduct at issue,

however, the circuits have held that a key requirement for

constitutional liability is affirmative conduct by the State to

increase or create the danger that results in harm to the

individual. No constitutional liability exists where the State

actors "had no hand in creating a danger but [simply] 'stood

by and did nothing when suspicious circumstances dictated a

more active role for them.' " Reed, 986 F.2d at 1125 (quoting

DeShaney, 489 U.S. at 203); see also Kallstrom, 136 F.3d at

1066; Armijo v. Wagon Mound Pub. Schs., 159 F.3d 1253,

1262-63 (10th Cir. 1998); Frances-Colon v. Ramirez, 107

F.3d 62, 64 (1st Cir. 1997); Estate of Stevens v. City of Green

Bay, 105 F.3d 1169, 1176-77 (7th Cir. 1997); Johnson v.

Dallas Indep. Sch. Distr., 38 F.3d 198, 201 (5th Cir. 1994);

Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993);

Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)

(en banc); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992).

Absent such affirmative conduct by the State to endanger an

individual, courts have rejected liability under a State endan-

germent concept. See, e.g., S.S. v. McMullen, 225 F.3d 960,

962 (8th Cir. 2000) (en banc); Stevens v. Umsted, 131 F.3d

697, 705 (7th Cir. 1997).

Unlike other circuit courts of appeals, this court has never

been presented with a State endangerment claim; rather, it

has only addressed the first DeShaney exception-custody. In

Harris, for example, the court was confronted with a claim

that officers had a constitutional obligation to provide medical

care to a drug overdose victim whom they had restrained in a

police wagon for his own safety. In this context, the court

addressed the contention that the officers entered into a

"special relationship" with the victim because they placed him

__________

13 Plaintiffs have brought s 1983 suits under the State endan-

germent theory for the actions of various types of State actors,

including police officers, see, e.g., Reed, 986 F.2d at 1123; supervi-

sors of State custodial institutions, see, e.g., L.W. v. Grubbs, 974

F.2d 119, 120 (9th Cir. 1992); city officials, see, e.g., Kallstrom, 136

F.3d at 1059; and public school officials, see, e.g., Armijo v. Wagon

Mound Pub. Schs., 159 F.3d 1253, 1256 (10th Cir. 1998); Stevens v.

Umsted, 131 F.3d 697, 699 (7th Cir. 1997).

in police custody. See Harris, 932 F.2d at 14.14 Similarly, in

LaShawn, the court was confronted with a claim of constitu-

tional liability based on DeShaney's custody exception. In

LaShawn, class action plaintiffs brought constitutional and

statutory claims against the District of Columbia, alleging

abuses in the District of Columbia's child welfare and foster

care system. See 990 F.2d at 1320-21. The district court

ruled that the plaintiffs had stated a due process claim based

on DeShaney's concept of custody, because "the rights of

children in foster care [were] analogous to the rights of the

involuntarily committed." LaShawn v. Dixon, 762 F. Supp.

959, 992 (D.D.C. 1991). On appeal, the court avoided reach-

ing the constitutional and federal statutory issues, choosing

instead to address the claims presented under District of

Columbia statutes and regulations. See LaShawn, 990 F.2d

at 1324.15 Only now is the court directly confronted with a

plaintiff's express s 1983 claim of State endangerment.

The development of the State endangerment concept by the

circuit court of appeals is consistent with the notion, implied

in DeShaney, that something less than physical custody may

suffice to present a substantive due process claim. We join

__________

14 The concurrence in Harris alludes to the State endanger-

ment exception, see 932 F.2d at 17, but does not directly address it.

15 The court concluded in LaShawn that the District of Colum-

bia statutes created a private right of action both for children who

were in its foster care and for children who were abused or

neglected but not yet in its custody. See 990 F.2d at 1325. Citing

District of Columbia precedent that "conclusively" showed this to be

the case for the latter category of plaintiffs under the District of

Columbia Prevention of Child Abuse and Neglect Act, id. (citation

omitted), the court reasoned that, in view of the Act's application to

children who were not yet in custody, it "seem[ed] self-evident that

th[e] Act ... also creates privately enforceable rights for those

children actually in the District [of Columbia]'s custody." Id. In

dictum, the court interpreted DeShaney to hold that "the state has

a constitutional duty to assume responsibility for the safety and

well-being of a person only when the state takes that person into its

custody." Id. (emphasis added).

the other circuits in holding that, under the State endanger-

ment concept, an individual can assert a substantive due

process right to protection by the District of Columbia from

third-party violence when District of Columbia officials affir-

matively act to increase or create the danger that ultimately

results in the individual's harm.16 In so doing, we are "mind-

ful of the caution we must exercise in expanding the liberty

interests protected by substantive due process," Harbury,

2000 WL 1769100, at *9 (citing and quoting Collins v. Harker

Heights, 503 U.S. 115, 125 (1992)), but conclude that the

circuits' exposition of the concept has mitigated some of the

general concerns about the lack of guideposts; to that extent,

the court is hardly "break[ing] new ground in this field."

Collins, 503 U.S. at 125.

To assert a substantive due process violation, however, the

plaintiff must also show that the District of Columbia's con-

duct was "so egregious, so outrageous, that it may fairly be

said to shock the contemporary conscience." Sacramento,

523 U.S. at 847 n.8. This stringent requirement exists to

differentiate substantive due process, which is intended only

to protect against arbitrary government action, from local

tort law. See id. at 845-46, 848-49; Daniels v. Williams, 474

U.S. 327, 331 (1986); Wolff v. McDonnell, 418 U.S. 539, 558

(1974); see also Paul v. Davis, 424 U.S. 693, 701 (1976).

Hence, while it may be possible under District of Columbia

tort law for a plaintiff to obtain a remedy by proving mere

negligence or failure to exercise due care, this "lowest com-

mon denominator of customary tort liability" is "categorically

beneath the threshold of constitutional due process." Sacra-

mento, 523 U.S. at 848-49.

It is, on the contrary, behavior at the other end of the

culpability spectrum that would most probably support a

__________

16 Because we hold that the right arising from State endanger-

ment was not clearly established in this circuit at the time of Eric

Butera's death, we do not address whether the possibly voluntary

nature of his conduct would relieve or mitigate the District of

Columbia of constitutional liability. See Summar v. Bennett, 157

F.3d 1054, 1060 n.2 (6th Cir. 1998).

substantive due process claim; conduct intended to in-

jure in some way unjustifiable by any government inter-

est is the sort of official action most likely to rise to the

conscience-shocking level.

Id. at 849. Hence, in Sacramento, in the context of a high-

speed chase by police officers that accidentally killed a fleeing

motorcyclist, the Supreme Court held that the plaintiff must

satisfy the higher "intent to harm" standard to prove that the

officers' behavior was conscience-shocking. See id. at 854.

The Supreme Court in Sacramento acknowledged, howev-

er, that in some circumstances the "point of the conscience-

shocking" can be reached by proving "something more than

negligence but 'less than intentional conduct, such as reck-

lessness or gross negligence.' " Id. at 849 (citation omitted).

While such proof "is a matter for closer calls," id., this lower

threshold, the Supreme Court has instructed, is appropriate

in circumstances where the State has a heightened obligation

toward the individual. For example, where the State has

taken a person into custody, it "so restrains [his] liberty that

it renders him unable to care for himself"; therefore, the

"Constitution imposes upon [the State] a corresponding duty

to assume some responsibility for his safety and general well-

being." Id. at 851 (quoting DeShaney, 489 U.S. at 199-200).

Further, where an individual is in State custody, prison

officials have "the luxury ... of ... time to make unhurried

judgments, upon the chance for repeated reflection, largely

uncomplicated by the pulls of competing obligations." Id. at

853. Because of these special circumstances, a State official's

deliberate indifference in the context of state custody can be

"truly shocking." Id.

As in the context of State custody, the State also owes a

duty of protection when its agents create or increase the

danger to an individual. Like prison officials who are

charged with overseeing an inmate's welfare, State officials

who create or enhance danger to citizens may also be in a

position where "actual deliberation is practical." Id. at 851.

In the instant case, the officers had the opportunity to plan

the undercover operation with care. In view of the officers'

duty to protect Eric Butera, he may prove that the officers'

treatment of him in connection with the attempted undercov-

er drug buy "shocked the conscience" by meeting the lower

threshold of "deliberate indifference." See Radecki v. Barela,

146 F.3d 1227, 1232 (10th Cir. 1998); L.W. v. Grubbs, 92 F.3d

894, 896 (9th Cir. 1996).

The remaining question, under the second prong of the

Wilson test, is whether, in December 1997, the law surround-

ing the violation of Eric Butera's asserted due process right

to be protected from third-party violence in the context of

State endangerment was "sufficiently clear that a reasonable

officer would understand that what he [was] doing violate[d]

that right." Anderson, 483 U.S. at 640; see also Wilson, 526

U.S. at 615. Qualified immunity is intended to "provide

government officials with the ability 'reasonably to anticipate

when their conduct may give rise to liability for damages,' "

Anderson, 483 U.S. at 646 (citation omitted). In light of this

purpose, an official "[cannot] reasonably be expected to antici-

pate subsequent legal developments, nor ... fairly be said to

'know' that the law forb[ids] conduct not previously identified

as unlawful." Harlow, 457 U.S. at 818. Consequently, the

court must determine whether the Supreme Court, the Dis-

trict of Columbia Circuit, and, to the extent that there is a

consensus, other circuits have spoken clearly on the lawful-

ness of the conduct at issue.17 See Clanton v. Cooper, 129

F.3d 1147, 1156-57 (10th Cir. 1997); Gan v. City of New

York, 996 F.2d 522, 532 (2d Cir. 1993).

Upon examining relevant case law on the "State endanger-

ment" exception to DeShaney, we conclude that, in December

1997, Eric Butera's constitutional right to protection by the

District of Columbia from third-party violence was not clearly

__________

17 In Anderson, the Supreme Court made clear that, in evaluat-

ing whether the right at issue was clearly established, a court need

not have found the very action in question unlawful in the past. See

id. at 640. Rather, a court must consider whether "in the light of

pre-existing law the unlawfulness [was] apparent." Id. To make

this determination, however, the parties have pointed us to no

established within the meaning of Anderson. First, as dis-

cussed, this circuit has never recognized constitutional liabili-

ty in the context of a State endangerment claim, and the

court in Harris intimated that it would construe narrowly the

express custody exception set forth in DeShaney.18 See 932

F.2d at 13. Furthermore, LaShawn, albeit in dictum, did not

indicate any circumstance other than custody that would give

rise to District of Columbia liability. See 990 F.2d at 1325.

Moreover, the only Supreme Court authority to support a

State endangerment concept consisted of the often-quoted

dictum in DeShaney, which simply "leaves the door open for

liability" in this context. Reed, 986 F.2d at 1125.

Second, as of 1997, the "contours" of the rights created by

the State endangerment concept were not settled among the

circuits. See Anderson, 483 U.S. at 640. While courts of

appeals had adopted the State endangerment concept without

prompting Supreme Court review,19 there was little consisten-

cy in courts' explanations of the types of actions that would

amount to constitutional liability. The Eighth Circuit, for

__________

source other than case law from the Supreme Court and the

circuits.

18 This court and the District of Columbia Court of Appeals

have acknowledged that, in regard to liability for negligence, if a

"special relationship" exists between an individual and the police,

the latter has a "duty to protect." Malhoyt, 830 F.2d at 259

(citation omitted); see also Butera II, 83 F. Supp. 2d at 31. To

determine whether a "special relationship" exists, the District of

Columbia courts ask whether the police "have beg[un] to act in

behalf of a particular citizen in such a way as to raise significantly

the quotient of risk over and above the risks assumed by every

other member of the community." Malhoyt, 830 F.2d at 259

(quoting Morgan v. District of Columbia, 468 A.2d 1306, 1312 (D.C.

1983)). The issue of constitutional liability, however, involves con-

siderations not pertinent to the negligence inquiry. See, e.g., Sacra-

mento, 523 U.S. at 848-49.

19 See, e.g., Uhlrig, 64 F.3d 567, cert. denied, 516 U.S. 1118

(1996); Pinder, 54 F.3d 1169, cert. denied, 516 U.S. 994 (1995);

Johnson, 38 F.3d 198, cert. denied, 514 U.S. 1017 (1995); Reed, 986

F.2d 1122, cert. denied, 510 U.S. 947 (1993); City of Rogers, 974

F.2d 1006, cert. denied, 507 U.S. 913 (1993); Wood, 879 F.2d 583,

cert. denied, 498 U.S. 938 (1990).

example, first acknowledged that "[i]t is not clear, under

DeShaney, how large a role the state must play in the

creation of danger and in the creation of vulnerability before

it assumes a corresponding constitutional duty to protect."

Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990). The

court later stated that, to establish constitutional liability, the

plaintiff must demonstrate that he "would not have been in

harm's way but for the government's affirmative actions."

Carlton v. Cleburne County, 93 F.3d 505, 508 (8th Cir. 1996).

The Seventh Circuit, in turn, provided a slightly different

standard, finding State endangerment where the State "great-

ly increased the danger to [the plaintiff] while constricting

access to self-help." Estate of Stevens v. City of Green Bay,

105 F.3d 1169, 1177 (7th Cir. 1997) (emphasis added). Other

circuits, however, adopted more elaborate tests to determine

whether the actions of State officials amounted to State

endangerment and therefore triggered constitutional liabili-

ty.20

__________

20 For example, while stating in 1995 that it had "yet to decide

definitively whether the State endangerment theory is a viable

mechanism for finding a constitutional injury," the Third Circuit

identified four elements that State endangerment cases from other

circuits had "in common":

(1) the harm ultimately caused was foreseeable and fairly

direct; (2) the state actor acted in willful disregard for the

safety of the plaintiff; (3) there existed some relationship

between the state and the plaintiff; [and] (4) the state actors

used their authority to create an opportunity that otherwise

would not have existed for the third party's crime to occur.

Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995). In

1996, the Third Circuit applied the four elements outlined in Mark

to hold that an individual could assert a constitutional claim based

on the State endangerment theory. See Kneipp, 95 F.3d at 1208-

11. The Fifth Circuit, in turn, stated the following common ele-

ments, while also acknowledging in 1994 that it had never predicat-

ed relief based on a State endangerment claim:

[T]he environment created by the state actors must be danger-

ous; they must know it is dangerous; and ... they must have

While all of these tests share the key element of State

endangerment, namely, affirmative conduct by State actors,

see, e.g., Reed, 986 F.2d at 1126, they are inconsistent in their

elaborations of the concept. For example, the circuits have

adopted different nexus requirements, compare Mark v. Bor-

ough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995), and

Carlton, 93 F.3d at 508, with Uhlrig v. Harder, 64 F.3d 567,

574 (10th Cir. 1995), and employed differing degrees of

specificity in defining actionable conduct, compare Estate of

Stevens, 105 F.3d at 1177, and Carlton, 93 F.3d at 508, with

Johnson, 38 F.3d at 201, Mark, 51 F.3d at 1152, and Uhlrig,

64 F.3d at 574. Moreover, although we do not suggest that

State liability would necessarily be eliminated or mitigated, to

date no circuit has applied the State endangerment concept

where an arguably voluntary informant, much less a police

operative like Eric Butera, was involved. See supra note 16.

This lack of clarity in the law of the circuits leads us to

conclude that no reasonable police officer would have known

that his or her actions were subject to a State endangerment

limitation. See Anderson, 483 U.S. at 640. Harris' silence,

and LaShawn's restrictive dictum, as to the second DeShaney

__________

used their authority to create an opportunity that would not

otherwise have existed for the third party's crime to occur.

Johnson, 38 F.3d at 201. Finally, the Tenth Circuit expounded a

multi-part test to determine whether the defendant created a

"special danger" sufficient to trigger the State's constitutional liabil-

ity:

Plaintiff must demonstrate that (1) [plaintiff] was a member of

a limited and specifically definable group; (2) Defendants'

conduct put [the plaintiff] . . . at substantial risk of serious,

immediate and proximate harm; (3) the risk was obvious or

known; (4) Defendants acted recklessly in concious disregard

of that risk; and (5) such conduct, when viewed in total, is

conscience shocking.

Uhlrig, 64 F.3d at 574. In 1998, the Tenth Circuit added another

criterion to theUhlrig test: Plaintiff must show 34that the charged

state entity and the charged individual defendant actors created the

danger or increased the plaintiff's vulnerability to the danger in

some way.34 Armijo, 159 F.3d at 1263.

exception gave no such warning in this circuit. See La-

Shawn, 990 F.2d at 1325; Harris, 932 F.2d at 13.

Given the criteria imposed by the qualified immunity de-

fense, as well as the absence of Supreme Court and District

of Columbia Circuit precedent, we hold that the law in this

circuit was insufficiently clear in December 1997 to alert the

District of Columbia and its police officers to possible consti-

tutional liability (as distinct from tort liability) for their

conduct in using Eric Butera as a police operative in an

undercover operation. While the law was evolving in the

circuits to cover situations where either (1) there was State

control or custody, or (2) the State knowingly created or

increased the risk that an individual would be exposed to

danger, we do not know whether, had a State endangerment

concept been recognized in this circuit in 1997, Eric Butera's

claim would have survived. In any event, the officers were

entitled to qualified immunity.

B. Right to the Companionship of an Adult Child. Terry

Butera's claim of a constitutional right to the companionship

of her 31-year-old son has a more difficult hurdle to over-

come: It fails the first prong of the Wilson test. The

Supreme Court has not spoken to the precise issue, and the

precedent in this and nearly all of the other circuits suggests

that no such right exits.

Terry Butera testified that her son was an adult, living on

his own, and that he was not providing her with any financial

assistance at the time of his death. The evidence further

showed that Eric Butera had moved out of his mother's house

when he was eighteen years old, married, moved to Pennsyl-

vania, and had a child. In allowing Terry Butera to claim a

due process interest in the society and companionship of her

adult son, the district court relied solely on our opinion in

Franz v. United States, 707 F.2d 582 (D.C. Cir. 1983). See

Butera II, 83 F. Supp. 2d at 31; Butera I, 83 F. Supp. 2d at

19 n.3. In Franz, federal officials relocated and changed the

identities of a divorced mother and her minor children pursu-

ant to the Federal Witness Protection Program, with "the

effect of severing the ongoing relationship between the chil`

dren and their natural father." 707 F.2d at 585. The chil-

dren's father sued the United States on statutory and consti-

tutional grounds, alleging a violation of his constitutionally-

protected right to his children's companionship. In holding

that such a right existed, the Franz court acknowledged "the

profound importance of the bond between a parent and a

child to the emotional life of both." Id. at 599. The court

expressed "skepticism" at governmental interference with a

parent's right to "shape the development" of his children and

to be intimately involved in the "rearing of his offspring." Id.

at 597-99.

On appeal, Terry Butera relies on Franz, as well on cases

from other circuits that recognize parents' constitutionally-

protected liberty interest in the companionship and custody of

their children and in the "maintenance and integrity of the

family." Estate of Bailey v. County of York, 768 F.2d 503,

509 n.7 (3d Cir. 1985), overruled in part by DeShaney, 489

U.S. at 202; see also Kelson v. City of Springfield, 767 F.2d

651, 653-54 (9th Cir. 1985); Bell v. City of Milwaukee, 746

F.2d 1205, 1243-44 (7th Cir. 1984). In Bell, the Seventh

Circuit recognized this constitutional interest in the context of

a plaintiff's twenty-three-year-old son.21 See 746 F.2d at

1242-45.

The general statements in Franz, as well as in the Supreme

Court cases on which Franz relies, focus on securing the

rights of parents to have custody of and to raise their minor

children in a manner that develops "parental and filial bonds

free from government interference." Franz, 707 F.2d at 595.

This emphasis is clear in cases such as Prince v. Massachu-

setts, 321 U.S. 158 (1944), where, in the context of the

___________

21 In recognizing a constitutional right for Bell's father (the

plaintiff), the Seventh Circuit noted that the decedent was single,

had no children, and had not become a part of another family unit

other than his father's, although the two lived apart. See Bell, 746

F.2d at 1245. The court concluded that the victim's age and

separate residence were relevant only to the amount of damages to

be awarded to the father for the loss of the son's society and

companionship. See id.

prosecution of a child's guardian for furnishing her with

religious literature to sell on the public streets in violation of

child labor laws, the Court stated that "the custody, care, and

nurture of the child reside first in the parents," id. at 166, and

Ginsberg v. New York, 390 U.S. 629, (1968), where the Court

recognized parents' right "to direct the rearing of their

children [as] basic in the structure of our society." Id. at 639.

Moreover, while the Court in Stanley v. Illinois, 405 U.S. 645

(1972), recognized a parent's constitutional interest in the

"companionship" of his children, it did so in the context of a

parent's right to the custody and care of a minor child. See

id. at 651. We find nothing in Supreme Court case law to

indicate an intention to extend these concerns in support of a

constitutional liberty interest in a parent's relationship with

her adult son. Indeed, two of the three cases on which Terry

Butera relies were also decided in the context of minor (not

adult) children. See Kelson, 767 F.2d at 652-54; Estate of

Bailey, 768 F.2d at 505, 509 n.7. In the third case, see Bell,

746 F.2d at 1245, the Seventh Circuit relied largely on the

same Supreme Court cases that this court cited in Franz, as

well as on others that focus on parents' relationships with

their minor children, to reject the notion that "a constitutional

line based solely on the age of the child should be drawn."

Id.22

This circuit has indicated that it is not prepared to adopt

the interpretation that the Seventh Circuit espoused in Bell.

In an addendum to Franz, the court acknowledged different

constitutional treatment when the parent-child relationship

involves two adults:

When children grow up, their dependence on their par-

ents for guidance, socialization, and support gradually

diminishes. At the same time, the strength and impor-

tance of the emotional bonds between them and their

parents usually decrease. Concededly, the bond between

_____________

22 In addition to Stanley and Prince, the Bell court cites Caban

v. Mohammed, 441 U.S. 380, 394 (1979) and Quilloin v. Walcott, 434

U.S. 246, 255 (1978). Both cases deal with parental interests in

minor children in the context of adoption.

a parent and child when the child is an adult usually

bears some resemblance to the same bond when the child

was a minor. But, as a long line of Supreme Court cases

attests, the differences between the two stages of the

relationship are sufficiently marked to warrant sharply

different constitutional treatment.

Franz v. United States, 712 F.2d 1428, 1432 (D.C. Cir. 1983)

(citation omitted). While the court acknowledges the impor-

tance of the parent-child relationship regardless of the child's

age, and the court does not minimize the devastating loss that

a parent can experience from the death of an adult child, this

consideration, in view of circuit precedent, is insufficient to

establish a constitutional liberty interest under s 1983. We

do not think Franz can be read as broadly as the district

court and Terry Butera suggest. Neither do we think the

Supreme Court cases and other authorities on which Bell

relied can be read to support Terry Butera's constitutional

claim. Therefore, we hold that a parent does not have a

constitutionally-protected liberty interest in the companion-

ship of a child who is past minority and independent. Conse-

quently, the district court erred in denying summary judg-

ment on Terry Butera's due process claim.23

For these reasons, we hold that the District of Columbia

and the four officers were entitled to summary judgment on

both Eric and Terry's Butera's s 1983 claims. The officers

were entitled to qualified immunity regarding Eric Butera's

constitutional claim; further, Terry Butera did not have a

constitutional right to the companionship of her adult son.

Accordingly, we reverse the district court's order denying

judgment as a matter of law and vacate the compensatory

__________

.23 Because we hold that a parent-child relationship between two

indepedent adults does not invoke constituitonal 34companionship34

interests, we do not reach the District of Columbia's contention that

Terry Butera's claim fails because the District of Columbia's actions

were not intentionally directed or aimed at her relationship with her

son. See generally Harbury, 2000 WL 1769100, at *9.

damages award on the s 1983 claims.24

III.

Punitive Damages. The District of Columbia contends

that the evidence presented by Terry Butera does not meet

the stringent evidentiary standard under District of Columbia

law for awarding punitive damages against the individual

officers. It further contends that, as a matter of District of

Columbia law, punitive damages may not be awarded against

the District in this case. We conclude that the District's

evidentiary challenge is wanting, see Barbour v. Merrill, 48

F.3d 1270, 1276 (D.C. Cir. 1995), and that the district court

erred in declining to vacate the punitive damages award

against the District.25

A. The Individual Officers. "In the District of Columbia,

with rare exceptions, punitive damages [against individuals]

are available only for intentional torts." Jemison v. National

Baptist Convention, U.S.A., Inc., 720 A.2d 275, 285 n.9 (D.C.

1998); see also Bernstein v. Fernandez, 649 A.2d 1064, 1073

(D.C. 1991); Washington Med. Ctr. v. Holle, 573 A.2d 1269,

1284 (D.C. 1990). "Punitive damages are warranted only

when the defendant commits a tortious act accompanied with

fraud, ill will, recklessness, wantonness, oppressiveness, wilful

__________

24 Because summary judgment was warranted on Eric and

Terry Butera's civil rights claims, we do not address the contentions

of the District of Columbia that the s 1983 compensatory damages

award was excessive and that the verdict awarded "double recov-

ery" to Eric Butera's estate.

25 The jury did not allocate its punitive damages award among

the constitutional and statutory claims brought by Terry Butera.

On appeal, the District of Columbia has not contended that, if the

court vacates the $70 million compensatory award under s 1983, it

is entitled either to remittitur of the punitive damages awards or to

a new trial on damages. Absent such a contention, and because

"[a]n award of punitive damages cannot stand alone, unaccompanied

by compensatory damages," Bernstein v. Fernandez, 649 A.2d 1064,

1073 (D.C. 1991), we attribute the punitive damages award to Terry

Butera's Survival Act and Wrongful Death Act claims.

disregard of the plaintiff's right, or other circumstances tend-

ing to aggravate the injury." Jonathan Woodner Co. v.

Breeden, 665 A.2d 929, 938 (D.C. 1995) (quoting Washington

Med. Ctr., 573 A.2d at 1284). Thus, to obtain punitive

damages under District of Columbia law, Terry Butera must

"prove, by a preponderance of the evidence, that the [officers]

committed a tortious act, and by clear and convincing evi-

dence that the act was accompanied by conduct and a state of

mind evincing malice or its equivalent." Jonathan Woodner

Co., 665 A.2d at 938. A jury may "infer the requisite state of

mind from the surrounding circumstances." Jemison, 720

A.2d at 285-86. Consistent with this standard, the district

court instructed the jury that it could award punitive dam-

ages

only if the plaintiff has proved with clear and convincing

evidence: One, that the defendant[s] acted with evil

motive, actual malice, deliberate violence or oppression,

or with intent to injure, or willful disregard for the rights

of Eric Butera; and Two, that the defendants' [sic]

conduct itself was outrageous, grossly fraudulent or reck-

less toward the safety of Eric Butera.

The district court further instructed the jury that it could

"conclude that the [officers] acted with a state of mind

justifying punitive damages based on direct evidence or based

on circumstantial evidence."

In light of the evidence presented by Terry Butera, as well

as the District of Columbia's admissions at trial, a reasonable

jury could conclude that the officers were reckless toward

Eric Butera's safety. The officers sent Eric Butera, un-

watched and unmonitored, into a housing complex that they

should have realized was a source of criminal narcotics sales

and violence; in so doing, they never made the requisite

threshold evaluation of the need to use a citizen as a police

operative and thereby expose him to potential danger. Not

only did the officers fail to take obvious precautionary steps,

such as consulting with the MPD narcotics and special inves-

tigations units, they failed to consult with the MPD First

District to determine whether there were ongoing or recent

operations in the area of the Greenleaf Gardens housing

complex that might interfere with or increase the danger

involved in the planned undercover operation. The evidence

before the jury revealed that the officers did not notify Eric

Butera of possible police activity or police concerns in the

area, including a drug-related arrest that had occurred at the

same location on the previous night. Furthermore, while

executing the operation, the officers did not arrange for

monitoring or signaling devices, much less visual, auditory, or

electronic surveillance from a rooftop, window, or other loca-

tion. Because of carelessness with respect to Eric Butera's

safety, the officers were not in a position to come to his aid

when he was brutally attacked. Not until forty minutes after

Eric Butera headed toward the house, when, as a result of the

arrival of police officers unrelated to the undercover opera-

tion, were the officers in a position to know what had hap-

pened to him; by that time, it was too late to save Eric

Butera's life.

From the entirety of the evidence, the jury could reason-

ably have inferred that the officers' actions were impelled by

ambition for professional advancement, heedless of Eric But-

era's safety. See Jemison, 720 A.2d at 285-86. There was

testimony about the detectives getting credit for solving the

high-profile Starbucks murders from which such an inference

could reasonably be drawn. That the jury did not return a

verdict in favor of Terry Butera's claim for intentional inflic-

tion of emotional distress does not lessen the force of the

evidence regarding the officers' conduct toward Eric Butera.

Thus, because no contention is made of error in the jury

instructions or of excessiveness of the punitive damages

awards against the officers, the court has no basis to conclude

that the district court erred in declining to vacate the punitive

damages awards against the officers.26

__________

26 Although the District of Columbia asserted in moving for

judgment as a matter of law under Rule 50, or for a new trial and

vacatur or remittitur of the damages awards under Rule 59, that

the punitive damages awards against the officers were grossly

excessive, no such contention is made on appeal.

B. The District of Columbia. In City of Newport v. Fact

Concerts, Inc., 453 U.S. 247 (1981), the Supreme Court stated

that "a municipality is immune from punitive damages" under

s 1983. Id. at 271. The District of Columbia is a municipal

corporation. See D.C. Code s 1-102 (1999 Repl.). In addi-

tion, this court and the District of Columbia Court of Appeals

have held that, absent "extraordinary circumstances," puni-

tive damages are unavailable against the District of Columbia

under District of Columbia law. Atchinson v. District of

Columbia, 73 F.3d 418, 425 (D.C. Cir. 1996); see also Finkel-

stein v. District of Columbia, 593 A.2d 591, 599 (D.C. 1991)

(en banc). The term "extraordinary circumstances" is a term

of art in this context. In Daskalea v. District of Columbia,

227 F.3d 433 (D.C. Cir. 2000), the court, following Fact

Concerts, clarified the meaning of "extraordinary circum-

stances" to refer to circumstances such as "where a jurisdic-

tion's taxpayers are directly responsible for perpetrating the

policies that caused the plaintiff's injuries" or "where a mu-

nicipality or its policymakers have intentionally adopted the

unconstitutional policy that caused the damages in question."

Id. at 447. Terry Butera has made no such showing here.

Contrary to Terry Butera's contention that there was am-

ple evidence of an "officially sanctioned cover-up" of the

officers' wrongdoing and of "condonation" by the officers'

superiors, she has made no showing that the District of

Columbia policymakers intentionally adopted an unconstitu-

tional policy. That none of the officers was disciplined in

connection with the undercover operation does not show that

the District of Columbia condoned their conduct or attempted

to deny that the officers were at fault; the District of

Columbia's admissions to the jury are to the contrary. Still,

the jury found that the evidence was insufficient to hold the

District of Columbia liable for violation of Eric and Terry

Butera's claimed civil rights under s 1983. In addition,

Terry Butera's contention that the jury's finding that the

officers engaged in willful misconduct translates into a finding

of willful misconduct by the District of Columbia is unavail-

ing. All of the District of Columbia's actions and policies are

performed through agents. If these agents' actions were

always attributable to the District of Columbia, the holdings

in Fact Concerts and Daskalea, emphasizing the very limited

circumstances in which a court will award punitive damages

against the District of Columbia, would be undermined.27

IV.

Claims under Survival Act and Wrongful Death Act. Re-

garding the verdicts under the Survival and Wrongful Death

Acts, the District of Columbia contends that the district court

erred first, in ruling that Terry Butera's expert witness

established a national standard of care, see Butera II, 83 F.

Supp. 2d at 28-29, and second, in denying the District of

Columbia's pretrial request for a substitute expert on police

practices.28

A. National Standard of Care. Under District of Colum-

bia law, "[t]he plaintiff in a negligence action bears the

burden of proof on three issues: 'the applicable standard of

care, a deviation from that standard by the defendant, and a

causal relationship between that deviation and the plaintiff's

injury.' " Toy v. District of Columbia, 549 A.2d 1, 6 (D.C.

1988) (quoting Meek v. Shepard, 484 A.2d 579, 581 (D.C.

1984)); see also Messina v. District of Columbia, 663 A.2d

535, 537-38 (D.C. 1995). To prove that a defendant deviated

from the standard of care, a plaintiff need not rely on expert

testimony "where the alleged negligent act is 'within the

__________

27 Because Daskalea, 227 F.3d at 447, bars the award of

punitive damages against the District of Columbia, we do not reach

the District of Columbia's contention that the award was unconstitu-

tionally excessive under BMW of North America, Inc. v. Gore, 517

U.S. 559 (1996), and "infected" by the admission of prejudicial

evidence (Exhibit 214) concerning the finances of the District of

Columbia.

28 The District of Columbia does not contend that it is entitled

to reversal of the judgments on the statutory claims because those

judgments were premised solely on the validity of the s 1983 claims

against the officers. See District of Columbia v. Evans, 644 A.2d

1008 (D.C. 1994).

realm of common knowledge and everyday experience.' "

Toy, 549 A.2d at 6 (quoting District of Columbia v. White, 442

A.2d 159, 164 (D.C. 1982)); see also Daskalea, 227 F.3d at

445. A plaintiff must, however, "put on expert testimony to

establish what that standard of care is if the subject in

question is so distinctly related to some science, profession, or

occupation as to be beyond the ken of the average layperson."

Messina, 663 A.2d at 538 (quoting District of Columbia v.

Peters, 527 A.2d 1269, 1273 (D.C. 1987)). The district court

ruled that expert testimony concerning proper police proce-

dures for the undercover operation was warranted in the

instant case. See Butera II, 83 F. Supp. 2d at 29 n.2.

To establish a national standard of care, an expert must do

more than rely on his own experience or "simply ... declare

that the District violated the national standard of care."29

Clark v. District of Columbia, 708 A.2d 632, 635 (D.C. 1997);

see also Toy, 549 A.2d at 7-8. The expert must refer to

commonly used police procedures, identifying specific stan-

dards by which the jury could measure the defendant's

__________

29 We do not reach the district court's suggestion that a nation-

al standard of care might not have been necessary in this case. See

Butera II, 83 F. Supp. 2d at 29. While Clark v. District of

Columbia, 708 A.2d 632, 635 (D.C. 1997), states that, "[i]n the

context of actions against the District by persons in its custodial

care, [the District of Columbia Court of Appeals has] been demand-

ing in requiring proof of a national standard of care," id. at 635, the

cases on which Clark relies do not appear to impose such a

requirement. See, e.g., District of Columbia v. Moreno, 647 A.2d

396, 399-400 (D.C. 1994); District of Columbia v. Carmichael, 577

A.2d 312, 315 (D.C. 1990); Toy, 549 A.2d at 6-9. In these cases,

plaintiffs simply presented experts who purported to establish a

national standard of care; the court did not expressly hold that a

national standard was a necessary part of the plaintiff's burden of

establishing the "applicable standard of care." Toy, 549 A.2d at 6.

As in Moreno, Carmichael, and Toy, Terry Butera offered Mr.

Bradley "as an expert in the national standard of care in police

procedures," Butera II, 83 F. Supp. 2d at 30, and that is how the

case was tried. Hence, we examine whether her expert witness

established a national standard of care, without suggesting that

Terry Butera was acting pursuant to a court-imposed requirement.

actions. See Scott v. District of Columbia, 101 F.3d 748, 758

(D.C. Cir. 1996); Doe v. Dominion Bank of Washington, 963

F.2d 1552, 1563 (D.C. Cir. 1992); Phillips v. District of

Columbia, 714 A.2d 768, 775 (D.C. 1998); District of Colum-

bia v. Bethel, 567 A.2d 1331, 1333 (D.C. 1990); Toy, 549 A.2d

at 7-8; Peters, 527 A.2d at 1273. In so doing, however, the

expert need not "enumerate the facilities across the country

at which that standard is in effect." District of Columbia v.

Wilson, 721 A.2d 591, 599 (D.C. 1998); see also Dominion

Bank of Washington, 963 F.2d at 1563.

In light of these requirements, the district court could

properly find that Terry Butera's expert witness, Mr. James

Bradley, presented sufficient evidence to establish a national

standard of care. Terry Butera presented Mr. Bradley as an

expert based on his twenty-five years' experience at the

MPD, which included experience as a control officer for

undercover drug purchases and participation with federal

agencies in undercover operations. Rather than relying on

this experience in the abstract to proffer a national standard

of care, Mr. Bradley set forth concrete bases for his expert

testimony: his consultation with police officers in Prince

George's County, his review of the MPD's General Orders,

and his examination of the U.S. Department of Justice Drug

Enforcement Administration Handbook and Manual, and the

Narcotics Investigators' Manual of the Institute of Police

Technology and Management, University of North Florida,

which provides training for police officers. See Butera II, 83

F. Supp. 2d at 28-29. This is a far cry from the expert

witnesses at issue in the cases that the District of Columbia

cites. In Toy, 549 A.2d at 8, for example, the expert did not

rely on any written product when presenting his expert

opinion. Similarly, in District of Columbia v. Carmichael,

577 A.2d 312 (D.C. 1990), the expert did not "identify any

concrete standard upon which a finding of negligence could be

based." Id. at 315. In contrast, Mr. Bradley's testimony was

much more than a simple assertion of "what he ... would do

under similar circumstances." Messina, 663 A.2d at 538

(quoting Toy, 549 A.2d at 7). Hence, the District of Colum-

bia's sufficiency challenge fails.

B. Substitute Expert Witness. The district court granted

Terry Butera's motion to strike as a witness Detective John-

ny St. Valentine Brown, the expert whose testimony the

District of Columbia and the officers planned to present, for

two reasons. First, there was evidence indicating that the

attorney for the District of Columbia, rather than Detective

Brown, wrote his expert witness report, in possible violation

of Fed. R. Civ. P. 26(a)(2)(B).30 Second, Detective Brown had

falsified his educational credentials during his deposition.

Although the June 4, 1999 deadline for designating new

experts had passed, the District of Columbia moved orally

during a July 7, 1999 pretrial conference, and then in writing

on July 28, 1999, for leave to replace the stricken expert

witness. Noting "surprise[ ]" that Detective Brown "may

have misrepresented his credentials," the District of Colum-

bia argued that it would be "incurably prejudiced if [it] were

denied the opportunity to present expert testimony regarding

the applicable standards of care." Moreover, the District of

Columbia argued that Terry Butera would not be prejudiced

if the court allowed a substitute expert, because the district

court had continued the trial date from July 26 to October 5

in response to Terry Butera's July 20, 1998 motion for a

__________

30 Rule 26(a)(2)(B) provides in relevant part:

Except as otherwise stipulated or directed by the court, [the

disclosure of expert testimony] shall, with respect to a witness

who is retained or specially employed to provide expert testi-

mony in the case ..., be accompanied by a written report

prepared and signed by the witness. The report shall contain

a complete statement of all opinions to be expressed and the

basis and reasons therefor; the data or other information

considered by the witness in forming the opinions; any exhibits

to be used as a summary of or support for the opinions; the

qualifications of the witness, including a list of all publications

authored by the witness within the preceding ten years; the

compensation to be paid for the study and testimony; and a

listing of any other cases in which the witness has testified as

an expert at trial or by deposition within the preceding four

years.

Fed. R. Civ. P. 26(a)(2)(B).

default judgment or continuance as a result of an allegedly

"crucial" document that was not turned over during discov-

ery.

The district court denied the District of Columbia's motion.

It concluded that first, the named expert had misrepresented

his qualifications; second, the "District of Columbia probably

should have been aware of its own employee's educational

background;" and third, while under Rule 26(a)(2)(B) an

attorney may "assist" in the preparation of an expert's report,

the actual preparation of the report goes "beyond mere

assistance." We review the district court's preclusion of

expert testimony for abuse of discretion. See United States

v. Hall, 969 F.2d 1102, 1110 (D.C. Cir. 1992). "Even if we

find error, we will not reverse an otherwise valid judgment

unless [the District of Columbia] demonstrates that such

error affected [its] 'substantial rights.' " Whitbeck v. Vital

Signs, Inc., 159 F.3d 1369, 1372 (D.C. Cir. 1998) (citation

omitted).

In evaluating the district court's preclusion of expert testi-

mony for the District of Columbia, our decisions addressing

Fed. R. Civ. P. 37 are instructive.31 The court has noted that

"[a] district court may order sanctions, including a default

judgment, for misconduct either pursuant to Rule 37(b)(2) ...

or pursuant to the court's inherent power to 'protect [its]

integrity and prevent abuses of the judicial process.' " Webb

v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998)

(quoting Shepherd v. American Broad. Cos., 62 F.3d 1469,

1474 (D.C. Cir. 1995)). These preclusionary orders ensure

that a party will not be able to profit from its own failure to

comply with the rules set forth by the court. See, e.g.,

__________

31 Rule 37 provides in relevant part:

(b)(2) Sanctions by Court in Which Action is Pending.

If a party ... fails to obey an order to provide or permit

discovery ... or if a party fails to obey an order entered under

Rule 26(f), the court in which the action is pending may make

such orders in regard to the failure as are just....

Fed. R. Civ. P. 37(b)(2).

Dellums v. Powell, 566 F.2d 231, 235 (D.C. Cir. 1977). Where

the failure to comply is not due to willful bad faith or fault of

the disobedient party, however, the harshest sanction of

dismissal of the action, or preclusion of evidence, which is

tantamount to dismissal, is inappropriate. See Societe Inter-

nationale Pour Participations Industrielles et Commerciales

v. Rogers, 357 U.S. 197, 212 (1958); Bonds v. District of

Columbia, 93 F.3d 801, 808-10 (D.C. Cir. 1996).

The court has identified three justifications for the imposi-

tion of defaults or dismissals as sanctions for misconduct: (1)

prejudice to the other party, (2) prejudice to the judicial

system requiring the district court "to modify its own docket

and operations to accommodate the delay," and (3) the need

"to sanction conduct that is disrespectful to the court and to

deter similar conduct in the future." Webb, 146 F.3d at 971

(quoting Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1074-77

(D.C. Cir. 1986)); see also Bonds, 93 F.3d at 808; Weiner v.

Kneller, 557 A.2d 1306, 1311-12 (D.C. 1989). Because Terry

Butera does not identify how she would have been prejudiced

by a substitute expert witness, and the district court had

already continued the trial date for three months, we focus on

the third justification.

Regarding the need for a sanction, the district court faced

competing considerations. On one hand, the district court

was confronted with perjury by the District of Columbia's

named expert, a perceived violation of Rule 26 by the District

of Columbia's attorney, and an untimely motion by the Dis-

trict of Columbia. The district court was clearly troubled by

the misconduct of the attorney in writing the entirety of

Detective Brown's report, which the court considered a viola-

tion of Rule 26, and which the District of Columbia does not

contest on appeal. In addition, the District of Columbia's

motion, which did not identify the substitute witness or set

forth in detail the nature of his testimony, was untimely.

Under these circumstances, the district court would have

broad discretion to exclude the substituted testimony. See

Pride v. Bic Corporation, 218 F.3d 566, 578-79 (6th Cir.

2000). The district court could understandably have been

reluctant to reward the District of Columbia for Detective

Brown's perjury. On the other hand, the District of Colum-

bia was apparently caught unaware, particularly as Detective

Brown had been an expert witness for the United States in

criminal prosecutions for many years. See, e.g., United

States v. Toms, 136 F.3d 176, 184 (D.C. Cir 1998); Hall, 969

F.2d at 1109. Expert testimony was important in this case,

see Toy, 549 A.2d at 8, and the absence of an expert witness

for the District of Columbia could have rendered the trial

imbalanced.

In some cases, the preclusion of expert testimony would be

tantamount to a default judgment, and thus constitute an

abuse of discretion. See Bonds, 93 F.3d at 808-09. But this

is not such a case. In assessing the prejudice to the District

of Columbia as a result of the preclusion of expert testimony

on police practices, the court is confronted with the District of

Columbia's trial admissions, which are devastating. The Dis-

trict of Columbia admitted to the jury that it failed (1) to take

all possible precautions to ensure Eric Butera's safety; (2) to

equip Eric Butera with surveillance or signaling devices; (3)

to seek the assistance of other MPD units or special divisions

in conducting the undercover operation; and (4) to inform

Eric Butera of the potential risk of harm. It further admit-

ted that the MPD assured Eric Butera that if he agreed to

assist the MPD by playing an undercover role, the MPD

would protect him from harm, would carefully watch and

monitor him throughout the process, and would be standing

closely by with sufficient resources to ensure his safety. In

addition, there was abundant testimony indicating that the

undercover operation was seriously flawed, starting with the

admitted failure of the officers to conduct a comprehensive

evaluation of the need to involve a citizen in an undercover

operation, as required by MPD policy. Moreover, MPD

General Orders and policies outlining the use of informants

were in evidence. Consequently, it seems extremely doubtful

that an expert for the District of Columbia on police practices

would have mitigated the prejudice arising from the incrimi-

nating evidence that was before the jury. Nothing that the

District of Columbia contends on appeal suggests to the

contrary.

Accordingly, we affirm the district court's denial of judg-

ment as a matter of law on Terry Butera's statutory claims

and on the punitive damages awards against the individual

officers. We reverse the denial of summary judgment on

Eric and Terry Butera's constitutional tort claims, and on the

punitive damages award against the District of Columbia.