United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 15, 2014 Decided January 23, 2015

No. 13-5207

WILBERT HARRIS,

APPELLANT

v.

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-00114)

Donald M. Temple argued the cause and filed the brief for

appellant.

R. Craig Lawrence, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Ronald C.

Machen Jr., U.S. Attorney, and Wyneva Johnson, Assistant U.S.

Attorney.

Before: ROGERS and WILKINS, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.
2

RANDOLPH, Senior Circuit Judge: Wilbert Harris brought

an action against the United States Department of Veterans

Affairs (“VA”) seeking damages under the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. §§ 2671, et seq., for false arrest and

false imprisonment, assault and battery, negligence, negligent

infliction of emotional distress, and intentional infliction of

emotional distress. The district court granted the VA’s motion

for summary judgment on all claims. For the reasons that

follow, we reverse the grant of summary judgment on Harris’

assault and battery claim and on his claim of intentional

infliction of emotional distress to the extent that it is based on

his assault and battery claim. We affirm the grant of summary

judgment on all other claims.

I.

Harris is a Vietnam War veteran who suffers from posttraumatic stress disorder (“PTSD”). On November 6, 2008, two

days after the election of President Obama, Harris attended a

group therapy session for veterans suffering from PTSD at the

VA Medical Center in Washington, D.C. David Sheets, a

1

clinical social worker, ran the session. Harris had with him a

newspaper announcing President Obama’s election, and he

displayed it proudly at the beginning of the session.

Harris and Sheets disagree on what occurred next, but

Harris does not dispute that Sheets asked him not to discuss

political issues during the session and, when he refused, Sheets

asked him to leave. When Harris did not, Sheets left the room

and returned a few minutes later with three VA police officers,

 Harris’ amended complaint states that the incident in question 1

occurred “[o]n or about November 5, 2008,” although all other record

evidence, including Harris’ own Statement of Material Facts in

Dispute, states it occurred on November 6, 2008.
3

Lieutenant William N. Nesbitt, Sergeant Denise G. Gentry, and

Corporal Donald R. Christmas. As Harris left the room with the

officers, Sheets told the officers that Harris had caused a

“disturbance.” Sheets said Harris could not return to the group

therapy session. According to Harris, Harris asked for a patient

advocate, was “never violent [or] combative,” and attempted to

re-enter the therapy room to recover his personal items,

whereupon he was forced to the floor by the officers,

handcuffed, and placed under arrest. Harris contends that during

the arrest, one of the officers punched him in the ribs, fracturing

one of them.

The parties agree that two officers then took Harris to the

hospital’s emergency department, where he was treated for a

scrape on his left hand. After he was discharged from the

emergency department, Harris was placed in a holding cell and

issued a citation for “[d]isorderly [c]onduct which creates loud,

boisterous, unusual noise.” J.A. 55; see 38 C.F.R.

§ 1.218(b)(11). The citation was later dismissed without a

hearing. Harris states that he “endured multiple hospital visits

related to the injuries incurred” during the arrest, which included

a fractured rib and permanent nerve damage in his left arm. He

also claims that the attendant mental and emotional trauma

further aggravated his PTSD.

Harris’ amended complaint against the VA alleged false

arrest and false imprisonment, assault and battery, negligence,

negligent infliction of emotional distress, and intentional

infliction of emotional distress under the FTCA. See 28 U.S.C.

§ 1346(b)(1). The VA moved for dismissal, or, in the

alternative, for summary judgment. See Fed. R. Civ. P.

12(b)(1), (b)(6), 56. Harris opposed the VA’s motion, arguing

that “absent discovery” the VA’s motion was “premature and

should be denied.” Pursuant to the Rules of the District Court

for the District of Columbia, Harris included a “concise
4

statement” of “all material facts” that he thought necessary to be

litigated and “references to the parts of the record relied on to

support [his] statement.” Rule 7(h), Rules of the U.S. District

Court for the District of Columbia. His statement included

citations to affidavits and medical documents and referred to

disputes over Harris’ behavior during the confrontation, whether

he acted aggressively toward the police or forcefully tried to reenter the therapy room, how the police effected the arrest

(specifically, whether they struck Harris once he was

handcuffed), and whether Harris suffered a fractured rib and

other injuries because of the arrest, among other disputes. 

Harris did not request discovery pursuant to Federal Rule of

Civil Procedure 56(d).

The district court granted summary judgment to the VA on

all claims. It concluded that “no reasonable jury could find that

the arresting officers engaged in conduct amounting to false

arrest and false imprisonment, assault and battery, negligence,

negligent infliction of emotional distress, or intentional

infliction of emotional distress.” The court determined that the

officers had probable cause to arrest Harris for disorderly

conduct “because he attempted to re-enter the group therapy

room against the officers’ unequivocal directive not to do so.” 

The court also held that the officers’ use of force was reasonably

necessary under the circumstances, ignoring Harris’ later

professions of numbness and weakness in his left hand because

he had been diagnosed with carpal tunnel syndrome before his

arrest. The court made no mention of Harris’ alleged rib injury. 

Because Harris’ arrest was secured with probable cause and

reasonably necessary force, his claims of intentional infliction

of emotional distress and negligent infliction of emotional

distress also failed.
5

II.

We review a district court’s decision to grant summary

judgment de novo and consider the evidence in the light most

favorable to the non-moving party. See Ayissi-Etoh v. Fannie

Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam). 

Summary judgment may be granted when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986); see Fed. R. Civ. P. 56(a), (c). 

“A dispute over a material fact is ‘genuine’ if ‘the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.’” Arrington v. United States, 473 F.3d 329,

333 (D.C. Cir. 2006) (quoting Anderson, 477 U.S. at 248). A

fact is material if it “might affect the outcome of the suit under

the governing law.” Id. (quoting Anderson, 477 U.S. at 248). A

party opposing summary judgment must point the district court

to disputed facts “with the requisite specificity and support them

with appropriate references to the record.” Frito-Lay, Inc. v.

Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988). We may

affirm summary judgment on any ground supported by the

record. Jones v. Bernanke, 557 F.3d 670, 676 (D.C. Cir. 2009).

III.

Tort liability under the FTCA is determined according to

the law of the place where the alleged acts or omissions

occurred—in this case, the District of Columbia. Tarpeh-Doe

v. United States, 28 F.3d 120, 123 (D.C. Cir. 1994). Applying

D.C. tort law, we consider each of Harris’ claims in turn.

1. False Arrest and False Imprisonment
6

The elements of the torts of false arrest and false

imprisonment are: (1) detention or restraint against one’s will

within boundaries fixed by the defendant, and (2) the

unlawfulness of such restraint. Edwards v. Okie Dokie, Inc., 473

F. Supp. 2d 31, 44 (D.D.C. 2007). The existence of probable 2

cause for arrest defeats claims for false arrest and imprisonment.

 See id.; Gabrou v May Dep’t Stores Co., 462 A.2d 1102, 1104

(D.C. 1983) (per curiam). 

Congress authorized the Secretary of Veterans Affairs to

“prescribe regulations to provide for the maintenance of law and

order and the protection of persons and property on [VA]

property.” 38 U.S.C. § 901 (a)(1). Violations of such

regulations may be punished by fines or imprisonment for not

more than six months, or both. Id. § 901 (c). One such

regulation, codified at 38 C.F.R. § 1.218, establishes the rules of

conduct “at all property under the charge and control of [the]

VA.” Id. § 1.218(a). Under § 1.218(a)(5), all persons on VA

property are barred from (among other things) engaging in

conduct “which creates loud or unusual noise . . . which

otherwise impedes or disrupts the performance of official duties

. . . [and] which prevents one from obtaining medical or other

services.” Id. A disturbance can also include the “[f]ailure to

leave the premises when so ordered,” whereupon “the offender

is subject to arrest and removal from the premises.” Id.; see also

 “In the District of Columbia, the torts of false arrest and false 2

imprisonment are indistinguishable.” Joyce v. United States, 795 F.

Supp. 1, 4 (D.D.C. 1992), aff’d, 986 F.2d 546 (D.C. Cir. 1993)

(unpublished) (citing Shaw v. May Dep’t Stores Co., 268 A.2d 607

(D.C. App. 1970)). 
7

id. § 1.218(b)(11) (specifying schedule of offenses for disorderly

conduct punishable pursuant to paragraph (a)).

3

This regulation has been read to include causing a

commotion that drew VA employees away from their ordinary

duties, United States v. Agront, No. 13-10218, 2014 WL

6600419, at *6 (9th Cir. Nov. 21, 2014), and that “tended to

‘impede or prevent the normal operation of a service’” at a VA

facility. United States v. Encinger, 4:10CR3027, 2010 WL

2771884, at *4 (D. Neb. Jul. 13, 2010) (quoting 38 C.F.R.

§ 1.218(11)); see also United States v. Shepard, 362 F. App’x

107, 112 (11th Cir. 2010) (unpublished). 

Harris emphasizes that there is a factual dispute over who

ordered Harris not to reenter the group therapy room—he says

it was Sheets while the district court stated it was the police.

Appellant Br. at 10. But the dispute is of no moment. 

Undisputed evidence suffices to establish probable cause. In his

amended complaint, Harris concedes that Sheets expelled him

from group therapy and told the police that Harris caused a

“disturbance” and “could not return to [the] group or continue

treatment.” Harris states that he acted calmly, that he “did not

refuse to leave the [group therapy] room,” and that he “never

attempted to forcefully reenter the [group therapy] room and

never disobeyed a police officer’s statement.” But Harris

acknowledges that even after Sheets asked him to leave group

Harris was cited only for a violation of the portion of the 3

regulation that lists the schedule of offenses. 38 C.F.R.

§ 1.218(b)(11). We note, as have other courts, that a violation of

§ 1.218(b)(11) is tantamount to a violation of the offenses prohibited

by § 1.218(a)(5). See United States v. Dyers, No. 1:06-MJ-455-AJB,

2007 WL 397109, at *1-2 (N.D. Ga. Jan. 30, 2007); United States v.

Fentress, 241 F. Supp. 2d 526, 529 (D. Md. 2003), aff’d, 69 F. App’x

643 (4th Cir. 2003). 
8

therapy, he remained in the room and only left when Sheets

returned with three VA police officers, and, once outside the

room, he attempted to reenter, whether “forcefully” or not.

Taken together, these undisputed facts were sufficient to

justify arrest. Sheets had ordered Harris to leave group therapy,

and the police observed Harris’ failure to comply when they

entered the room. “Failure to leave the premises when so

ordered constitute[d] a [ ] disturbance” that subjected Harris “to

arrest and removal from the premises” under VA regulations. 

38 C.F.R. § 1.218(a)(5). Sheets also interrupted the therapy

session he was running to address Harris’ alleged “disturbance.” 

Conduct that “tend[s] to disturb the routine operations of a VA

hospital . . . is prohibited” under § 1.218(b)(11). Fentress, 241

F. Supp. 2d at 530 (quoting United States v. Williams, 892 F.2d

1044, at *2 (6th Cir. 1990) (per curiam) (unpublished)); see also

Agront, 2014 WL 6600419, at *7. 

Although Harris was charged only with “[d]isorderly

[c]onduct which creates loud, boisterous, unusual noise,”

J.A. 55, under 38 C.F.R. § 1.218(b)(11), probable cause may

exist “to arrest for any offense, even if it differs from the offense

for which the arrest was actually made.” Enders v. District of

Columbia, 4 A.3d 457, 469 (D.C. 2010). The undisputed

evidence in this case revealed the probability of several

offenses: failing to leave the premises after being so ordered,

distracting a VA employee (Sheets), and inhibiting medical

treatment (group therapy). See United States v. Prandy-Binett,

995 F.2d 1069, 1073-74 (D.C. Cir. 1993).

The evidence may have been insufficient to convict Harris,

but the only question before us is whether the police had

probable cause to arrest him, which the undisputed facts show

that they did. Accordingly, we affirm the grant of summary

judgment as to this claim.
9

2. Assault and Battery

An assault is an intentional attempt or threat to do physical

harm to another. A battery is an intentional act that causes

harmful or offensive bodily contact. See Evans-Reid v. District

of Columbia, 930 A.2d 930, 937 (D.C. 2007). The police have

a qualified privilege to commit both torts when using

“reasonable force to effect an arrest, provided that the means

employed are not in excess of those which the actor reasonably

believes to be necessary.” Arrington, 473 F.3d at 335 (quoting

Etheredge v. District of Columbia, 635 A.2d 908, 916 (D.C.

1993)). “The ‘reasonableness’ of a particular use of force must

be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Graham

v. Connor, 490 U.S. 386, 396 (1989); see also Plumhoff v.

Rickard, 134 S. Ct. 2012, 2020 (2014). Accordingly, “a

defendant’s motion for summary judgment is to be denied only

when . . . a reasonable jury could conclude that the

excessiveness of the force is so apparent that no reasonable

officer could have believed in the lawfulness of his actions.” 

Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993).

The district court concluded that “there is no basis for a trier

of fact to conclude that the officers used excessive force in

executing the lawful arrest of [Harris].” But this conclusion

overlooks genuine issues of material fact about what occurred

during Harris’ arrest, issues brought to the district court’s

attention with reasonable specificity in Harris’ Statement of

Material Facts in Dispute. See Frito-Lay, 863 F.2d at 1033-34. 

Sheets stated that during Harris’ confrontation with the

officers outside of the therapy room, Harris became “verbally

and emotionally out of control, resisting compliance.” Harris

then “appeared to attack one officer and was then taken to the

ground and handcuffed by the police. He did not appear to be
10

injured but he did appear to be a danger to others.” The

Uniform Offense Report filed the day of the incident and signed

by one of the responding officers, Donald Christmas, describes

how Harris “refuse[d] to comply” with the officers and “went

towards LT. NESBIT [sic] and [sic] an aggressive way and got

combatant [sic] with police officers,” whereupon “he was then

taken to the ground and put into restraints.” However, the Use

of Force Report Event Record that Nesbitt filed the day of the

incident makes no mention of Harris coming toward him. It

reported only that Harris “failed to comply with the police

officers[’] directives . . . became distributive [sic] and tried to

enter a group session room forcefully,” whereupon he “was

taken down to the floor[,] [h]andcuffed[,] and escorted to the ER

for treatment for difficulty breathing.”

In a declaration Nesbitt executed in May 2012, he states that

Harris “failed to comply with police directives and attempted to

enter a room forcefully. I then assisted with a take-down and

restraint.” This declaration makes no mention of Harris’

difficulty breathing. 

Gentry’s contemporaneous Use of Force Event Record

states that Harris “failed to comply with directives, [and] he

tried to enter a room forcefully,” and that Gentry “assisted Cpl.

Christmas and Lt. Nesbitt with a takedown to restrain and

escort.” Her later declaration relates essentially the same

sequence of events.

Christmas’ handwritten Use of Force Report states that

Christmas “grab[b]ed [Harris’] left hand and put him in a[n] arm

lock back down w[h]ere he then was put in restraint[s] and

escorted to the E.R.” Christmas’ declaration repeats the

declarations of the other officers, stating: “Harris failed to

comply with police directives and attempted to enter a room

forcefully. I then assisted with a take-down and restraint and,
11

along with Sergeant Gentry, I escorted Mr. Harris to the [VA

Medical Center] Emergency Department.”

Harris has a quite different story. His affidavit states that he

acted and spoke calmly, “never attempted to forcefully reenter

the room and never disobeyed a police officer’s statement.” 

But, according to Harris’ Statement of Material Facts in Dispute,

“[r]egardless, the VA police officers forcefully threw [Harris] to

the ground, placed him in a lock, and handcuffed him.” 

Corporal Christmas “punched [him] in the rib after he was . . .

handcuffed.” Harris claims his physical injuries included “a

fractured rib, scrapes to his forehead and left hand, ongoing

neuropathy in his left fingers, [ ] bursitis in his left and right

arms,” and increased PTSD-related disability. Harris’ medical

records show that he complained of pain to his chest

immediately after being brought to the emergency department

and that he returned to the hospital two days after the incident

complaining of sharp chest pain and was diagnosed with a rib

fracture. 

Whether the police officers’ use of force in restraining

Harris was reasonable turns on contested questions of

fact—including whether Harris was “actively resisting arrest or

attempting to evade arrest by flight,” Graham, 490 U.S. at 396,

whether he “pose[d] an immediate threat to the safety of the

officers or others,” id., and whether the police struck him after

he was in restraints, see Arrington, 473 F.3d at 336-37; Tafler v.

District of Columbia, 539 F. Supp. 2d 385, 390-91 (D.D.C.

2008); see also DeGraff v. District of Columbia, 120 F.3d 298,

302 (D.C. Cir. 1997). 

“[A] plaintiff may defeat a summary judgment granted to a

defendant if the parties’ sworn statements are materially
12

different.” Arrington, 473 F.3d at 337. Here, the affidavits, 4

declarations, pleadings, and other evidence show that there are

factual disputes that could affect the outcome of the suit. See

Anderson, 477 U.S. at 247-49. First, it is disputed what

happened immediately before Harris was taken to the ground

and handcuffed. Sheets and the Uniform Offense Report state

that Harris “attack[ed]” one of the officers, but Nesbitt, Gentry,

and Christmas state only that Harris attempted to enter the room

“forcefully.” Harris claims that he calmly turned to reenter the

room to collect his belongings. Second, it is disputed whether

Harris was struck in the chest during the arrest, as he claims and

as Nesbitt’s contemporaneous Use of Force Report Event

Record (which said Harris had trouble breathing) could suggest. 

Third, it is disputed whether Harris’ rib was fractured as a result

of the arrest, as he claims and as the doctor’s reports could

suggest. Fourth, it is disputed whether Harris suffered

permanent nerve damage as a result of the arrest, as he claims,

but as some medical documentation disputes. Fifth, it is

disputed whether Harris’ arrest contributed to an increase in his

PTSD disability rating, as he claims, or if it merely correlated

with it, as a declaration from a VA Service Center Manager

states.

The VA argues that we should not rely on Arrington for the 4

proposition that a plaintiff’s sworn statement, contradicting the

defendant’s version of the facts, is sufficient to create a genuine issue

in dispute, because “unlike Arrington, Harris’ affidavit appears to

contradict his own complaints and the authrotiative [sic] medical

evidence.” Appellee Br. at 17 n.2. 

 The VA has misread the sealed medical records. The VA writes

in its brief that Harris did not complain of rib pain resulting from the

incident “until over a year later.” Id. at 17. That statement is not

accurate. Harris’ statements and the medical evidence are not

contradictory.
13

Weighing credibility, resolving factual disputes, and

drawing legitimate inferences are matters for the fact-finder;

thus, summary judgment is inappropriate. See PardoKronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010). 

Accordingly, we reverse the grant of summary judgment on

Harris’ assault and battery claim.

3. Negligence 

Harris’ third claim is for negligence. He claims that Sheets

had a duty to treat him “in a manner that was sensitive to his

victimization” and that “Sheets became mean spirited and

vindictive,” caused the confrontation with police, and,

consequently, caused “unnecessary harm to Harris.” The district

court held that no reasonable jury could find that the arresting

officers acted negligently. Because Harris advanced no

argument in his brief before us about why the district court

erred, we do not consider this claim. See U.S. ex rel. Totten v.

Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir. 2004). We

therefore affirm the district court’s grant of summary judgment

on Harris’ negligence claim. 

4. Negligent Infliction of Emotional Distress

To make out a claim for negligent infliction of emotional

distress, a plaintiff must show that “(1) the plaintiff was in the

zone of physical danger, which was (2) created by the

defendant’s negligence, (3) the plaintiff feared for his own

safety, and (4) the emotional distress so caused was serious and

verifiable.” Rice v. District of Columbia, 774 F. Supp. 2d 25, 33

(D.D.C. 2011).

Harris argues that “Sheets was entrusted with the care of

Veterans who were significantly mentally and emotionally ill,”

and that “he knew there was no basis to arrest Harris” but
14

“called security . . . and recklessly caused them to become

involved in the unnecessary arrest and detention thereby

breaching his duty to Harris.” Harris concludes: “As a direct

and proximate result of the intentional and wrongful actions of

[Sheets], [Harris] suffered physical harm, emotional distress and

mental anguish.”

The district court did not directly address the negligent

infliction of emotional distress claim; instead, the court

considered it with the claim of intentional infliction of emotional

distress, concluding that both claims failed because the VA

police arrested Harris with probable cause and reasonably

necessary force.

We affirm the grant of summary judgment on the negligent

infliction of emotional distress claim without reaching its merits

because Harris did not properly plead the claim in his amended

complaint. Harris describes Sheets’ actions as knowing and

“intentional,” and “[i]ntent and negligence are regarded as

mutually exclusive grounds for liability.” District of Columbia

v. Chinn, 839 A.2d 701, 706 (D.C. 2003) (internal quotation

marks and citation omitted); see also DANB.DOBBSET AL.,THE

LAW OF TORTS § 31 (2d ed. 2011) (“Any given act may be

intentional or it may be negligent, but it cannot be both.”). 

Merely using the term negligence does “not raise a cognizable

claim of negligence.” Chinn, 839 A.2d at 708. Here, as in Rice,

Harris “fail[ed] to distinguish the bases for [his] claims.” Rice,

774 F. Supp. 2d at 33. Because the amended complaint “does

not distinguish between negligent and intentional acts, does not

identify any specific act that was allegedly negligent, and fails

to make out a claim of negligent infliction of emotional

distress,” id. at 33-34, we affirm the district court’s grant of

summary judgment on this claim. 

5. Intentional Infliction of Emotional Distress
15

To make out a claim for intentional infliction of emotional

distress, Harris “must show that the [VA] acted in an (1)

extreme and outrageous manner (2) which was intentionally or

recklessly calculated to cause [Harris] (3) severe emotional

distress.” Joyce, 795 F. Supp. at 5 (citing Green v. Am. Broad.

Co., 647 F. Supp. 1359, 1362 (D.D.C. 1986)). Generally,

“[l]iability has been found only where the conduct has been so

outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.” 

Abourezk v. N.Y. Airlines, Inc., 895 F.2d 1456, 1459 (D.C. Cir.

1990) (quoting Sere v. Grp. Hospitalization, Inc., 443 A.2d 33,

37 (D.C. 1982)) (alteration in original); see also RESTATEMENT

(SECOND) OF TORTS § 46 cmt. d (1965). 

In his amended complaint, Harris alleged that Sheets “acted

in a manner that he hoped would cause intentional harm to

[Harris], including physical harm.” Sheets allegedly “knew or

should have known that his calling of security and excluding

[Harris] from the class would result in further emotional and

mental harm to [Harris],” and, as a result of Sheets’ “intentional

and wrongful actions [Harris] suffered physical harm, emotional

distress and mental anguish.” In his opposition to the VA’s

motion for summary judgment, Harris stated that he based his

intentional infliction of emotional distress claim on both the VA

officers’ alleged use of excessive force and the allegedly

unjustified arrest. He distinguished his case from Gabrou v.

May Department Stores, 462 A.2d at 1102, on which the VA’s

motion for summary judgment relied, by noting that the plaintiff

in Gabrou failed to plead assault and battery in his complaint,

whereas “Harris’s claim of excessive force is at the heart of his

Amended Complaint and is sufficiently pled with facts that

support his claim.” He argues that the fact that he was “arrested,

beaten, and brutalized could result in a jury concluding that the

officers’ behavior was ‘outrageous,’” and, thus, his claim for
16

intentional infliction of emotional distress should survive

summary judgment.

As an initial matter, while Harris describes Sheets’ actions

in his amended complaint, the VA is the defendant and its agents

(the police officers) allegedly committed the assault and battery. 

As the VA concedes in its papers before the district court and as

the district court recognized in its decision, the issue here is

whether the officers’ actions constituted intentional infliction of

emotional distress. The VA, through the doctrine of respondeat

superior, would be liable for torts committed by the VA police

officers acting in their scope of employment. See Holder v.

District of Columbia, 700 A.2d 738, 741-42 (D.C. 1997). 

Accordingly, like the district court, we construe Harris’ claim as

against the defendant, the VA, and not Sheets. 

As discussed, we hold that the VA had probable cause to

arrest Harris. To the extent that Harris’ claim of intentional

infliction of emotional distress arises from the mere fact of his

arrest, we agree with the district court that the probable cause for

arrest defeats those claims. See Joyce, 795 F. Supp. at 5. But

insofar as Harris’ emotional distress claim relates to his assault

and battery claim (and to the underlying allegations of excessive

force), we reverse. 

The district court predicated its ruling on the basis that

Harris’ arrest was effectuated with reasonable force. But that

conclusion involves disputed factual issues, such as whether the

police struck Harris once he was restrained, fracturing his rib

and causing other injuries. 

Applying the established three-part standard for intentional

infliction of emotional distress, we note, first, that “a serious

case of excessive force” can constitute outrageous behaviorsuch

that it satisfies a claim of intentional infliction of emotional
17

distress. Gabrou, 462 A.2d at 1105 (internal quotation marks

and citation omitted); see Jackson v. District of Columbia, 412

A.2d 948, 955 (D.C. 1980); see also Bender v. City of New York,

78 F.3d 787, 791 (2d Cir. 1996) (applying New York law);

Robins v. Harum, 773 F.2d 1004, 1011 (9th Cir. 1985) (applying

Washington state law).

Second, the requisite intent of the defendant can be

“inferred, either from the veryoutrageousness of the defendant’s

acts or . . . when the circumstances are such that ‘any reasonable

person would have known that (emotional distress and physical

harm) would result.’” Waldon v. Covington, 415 A.2d 1070,

1077 (D.C. 1980) (citation omitted); see also Kotsch v. District

of Columbia, 924 A.2d 1040, 1046 (D.C. 2007). Such an

inquiry “is normally a factual question for the jury.” Ross v.

DynCorp, 362 F. Supp. 2d 344, 360 (D.D.C. 2005) (quoting

Waldon, 415 A.2d at 1078). 

Third, with regard to the required showing of severe

emotional distress, “[w]hile tort law historically required some

physical manifestation or symptom of the alleged emotional

distress as a condition for recovery, current D.C. law allows ‘an

action for intentional infliction [of emotional distress to] be

made out even in the absence of physical injury or impact.’” Id.

at 360-61 (alteration in original) (quoting Waldon, 415 A.2d at

1076). Harris states that he “endured multiple hospital visits,”

“suffered substantial mental and emotional trauma,” and

“aggravated [his] PTSD” as a result of the incident. The VA

contests the degree to which his PTSD worsened and its cause. 

Harris’ alleged injuries, including a fractured rib and worsened

PTSD, might suffice to establish severe emotional distress. See

RESTATEMENT (SECOND) OF TORTS § 46 cmt. k (“Normally,

severe emotional distress is accompanied or followed by shock,

illness, or other bodily harm, which in itself affords evidence

that the distress is genuine and severe.”); see also District of
18

Columbia v. Tulin, 994 A.2d 788, 801 (D.C. 2010) (“aggravation

of a pre-existing depression” could support emotional distress

claim).

Given how little is actually established about the VA

police’s arrest of Harris and its consequences on his health, we

reverse the grant of summary judgment on this claim. See Tulin,

994 A.2d at 803.

IV.

We reverse the grant of summary judgment on Harris’

assault and battery claim and on his claim of intentional

infliction of emotional distress to the extent that it is based on

his assault and battery claim. We affirm the grant of summary

judgment on all other claims.

So ordered.