 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 28, 2007                  Decided June 26, 2007

                         No. 05-7157

               CHRISTOPHER G. PITT, SR. AND
                   TELA HANSOM-PITT,
                      APPELLANTS

                              v.

               DISTRICT OF COLUMBIA, ET AL.,
                        APPELLEES


                     Consolidated with
                    05-7163 and 06-7009


        Appeals from the United States District Court
                for the District of Columbia
                      (No. 01cv02225)



    William J. Mertens argued the cause for appellants/cross-
appellees. With him on the briefs was L. Barrett Boss.

     Carl J. Schifferle, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the cause
for appellees/cross-appellants. With him on the briefs were
Linda Singer, Attorney General, Todd S. Kim, Solicitor General,
and Edward E. Schwab, Deputy Solicitor General.
                                2

    Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

    Opinion for the Court filed by Circuit Judge SENTELLE.

     SENTELLE, Circuit Judge: The events giving rise to this
case are troubling. After a violent robbery, the police arrested
the wrong person – plaintiff Christopher Pitt – then initiated
criminal proceedings against Mr. Pitt despite overwhelming
evidence of his innocence. Mr. Pitt and his wife subsequently
brought suit against the District of Columbia and three
individual police officers, seeking relief under federal law and
D.C. common law for malicious prosecution, false arrest, and
intentional infliction of emotional distress. After trial, the jury
returned a split verdict and the district court entered judgment
for the plaintiffs for $153,000. The defendants then moved for
judgment as a matter of law on all claims, which the district
court granted in part and denied in part. On appeal both sides
challenge the district court’s rulings on the motions for
judgment as a matter of law. We affirm in part, reverse in part,
and remand to the district court for further proceedings.

                                I.

                                A.

     At approximately 12:00 p.m. on January 2, 2001, two senior
citizens – Henry and Gloria Feldman – were violently robbed in
their apartment building in Northwest Washington. The robber
had followed the Feldmans into their building and then into the
elevator. In the hallway outside the Feldmans’ apartment, the
robber “socked” Mr. Feldman in the face and took his wallet,
then grabbed Mrs. Feldman’s purse before escaping down a
nearby staircase. The Feldmans immediately called 911.
During the 911 call, Mrs. Feldman described the robber as a
black man around 5’8” tall with a medium complexion and dark
                                3

hair, who was wearing a black leather jacket and a “beige-y”
shirt. She told the operator that the perpetrator had not used a
weapon during the robbery.

     Meanwhile, Keith Dade, an employee of the apartment
building, was notified of the robbery and saw the perpetrator
leaving the building. Mr. Dade followed the man and attempted
to ask him a few questions, but the robber told Mr. Dade to
“back up” and started to run away. Mr. Dade saw the robber
make a suspicious “gesture” as though he might have had a
weapon, but did not actually see a weapon. After following the
perpetrator out of the building and across the street, Mr. Dade
lost sight of him. Mr. Dade gave a description of the robber to
the police, who subsequently broadcast a lookout alert to
officers in the area.

     Responding to the lookout alert, Officers Bryan Adams and
Steven Baxter arrived at the intersection where Mr. Dade last
saw the perpetrator. After conferring with other officers at the
scene, Officer Adams looked down the street and saw an
individual who matched the description of the perpetrator get
into a car and begin driving toward Rock Creek Park. The
individual spotted by Officer Adams was the plaintiff,
Christopher Pitt. Officers Adams and Baxter returned to their
vehicle and followed plaintiff through Rock Creek Park and
onto Calvert Street before pulling him over on the Taft Bridge
on Connecticut Avenue. During the officers’ pursuit, plaintiff
failed to fully stop at some of the stop signs, but he was not
speeding. After stopping the plaintiff, the officers told him that
he was a suspect in a robbery, asked him to step out of the
vehicle, and handcuffed him for their protection. The officers
confirmed that plaintiff’s clothes and physical characteristics
matched the description of the robber. Plaintiff permitted the
officers to search his vehicle, and during this search they found
a hunting knife and a BB gun. Mr. Pitt informed the officers
                                4

that he worked as a courier, and that the knife and BB gun were
for his protection. Plaintiff also provided the police with a list
of the pickups and deliveries he had made that day, as well as
two receipts for recent deliveries to the embassies of Kuwait and
Qatar.

     After being notified that a suspect had been apprehended,
other police officers brought the Feldmans and Mr. Dade to the
Taft Bridge for a “show-up” identification to determine whether
any of the eyewitnesses could identify plaintiff as the robber.
Mrs. Feldman told the officers she got a “good look” at the
robber, and that she was “certain” plaintiff was not the person
who had robbed them. Mr. Feldman told the police he “wasn’t
sure” whether plaintiff was the perpetrator, but that he “doesn’t
think so.” Mr. Dade thought plaintiff looked somewhat like the
robber, but he “couldn’t make a positive ID” because the
plaintiff’s hair was “longer and curlier” than the robber’s, and
the plaintiff – unlike the robber – was wearing a hat.

     Lieutenant Josiah Eaves was at the Feldmans’ apartment
building reviewing the building’s security videotapes when he
heard over the radio that a suspect had been arrested.
Surveillance cameras had captured the robber’s image as he
entered the building behind the Feldmans. Lt. Eaves went to the
Taft Bridge to determine whether plaintiff was the person seen
on the tapes. Lt. Eaves told the officers on the scene that he was
confident plaintiff was the robber.

     While the show-up identification was being conducted, two
other officers – Detectives Sean Caine and James Bovino –
conducted a brief investigation of plaintiff’s alibi that he was
making deliveries at a nearby embassy at the time of the
robbery. The two detectives questioned a guard at the Kuwaiti
Embassy about whether plaintiff had been there earlier that day,
but the details of this interaction are disputed. Detective Caine
                                 5

testified at trial that the guard told him that “he hasn’t seen Chris
today.” However, the embassy guard testified that he told the
officers that a “Chris” had been at the embassy on the day of the
robbery.

     After the show-up, Mr. Pitt was arrested and taken into
custody. The next day, Officers Adams and Baxter presented
the case to screening prosecutors from the U.S. Attorney’s
Office. Officer Adams gave the prosecutors an affidavit that
contained a detailed description of the robbery, but did not
mention the negative identifications or Mr. Pitt’s alibi. It is
disputed whether the officers’ handwritten notes – which did
describe the negative identification and alibi – were given to the
screening prosecutors along with the affidavit. The affidavit
also stated that a cell phone ear piece cover was found at the
scene of the robbery, and that Mr. Pitt’s cell phone ear piece was
“missing its cover.”

     Based on the information contained in this affidavit, on
January 3, 2001, a Superior Court Magistrate Judge ordered Mr.
Pitt committed to a halfway house. Mr. Pitt spent ten days
incarcerated before being released on January 13, 2001. Six
days later, the government dismissed the criminal case against
Mr. Pitt.

                                 B.

     On October 29, 2001, Christopher Pitt and his wife Tela
Hansom-Pitt (“plaintiffs”) brought suit in U.S. District Court
against the District of Columbia, Officer Bryan Adams, Officer
Steven Baxter, and Detective James Bovino. In their complaint,
plaintiffs sought relief under 42 U.S.C. § 1983 for false arrest
and malicious prosecution, and under D.C. common law for
false arrest, malicious prosecution, intentional infliction of
emotional distress, and loss of consortium. Plaintiffs argued in
                                 6

district court that the defendants committed a laundry list of
tortious acts, including: (1) arresting Mr. Pitt and initiating
criminal proceedings against him even though at least two
eyewitnesses stated that he was not the robber; (2) arresting and
prosecuting Mr. Pitt even though he was clearly not the person
seen on the apartment building’s security videotape; (3) ignoring
the fact that Mr. Pitt could not have been the robber because he
was making a delivery at a nearby embassy at the time the
robbery took place; and (4) submitting an affidavit to the U.S.
Attorney’s Office that contained numerous misstatements and
omissions about the details of the robbery. As a result of this
conduct, plaintiffs contended that Mr. Pitt was wrongfully
incarcerated for ten days, was subjected to a strip-search and
body cavity search, lost his job, and suffered emotional distress.

     After an eight-day jury trial, the defendants moved for
judgment as a matter of law on all of the plaintiffs’ claims. The
district court granted the defendants’ motion with respect to the
§ 1983 malicious prosecution claim, holding that there was not
a “clearly established” constitutional right to be free from
malicious prosecution, and thus the defendant officers were
entitled to qualified immunity on this claim. With respect to the
rest of the plaintiffs’ claims, the district court denied the motion
and sent the claims to the jury.

     The jury found all three officers liable for false arrest under
§ 1983. However, the jury returned a defense verdict for the
three officers and the District on the common law false arrest
claims – on the special verdict form, the jurors found that the
officers lacked probable cause to arrest Mr. Pitt, but that they
were not liable for common law false arrest because they
“reasonably and in good faith” believed that their conduct was
lawful. On the common law malicious prosecution claims, the
jury returned a plaintiff’s verdict against the District and all
three officers. With respect to the common law intentional
                                 7

infliction of emotional distress claims, the jury found the
District liable but the three officers not liable. The jury awarded
$100,000 to Mr. Pitt and $50,000 to Ms. Hansom-Pitt as
compensatory damages, and assessed $1,000 in punitive
damages against each officer.

     After the verdict was received, the defendants renewed their
motion for judgment as a matter of law. In a memorandum
opinion and order, the district court granted the defendants’
motion with respect to the § 1983 false arrest claims, holding
that the three officers were entitled to qualified immunity. In
reaching this conclusion, the district court relied in part upon the
jury verdict on the common law claims, in which the jury found
that the officers were not liable for false arrest because they had
a reasonable good faith belief that their conduct was lawful. The
district court denied the defendants’ motion for judgment as a
matter of law on the common law malicious prosecution claims
and intentional infliction of emotional distress claims, and
refused to set aside the punitive damages award. Both sides now
appeal the district court’s rulings on the defendants’ motion for
judgment as a matter of law.

                               ***

     In Section II, we address the arguments raised by the
District and the three officers. The defendants argue that there
was insufficient evidence to hold all four defendants liable for
common law malicious prosecution, and to hold the District
liable for intentional infliction of emotional distress. Defendants
also argue that the evidence was insufficient to support an award
of punitive damages against the three officers. We reverse the
district court’s denial of the defendants’ motion for judgment as
a matter of law with respect to Ms. Hansom-Pitt’s intentional
infliction of emotional distress claim. We also hold that there
was insufficient evidence to find Detective Bovino liable for
                                 8

malicious prosecution, and thus we reverse the district court on
this issue. However, we affirm the district court’s denial of the
defendants’ motion for judgment as a matter of law on each of
the other common law claims. We affirm the award of $1,000
in punitive damages against Officers Adams and Baxter, but we
set aside the punitive damage award against Detective Bovino.

    In Section III, we address the arguments raised on appeal by
the plaintiffs. Plaintiffs argue that the district court erred by
holding that the three defendant officers were entitled to
qualified immunity on the false arrest and malicious prosecution
claims brought under 42 U.S.C. § 1983. We affirm the district
court with respect to the malicious prosecution claims, but we
reverse and remand on the false arrest claims.

                                II.

      A. Common Law Malicious Prosecution Claims

     To reiterate, after trial, the jury returned a verdict in favor
of the plaintiff against the District and each of the three officers
on the common law malicious prosecution claims. The
defendants moved for judgment as a matter of law, but the
district court denied the motion. Defendants now appeal,
arguing that the evidence received at trial was insufficient to
support the jury’s verdict for the plaintiff on the malicious
prosecution claims. We affirm the district court’s denial of the
defendants’ motion for judgment as a matter of law with respect
to the District and Officers Adams and Baxter, but we reverse
with respect to Detective Bovino.

    Under District of Columbia law, there are four elements to
the tort of malicious prosecution: (1) termination of the
underlying suit in plaintiff’s favor; (2) malice on the part of the
defendant; (3) lack of probable cause for the underlying suit; and
                                9

(4) special injury occasioned by plaintiff as a result of the
original action. Morowitz v. Marvel, 423 A.2d 196, 198 (D.C.
1980). The first and fourth elements are not contested on
appeal, and thus we address only the issues of probable cause
and malice.

                              ***

     To support an action for malicious prosecution in the
District of Columbia, the plaintiff must show that “the original
action was instituted . . . without probable cause.” Ammerman
v. Newman, 384 A.2d 637, 639 (D.C. 1978). In a civil action for
malicious prosecution, probable cause is defined as the existence
of “facts and circumstances as will warrant a cautious man in the
belief that his action and the means taken in prosecuting it are
legally just and proper.” Id. at 639-40. The issue in a malicious
prosecution case is not whether there was probable cause for the
initial arrest, but whether there was probable cause for the
“underlying suit.” Joeckel v. Disabled Am. Veterans, 793 A.2d
1279, 1282 (D.C. 2002). The existence of probable cause is a
mixed question of law and fact. Smith v. Tucker, 304 A.2d 303,
306 (D.C. 1973). “The existence of the facts [is] for the jury,
but their effect when found is a question for the determination
of the court.” Id. (citations omitted). Given that the jury has
found all four defendants liable for common law malicious
prosecution, we must view all disputed evidence in the light
most favorable to the plaintiff and “resolve [] all conflicts in
[plaintiff’s] favor.” Scott v. District of Columbia, 101 F.3d 748,
752-53 (D.C. Cir. 1996).

     In this case, we agree with the district court’s conclusion
that the defendants initiated criminal proceedings against Mr.
Pitt without probable cause. Most importantly, both victims of
the crime told the police that Mr. Pitt was not the person who
had robbed them. The perpetrator followed the Feldmans into
                                10

the apartment building, then rode the elevator with them up to
the eighth floor before committing the robbery. Mrs. Feldman
got a “good look” at the robber while waiting for the elevator,
while getting off the elevator, and during the robbery. After
having observed the robber at close range, she told the police
“right away” that Mr. Pitt was not the perpetrator, and that she
was “very certain” of her identification. More specifically, she
“knew right away from the shape of his head and his physique
that it was not him.” Mrs. Feldman’s negative identification was
unqualified, and she emphasized that “I won’t forget that guy’s
face.” Mr. Feldman did not see the perpetrator as clearly as
Mrs. Feldman, but he also had doubts about whether Mr. Pitt
was the robber. He told the police that he “wasn’t sure, 50/50,
but I don’t think so.” Mr. Feldman also described his
identification as “more on the negative side than on the positive
side.” In sum, both victims of the crime provided negative
identifications of Mr. Pitt – Mrs. Feldman told the police she
was “certain” that Mr. Pitt was not the robber, and Mr. Feldman
stated that he “didn’t think so.”

     Why the police chose to initiate criminal proceedings
against Mr. Pitt despite negative identifications by the victims
of the crime is somewhat baffling. As we have noted in
previous cases, show-up identifications are often problematic
because they are inherently suggestive. See, e.g., United States
v. Rattler, 475 F.3d 408, 413 (D.C. Cir. 2007). The fact that
both victims provided negative identifications of Mr. Pitt despite
the inherent suggestiveness of an identification in which only
one individual is shown to the eyewitness should have been
strong evidence of Mr. Pitt’s innocence. Defendants cite several
cases for the proposition that one exculpatory fact – such as a
negative identification – is insufficient to defeat probable cause.
However, those cases involved witnesses’ failure to identify a
suspect rather than an outright negative identification. See
Wilson v. Russo, 212 F.3d 781, 785, 791-92 (3d Cir. 2000) (one
                                  11

witness “could not say with certainty” that the robber’s picture
was included in a photo array); Olinger v. Larson, 134 F.3d
1362, 1365-66 (8th Cir. 1998) (witness was unable to identify
suspect based on a black-and-white videotape of the robbery).
The defendants have not cited a single case – from any
jurisdiction – in which a court held that there was probable
cause to arrest or prosecute a suspect notwithstanding a victim’s
unambiguous negative identification of the suspect. Of course,
it is likely that no such cases can be found because few law
enforcement agencies would arrest or prosecute a suspect after
a victim of the crime has stated without qualification that the
suspect was not the perpetrator.1

     Defendants point to several other facts that purportedly
supplied probable cause to initiate the prosecution of Mr. Pitt.
First, they note that Mr. Pitt’s “clothing” and “physical
description” matched the description of the robber. However,
this fact has little probative value, given that the persons who
provided these descriptions – Mr. and Mrs. Feldman – both
provided negative identifications of Pitt during the show-up
identification. Second, defendants claim that Mr. Pitt left the
scene in a direction and manner “consistent with flight.” The
record does not support this contention. The officers saw Mr.
Pitt get into his car and drive away from the scene
approximately eight minutes after the robbery had taken place.
Had Mr. Pitt been “fleeing” – as the defendants now contend –


        1
           We can envision a scenario in which there may be probable
cause to arrest or prosecute a suspect despite a negative identification
from a victim – i.e., if other evidence of the defendant’s guilt is
overwhelming, or if the witness’s negative identification was based on
fear or intimidation. However, this is not such an extraordinary case.
The other evidence against Mr. Pitt was weak, and Mrs. Feldman
testified that she was composed and calm during the show-up and that
she was “certain” of her negative identification.
                               12

he might well have been gone from the scene much faster than
that. Moreover, Officer Adams testified that Mr. Pitt was not
speeding, and that he pulled over “voluntarily” as soon as one of
the officers instructed him to stop. Based on the evidence in the
record, we cannot conclude that Mr. Pitt’s actions were
“consistent with flight.” Third, the police assert that they found
“instruments of robbery” – a knife and a BB gun – in Mr. Pitt’s
car. However, we fail to see the relevance of this evidence,
given that the victims did not allege that the robber had used a
weapon. And Mr. Pitt provided a reasonable explanation for
why he had these items – he was a courier who needed them for
his protection. Lastly, defendants contend that Mr. Pitt
resembled the images of the robber captured on security
videotapes from the Feldmans’ apartment building. Before
arresting Mr. Pitt, Lt. Eaves watched the tape and concluded that
Mr. Pitt was the perpetrator. However, there is a significant
factual dispute over how closely Mr. Pitt resembled the person
seen on the videotape. Lt. Eaves conceded that when he
compared a picture of Mr. Pitt to a still-frame photo from the
video during the trial, he had doubts about whether Mr. Pitt was
the person seen on the tape. Similarly, in his deposition, Officer
Baxter stated that when he viewed the tape, he “couldn’t make
a positive determination” of whether Mr. Pitt was the robber.
We have independently reviewed a still-frame scene from the
video, and we see several significant differences between the
perpetrator and Mr. Pitt – most notably, the perpetrator clearly
had a receding hairline, while Mr. Pitt has a full head of hair,
and the perpetrator appears stockier than Mr. Pitt. Drawing all
reasonable inferences in favor of the plaintiff, the video is at
least ambiguous, and might even be a significant piece of
exculpatory evidence.

    Overall, in light of the negative identifications of Mr. Pitt
by the victims of the crime, we do not believe that any of the
aforementioned facts were probative enough to provide probable
                               13

cause to initiate criminal proceedings against Mr. Pitt.

                              ***

     Defendants also contend that the evidence offered at trial
was insufficient to establish malice. The determination of
malice is “exclusively for the factfinder,” and “the requisite
malice can be established from the existence of a willful,
wanton, reckless, or oppressive disregard for the rights of the
plaintiff.” Tyler v. Cent. Charge Serv., Inc., 444 A.2d 965, 969
(D.C. 1982).

     Here, a reasonable jury could have concluded that Officers
Adams and Baxter acted with malice because the arrest report
and the affidavit submitted to prosecutors contained several
material misstatements and omissions. Most significantly, the
affidavit – which was signed by Officer Adams and largely
copied from the arrest report prepared by Officer Baxter –
contained absolutely no mention of the Feldmans’ negative
identifications. The affidavit contained minute details about the
robbery and about the stop of Mr. Pitt’s car, but it completely
omitted the fact that neither victim of the crime believed that
Mr. Pitt was the perpetrator. Defendants assert that the officers’
notes – which did describe the show-up identification with the
Feldmans – were included in the “jacket” of the case file that
was submitted to prosecutors from the U.S. Attorney’s Office.
However, during his deposition, Officer Baxter testified that he
did not recognize the notes, and that he did not know whether
the notes had been given to the screening prosecutors.
Similarly, AUSA Richard Tischner testified that “very many
times,” the officers’ notes are not included in the case jackets.
At the very least, there is a factual dispute over whether the
prosecutors actually received these notes, and given that the jury
returned a plaintiff’s verdict on the malicious prosecution
claims, we must resolve this factual question in favor of the
                                14

plaintiff.

     The affidavit also contained at least one statement that was
unambiguously false. According to the affidavit, an officer
observed Mr. Pitt getting into a car “within seconds” after a
building employee saw the robber leave the building. However,
Officer Adams testified that approximately ten minutes had
passed from the time the building employee lost sight of the
perpetrator until the officers saw Mr. Pitt. The affidavit gave the
false impression that the police were hot on the trail of the
robber when they observed Mr. Pitt getting into his car. On the
evidence, the perpetrator had been gone for at least eight
minutes by the time the police spotted Mr. Pitt in the area. In
sum, we agree with the district court that a reasonable jury could
have concluded that Officers Adams and Baxter acted with
malice in initiating criminal proceedings against Mr. Pitt.

     Officers Adams and Baxter argue that they are protected
from liability for malicious prosecution because they acted in
reliance upon the advice of counsel – namely, the prosecutors in
the U.S. Attorney’s Office. “Proof that a person who institutes
a criminal proceeding placed the facts fully and fairly before
counsel and acted upon his advice is a good defense to the
charge of want of probable cause.” Jarett v. Walker, 201 A.2d
523, 526 (D.C. 1964). The burden of proof is on the defendant
to show by a preponderance of the evidence that he is entitled to
an affirmative defense. Cf. District of Columbia v. Sterling, 578
A.2d 1163, 1165 (D.C. 1990) (holding that defendants bear the
burden of proving contributory negligence by a preponderance
of the evidence). Here, defendants have not met their burden of
establishing that they are entitled to the “advice of counsel”
defense. AUSA Richard Tischner typed portions of the officers’
arrest report, but Mr. Tischner testified that the facts contained
in the report were based solely upon “what the police officers
have to tell us.” AUSA Tischner also testified that “every word”
                                 15

of a report is read back to the officer in order to ensure that it is
truthful and accurate. Moreover, the “advice of counsel”
defense only protects defendants who “place[] the facts fully and
fairly before counsel.” Jarrett, 201 A.2d at 526. As explained
above, there was evidence that the officers failed to tell
prosecutors several key facts regarding the arrest and show-up
identification. In light of the omissions and misstatements in the
affidavit prepared by the defendant officers, we cannot conclude
that the facts of the case were placed “fully and fairly” before
the Assistant U.S. Attorneys. Accordingly, we hold that
Officers Adams and Baxter are not entitled to the “advice of
counsel” defense, and we affirm the district court’s denial of
their motion for judgment as a matter of law on the common law
malicious prosecution claims.

                               ***

     Although we affirm with respect to Officers Adams and
Baxter, we reverse the district court’s denial of the defendants’
motion for judgment as a matter of law with respect to Detective
Bovino. There is no evidence in the record that Det. Bovino had
any role in initiating criminal proceedings against Mr. Pitt. Det.
Bovino did participate in the investigation of the robbery – he
took statements from eyewitnesses, watched the security
videotape, and investigated Mr. Pitt’s alibi. However, these
facts are insufficient to establish that Det. Bovino was
“responsible for the institution of the malicious proceedings.”
Malicious Prosecution, 52 AM. JUR. 2d § 21, at 154-55 (2000);
see also Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th
Cir. 2004) (noting that malicious prosecution actions may only
be brought against “persons who have wrongfully caused the
charges to be filed”). Police officers who “sign and swear to a
criminal complaint on which the public authorities base their
prosecution of the plaintiff” may be liable. 52 AM. JUR. 2d § 22,
at 155. For example, Officer Adams – who signed the false and
                               16

misleading affidavit upon which the prosecution was based –
could be held liable for malicious prosecution. But there is no
evidence in the record that Det. Bovino had any involvement in
this case beyond routine investigatory duties. He did not
prepare or sign the arrest report or the affidavit that was
presented to the prosecutors, and he did not speak to the
screening attorneys in the U.S. Attorney’s Office. In sum, based
on the evidence received at trial, no reasonable jury could find
Det. Bovino liable for malicious prosecution. Thus, we reverse
the district court on this issue and remand with instructions to
enter judgment for Detective Bovino on the common law
malicious prosecution claims.

   B. Intentional Infliction of Emotional Distress Claims

     On the intentional infliction of emotional distress (“IIED”)
claims, the jury returned a defense verdict for each of the three
police officers. However, the jury returned a verdict for the
plaintiffs – both Christopher Pitt and Tela Hansom-Pitt – against
the District. The District moved for judgment as a matter of law
on these claims, but the district court denied the motion. The
District now appeals. We affirm the district court’s denial of the
District’s motion for judgment as a matter of law with respect to
Mr. Pitt’s IIED claim, but we reverse with respect to Ms.
Hansom-Pitt’s claim.

     Under District of Columbia tort law, a plaintiff seeking
relief for IIED must offer proof of “extreme or outrageous
conduct” that intentionally or recklessly causes the plaintiff to
suffer “severe emotional distress.” Joyner v. Sibley Mem. Hosp.,
826 A.2d 362, 373 (D.C. 2003) (quoting Kerrigan v. Britches of
Georgetowne, 705 A.2d 624, 628 (D.C. 1997)). The only issue
on appeal is whether a reasonable jury could have found the
District’s conduct to be “extreme and outrageous.” To establish
“outrageousness,” the plaintiff must prove that the defendant’s
                                 17

conduct was “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.” Id. Given that the jury found the District liable
for IIED, we must allow the verdict to stand “unless the
evidence, together with all inferences that can be reasonably
drawn therefrom is so one-sided [in favor of the moving party]
that reasonable men could not disagree on the verdict.” Milone
v. Wash. Met. Area Transit Auth., 91 F.3d 229, 231 (D.C. Cir.
1996) (internal quotation marks and citation omitted).

     Here, a reasonable jury could have returned a verdict for
Mr. Pitt on his IIED claim. As explained in the previous
section, the plaintiffs offered evidence that the officers’ affidavit
contained several glaring omissions and at least one false
statement. Similarly, the jury could have inferred from the
evidence that at least one officer tampered with evidence in an
attempt to link Mr. Pitt to the scene of the crime. During their
investigation, the police found an “ear piece cover for a cell
phone” at the scene of the robbery. In the affidavit that was
submitted to prosecutors, Officer Adams stated that Mr. Pitt’s
“ear piece was missing its cover.” Yet Mr. Pitt testified that his
cell phone ear piece was “brand new” and that the foam cover
was intact when the police seized his phone. From these facts,
a reasonable jury could conclude that an officer may have
removed the ear piece cover from Mr. Pitt’s cell phone in order
to link him to the scene of the robbery. Taking the evidence in
the light most favorable to the plaintiff, we agree with the
district court that a reasonable jury could have found the
District’s actions sufficiently “outrageous” to support a verdict
for Mr. Pitt on his IIED claim.

     The District argues that the verdict should be set aside as
fatally inconsistent because the jury found the District liable for
IIED while finding the individual officers not liable. We reject
                                18

the District’s arguments. In both the civil and criminal contexts,
courts have held that inconsistency alone is not a sufficient basis
for setting aside a jury verdict. See United States v. Dykes, 406
F.3d 717, 722-23 (D.C. Cir. 2005) (holding that a “criminal
defendant convicted by a jury on one count cannot attack that
conviction because it was inconsistent with the jury’s verdict of
acquittal on another count” (citations omitted)); United States v.
Johnson, 440 F.3d 1286, 1295 (11th Cir. 2006) (holding that
“consistent verdicts are unrequired in joint trials for conspiracy:
where all but one of the charged conspirators are acquitted, the
verdict against the one can stand” (citation omitted)); Mosley v.
Wilson, 102 F.3d 85, 89-90 (3d Cir. 1996) (holding that it was
error for a district court to “enter[] judgment as a matter of law
solely on the basis of inconsistent verdicts”). In any event, the
verdicts here are not necessarily inconsistent. The jury found
each individual officer not liable, which means that the jury
could not conclude by a preponderance of the evidence that any
individual officer was liable for IIED. However, at the same
time, the jury could have reasonably concluded that the group of
police officers as a whole acted sufficiently “outrageously” or
“recklessly” that the District should be liable. As explained
above, several different officers were involved in Mr. Pitt’s
arrest and prosecution, and a reasonable jury could have
concluded that the department as a whole was liable, even if the
evidence was insufficient to impose IIED liability on any
individual officer.

                              ***

     Although we affirm the district court with respect to Mr.
Pitt’s IIED claim, we reverse the district court’s denial of the
District’s motion for judgment as a matter of law on Ms.
Hansom-Pitt’s IIED claim. The District of Columbia has
adopted the standard for intentional infliction of emotional
distress from the Restatement (Second) of Torts. See Sere v.
                                19

Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982)
(quoting Restatement for the elements of IIED); Abourezk v.
N.Y. Airlines, Inc., 895 F.2d 1456, 1459 (D.C. Cir. 1990) (per
curiam) (same). Section 46 of the Restatement states:

    Where such [extreme and outrageous] conduct is directed
    at a third person, the actor is subject to liability if he
    intentionally or recklessly causes severe emotional distress
    . . . to a member of such person’s immediate family who is
    present at the time, whether or not such distress results in
    bodily harm.

RESTATEMENT (SECOND) OF TORTS § 46(2) (1965). Thus, under
D.C. tort law, a family member can only recover for IIED if she
was “present” when the extreme or outrageous conduct took
place.

     As explained above, the “extreme or outrageous” conduct
in this case was the filing of a false and misleading affidavit and
possible evidence tampering. Based on the evidence in the
record, it appears that the affidavit was prepared at the police
station and then presented to prosecutors from the U.S.
Attorney’s Office. It cannot be said that Ms. Hansom-Pitt was
“present at the time” of this conduct. In common parlance, the
word “present” connotes physical proximity. See WEBSTER’S
NEW INTERNATIONAL DICTIONARY 1793 (3d ed. 1961) (defining
“present” as “being in one place and not elsewhere; being within
reach, sight or call or within contemplated limits; being in view
or at hand”). We cannot hold that Ms. Hansom-Pitt was in any
way physically “present” at the location where this affidavit was
prepared or filed. Were we to allow Ms. Hansom-Pitt to recover
for IIED, we would be substantially expanding the scope of the
third-party IIED tort under District of Columbia law. Of course,
in considering common law claims, federal courts must apply
existing law – we have no power to alter or expand the scope of
                                20

D.C. tort law. See Tidler v. Eli Lilly & Co., 851 F.2d 418, 424
(D.C. Cir. 1988) (noting that a federal court adjudicating state
law claims “is not free to engraft onto those state rules
exceptions or modifications which may commend themselves to
the federal court, but which have not commended themselves to
the State in which the federal court sits” (quoting Day &
Zimmerman v. Challoner, 423 U.S. 3, 4 (1975)). Accordingly,
we reverse the district court and remand with instructions to
enter judgment for the District on Ms. Hansom-Pitt’s IIED
claim.

                     C. Punitive Damages

      The jury assessed $1,000 in punitive damages against each
of the three defendant officers. The defendants moved to set
aside the punitive damages, arguing that the evidence offered at
trial did not show that the officers’ conduct was “outrageous or
egregious.” The district court denied the motion. We affirm
with respect to Officers Adams and Baxter but set aside the
punitive damage award against Detective Bovino.

     Under District of Columbia law, “[p]unitive damages are
warranted only when the defendant commits a tortious act
accompanied with fraud, ill will, recklessness, wantonness,
oppressiveness, wilful disregard of the plaintiff’s right, or other
circumstances tending to aggravate the injury.” Butera v.
District of Columbia, 235 F.3d 637, 657 (D.C. Cir. 2001)
(quoting Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 938
(D.C. 1995)). In order to impose punitive damages, the jury
must find by clear and convincing evidence that the tortious act
“was accompanied by conduct and a state of mind evincing
malice or its equivalent.” Id. The jury may “infer the requisite
state of mind from the surrounding circumstances.” Id. (quoting
Jemison v. Nat’l Baptist Convention, 720 A.2d 275, 285-86
(D.C. 1998)).
                                21

     In the instant case, a reasonable jury could have concluded
that Officers Adams and Baxter acted with “recklessness” or
“wilful disregard” of Mr. Pitt’s rights. As explained in greater
detail above, there was evidence that these two officers: (1)
initiated criminal proceedings against Mr. Pitt despite negative
identifications from the two victims; (2) omitted the negative
identifications from the arrest report and an affidavit submitted
to prosecutors; and (3) falsely stated in the arrest report and
affidavit that they saw Mr. Pitt get into his car “within seconds”
after a building employee saw the robber leaving the apartment
building. Based on these facts, a reasonable jury could find by
clear and convincing evidence that Officers Adams and Baxter
acted recklessly or with wilful disregard of Mr. Pitt’s rights.
Accordingly, we affirm the jury’s award of $1,000 punitive
damages against these two defendants.

     However, we set aside the award of punitive damages
against Detective Bovino. As explained above, the evidence
offered at trial was insufficient to find Det. Bovino liable for
malicious prosecution. There was no evidence that Det. Bovino
was responsible for the prosecution of Mr. Pitt. He did not
prepare the arrest report or the affidavit, and he did not present
the case to screening prosecutors. And there was no evidence
that any of his notes from the investigation were false or
misleading. It cannot be said that Det. Bovino acted with
“malice,” “recklessness,” or “wilful disregard” of Mr. Pitt’s
rights. Thus, we set aside the $1,000 punitive damage award
against Detective Bovino.

                               III.

       A. False Arrest Claims Under 42 U.S.C. § 1983

     Plaintiffs argue that the district court erred in holding that
the defendants were entitled to qualified immunity on the claims
                                22

for false arrest under 42 U.S.C. § 1983. After trial, the jury
found the three individual officers liable for false arrest under §
1983, but not liable for common law false arrest. The
defendants then moved for judgment as a matter of law on the
§ 1983 false arrest claims. The district court granted the motion,
holding that the officers were entitled to qualified immunity on
these claims. The court noted that even though a reasonable jury
could have concluded that plaintiff was arrested without
probable cause, the defendants were nonetheless entitled to
qualified immunity. The jury had found that the defendants
were not liable for common law false arrest because they had a
reasonable, good faith belief that their conduct was lawful.
Thus, the court concluded that if the qualified immunity
question had been presented to the jury, “the jury necessarily
would have accepted the defendants’ qualified immunity
defense.” The district court noted that qualified immunity
depends on a standard of “objective reasonableness” rather than
“subjective good faith,” but nonetheless held that the qualified
immunity inquiry was “logically guided” by the jury verdict on
the common law false arrest claims. Thus, the court granted the
defendants’ motion for judgment as a matter of law on the §
1983 false arrest claims. We hold that the district court erred by
considering the jury verdict from the common law false arrest
claims in its qualified immunity analysis.

                              ***

     The Supreme Court has held that “government officials
performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); see also Wilson v. Layne,
526 U.S. 603, 614 (1999) (holding that qualified immunity turns
upon the “objective legal reasonableness of the officers’ action,
                                23

assessed in light of the legal rules that were clearly established
at the time the action was taken” (internal quotation marks and
citation omitted)).

     Courts have emphasized that whether a § 1983 defendant’s
conduct violates the “clearly established” constitutional rights
of the plaintiff is a pure question of law that must be resolved by
the court. In Hunter v. Bryant, the plaintiff asserted that he had
been arrested without probable cause in violation of the Fourth
Amendment, but the defendant Secret Service agents argued that
they were entitled to qualified immunity. 502 U.S. 224, 224-27
(1991) (per curiam). The Ninth Circuit held that the trier of fact
must determine whether a reasonable officer could have
believed he had probable cause to make an arrest, but the
Supreme Court reversed. The Court held that the question of
qualified immunity “ordinarily should be decided by the court
long before trial,” and that the Ninth Circuit erroneously
“place[d] the question of immunity in the hands of the jury.” Id.
at 228. Similarly, as the Fourth Circuit cogently explained:

    [A]lthough the jury may be suited for making factual
    findings relevant to the question of qualified immunity, we
    believe it far better for the court, not the jury, to answer the
    ultimate legal question of whether a defendant is entitled to
    qualified immunity. The nature of the analysis – requiring
    an examination of current federal law and federal law as it
    existed at the time of the alleged violation – makes for an
    awkward determination by the jury, at best.

Knussman v. Maryland, 272 F.3d 625, 634 (4th Cir. 2001)
(internal citation omitted). See also Phillips v. Hust, 477 F.3d
1070, 1079 (9th Cir. 2007) (“Whether the right at issue in a
claim of qualified immunity is clearly established . . . is a pure
question of law . . . .”); Williams v. Ala. State Univ., 102 F.3d
1179, 1182 (11th Cir. 1997) (same); Warren v. Dwyer, 906 F.2d
                                24

70, 76 (2d Cir. 1990) (“The ultimate legal determination
whether, on the facts found, a reasonable police officer should
have known he acted unlawfully is a question of law better left
for the court to decide.”).

     We reverse the district court’s order insofar as it grants the
defendants’ motion for judgment as a matter of law on the
plaintiff’s claim for arrest without probable cause under § 1983.
In this case, the district court erred by considering the jury
verdict from the common law false arrest claims in its qualified
immunity analysis. As explained above, whether a right is
“clearly established” – that is, whether an objectively reasonable
officer would have believed his conduct to be lawful, in light of
clearly established law – is a question of law that must be
resolved by the court, not the jury. We reverse the district court
on this issue and remand for a determination of whether the
defendants are entitled to qualified immunity on the § 1983 false
arrest claims. See Harlow, 457 U.S. at 820 (remanding to
district court for consideration of a qualified immunity issue
because “[t]he trial court is more familiar with the record so far
developed and also is better situated to make any such further
findings as may be necessary”). On remand, the district court
must determine whether the three officers’ actions in arresting
Mr. Pitt “violate[d] clearly established statutory or constitutional
rights of which a reasonable person would have known.” Id. at
818.

 B. Malicious Prosecution Claims Under 42 U.S.C. § 1983

     Plaintiffs also sought relief for malicious prosecution under
42 U.S.C. § 1983, asserting that the defendants deprived
plaintiffs of their constitutional rights by initiating criminal
proceedings against Mr. Pitt without probable cause. After trial,
the district court granted judgment as a matter of law to the
defendants on these claims. The court held that it is not “clearly
                                 25

established” that malicious prosecution is a violation of
constitutional rights, and thus the defendants are entitled to
qualified immunity. We affirm.

     Section 1983 creates a cause of action to remedy certain
deprivations of federal rights, but it is not a source of substantive
rights. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)
(noting that “[section 1983] is not itself a source of substantive
rights, but a method for vindicating federal rights elsewhere
conferred by those parts of the United States Constitution and
federal statutes that it describes”). To determine whether a
given right may be enforced through section 1983, we must look
to the underlying constitutional provision that the plaintiff seeks
to enforce. Here, the plaintiff asserts that the defendant officers
initiated a criminal prosecution against Mr. Pitt without probable
cause, in violation of his rights under the Fourth Amendment.2

     This court has not yet addressed whether malicious
prosecution can give rise to a violation of the Fourth
Amendment. However, nearly every other Circuit has held that
malicious prosecution is actionable under the Fourth
Amendment to the extent that the defendant’s actions cause the
plaintiff to be “seized” without probable cause. See Britton v.
Maloney, 196 F.3d 24, 28-29 (1st Cir. 1999) (holding that “[f]or
a state actor to violate the Fourth Amendment by initiating a


        2
          Defendants argue that the plaintiffs have only asserted a
malicious prosecution claim under the Fifth Amendment’s due process
clause, not under the Fourth Amendment. We disagree. In their
complaint, plaintiffs allege that the defendants violated Mr. Pitt’s
Fourth Amendment rights by “seizing and detaining him without
reasonable articulable suspicion or probable cause.” This challenge
to his “detention” is sufficiently broad to encompass both the initial
arrest as well as his continued incarceration while the criminal case
was pending.
                                 26

malicious prosecution against someone, the criminal charges at
issue must have imposed some deprivation of liberty consistent
with the concept of a seizure” (citation omitted)); Singer v.
Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995) (holding
that “[t]he Fourth Amendment right implicated in a malicious
prosecution action is the right to be free of unreasonable seizure
of the person”); Gallo v. City of Philadelphia, 161 F.3d 217, 222
(3d Cir. 1998) (holding that in a malicious prosecution action
under the Fourth Amendment, “the constitutional violation is the
deprivation of liberty accompanying the prosecution”); Brooks
v. City of Winston-Salem, N.C., 85 F.3d 178, 183-84 (4th Cir.
1996) (holding that “[a plaintiff’s] allegations that [the
defendant] seized him pursuant to legal process that was not
supported by probable cause and that the criminal proceedings
terminated in his favor are sufficient to state a § 1983 malicious
prosecution claim alleging a seizure that was violative of the
Fourth Amendment”); Castellano v. Fragozo, 352 F.3d 939,
953-54 (5th Cir. 2003) (en banc) (“The initiation of criminal
charges without probable cause may set in force events that run
afoul of explicit constitutional protection–the Fourth
Amendment if the accused is seized and arrested, for example
. . . .”); Gregory v. City of Louisville, 444 F.3d 725, 748 (6th Cir.
2006) (holding that “traditional claims for ‘malicious
prosecution’ [must] be pursued and treated as Fourth
Amendment violations when the gravamen of the complaint is
continued detention without probable cause”); Smart v. Bd. of
Trustees of Univ. of Ill., 34 F.3d 432, 434 (7th Cir. 1994) (“If
malicious prosecution . . . is committed by state actors and
results in the arrest or other seizure of the defendant, there is an
infringement of liberty, but we now know that the defendant’s
only constitutional remedy is under the Fourth Amendment . . .
.”); Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)
(noting that “in the § 1983 malicious prosecution context, [the
relevant] constitutional right is the Fourth Amendment’s right to
be free from unreasonable seizures”); Uboh v. Reno, 141 F.3d
                                   27

1000, 1003 (11th Cir. 1998) (holding that malicious prosecution
is actionable under § 1983 where “the plaintiff, as part of the
commencement of a criminal proceeding, has been unlawfully
and forcibly restrained in violation of the Fourth Amendment
and injuries, due to that seizure, follow as the prosecution goes
ahead” (citation omitted)). To the best of our knowledge, only
one circuit has held that malicious prosecution claims do not
implicate any constitutional rights. See Kurtz v. City of
Shrewsbury, 245 F.3d 753, 758 (8th Cir. 2001) (explaining that
“this court has uniformly held that malicious prosecution by
itself is not punishable under § 1983 because it does not allege
a constitutional injury”).

     We join the large majority of circuits in holding that
malicious prosecution is actionable under 42 U.S.C. § 1983 to
the extent that the defendant’s actions cause the plaintiff to be
unreasonably “seized” without probable cause, in violation of
the Fourth Amendment. As explained above, given the negative
eyewitness identifications and lack of any reliable evidence
linking Mr. Pitt to the robbery, there was not probable cause for
the officers to initiate criminal proceedings against him. And
there is little doubt that the officers’ actions effected a “seizure”
of Mr. Pitt. Based on the officers’ affidavit – which contained
several misstatements and omissions – Mr. Pitt was detained in
a halfway house for ten days before being released.
Accordingly, we hold that the evidence received at trial
sufficiently demonstrates that the defendant officers violated
Mr. Pitt’s Fourth Amendment rights.3


        3
           At first glance, it may appear unnecessary to reach this issue
at all, given that – as explained below – we hold that the officers are
entitled to qualified immunity on the malicious prosecution claims
brought under § 1983. However, the Supreme Court has expressly
stated that courts must determine whether a constitutional right has
been violated before moving to the analysis of whether a right was
                                  28

                                ***

     Although prosecution without probable cause can give rise
to constitutional injury under the Fourth Amendment, the district
court correctly held that the three defendant officers are entitled
to qualified immunity on these claims because this right was not
“clearly established” at the time of the actions at issue in this
case.

     Government officials being sued under § 1983 are protected
by qualified immunity unless the contours of the right being
asserted are “sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Wilson v.
Layne, 526 U.S. 603, 614-15 (1999). In other words, “in the
light of pre-existing law the unlawfulness must be apparent.” Id.
at 615. The Supreme Court has not addressed the precise scope
of a malicious prosecution action under § 1983. The Court has
held that malicious prosecution does not violate “substantive”
due process rights, but it left open the question whether such
claims implicate Fourth Amendment rights. Albright v. Oliver,
510 U.S. 266, 275 (1994). Earlier this year, the Court once
again stated that “[w]e have never explored the contours of a
Fourth Amendment malicious-prosecution suit under § 1983,
and we do not do so here.” Wallace v. Kato, 127 S. Ct. 1091,


“clearly established” at the time of the defendant’s actions. See
County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[T]he
better approach to resolving cases in which the defense of qualified
immunity is raised is to determine first whether the plaintiff has
alleged a deprivation of a constitutional right at all. Normally, it is
only then that a court should ask whether the right allegedly
implicated was clearly established at the time of the events in
question.”). See also Barham v. Ramsey, 434 F.3d 565, 572 (D.C. Cir.
2006) (noting that whether the defendant officers have violated a
constitutional right of the plaintiff is a “threshold question” in the
qualified immunity analysis).
                               29

1096 n.2 (2007) (citation omitted). Similarly, the last time this
Court addressed the issue, we noted that “it has not been clearly
established that malicious prosecution violates any
constitutional or statutory right.” Moore v. Valder, 65 F.3d 189,
195 (D.C. Cir. 1995).

     Based on the aforementioned cases, we hold that at the time
of the officers’ actions, it had not been “clearly established” in
this Circuit that malicious prosecution was a violation of any
constitutional rights. Accordingly, the defendant officers are
entitled to qualified immunity on the malicious prosecution
claims brought under § 1983. We affirm the district court’s
grant of the defendants’ motion for judgment as a matter of law
on these claims.

                               IV.

     The district court’s orders are affirmed in part, reversed in
part, and remanded for further proceedings consistent with this
opinion.

                                                     So ordered.
