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G.R. No. 211497, March 18, 2015 - HOCHENG PHILIPPINES CORPORATION, Petitioner, v. ANTONIO M. FARRALES, Respondent.
HOCHENG PHILIPPINES CORPORATION, Petitioner, v. ANTONIO M. FARRALES, Respondent.
Attorney’s fees equivalent to 10% of the total award.
On November 27, 2009, [Farrales] borrowed a helmet from his co-worker Eric Libutan (“Eric”) since they reside in the same barangay. They agreed that Eric could get it at the house of [Farrales] or the latter could return it the next time that they will see each other. Eric told him that his motorcycle was black in color. As there were many motorcycles with helmets, he asked another employee, Andy Lopega (“Andy”) who was in the parking area where he could find Eric’s helmet. Andy handed over to him the supposed helmet which he believed to be owned by Eric, then he went home.
On November 28, 2009, at around 6 o’clock in the morning, he saw Eric at their barangay and told him to get the helmet. But Eric was in a rush to go to work, he did not bother to get it.
On February 15, 2010, the HPC issued a Notice of Termination12 to Farrales dismissing him for violation of Article 69, Class A, Item No. 29 of the HPC Code of Discipline, which provides that “stealing from the company, its employees and officials, or from its contractors, visitors or clients,” is akin to serious misconduct and fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative, which are just causes for termination of employment under Article 282 of the Labor Code.
1. Full backwages from date of dismissal on February 15, 2010 until date of decision equivalent to P276,466.67.
2. Separation pay of one (1) month salary per year of service for a period of twelve years equivalent to P228,800.00.
3. Appraisal year-end bonus in the sum of P11,000.00.
4. Moral damages in the sum of P200,000.00.
5. Exemplary damages in the sum of P100,000.00.
6. 10% of all sums owing as attorney’s fees or the amount of P81,626.67.
Concerning the substantive issues, the appellate court agreed with the LA that Farrales’ act of taking Reymar’s helmet did not amount to theft, holding that HPC failed to prove that Farrales’ conduct was induced by a perverse and wrongful intent to gain, in light of the admission of Eric that he did let Farrales borrow one of his two helmets, only that Farrales mistook Reymar’s helmet as the one belonging to him.
THE HONORABLE [CA] PLAINLY ERRED AND ACTED CONTRARY TO EXISTING LAW AND JURISPRUDENCE IN REVERSING THE DECISION OF THE [NLRC] AND DECLARING ILLEGAL THE DISMISSAL FOR [HPC’s] ALLEGED FAILURE TO PROVE THE EXISTENCE OF JUST CAUSE.
1. THERE IS SUBSTANTIAL EVIDENCE TO SHOW THAT [FARRALES] COMMITTED THEFT IN [HPC’s] PREMISES.
2. THEFT IS A JUST CAUSE FOR TERMINATION.
3. BY COMMITTING THEFT, [FARRALES], BEING A SUPERVISORIAL EMPLOYEE, FORFEITED THE TRUST REPOSED IN HIM BY [HPC], THUS RENDERING HIM DISMISSIBLE FOR LOSS OF CONFIDENCE.
IN DECLARING ILLEGAL THE DISMISSAL OF [FARRALES], THE HONORABLE [CA] VIOLATED DOCTRINES LAID DOWN BY THE SUPREME COURT.
1. COURTS CANNOT SUBSTITUTE THEIR JUDGMENT FOR THAT OF THE MANAGEMENT.
The Court resolves to deny the petition.
To validly dismiss an employee, the law requires the employer to prove the existence of any of the valid or authorized causes,24 which, as enumerated in Article 282 of the Labor Code, are: (a) serious misconduct or willful disobedience by the employee of the lawful orders of his employer or the latter’s representative in connection with his work; (b) gross and habitual neglect by the employee of his duties; (c) fraud or willful breach by the employee of the trust reposed in him by his employer or his duly authorized representative; (d) commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and (e) other causes analogous to the foregoing.25 As a supervisorial employee, Farrales is admittedly subject to stricter rules of trust and confidence, and thus pursuant to its management prerogative HPC enjoys a wider latitude of discretion to assess his continuing trustworthiness, than if he were an ordinary rank-and-file employee.26 HPC therefore insists that only substantial proof of Farrales’ guilt for theft is needed to establish the just causes to dismiss him, as the NLRC lengthily asserted in its decision.
Article 4 of the Labor Code mandates that all doubts in the implementation and interpretation of the provisions thereof shall be resolved in favor of labor. Consistent with the State’s avowed policy to afford protection to labor, as Article 3 of the Labor Code and Section 3, Article XIII of the 1987 Constitution have enunciated, particularly in relation to the worker’s security of tenure, the Court held that “[t]o be lawful, the cause for termination must be a serious and grave malfeasance to justify the deprivation of a means of livelihood. This is merely in keeping with the spirit of our Constitution and laws which lean over backwards in favor of the working class, and mandate that every doubt must be resolved in their favor.”27 Moreover, the penalty imposed on the erring employee ought to be proportionate to the offense, taking into account its nature and surrounding circumstances.
As aptly pointed out by the LA, while HPC has the onus probandi that the taking of Reymar’s helmet by Farrales was with intent to gain, it failed to discharge this burden, as shown by the following circumstances: Farrales sought and obtained the permission of Eric, his co-employee as well as barangay co-resident, to borrow his helmet; at the parking lot, Farrales asked another employee, Andy, to fetch a yellow helmet from one of the parked motorcycles, mistakenly thinking it belonged to Eric (whom he knew owned two helmets); the following day, November 28, Farrales asked Eric why he had not dropped by his house to get his helmet, and Eric replied that Farrales got the wrong helmet because he still had his other helmet with him; Farrales immediately sought the help of the company guards to locate the owner of the yellow helmet, who turned out to be Reymar; Farrales apologized to Reymar for his mistake, and his apology was promptly accepted.30 All these circumstances belie HPC’s claim that Farrales took Reymar’s helmet with intent to gain, the LA said.
But the Court agrees with the CA that Farrales committed no serious or willful misconduct or disobedience to warrant his dismissal. It is not disputed that Farrales lost no time in returning the helmet to Reymar the moment he was apprised of his mistake by Eric, which proves, according to the CA, that he was not possessed of a depravity of conduct as would justify HPC’s claimed loss of trust in him. Farrales immediately admitted his error to the company guard and sought help to find the owner of the yellow helmet, and this, the appellate court said, only shows that Farrales did indeed mistakenly think that the helmet he took belonged to Eric.
It is not, then, difficult to surmise that when Farrales told Andy that the yellow helmet was his, his intent was not to put up a pretence of ownership over it and thus betray his intent to gain, as the NLRC held, but rather simply to assuage Andy’s reluctance to heed his passing request to reach for the helmet for him; Andy, it will be recalled, was at that moment already seated in his motorbike and about to drive out when Farrales made his request. As to Farrales’ claim that he and Eric were neighbors, suffice it to say that as the CA noted, they resided in the same barangay, and thus, loosely, were neighbors.
The CA also pointed out that although the alleged theft occurred within its premises, HPC was not prejudiced in any way by Farrales’ conduct since the helmet did not belong to it but to Reymar. In light of Article 69, Class A, Item No. 29 of the HPC Code of Discipline, this observation may be irrelevant, although it may be that the LA regarded it as proving HPC’s bad faith.
Nonetheless, the Court agrees with the CA’s dismissal of the award of moral and exemplary damages for lack of merit. There is no satisfactory proof that the concerned officers of HPC acted in bad faith or with malice in terminating Farrales. Notwithstanding the LA’s assertion to this effect, Farrales’ bare allegations of bad faith deserve no credence, and neither is the mere fact that he was illegally dismissed sufficient to prove bad faith on the part of HPC’s officers.38 But concerning the award of attorney’s fees, Farrales was dismissed for a flimsy charge, and he was compelled to litigate to secure what is due him which HPC unjustifiably withheld.
WHEREFORE, premises considered, the petition for review is DENIED.
2 Penned by Associate Justice Florito S. Macalino, with Associate Justices Sesinando E. Villon and Pedro B. Corales concurring; id. at 54-64.
3 Penned by Presiding Commissioner Herminio V. Suelo, with Commissioners Angelo Ang Palana and Numeriano D. Villena concurring; id. at 150-168.
5 Issued by Labor Arbiter Edgar B. Bisana; id. at 117-124.
24Lynvil Fishing Enterprises, Inc. v. Ariola, G.R. No. 181974, February 1, 2012, 664 SCRA 679, 692.
25Concepcion v. Minex Import Corporation/Minerama Corporation, G.R. No. 153569, January 24, 2012, 663 SCRA 497, 504-505.
26Aurelio v. NLRC, G.R. No. 99034, April 12, 1993, 221 SCRA 432, 442.
27Gutierrez v. Singer Sewing Machine Company, 458 Phil. 401, 413 (2003), citing The Hongkong & Shanghai Banking Corp. v. NLRC, 328 Phil. 1156, 1166 (1996).
28Jarcia Machine Shop and Auto Supply, Inc. v. NLRC, 334 Phil. 84, 93 (1997).
29Nisda v. Sea Serve Maritime Agency, et al., 611 Phil. 291, 311 (2009).
30 Per Antonio’s explanation, rollo, p. 312.
34Cosmos Bottling Corp. v. Fermin, G.R. No. 193676, June 20, 2012, 674 SCRA 310, 317.
35Cosep v. NLRC, 353 Phil. 148, 158-159 (1998).
36Sevillana v. I.T. (International) Corp./Samir Maddah & Travellers Insurance & Surety Corp., 408 Phil. 570, 584 (2001).
37Asuncion v. NLRC, 414 Phil. 329, 341-342 (2001); Nicario v. NLRC, 356 Phil. 936, 943 (1998).
38See Aliling v. Feliciano, G.R. No. 185829, April 25, 2012, 671 SCRA 186, 217.

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Full Case Name: Marietta ROBINSON, Appellant v. Sarah PEZZAT, et al., Appellees.
Country of Origin: United States Court Name: United States Court of Appeals, District of Columbia Circuit. Primary Citation: 818 F.3d 1 (D.C. Cir. 2016) Date of Decision: Friday, April 1, 2016 Judge Name: Chief Judge, Tatel Jurisdiction Level: Federal Alternate Citation: 2016 WL 1274044 (D.C. Cir. Apr. 1, 2016) Judges: Judge Garland Judge Silberman Attorneys: Attorneys and Law Firms Tobias S. Loss–Eaton argued the cause for appellant. With him on the briefs was Frank R. Volpe.John D. Martorana, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With him on the brief were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General. Holly M. Johnson, Assistant Attorney General, entered an appearance. Docket Num: No. 15–7040.
Summary: Plaintiff filed suit against two police officers and the District of Columbia after the officers shot and killed her dog while executing a warrant to search her home. She brought a § 1983 claim, alleging that the officers seized her property in violation of the Fourth Amendment. The Court of Appeals reversed the District Court’s ruling for summary judgment, holding that a jury could find in favor of the plaintiff based on her witness testimony that the dog was lying down when it was first shot. Additionally, the court maintained summary judgment for the second police officer, McLeod, who shot and killed the dog after it bit Officer Pezzat and charged forward.
We return once again to the familiar yet significant issue of the proper role of the district court at summary judgment. In this section 1983 action, plaintiff sought to hold police officers liable for unlawfully seizing her property in violation of the Fourth Amendment when the officers shot and killed her dog while executing a search warrant. The district court granted summary judgment to the officer who first shot the dog on the grounds that plaintiff's eyewitness account of the shooting was uncorroborated and contradicted by other evidence. Because the district court improperly assumed the “jury functions” of making “[c]redibility determinations, ... weighing ... the evidence, and ... drawing ... legitimate inferences from the facts,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), we reverse this portion of the judgment. We affirm the grant of summary judgment to another officer who shot the dog, as well as to the District of Columbia.
In the summer of 2010, the Metropolitan Police Department (MPD) obtained a warrant to search appellant Marietta Robinson's home after her grandson was arrested while in possession of marijuana. Around 9 p.m. on the evening of June 15, a police squad consisting of nine officers arrived at Robinson's house to execute the warrant. In her deposition, Robinson testified that when she heard someone “knocking very hard” on the door, her dog Wrinkles, a thirteen-year-old female pit bull/German shepherd mix, “barked to let [her] know that somebody was there.” Robinson Dep. at 15, 24. Having owned Wrinkles since she was a puppy, Robinson acknowledged that the dog would sometimes bark and growl when “stranger[s] [came] in the house.” Id. at 16–17.
Robinson testified that after the police identified themselves, she opened the inner door to her home, leaving the screen door in place. Wrinkles barked again, then “sat down and [was] quiet.” Id. at 23. According to several officers, however, Wrinkles “lunge[d] out,” “showing [her] teeth” in an aggressive manner. McLeod Dep. at 42; see also Selby Dep. at 94; Boteler Dep. at 112. Both Robinson and the officers agree about what happened next: Robinson asked the lead officer, appellee Sergeant James Boteler, if she could put Wrinkles “in the back yard or ... in the bathroom” while the police executed the warrant and, in response, Boteler instructed her to place the dog in the bathroom, which was immediately adjacent to and visible from the front door. Robinson Dep. at 26, 31.
Boteler testified that he “yelled pretty loud” to the officers behind him to warn them that there was a “dog in the bathroom.” Boteler Dep. at 73–74. Officer Sarah Pezzat, another appellee, testified that although she never heard a warning, she knew that a dog was in the house because she “could easily hear the dog barking and growling.” Pezzat Dep. at 69. Pezzat also testified that she heard Boteler and Robinson discussing where to put the dog and “something about the dog being in a backroom.” Id.
When Robinson opened the front door after securing Wrinkles, the officers rushed inside. Pezzat, with gun drawn, was at least the fifth officer to enter the home. After several others bypassed the bathroom, Pezzat opened the door, which Boteler testified violated police protocol. Typically, Boteler explained, the first officer to encounter a door would “stop, clear that area, and then move to the next area,” unless there was a reason not to do so, such as the presence of a dog, which was “why several officers passed that door and did not open that door.” Boteler Dep. at 100–02. Other officers warned that there was a “[d]og on the left” as the search team entered, Ledesma Dep. at 23, 46–47, and heard Wrinkles barking. Pezzat recalled hearing no such warnings.
Robinson testified that while standing near the entryway, she saw Pezzat open the bathroom door, “sho[o]t once, and then Wrinkles comes running out, got up and ran out the bathroom. Then [Pezzat] shot again. Then she backed out my door.” Robinson Dep. at 44. Repeating the point, Robinson testified that “[w]hen [Pezzat] shot the first time, Wrinkles got up. And when Wrinkles got up to come towards her, then she shot again.” Id. at 45–46. When the District of Columbia's attorney asked whether it was Robinson's testimony “that Wrinkles was on the floor—lying on the floor” in the bathroom, Robinson replied, “Yes.” Id. at 46. Asked how she knew that, Robinson explained, “Because when she first opened the door—when she had the gun in her hand, at first I ... thought she was going to shoot me. But then when she ... turned the [k]nob and pushed the door, ... it wasn't pointed towards me no more.” Id. Robinson then testified—for the third time—that “the first shot, Wrinkles got up.... The second shot, Wrinkles ran out the bathroom.” Id. at 47.
After Wrinkles made it out of the bathroom, Robinson testified, the dog ran to her and collapsed on the ground. Although Robinson never saw Wrinkles bite Pezzat, she acknowledged that Wrinkles would have bitten the officer “[i]n defense of herself, after being shot at.... [I]f you shoot a dog, most likely they're going to attack you.” Id. at 55.
Officer Pezzat had a very different view of what happened. She testified that after opening the bathroom door, she “saw that there was a dog inside of the room. I tried to close the door, but it was too late. The dog was already coming out of the room at me. And I picked up my leg to protect myself, and the dog bit down on my foot” once “the dog was already most of the way out of the room.” Pezzat Dep. at 73, 81. According to Pezzat, it was at that point—after the dog bit her—that she shot the animal. Echoing Pezzat, another officer, appellee Christian Glynn, testified that before Pezzat fired, Wrinkles “was barking, very angry and charged at Officer Pezzat,” then “latched on and bit Officer Pezzat's foot and started shaking her” and “pulling her down and into the bathroom.” Glynn Dep. at 58–59. Sergeant Boteler testified that before hearing any gunfire, he too saw Wrinkles biting Pezzat “just outside the bathroom in the hallway.” Boteler Dep. at 104.
Although Robinson testified that Wrinkles collapsed next to her feet after the shooting, Officer Richard McLeod, also an appellee, testified that Wrinkles began “coming towards” him, deeper into the house. McLeod Dep. at 43. Another officer testified that McLeod fired at least a half-dozen shots at Wrinkles, toward the front of the house. According to Robinson, Wrinkles fled up the stairs to get away from the shots, but McLeod kept firing. In the end, officers blocked Wrinkles from climbing the stairs, and she died on the landing.
According to Robinson, officers then took her clean laundry from the top of the washing machine and “cover[ed] the dog up and the blood up with my clean clothes.” Robinson Dep. at 77–78. Officer Adrian Ledesma testified that they covered Wrinkles “with like a white sheet or something like that,” Ledesma Dep. at 33, and Boteler confirmed that he placed one of Robinson's sheets over Wrinkles' body. While searching the house, officers left bloody “fingerprints on [Robinson's] curtains”; “two whole [bloody] handprints” and a third partial print on Robinson's sofa, which she had to throw away; bloody handprints on the walls and doors, “inside the closet,” and “[o]n the two fans ... in the living room”; “smudges of blood on ... [e]very picture that was on the wall that came down”; and blood “splattered all over” a painting made by Robinson's brother, which looked like “somebody had just took and threw blood.” Robinson Dep. at 62, 66–73. Robinson kept a water cooler “at [her] front door,” and after the officers left, “you could see the blood where they washed their hands. Blood there and fingerprints all over.” Id. at 80. Robinson also saw officers “jumping on” her clothes dryer multiple times, breaking the door. Id. at 79. Boteler acknowledged that the police did nothing to clean up the house, and recalled a captain saying that “the dog's blood is her property. It's going to be up to her or her family to clean it up, not us.” Boteler Dep. at 130–31.
Mrs. Robinson filed a complaint in the U.S. District Court for the District of Columbia against Officers Pezzat and McLeod, several other officers involved in the shooting and the search, and the District of Columbia, seeking damages under 42 U.S.C. § 1983 and various D.C. statutes. Robinson alleged, among other claims, that the officers had made illegal seizures under the Fourth Amendment both by shooting Wrinkles and by damaging her property during the subsequent search.
Plaintiff argues that her uncorroborated version of events creates a genuine dispute of material fact precluding summary judgment. I disagree. To withstand summary judgment, a plaintiff must advance more than a scintilla of doubt as to her claims. Unsubstantiated allegations of harm fall short of this standard, making dismissal imminently [sic] more likely where, as here, a plaintiff's claims are contradicted, and overborn, by a record of credible evidence.
Id. (internal citations omitted). According to the court, “several undisputed facts corroborate defendants' account”: (1) “that Wrinkles had a history of aggression,” as evidenced both by Robinson's statements that Wrinkles would sometimes “bark and growl” at strangers and a veterinarian report from 2006, which stated that Wrinkles was “aggressive”; (2) that “Wrinkles barked and growled at the search team, prompting plaintiff to place the dog in the downstairs bathroom”; (3) that “Wrinkles bit, shook, and attempted to bodily drag Officer Pezzat into the bathroom,” injuring her; and (4) that “even after being shot, the dog charged two other police officers stationed on the staircase, prompting them to take cover behind a protective shield.” Id. at 262, 267. The court concluded that “given Wrinkles' threatening behavior, the government's interest in safeguarding the lives of its officers, and the pressure of split-second decision making,” Pezzat's and McLeod's decisions were “eminently reasonable.” Id. at 267.
The district court also rejected Robinson's property-damage claim, ruling that “[t]he damage here was reasonable under the circumstances.” Id. at 268. The court first concluded that “the immediate damage to plaintiff's clothing, furniture, and walls from Wrinkles' shooting was incident to a reasonable seizure and, therefore, is within the realm of constitutionality.” Id. “[A]ny subsequent damage to plaintiff's personal items,” the court continued, “was the product of a reasonable search” because, by virtue of a “broadly-worded warrant authoriz[ing] defendants to search plaintiff's residence for concealed drugs,” the officers “had every reason, indeed, every right, to search in closets, beneath sofas, and behind picture frames for concealed drugs.” Id. As for the bloody handprints, the court concluded that “[the] blood made its way onto plaintiff's fixtures as the officers turned on light switches, lifted furniture, and removed wall hangings is neither remarkable nor unduly destructive.” Id.
In granting summary judgment to the District of Columbia, the court ruled that Robinson had failed to show that the District could be held liable under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The court explained that Robinson could “point to no formal policy sanctioning the indiscriminate killing of household pets, let alone one that catalyzed the shooting here,” and that MPD policy “restrict[ed] the use of deadly force to self-defense.” Robinson, 83 F.Supp.3d at 269. And although Robinson had provided the court with twenty-one police reports documenting dog shootings during home searches between 2002 and 2009, the court found those reports insufficient to demonstrate that the District was deliberately indifferent to a risk of constitutional violations because “even if these incidents placed the District on notice of domestic animal shootings, plaintiff has tendered no evidence suggesting that the majority of these shootings were unconstitutional.” Id. (internal quotation marks and alteration omitted). Nor, the court concluded, had Robinson “articulated how improved training would have prevented Wrinkles' death.” Id. at 270.
Having rejected Robinson's federal claims, the court declined to exercise supplemental jurisdiction over her District of Columbia law claims. Accordingly, it dismissed those claims without prejudice. Id. at 271.
Robinson appeals, arguing that the district court improperly rejected her sworn testimony, which she believes raises a genuine dispute of material fact regarding whether Wrinkles posed an imminent threat to Pezzat before the shooting. Robinson raises four additional arguments: (1) that even if her testimony could be disregarded, a jury could find unreasonable Pezzat's decision to open the door, which sparked the confrontation with Wrinkles; (2) that the district court erred in granting summary judgment on her property-damage claim because the seizure of Wrinkles, which caused much of the blood damage, was unreasonable, and the other damage following the dog's death was independently unreasonable; (3) that the district court erred in granting summary judgment in favor of McLeod because his decision to shoot the dog was unreasonable; and (4) that the District of Columbia should be liable for the officers' actions under Monell because it failed to provide adequate training for police officers who encounter dogs during home searches. “We review a district court's grant of summary judgment de novo.” DeGraff v. District of Columbia, 120 F.3d 298, 301 (D.C.Cir.1997).
We begin with the demise of Wrinkles. “Every circuit that has considered the issue has held that the killing of a companion dog constitutes a ‘seizure’ within the meaning of the Fourth Amendment.” Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir.2008); see also Carroll v. County of Monroe, 712 F.3d 649, 651 (2d. Cir.2013) (collecting cases). Those circuits have invariably concluded that “the use of deadly force against a household pet is reasonable only if the pet poses an immediate danger and the use of force is unavoidable.” Viilo, 547 F.3d at 710; see also San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975–78 (9th Cir.2005) (holding that the killing of guard dogs was unreasonable under the Fourth Amendment where “the officers were not presented with exigent circumstances that necessitated killing the dogs”); Brown v. Muhlenberg Township, 269 F.3d 205, 210–11 (3d Cir.2001) (“[T]he state's interest in protecting life and property may be implicated when there is reason to believe the pet poses an imminent danger. In the latter case, the state's interest may even justify the extreme intrusion occasioned by the destruction of the pet in the owner's presence. This does not mean, however, that the state may, consistent with the Fourth Amendment, destroy a pet when it poses no immediate danger and the owner is looking on, obviously desirous of retaining custody.” (footnotes omitted)). As in any Fourth Amendment case, “[w]e analyze [the] question [of whether a pet constitutes an imminent threat] from the perspective ‘of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ ” Plumhoff v. Rickard, ––– U.S. ––––, 134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056 (2014) (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). This analysis “allow[s] for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396–97, 109 S.Ct. 1865.
The question for the district court, then, was whether, given all of the circumstances and viewed from the perspective of a reasonable officer on the scene, Wrinkles posed an imminent threat to Officer Pezzat before the shooting. Because the District of Columbia moved for summary judgment, Robinson must point to admissible evidence that creates a genuine dispute of material fact—that is, a dispute that would allow “a reasonable jury [to] return a verdict” in her favor—on this precise question. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. As noted above, Robinson testified that Wrinkles posed no threat to the police because Pezzat shot the dog while she was lying on the floor: “[T]he first shot, Wrinkles got up.... The second shot, Wrinkles ran out the bathroom.” Robinson Dep. 47. For her part, Pezzat testified that Wrinkles represented a threat because—before she fired her gun—the dog “was already coming out of the room at me” and “bit down on my foot.” Pezzat Dep. at 73. The district court concluded that Pezzat acted reasonably because Robinson's “uncorroborated” testimony failed to create a genuine dispute as to whether Wrinkles constituted an imminent threat. Robinson, 83 F.Supp.3d at 267. As District counsel wisely conceded at oral argument, this was error. Oral Arg. Tr. 32 (“The Court: [T]hat the district judge said her testimony is uncorroborated, that's irrelevant, isn't it? Counsel: It is.”).
The witnesses on both sides come to th[e] case with their own perceptions, recollections, and even potential biases. It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system. By weighing the evidence and reaching factual inferences contrary to [the nonmoving party's] competent evidence, the court below neglect[s] to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.
Given these standards, we think it quite obvious that the uncorroborated nature of Robinson's testimony had nothing at all to do with the question before the district court: did Robinson present a genuine dispute of material fact as to whether Wrinkles posed an imminent threat to Pezzat's safety? Corroboration goes to credibility, a question for the jury, not the district court. Perhaps a jury will disbelieve Robinson because her testimony was uncorroborated, but at this stage of the litigation, the district court must “believe[ ]” her testimony and must not make “[c]redibility determinations.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
Our decision in Arrington v. United States illustrates this point. There, the plaintiff brought a section 1983 action alleging excessive force, claiming that “he was beaten by police officers after he was captured, restrained, disarmed, and handcuffed.” 473 F.3d at 331. According to the police officers, “force was used to subdue [the plaintiff] while he was armed and before he was in handcuffs.” Id. at 336. The government argued that the plaintiff's “conclusory, unsubstantiated statements ... unsupported by specific facts [were] insufficient to overcome a summary judgment motion.” Id. We rejected that argument, holding that “a plaintiff may defeat a summary judgment granted to a defendant if the parties' sworn statements are materially different.” Id. (internal quotation marks omitted) (citing Greene v. Dalton, 164 F.3d 671 (D.C.Cir.1999)). It made no difference that the plaintiff's testimony was uncorroborated. All that mattered was that the testimony created a genuine issue of material fact. Although acknowledging that “ ‘some statements are so conclusory as to come within an exception to that rule,’ ” we concluded that the plaintiff's allegations “f[ound] support in sworn deposition testimony filed in the District Court.” Id. at 336, 338 (quoting Greene, 164 F.3d at 675). “Possessed of this testimony,” we explained, “a jury can assess the validity of [the plaintiff's] claims.” Id. at 338; see also Harris v. U.S. Department of Veterans Affairs, 776 F.3d 907, 914–15 (D.C.Cir.2015) (holding that conflicting statements from plaintiff and police officers raised genuine disputes of material fact in excessive force case); Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C.Cir.2013) (per curiam) (holding that summary judgment was inappropriate when the plaintiff's account of what happened during a meeting differed from his supervisor's recollection); Johnson v. District of Columbia, 528 F.3d 969, 977 (D.C.Cir.2008) (holding that “[s]ummary judgment was premature because there exists a genuine issue of material fact” that could “only be resolved by evaluating the conflicting testimony of” two people involved in an altercation). As in Arrington, it is up to the jury, not the district court, to “assess the validity of” plaintiff's uncorroborated version of events. 473 F.3d at 338.
Although the District of Columbia agrees with all of this, it nonetheless argues that we can sustain the district court's rejection of Robinson's testimony for two independent reasons. First, the District contends that the court properly refused to credit Robinson's testimony because she never expressly stated that she saw Wrinkles lying on the bathroom floor. This, the District argues, “demonstrate[s] that Robinson lacked personal knowledge for her allegation that the dog was simply lying on the floor when Officer Pezzat shot it and that it was not in fact attacking Officer Pezzat.” Appellees' Br. 31. We disagree. As explained above, at summary judgment we “examine the facts in the record and all reasonable inferences derived therefrom in a light most favorable to the plaintiff.” DeGraff, 120 F.3d at 299–300 (internal quotation marks omitted). Given Robinson's testimony that she saw Pezzat open the door, her answering “yes” to the question whether she intended to testify that “Wrinkles was ... lying on the floor” in the bathroom, Robinson Dep. at 46, and her repeated statements that Wrinkles “got up” after Pezzat fired, a jury could reasonably infer that Robinson saw Wrinkles lying on the bathroom floor.
The District insists that such an inference is unjustified because when its lawyer asked Robinson how she knew Wrinkles was lying down, Robinson “refused to say she actually saw these events,” and instead gave an answer not directly responsive to counsel's question. Appellees' Br. 30. Again, we disagree. Accepting the District's argument would require that we draw an inference against Robinson notwithstanding her testimony explaining that she witnessed the scene and describing the precise order of events. We may not draw such an inference at summary judgment.
The District of Columbia next argues that we can sustain the district court's rejection of Robinson's testimony because, according to the District, the weight of evidence corroborating the officers' accounts fatally undermined Robinson's credibility. In support, the District invokes our decision in Johnson v. Washington Metropolitan Area Transit Authority, in which we recognized that a district court may “lawfully put aside testimony that is so undermined as to be incredible.” 883 F.2d 125, 128 (D.C.Cir.1989), abrogated on other grounds by Robinson v. District of Columbia, 580 A.2d 1255, 1258 (D.C.1990). This circumstance, we explained, was “most likely when a plaintiff's claim is supported solely by the plaintiff's own self-serving testimony, unsupported by corroborating evidence, and undermined either by other credible evidence, physical impossibility or other persuasive evidence that the plaintiff has deliberately committed perjury.” Id. Evidence satisfying this standard, such as a video tape that “quite clearly” demonstrates the falsity of the plaintiff's statement, rarely exists. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Indeed, in Johnson we identified only two instances in which this circuit rejected a plaintiff's testimony as “so undermined as to be incredible,” both of which involved testimony contradicted by multiple disinterested witnesses and, in one case, by the plaintiff herself. See Johnson, 883 F.2d at 128–29 (citing Law v. Virginia Stage Lines, 444 F.2d 990 (D.C.Cir.1971), and Washington, Marlboro & Annapolis Motor Lines v. Maske, 190 F.2d 621 (D.C.Cir.1951)).
In this case, the district court rejected Robinson's testimony because, in addition to it being uncorroborated, Wrinkles had a “history of aggression” (based primarily on the 2006 veterinary report), “barked and growled at the search team,” bit Pezzat, and “charged” the officers standing on the stairs after McLeod shot the dog. Robinson, 83 F.Supp.3d at 262, 267. In our view, however, none of this evidence is remotely compelling enough to require a jury to disregard Robinson's testimony as “so undermined as to be incredible.” Johnson, 883 F.2d at 128. A jury could regard the years-old veterinary report and Wrinkles' barking at the police—as would most any self-respecting dog—to be of limited probative value to the question of exactly what happened when Pezzat opened the bathroom door. If the jury believed Robinson's testimony that Wrinkles was lying down, it could reasonably conclude that the dog acted aggressively toward Pezzat only after being shot. Finally, a jury could either credit Robinson's testimony that the dog ran up the stairs to escape McLeod or conclude that Wrinkles' behavior after being shot was of limited probative value.
To sum up, then, viewing the facts and all reasonable inferences most favorably to Robinson, we believe that a jury could conclude that Pezzat acted unreasonably in shooting Wrinkles. Summary judgment was therefore inappropriate.
Seeking to avoid this result, the District urges us to affirm on an alternative ground, i.e., that Pezzat is entitled to qualified immunity because she violated no clearly established law. “[Q]ualified immunity protects government officials ‘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.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). This argument comes too late. In the district court, the District of Columbia argued only that Robinson suffered no constitutional injury; it never argued that the officers were entitled to qualified immunity on clearly established law grounds. See Defs.' Mot. for Summ. J. at 16–18, 23–25. This argument is thus forfeited. See, e.g., District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C.Cir.1984) (“It is well settled that issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal.”).
Given that we are reversing the grant of summary judgment to Officer Pezzat, we shall also reverse the grant of summary judgment in favor of the officers on Robinson's claim that they violated the Fourth Amendment by unreasonably destroying her personal property during the shooting. As the district court observed, this claim is intertwined with Wrinkles' seizure. See Robinson, 83 F.Supp.3d at 268. And because the district court will have to reconsider its property-damage analysis, we think it unwise at this point to consider whether the post-shooting damage was independently unreasonable. Finally, because the district court never addressed Robinson's argument that a reasonable jury could find that Pezzat acted unreasonably when she opened the bathroom door, we decline to consider that issue as well.
We can easily dispose of Mrs. Robinson's claim that Officer McLeod acted unreasonably when he shot Wrinkles. Robinson does not dispute that Wrinkles had bitten Officer Pezzat and had run out of the bathroom by the time McLeod began firing. Nor does she dispute that events unfolded quickly—within a matter of seconds. Even were a jury to credit Robinson's testimony that Wrinkles ran to her and collapsed on the floor, “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396–97, 109 S.Ct. 1865. Given that Wrinkles bit Officer Pezzat hard enough to puncture her leather boots, McLeod's belief—just seconds later—that the dog continued to pose an imminent threat even absent additional aggressive behavior was hardly unreasonable. We shall thus affirm the district court's grant of summary judgment to Officer McLeod on this issue.
Mrs. Robinson's claim against the District requires a little more discussion. She argues that the District may be held liable for Pezzat's conduct under Monell because the MPD “failed to provide training to address a clear risk of constitutional violations” arising from dog shootings. Appellant's Br. 57. According to Robinson, this lack of training contributed to a constitutional violation because “the search team arrived at Mrs. Robinson's home with no plan to deal with any animals they might encounter” or “protocol for ensuring that each officer knew where Wrinkles was secured.” Id. at 64.
A plaintiff may establish a “policy or custom” under Monell by “the failure of the government to respond to a need (for example, training of employees) in such a manner as to show deliberate indifference to the risk that not addressing the need will result in constitutional violations.” Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.Cir.2003) (internal quotation marks omitted). “Deliberate indifference is determined by analyzing whether the municipality knew or should have known of the risk of constitutional violations, an objective standard.” Id. at 1307. Because a finding of liability in the context of a failure to train amounts to a judicial determination that “the city itself [decided] to violate the Constitution,” the Supreme Court has imposed “a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Connick v. Thompson, 563 U.S. 51, 61–62, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (internal quotation marks and alterations omitted). “A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train,” although there are rare circumstances in which “the unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations.” Id. at 62, 64, 131 S.Ct. 1350 (internal quotation marks omitted). In the case of police officers, it will not suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal. City of Canton v. Harris, 489 U.S. 378, 391, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
In this case, the district court found that the seven years' worth of police reports of dog shootings were insufficient to establish deliberate indifference because they gave no indication “that the majority of these shootings were unconstitutional.” Robinson, 83 F.Supp.3d at 269. Robinson nonetheless contends that the district court disregarded the risk that officers would encounter dogs during home searches and that some of those encounters would result in unnecessary shootings. In support, she relies on our decision in Smith v. District of Columbia, 413 F.3d 86, 100 (D.C.Cir.2005), in which we held the District liable under Monell where it had failed to establish any standards at all for selecting independent living programs with which it placed at-risk youth, leading to a situation in which children “could be sent to totally inappropriate programs run by unqualified counselors and located in unsafe areas,” risks that “were realized” when a substandard provider “failed to react to the murder of one youth and the armed robbery of another.” Under those circumstances, the jury “may infer deliberate indifference from the District's failure to have adequate safeguards for dealing with situations fraught with risk.” Id.
The situation here is very different from the one we confronted in Smith. Unlike there, the District has municipal regulations governing the conduct at issue. Those regulations allow police officers to discharge their firearms only in specified circumstances, including “[t]o kill a dangerous animal” and “[t]o defend him or herself or another from an attack which the officer has reasonable cause to believe could result in death or serious bodily injury.” 6A DCMR § 207.2(a), (c). The MPD manual likewise authorizes the use of deadly force only “[w]hen it is necessary and objectively reasonable ... [t]o defend [the officer] or another from an actual or threatened attack that is imminent and could result in death or serious bodily injury.” Metropolitan Police, General Order GO–RAR–901.07, at 7 (2002). Unlike in Smith, moreover, where the District had provided employees with no relevant training, here the MPD gives officers specific training about how to identify and control dangerous dogs. Even if, as Robinson insists, the MPD could improve its training, Monell requires a plaintiff to do more than “prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct.” City of Canton, 489 U.S. at 391, 109 S.Ct. 1197. We also agree with the district court that the police reports of dog shootings provide no basis for a reasonable jury to conclude that the District had notice of a pattern of likely unconstitutional conduct adequate to prove deliberate indifference. Indeed, the reports that contain any detail at all invariably indicate that the dogs attacked the police officers, and thus fail to establish “[a] pattern of similar constitutional violations by untrained employees” or demonstrate such a risky environment that “the unconstitutional consequences of failing to train [were] so patently obvious” that the city's reaction rises to “the functional equivalent of a decision by the city itself to violate the Constitution.” Connick, 563 U.S. at 61–64, 131 S.Ct. 1350.
For the foregoing reasons, we reverse the grant of summary judgment to Officer Sarah Pezzat and affirm as to Officer Richard McLeod and the District of Columbia. Because we reverse the grant of summary judgment to Officer Pezzat, we also reverse the court's dismissal of Mrs. Robinson's District of Columbia law claims.


"Medical nutrition therapy" means the use of specific nutrition services to treat, or rehabilitate an illness, injury, or condition. Medical nutrition therapy includes nutrition assessment, intervention, education, and counseling.
“Nutrition assessment” means the evaluation of the nutritional needs of individuals or groups based on appropriate nutrient intake, biochemical values, anthropometric measures, physical and metabolic parameters, socio-economic factors, current medical diagnosis and medications, enteral and parenteral nutrition or dietary data to determine nutrient needs and recommend appropriate medical nutrition therapy.
"Nutrition Care Services" means assessing the nutritional needs of individuals or groups, determining resources and constraints in the practice setting, and providing appropriate nutritional recommendations, counseling or education.
“Nutrition counseling” means advising and assisting individuals or groups on appropriate nutritional intake by integrating information from the nutrition assessment with information on food and other sources of nutrients and meal preparation consistent with cultural background and socioeconomic status.
“Nutritional Care Plan” means a plan of care developed by a licensed Dietitian/Nutritionist that includes: the design and implementation of nutrition programs/plans, which include goals and objectives for individuals and groups for the maintenance of health and prevention of disease; the design and implementation of therapeutic nutrition regimens, including enteral and parenteral nutrition for the management of nutritionally related health disorders; establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints; developing, implementing, and managing nutrition care systems; and evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition care services.
“Nutritional care standards” means policies and procedures pertaining to the provision of nutritional care in institutional and community settings.
"Nutritional education" means a planned program based on learning objectives with expected outcomes designed to modify nutrition-related behaviors.
2.1.1	A major course of study [24 Del.C. §3806(2)] must include 3 semester credits with content in biochemistry, 3 semester credits with content in human physiology, and 12 semester credits of courses with major content in human nutrition and/or dietetics including 3 semester credits in nutrition and disease or diet therapy.
2.3.2.1	Each supervisor shall have administrative responsibility for the area of the professional practice experience OR provide a letter from the area's administrator showing approval for him/her to officially function as a supervisor of the applicant's experience for the purposes of this chapter.
2.3.2.2	The supervisor shall have access to relevant patient/client records in the site of the professional practice experience. In order to guide the applicant and to have a basis for evaluation, the supervisor shall review performance by periodic observation, either directly or by some recording of the nutrition services.
2.3.2.3	If there is more than one supervisor and/or facility for different parts of the experience, information and verification of each part is required.
2.3.2.4.1	the name and address of the facility providing the professional practice experience and name of the area within the facility where the professional practice experience occurred.
2.3.2.4.2	the name, address, phone and title of the official supervisor who is supervising the qualifying experience for purpose of obtaining the certification. The supervisor for the purpose of certification may be different than the administrative supervisor of the unit in the facility.
2.3.2.4.3	a summary of the nature of nutrition services performed, along with dates and hours spent performing them.
2.3.2.4.4	evidence that the supervisor was either a registered dietitian, a licensed dietitian or a certified dietitian/nutritionist or a certified nutrition specialist in Delaware or any other state at the time of supervision; or the supervisor was a licensed health care professional or individual with a doctoral degree from an accredited college or university with expertise in human nutrition. A copy of the current license, certification, or registration must be provided.
2.3.2.4.5	the applicant will send the description of the qualifying experience noted above to the professional practice experience supervisor for verification.
2.3.2.4.6.1	that the applicant participated in nutrition services under his/her supervision, indicating the total number of hours.
2.3.2.4.6.2	that the applicant performed the nutrition services at a satisfactory level and followed the Code of Ethics in the course of this qualifying experience.
2.4.1	The satisfactory completion of the registration examination established by the Commission on Dietetic Registration (CDR), the examination of the Certification Board for Nutrition Specialists (CBNS) or another national examination acceptable to the Board and approved by the Director of Professional Regulation is required. [24 Del.C. §3806(a)(4)].
2.4.1.1	The passing score shall be the passing score established by the exam provider.
2.4.2	The cost of the examination shall be borne by the applicant.
2.5	Individuals seeking a waiver under the provisions of 24 Del.C. §3806(f) of the qualifications for licensure specified in 24 Del.C. §3806(a)(1)-(4) and 24 Del.C. §3806(b) must document at least 10 years or greater work experience in the field of nutrition as defined in 24 Del.C. §3802(3) acceptable to the Board.
3.1	The Board may grant licensure to registered, certified or licensed dietitians/nutritionists holding a valid license issued by another jurisdiction whose standards of licensure are equal to or greater than those of 24 Del.C. Ch. 38.
3.2	The applicant shall include, as part of the application, copies of state licensing and/or practice statutes and regulations pertaining to the practice of dietetics and nutrition for each jurisdiction through which he/she is seeking reciprocity.
3.3	The Applicant shall include letters of good standing from all jurisdictions in which the applicant is licensed or registered.
3.4	“Standards of licensure” as used in 24 Del.C. §3807, shall refer to the qualifications of applicants set forth at §3806.
4.1	"Continuing professional education" (CPE) as specified in the Dietician/Nutritionist Licensure Act, 24 Del.C. §3808, must meet the content requirements of The American Dietetic Association for CPE credit. One hour of CPE credit shall be given for each hour of CPE activity.
4.1.1	To renew his or her license a LDN must obtain thirty (30) hours of CPE during each two year certification period.
4.1.1.1	CPE requirements shall be prorated for new LDNs as follows: If the new LDN has been licensed less than 1 year, CPE is not required for renewal, if the new LDN has been licensed for more than 1 year but less than 2 years, half of the 30 CPE hours (15 hours) are required. If licensed for 2 or more years, the full 30 hours of CPE is required.
4.1.1.2	Extensions of time: An extension of time to complete CPE requirements will be granted to any LDN who can demonstrate to the Board an acceptable cause. The LDN must petition the Board for an extension. Should the Board deny the request, the LDN must complete the requirements to maintain licensure. Examples of circumstances for which the Board may grant extensions of time include, but are not limited to, prolonged illness or extended absence from the country.
4.2	Proof of continuing education is satisfied with an attestation by the licensee that he or she has satisfied the requirements of Rule 4.0.
4.2.1	Attestation may be completed electronically if the renewal is accomplished online. In the alternative, paper renewal documents that contain the attestation of completion may be submitted.
4.2.2	Licensees selected for random audit will be required to supplement the attestation with attendance verification pursuant to Rule 4.3.
4.3	Random audits will be performed by the Board to ensure compliance with the CPE requirements.
4.3.1	The Board will notify LDNs within sixty (60) days after the license renewal date that they have been selected for audit.
4.3.2	LDNs selected for random audit shall be required to submit verification within ten (10) days of receipt of notification of selection for audit.
4.3.3.1	Proof of attendance. While course brochures may be used to verify contact hours, they are not considered to be acceptable proof for use of verification of course attendance.
4.3.3.6	Number of hours of CPE course.
4.3.4	The CPE activities must be performed within the two year period prior to renewal of licensure. If an activity overlaps two renewal periods, the date of completion of the activity determines the date in which the activity can be reported.
4.3.5	The current document published by CDR, describing CPE guidelines for registered dietitians shall be used as a guide to interpret requirements of CDR for CPE.
4.3.6	The Board will accept the decisions of CDR and CBNS for appropriateness of CPE activities and reserves the right to approve or disapprove any other activity deemed appropriate for CPE, using current CDR standards as criteria.
4.3.7	The Board may establish maximum hours allowed for any type of activity in the two-year period.
4.3.7.1	A maximum of 15 CPE hours shall be allowed for selfstudy programs.
4.3.7.2	A maximum of 6 CPE hours shall be allowed for exhibits.
4.3.7.3	A maximum of 10 CPE hours shall be allowed for poster presentations.
4.4	The Board shall review all documentation requested of any licensee shown on the audit list. If the Board determines the licensee has met the requirements, the licensee's license shall remain in effect. If the Board initially determines the licensee has not met the requirements, the licensee shall be notified and a hearing may be held pursuant to the Administrative Procedures Act. This hearing will be conducted to determine if there are any extenuating circumstances justifying the apparent noncompliance with these requirements. Unjustified noncompliance of these regulations shall be considered grounds for discipline in the practice of dietetics and nutrition, pursuant to 24 Del.C. §3811. The minimum penalty for unjustified noncompliance shall be a letter of reprimand.
4.5	Any licensee denied renewal or disciplined pursuant to these rules and regulations may contest such ruling by filing an appeal pursuant to the Administrative Procedures Act.
5.1	The biennial licensure period expires on May 31 of every odd-numbered year. A licensee may have his/her license renewed by submitting a renewal application to the Board by the renewal date and upon payment of the renewal fee prescribed by the Division of Professional Regulation (Division) along with an attestation of completion of the continuing education requirements. License renewal may be accomplished online at the Division’s website. Alternatively, licensees may submit paper renewal documents. Requests for paper renewal forms must be directed to the Division.
5.2	Any licensee who fails to renew his/her license by the renewal date may reactivate his/her license during the one (1) year period immediately following the license expiration date provided the licensee pays a late fee in addition to the prescribed renewal fee, submits an application on an appropriate form to the Board and provides proof that he/she completed the required continuing education.
5.3	No LDN will be permitted to renew his/her license once the one-year period has expired but the former licensee may re-apply under the same conditions that govern applicants for licensure under 24 Del.C. Ch. 38.
6.1	The LDN provides professional service with objectivity and with respect for the unique needs and values of individuals, avoiding discrimination on the basis of race, creed, gender, national origin, age or disability.
6.2	The LDN accurately presents professional qualifications and credentials and does not permit the use of these credentials by an unqualified person.
6.3	The LDN remains free of conflict of interest and promotes or endorses products/services in a manner that is neither false nor misleading.
6.4	The LDN assumes responsibility and accountability for personal competence in practice through continuing professional education and adherence to accepted standards of practice.
6.5	The LDN shall recognize and exercise professional judgment within the limits of his/her qualifications and shall not accept or perform professional responsibilities which the LDN is not qualified to perform.
6.6	The LDN practices nutrition/dietetics based on scientific principles and current substantiated information without personal bias, enabling clients to make informed decisions.
6.7	The LDN maintains the confidentiality of information obtained from clients and maintains records relating to services provided to a client in the course of a professional relationship.
6.8	The LDN conducts himself/herself with honesty, integrity and fairness, advertises services in a factual, straightforward manner, and fulfills professional commitments in good faith.
6.9	The LDN shall not engage in dietetic practice while under the influence of alcohol or drugs which impair the provision of such practice.
6.10	The LDN shall be responsible for reporting alleged misrepresentation or violations of the Code of Ethics to the State Committee of Dietetics/Nutrition.
7.0	Crimes Substantially Related To Provision Of Dietetic/Nutrition Services.
7.1.1	“Conviction” means a verdict of guilty by whether entered by a judge or jury, or a plea of guilty or a plea of nolo contendere or other similar plea such as a “Robinson” or “Alford” plea unless the individual has been discharged under §1024 of Title 10 (domestic violence diversion program) or by §4764 of Title 16 (first offenders controlled substances diversion program). Including all crimes prohibited by or punishable under Title 18 of the United States Code Annotated (U.S.C.A.) such as, but not limited to, Federal Health Care offenses.
7.2.44	§780 Female genital mutilation.
7.3.4	§811 Criminal mischief, Felony.
7.3.11	§832 Robbery in the first degree.
7.3.26	§903 Unlawful use of credit card; Felony.
7.4.10	§1112 Sexual offenders; prohibitions from school zones.
7.4.12	§1113 Criminal non-support and aggravated criminal non-support.
7.6	Any crime which involves offenses against a public health order and decency which may tend to bring discredit upon the profession, specifically including the below listed crimes from Title 11 of the Delaware Code Annotated which evidence a lack of appropriate concern for the safety and well being of another person or persons in general or sufficiently flawed judgment to call into question the individuals ability to make health care decisions or advise upon health care related matters for other individuals.
7.6.8	§1333 Trading in human remains and associated funerary objects.
7.6.12	§1340 Desecration of burial place.
7.7.13	§4774 Drug Paraphernalia (felony).
7.9	Any crime which is a violation of Title 24, Chapter 38 (Dietetics and Nutrition Practice Act) as it may be amended from time to time.
7.10	Crimes substantially related to the provision of services as a LDN shall be deemed to include any crimes under any federal law, state law, or valid town, city or county ordinance, that are substantially similar to the crimes identified in this rule.
8.5	Failure to cooperate fully with the participating Board chairperson or that chairperson's designate or designates or the Director of the Division of Professional Regulation or his/her designate in regard to the Voluntary Treatment Option or to comply with their requests for evaluations and screens may disqualify the regulated professional from the provisions of the Voluntary Treatment Option, and the participating Board chairperson or that chairperson's designate or designates shall cause to be activated an immediate investigation and institution of disciplinary proceedings as appropriate.
9.1	Telehealth is the use of electronic communications to provide and deliver a host of health-related information and health-care services, including dietetics and nutrition-related information and services, over large and small distances. Telehealth encompasses a variety of health care and health promotion activities, including education, advice, reminders, interventions, and monitoring of interventions.
9.2.1.1	The licensee shall have an active Delaware license in good standing to practice telehealth in the state of Delaware.
9.2.1.2	Licensees understand that this rule does not provide licensees with authority to practice telehealth to clients located in any jurisdiction other than Delaware, and licensees bear responsibility for complying with laws, rules, and/or policies for the practice of telehealth set forth by other jurisdictional boards dietetics and nutrition.
9.2.1.3	Licensees practicing telehealth shall comply with all of these rules of professional conduct and with requirements incurred in state and federal statutes relevant to the practice of dietetics and nutrition.
9.2.2.1.3	The potential disruption of electronic communication in the use of telehealth.
9.2.3	Confidentiality: The licensee shall ensure that the electronic communication is secure to maintain confidentiality of the patient's medical information as required by the Health Insurance Portability and Accountability Act (HIPAA) and other applicable Federal and State laws. Confidentiality shall be maintained through appropriate processes, practices and technology, including disposal of electronic equipment and data.
9.2.4.1	The licensee shall be responsible for determining and documenting that telehealth is an appropriate level of care for the patient.
9.2.4.2	The licensee shall comply with the Board's law and rules and regulations and all current standards of care requirements applicable to onsite care.
9.2.4.3	The licensee shall limit the practice of telehealth to the area of competence in which proficiency has been gained through education, training and experience.
9.2.4.4	All initial evaluations shall be performed face to face and not through audio-only communication.
9.2.4.5	The licensee shall document in the file or record which services were provided by telehealth.


METHODS OF APPROPRIATING WATER OF WATERCOURSES 323 adjudicate any rights except those on which the State Engineer's decision is final unless it is set aside.498 The Utah Supreme Court recently declared it to be well-settled that in these judicial review proceedings, the trial de novo specified in the statute comprehends a trial of all pertinent issues to determine whether the applicant has made his burden of showing that the necessary conditions exist to warrant approval of his application.499 Procedural steps in appropriating water.- (1) In general. The procedure for acquiring an appropriative right in the 16 States that have water administrative systems for control of such function conform to a generally similar pattern. In some phases of the process, as would be expected, there are important differences from State to State. The typical procedure originated in the water administration act passed by the first State Legislature of Wyoming. Except for a few States in which there are certain preapplication provisions (see "(2) Exceptional preapplication provisions," below), the first step in the appropriative process in all 16 appropriation-permit States is the making of a written application for permission to appropriate water. The application is filed in the office of the State Engineer or other comparable official or agency. The statutes provide for giving notice of the application, and for hearing and acting upon protests from persons concerned with the possible effect of the proposed provision on their own water enterprises, or who may advance other objections. The administrator is directed by the legislature to consider the implications of the proposal, if consummated, on the public welfare and on the rights of interested parties. The Oregon State Engineer is authorized to hold a hearing to determine whether the proposed use may prejudicially affect the public interest.500 If in his judgment this will be the result, he must refer the application to the State Water Resources Board for consideration before acting upon it pursuant to the board's order.501 In Arizona, approval of an application to appropriate water for generation of electrical energy in excess of 25,000 horsepower, or to build a dam therefor, requires an act of the legislature.502 As a result of investigations required by the statute, the administrator reaches a determination either that the application be refused, or that it be approved with or without modification of the proposed plan. If the proposal 498 United States v. District Court, 121 Utah 18, 24, 242 Pac. (2d) 774 (1952). See further, Bullock v. Tracy, 4 Utah (2d) 370, 373, 294 Pac. (2d) 707 (1956); East Bench In. Co. v. Utah, 5 Utah (2d) 235, 238-240, 300 Pac. (2d) 603 (1956). 499Shields v. Dry Creek In. Co., 12 Utah (2d) 98, 101-102, 363 Pac. (2d) 82 (1961). In another recent case, it is said that the trial court's approval of certain applications to appropriate water should be affirmed if the supreme court finds probable cause to believe that unappropriated waters are available and that the application can be made without interfering with prior rights to the use of the water by others: Reimann v. Richards, 12 Utah (2d) 109, 111, 363 Pac. (2d) 499 (1961). S00Oreg. Rev. Stat. § 537.180 (Supp. 1969). 501 Id. § 537.170(1). 502 Ariz. Rev. Stat. Ann. § 45-146 (1956).


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COMMONWEALTH vs. LUIS FERNANDO RIVERA, JR.
At the trial of murder indictments the judge did not err in admitting testimonial and physical evidence regarding a drug organization of which the defendant was not a member where the defendant's motive to kill the victims was inextricably linked to the drug organization; further, any chance of prejudice was minimized by the judge's instructions [272-273]; further, the prosecutor properly used the evidence in his closing argument [273-274].
INDICTMENTS found and returned in the Superior Court Department on September 4, 1991.
A pretrial motion to suppress evidence was heard by Daniel A. Ford, J., and the case was tried before him.
ful carrying of a firearm, the defendant, Luis Fernando Rivera, Jr., appeals claiming that: (1) the judge improperly denied his motion to suppress; (2) the Commonwealth improperly interfered with his right to interview witnesses; (3) the judge erred in admitting evidence regarding a drug organization of which the defendant was not a member; (4) the prosecutor made improper prejudicial statements during his closing argument; and (5) the judge erred in refusing to instruct the jury regarding the Commonwealth's failure to test for gunpowder residue. The defendant also asks that we exercise our power under G. L. c. 278, s. 33E, to order a new trial. We affirm the convictions and decline to exercise our power under s. 33E in favor of the defendant.
minutes. The other victim attempted to flee, and Diaz shot him in the back. The victim fell to the pavement but was still alive and trying to crawl away. The defendant alerted Diaz, and Diaz then shot the victim several times.
1. Motion to suppress. The defendant claims error in the denial of his motion to suppress a statement made to the police. He argues that the police improperly obtained the statement by questioning him after he had asserted his Miranda rights during the booking process.
At the hearing on the motion to suppress, the booking officer who had advised the defendant of the Miranda warnings initially said that he had asked the defendant if he understood the warnings and waived them. That officer initially said that the defendant replied in the negative. However, on recall, the officer testified that he had responded incorrectly because he had been confused about the questions. The officer then amended his testimony, stating that he never had asked the defendant about waiver, and therefore had marked "no" on the portion of the booking sheet regarding a Miranda waiver. That procedure was meant to indicate that the booking officer never obtained a waiver from the defendant. The officer explained that it is not the responsibility of booking officers to interrogate defendants or to ask them if they wish to make statements.
During the booking process, the defendant never asked for an attorney, the defendant was not questioned about the crimes for which he was arrested, and he did not make any statements about the crimes. After the booking process was completed, the defendant was placed into a cell. Three and one-half hours later, other police officers questioned the defendant and obtained the statement at issue. However, before any questioning ensued, these officers first administered a fresh set of Miranda warnings, and the defendant expressly waived his rights.
The motion judge found beyond a reasonable doubt that the defendant had knowingly, willingly, and intelligently waived the Miranda rights, and that the statement the defendant made after receiving Miranda warnings was voluntary. The judge credited the booking officer's amended testimony and found that the defendant did not assert his rights during the booking process. The defendant claims that the judge's determination was clearly erroneous in light of the discrepancy in the booking officer's testimony. We disagree.
"In reviewing a judge's determination regarding a knowing waiver of Miranda rights and voluntariness, we 'grant substantial deference to the judge's ultimate conclusions and we will not reject a judge's subsidiary findings if they are warranted by the evidence.'" Commonwealth v. Shine, 398 Mass. 641 , 651 (1986), quoting Commonwealth v. Benoit, 389 Mass. 411 , 419 (1983). The motion judge specifically determined that the booking officer's amended testimony and the explanation given for the discrepancy was "entirely credible." The question is clearly one of credibility for the finder of fact. We do not substitute our judgment for that of the fact finder. See Commonwealth v. Mello, 420 Mass. 375 , 384 (1995).
The motion judge alternatively found that even if the defendant had invoked his rights during the booking process, in the totality of the circumstances, "the passage of time and the fresh set of Miranda warnings would be sufficient to create a valid waiver." We agree. As the judge correctly noted, there is no per se rule proscribing the resumption of questioning after a defendant has invoked his or her right to be free from interrogation. See Michigan v. Mosely, 423 U.S. 96, 102-103 (1975); Commonwealth v. Watkins, 375 Mass. 472 , 479 (1978). The proper inquiry in such circumstances is whether the defendant's right to silence or to counsel, once invoked, was "scrupulously honored" before questioning resumed. Mosely, supra at 104. Commonwealth v. Atkins, 386 Mass. 593 , 598 (1982). The motion judge was warranted in concluding that this requirement was satisfied because the booking officer never questioned the defendant, and other officers did so only after three and one-half hours had passed. Those officers had administered a fresh set of Miranda warnings, and the defendant had waived his rights in writing. See, e.g., Commonwealth v. Santo, 375 Mass. 299 , 304 (1978). There was no error.
during the pendency of the trial. [Note 4] Arrangements were made to afford the defendant's counsel and investigator the opportunity to communicate and talk with the witnesses by telephone through the district attorney's office.
When telephoned, Figuero told the defendant's investigator that he did not want to speak to defense counsel and the investigator. Reyes met with defense counsel in person at the district attorney's office and initially indicated that she was willing to speak to him and the investigator alone. However, after the prosecutor met privately with Reyes to explain her rights as a witness, Reyes then indicated that she wanted the prosecutor to attend the interview with her. Defense counsel refused to agree to these conditions and left the office without speaking to Reyes. Soto initially spoke to defense counsel over the telephone, answering some questions and refusing to answer others, but shortly after a brief interruption by the district attorney, Soto terminated the interview. We note that while under oath, Soto stated on the record that he was "through answering questions" when the district attorney entered the office.
Reyes and Soto indicated that they were willing to speak with defense counsel and his investigator, but only in the presence of a representative of the district attorney's office. Defense counsel then conducted interviews of both witnesses in the presence of a representative of the district attorney's office.
It is clear that defendants are entitled as of right to access to witnesses who are in the custody of the Commonwealth. Commonwealth v. Balliro, 349 Mass. 505 , 516 (1965). That right encompasses the opportunity for an interview. See Commonwealth v. Campbell, 378 Mass. 680 , 699 (1979). Witnesses may grant or refuse an interview with defense counsel as they so choose. If they decide to let defense counsel interview them, they have "the right to impose reasonable conditions on the conduct of the interview." See G. L. c. 258B, s. 3 (m). [Note 6] We conclude that Reyes's and Soto's insistence on the presence of a representative of the district attorney's office was well within their right to impose reasonable conditions on the interviews.
the record for the interruption. [Note 7] Moreover, both the district attorney and the prosecutor later offered to arrange another opportunity for defense counsel to speak With Soto without interruptions. There is no basis for us to conclude the judge erred in his determination.
The defendant also alleges impropriety in the prosecutor's private meeting with Reyes to explain her rights, but the record indicates that the prosecutor's instructions to Reyes were in conformance with G. L. c.258B, s. 3 (m), and with S.J.C. Rule 3:08, PF 3 (b), as appearing in 382 Mass. 799 (1981). [Note 8] The prosecutor did convey to Reyes his preference to be present at her interview with defense counsel. However, this comment does not rise to the level of hindering access to a Witness. The prosecutor clearly explained to Reyes that she had the right to speak to defense counsel alone, and that defense counsel had the right to speak to her alone. It was her choice. Cf. Commonwealth v. Doherty, 353 Mass. 197 , 211 (1967). There was no evidence to indicate that Reyes's decision was not of her own choosing. Further, in these circumstances, any potential for undue influence was removed by the judge's colloquy with Reyes and Soto. [Note 9] See Carita, supra at 142-143.
3. Admission of evidence regarding the drug organization.
The defendant contends that the judge erred in admitting testimonial and physical evidence regarding Ramos's drug organization because the evidence went to Ramos's motive to kill the victims, and not to the defendant's motive. The defendant further argues that, where all parties acknowledged that the defendant was not a member of the drug organization, the judge should have excluded this motive evidence as prejudicial. The admission of this evidence was a proper exercise of the trial judge's discretion. See, e.g., Commonwealth v. Dunn, 407 Mass. 798 , 807 (1990).
The Commonwealth's theory was that Ramos ordered the killings and the defendant was hired to carry out that order because the victims had allegedly informed the police of Ramos's drug organization, thereby causing the arrest of Ramos and the destruction of his operation. In these circumstances, the defendant's motive was inextricably linked to Ramos's motive for ordering the murders of the victims. See Commonwealth v. Borodine, 371 Mass. 1 , 8 (1976), cert. denied, 429 U.S. 1049 (1977) ("if there is evidence of motive, that evidence is admissible"). The prosecution was entitled to present as full a picture as possible of the events surrounding the alleged crime itself. Commonwealth v. Bradshaw, 385 Mass. 244 , 269 (1982) ("[w]ithout the challenged evidence, the killing[s] could have appeared to the jury as an essentially inexplicable act of violence"). Moreover, the chance of prejudice was minimized by the prosecutor's repeated statements that the defendant was not a member of the drug organization, and by the judge's repetition of special cautionary instructions concerning proper use of the evidence. See Commonwealth v. Valentin, 420 Mass. 263 , 270 (1995); Dunn, supra at 807.
4. Closing argument. The defendant also objects to the prosecutor's use of the evidence regarding Ramos's drug organization during closing argument. Because that evidence was admissible, see section 3, supra, the prosecutor was entitled to use it in argument. The prosecutor's remarks were grounded in the evidence and the fair inferences to be drawn therefrom, and therefore there was no error on this ground.
See Commonwealth v. Marquetty, 416 Mass. 445 , 450-451 (1993); Commonwealth v. Paradise, 405 Mass. 141 , 152 (1989).
5. Refusal to instruct. The defendant argues that he was entitled to, but did not receive, a jury instruction that the jurors could consider in their analysis of the evidence the failure of the police to test for the presence of gunpowder residue on the hands of the defendant and other suspects arrested for the murders. The decision whether to instruct the jury regarding the failure of the police to conduct forensic tests lies within the discretion of the trial judge. Commonwealth v. Cordle, 412 Mass. 172 , 177 (1992). See Commonwealth v. Daye, 411 Mass. 719 , 740-741 (1992). The failure of the authorities to conduct certain tests is a permissible ground on which to build a defense. See Commonwealth v. Bowden, 379 Mass. 472 , 485-486 (1980). However, unlike Bowden, the judge did not improperly remove this issue from the jury's consideration. The record establishes that the judge specifically permitted the defendant to argue the failure to test in his closing argument, and defense counsel did so. See Cordle, supra at 177 (it is the defense's job to argue to the jury the favorable inferences to be drawn from the deficiencies in police investigation). Contrast Bowden, supra (reversible error to instruct the jury not to consider lack of scientific tests).
Moreover, there was testimony that the gunpowder residue test was unavailable in the Commonwealth and that had it been available, it would have been unreliable due to the length of time that passed between the murders and the arrest of the defendant and other suspects. There is no evidence to indicate that the Commonwealth's failure to test was unreasonable or calculated to deprive the defendant of potentially exculpatory evidence. See Cordle, supra at 177. The judge's refusal to comment specifically on the failure of the police to conduct residue tests did not undermine the defense and was not an abuse of discretion. See id. at 178.
6. G. L. c. 278, s. 33E. We have considered the entire record pursuant to our obligation under G. L. c. 278, s. 33E, and conclude that the interests of justice do not require a new trial or the entry of a verdict of a lesser degree of guilt.
[Note 1] These events ultimately led to the convictions of Ramos and several others for drug and firearms offenses. See Commonwealth v. Alvarez, 422 Mass. 198 (1996).
[Note 2] The eyewitness testified that he was an unwilling participant who drove the vehicle on pain of threat to his and his family's safety.
[Note 3] Diaz was tried separately and convicted on two indictments charging murder in the first degree and also of unlawfully carrying a firearm. See Commonwealth v. Diaz, 422 Mass. 269 (1996).
[Note 4] On appeal, the defendant does not contest the denial of his motion to compel the production of the current addresses of the Commonwealth's witnesses. There is ample evidence in the record of threats to the safety of these and other witnesses to warrant the court's refusal to order the prosecution to reveal the addresses of its witnesses. See Commonwealth v. Cobb, 379 Mass. 456 , 469-470, vacated on other grounds sub nom. Massachusetts v. Hurley, 449 U.s. 809 (1980), appeal dismissed, 382 Mass. 690 (1981).
[Note 5] [The judge to Reyes]: "You know I think that [the defendant's] investigator would prefer to speak to you alone because it may be that they want to ask you things that you don't want the other side to know about, so you know that's what they would prefer. Now again, I am not going to order you, I am not going to tell you what to do because it s your choice to make. If you spoke to [the prosecutor] by himself or the police by themselves it may be you might want to think about giving [defense counsel] the same courtesy. But again that is up to you, but I will let you decide what you prefer to do."
[The judge to Soto]: "Now, [defense counsel] has told me that he would like to have some time with you, just to speak with you before you testified.
Now, [defense counsel] is working hard on behalf of his client to give him a very good defense and it would be something that he would appreciate, I'm sure, if you would agree to spend some time with him today talking with him, just the two of you .... Now, you don't have to do it. I am not going to order you to do it, but I think in fairness if you are going to speak to [the prosecutor] I am in favor of you speaking to [defense counsel] by himself if you would do that. Now, once again it isn't an order for you to do it, but I ask it because I think it would be fair then to do so for [defense counsel], for a few moments today to give him an interview in preparation for your testimony."
[Note 6] General Laws c. 258B, s. 3 (m), as appearing in St. 1995, c. 24, s. 5, provides: "To provide victims a meaningful role in the criminal justice system, victims and witnesses of crime . . . shall be afforded the following basic and fundamental rights . . . (m) for victims and witnesses, to be informed of the right to submit to or decline an interview by defense counsel or anyone acting on the defendant's behalf, except when responding to lawful process, and, if the victim or witness decides to submit to an interview, the right to impose reasonable conditions on the conduct of the interview."
[Note 7] The district attorney explained that he had not expected defense counsel to conduct the interview in his office where his private notes and materials were on his desk. Rather, the district attorney expected defense counsel to use the telephone in his office merely to determine whether Soto was willing to grant an interview, and, if so, the district attorney anticipated transferring the call to a private conference room for the interview. The record also indicates that, because of the length of the conversation in his office, the district attorney was concerned that threats were being made.
[Note 8] Supreme Judicial Court Rule 3:08, PF 3 (b), as appearing in 382 Mass. 799 (1981), provides: "A prosecutor should not discourage or obstruct communication between prospective witnesses and defense counsel. It is unprofessional conduct for the prosecutor to advise any person or cause any person to be advised to decline to give to the defense information which he has the right to give. A prosecutor may properly inform such a person that he has no duty to submit to an interview or to answer questions propounded by defense counsel, and may advise him that, if he decides to talk to counsel for the defense and does so, he (except when responding to lawful process) may impose reasonable conditions, such as those designed to ensure his own safety and the accuracy of any recording of his statements."
[Note 9] We note that the defendant never asked the judge to engage in a colloquy with Figuero pursuant to Commonwealth v. Carita, 356 Mass. 132 , 142-143 (1969). In his brief, the defendant appears to make no specific arguments regarding Figuero, other than that defense counsel was not provided unrestricted access to him. We reiterate that Figuero was within his rights as a witness to refuse defense counsel an interview. G. L. c. 258B, s. 3 (m). See also Commonwealth v. Doherty, 353 Mass. 197 , 210 (1967).

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