United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 9, 2016            Decided December 9, 2016

                         No. 15-5238

                      RONALD M. SMITH,
                         APPELLANT

                               v.

             UNITED STATES OF AMERICA, ET AL.,
                       APPELLEES


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:12-cv-01679)


       Gregory L. Lattimer argued the cause and filed the briefs
for appellant.

       W. Mark Nebeker, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were R. Craig
Lawrence and Marian L. Borum, Assistant U.S. Attorneys.

     Before: PILLARD, Circuit Judge, and EDWARDS and
RANDOLPH, Senior Circuit Judges.

     Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
                                 2

     Concurring opinion filed by Senior Circuit Judge
EDWARDS.

        RANDOLPH, Senior Circuit Judge: Ronald M. Smith sued
the United States and two United States Capitol Police Officers –
Corey Rogers and Lawrence O. Anyaso. Smith’s complaint
alleged false arrest, malicious prosecution, intentional infliction
of emotional distress, and, against the officers, a violation of his
rights under the Fourth Amendment to the Constitution. He
sought $5,000,000 in compensatory and punitive damages.

       The district court, K.B. Jackson, J., in a comprehensive
opinion, granted summary judgment in favor of the defendants.
Smith v. United States, 

, 115 (D.D.C. 2015).
Smith’s main arguments on appeal are that the court erred in
deciding that no material facts were in dispute and in refusing to
allow Smith to conduct discovery before the court ruled on the
defendants’ summary judgment motion.

         Smith’s complaint alleged that while he was working for
a federal agency, he drove several agency officials to Capitol Hill
on November 5, 2009. The area surrounding the Capitol and the
Senate and House office buildings is heavily guarded, with
barricades at the entrances to the Capitol grounds, some of which
are retractable to allow authorized vehicles to enter. When Smith
pulled into the driveway approaching one of these attended
barricades to drop off his passengers, Officer Rogers walked over
to him. According to the complaint, Officer Rogers “began to
chastise and yell at him for dropping off his passengers at that
location.” Compl. ¶ 7. A heated conversation ensued. Smith
then made a U-turn and left the area. Officer Rogers radioed
other officers, stating – according to the complaint – that Smith’s
car struck the officer’s leg as Smith drove away. A few minutes
later, Officer Anyaso arrested Smith for assault with a deadly
weapon and assault on a police officer. The complaint further
                                 3

alleged that Smith spent the night in jail. The United States
Attorney charged Smith with assault on a police officer, a
misdemeanor offense, D.C. CODE § 22-405, and offered him a
plea bargain, reducing the crime to simple assault, which Smith
did not accept. Five months later, in April 2010, the government
moved to dismiss the charges against Smith, a motion the
Superior Court granted with prejudice.

        The defense filed a motion to dismiss or, in the alternative,
for summary judgment, countering the complaint with a video
recording (no audio) of the incident and an audio recording of
Officer Rogers’ radio transmission. The government had
provided Smith with copies of these recordings while his criminal
case was pending and Smith’s complaint in this case relied on
some of this material. The audio recording, which triggered
Smith’s arrest, contradicted what Smith alleged in his complaint,
as he later admitted. 

n.2. Officer
Rogers did not report on the audiotape that Smith’s car hit him.
In the recording, Officer Rogers stated that Smith “intentionally
almost struck this officer.” Audio tape: U.S. Capitol Police
Dispatch (Nov. 5, 2009). The video also contradicted Smith’s
complaint. It shows Officer Rogers, in full uniform, turning away
from Smith’s car and walking back toward his duty post. At this
moment, the video “captured Smith looping around and pulling
away aggressively . . . [clearly showing] that Smith drove the car
toward [Officer] Rogers, and that the passenger side of Smith’s
car was close to [Officer] Rogers when the car passed by.” 

. Smith pulled away from the driveway
“much faster than he pulled in, and . . . drove in the confined area
aggressively and at a higher rate of speed than either of the two
vehicles that had entered the checkpoint” during the encounter.

      Smith sued under the Federal Tort Claims Act, 28 U.S.C.
§§ 1346(b), 2674, in his action against the United States, and
                                 4

pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 

, 389 (1971), in his Fourth
Amendment claim against the officers. Under District of
Columbia law, simple assault has three elements: “(1) an act on
the part of the accused (which need not result in injury); (2) the
apparent present ability to injure the victim at the time the act is
committed; and (3) the intent to perform the act which constitutes
the assault at the time the act is committed.” Ruffin v. United
States, 

, 1295 (D.C. 1994). Physical contact is not
required. As to assault with a dangerous weapon, the dangerous
weapon can be a vehicle. See Frye v. United States, 

, 1096-97 (D.C. 2005). As to assault on a police officer,
there is the added element “that the defendant knew or should
have known the victim was a police officer.” In re J.S., 

, 330 (D.C. 2011) (internal quotation marks eliminated).

        The district court analyzed the governing law of the
District of Columbia regarding the crime of assault and carefully
reviewed the recordings, taking note of how they contradicted
Smith’s version of the events in his complaint. Smith, 121 F.
Supp. 3d at 120-124. The court concluded that the defendant
officers had probable cause to arrest Smith for assault with a
deadly weapon and assault on a police officer. A “reasonable
officer,” the court concluded, “would have felt threatened by the
proximity of the fast-moving vehicle” to his body. 

The fact that Officer Rogers was in uniform was more than
enough to establish the additional element of assault on a police
officer. The existence of probable cause foreclosed not only
Smith’s false arrest, malicious prosecution and Fourth
Amendment claims, but also his claim of intentional infliction of
emotional distress based on his arrest. See Amobi v. D.C. Dep’t
of Corr., 

, 989-90, 992-93 (D.C. Cir. 2014); Kotsch
v. District of Columbia, 

, 1046 (D.C. 2007). The
court also held that Smith had failed to allege any facts
                                5

outrageous enough to constitute intentional infliction of emotional
distress. Smith, 

. at 125-26.

        Smith argues that the court should not have granted
summary judgment without giving him an opportunity to engage
in discovery. Under Rule 56(d) of the Rules of Civil Procedure,
if a party opposing summary judgment submits an affidavit
showing that he cannot present facts justifying his opposition, the
court “may” allow time for discovery. Convertino v. U.S.
Department of Justice, 

, 99-100 (D.C. Cir. 2012),
holds that a Rule 56(d) affiant must, among other things, “outline
the particular facts he intends to discover and describe why those
facts are necessary to the litigation,” and he must explain why he
cannot provide evidence to counter his opponent’s summary
judgment motion. Smith did neither.

        Smith had already been provided with the police reports
and documents, statements, photographs, and audio and video
recordings in connection with the case. But in his Rule 56(d)
affidavit, Smith’s lawyer stated only that the “plaintiff, at a
minimum, needs to depose the named defendants, and the
individuals who claim to be eyewitnesses.” Joint Appendix 142.
The affidavit gave no further explanation. Smith’s memorandum
opposing summary judgment stated: “At a minimum, the plaintiff
needs to depose the two(2) [sic] named defendant officers to
ascertain why they took the actions that they took at the time that
they did so; and the plaintiff needs to depose [a non-party
witness] about her actual observations which are somewhat at
odds with the video.” 

(After viewing the video, this
witness stated that it fairly reflected what she had seen.) Smith
does not specify how, on this record with its undisputed facts
showing probable cause, discovery regarding the officers’ state of
mind could create a material factual dispute. When pressed at
oral argument, Smith’s lawyer could offer no details about what
additional material facts he expected to discover.
                                 6

        Because the affidavit failed to state with “particularity
why additional discovery [was] necessary,” the district court acted
well within its discretion in denying Smith’s request. U.S. ex rel.
Folliard v. Gov’t Acquisitions, Inc., 

, 26 (D.C. Cir.
2014) (quoting 

). His lawyer’s
affidavit explained neither what Smith hoped to discover nor why
such discovery was necessary. Such “vague” requests do not
suffice under Rule 56(d). See 

.

        Smith also contends that the undisputed evidence shows
that he drove away from, not toward, Officer Rogers. But he does
not materially dispute what the video depicts – namely, that from
right where Smith had parked facing the barricade, he pulled
away from the curb and made a hasty U-turn to exit the driveway.
In one sense, as Smith insists, he was driving “away” from
Officer Rogers when he turned to exit. But the key point in
support of the assault charge is that Smith quickly pulled forward
and to the left, passing very close to the officer, before continuing
his leftward 180 degree arc to exit the driveway. He did not
adjust for the safety of the officer attending on foot by, for
example, backing up first to leave a wider berth, or edging his car
very slowly around until it was clear of the confined area. The
video confirms as much, and Smith’s claim of a “dispute” over
whether he drove “toward” or “away” from the officer is about
nomenclature, not evidence. There is no question that his car
swiftly approached dangerously close to Officer Rogers.

        Smith similarly argues that the district court erred in
granting summary judgment because the video does not
conclusively establish probable cause to arrest and charge him
with assault. He emphasizes that the video does not show him
striking Officer Rogers with his car. He disputes the speed of the
car and its proximity to Officer Rogers and he denies that he
intentionally drove his car toward the officer. These disputes, he
argues, should have precluded summary judgment.
                                 7

        Smith again misunderstands both the elements of assault
and effect of the video. As we have already mentioned, physical
contact is not an element of the offense of assault. Smith’s
assertion about his intent is beside the point. What matters is not
the “secret intent of the assaulting party,” but instead how the
“conduct and the attending circumstances” affect the assaulted
party. Sousa v. United States, 

, 1044 (D.C. 1979)
(internal quotation marks eliminated). Did Smith have an
“apparent present ability to injure” Rogers? 

. For probable cause, the officers needed only a reasonable
belief that he did. Brown v. United States, 

, 1012
(D.C. 1991); Nichols v. Woodward & Lothrop, Inc., 

, 285 (D.C. 1974).

         That the officers had such a reasonable belief is plain. We
do not suggest that videos are always conclusive, because even a
video can give a distorted view of a disputed scene. Nevertheless,
in this case, the video indisputably shows Smith accelerating his
car toward Rogers and nearly hitting him. Probable cause did not
depend on how many miles per hour the car was traveling or
whether the car actually touched the officer’s leg. Smith may
claim that he drove away from rather than toward Officer Rogers,
but as we have said, this claim merely recharacterizes the events
depicted in the video. The district court properly relied on the
video, and we do as well. See Scott v. Harris, 

,
380-81 (2007). With no material facts in dispute, probable cause
became a question of law. See 

; Enders v.
District of Columbia, 

, 469 (D.C. 2010). The district
court’s finding of probable cause, a finding with which we agree,
foreclosed at least Smith’s claims of false arrest, malicious
prosecution and a violation of the Fourth Amendment’s
proscription against seizure of the person without probable cause.
Smith, 

at 119-24; Pitt v. District of Columbia,

, 502 (D.C. Cir. 2007).
                                  8

        Smith devotes much of his attention – and attempts to
escape the force of the video – by focusing on a supposed
inconsistency in Officer Rogers’ accounts of what happened. He
points out that Officer Rogers stated on the police radio that
Smith “intentionally almost struck” him, but later reported that
Smith’s car “brush[ed] the back” of his leg. Officer Rogers also
sought medical care and claimed temporary disability. Smith
contends that because the video shows that his car did not strike
Officer Rogers, the officer’s claims to the contrary are evidence
of bad faith. That Officer Anyaso knew of these discrepancies
and still made the arrest supposedly shows his own bad faith as
well.

        Yet Smith fails to connect any of this to the relevant legal
doctrine. Citing Edmond v. U.S. Postal Service General Counsel,

, 419 (D.C. Cir. 1991), he tells us that his Bivens
claims rely on something called “perjurer’s liability.” Edmond
coined this phrase in a false arrest case, using it as a shorthand for
an alleged Fourth Amendment violation by an official “who
causes an indictment and consequent arrest by perjuring himself
or arranging for the submission of perjured testimony before the
grand jury.” 

circumstances are present in this case.
Neither Officer Rogers nor Officer Anyaso testified before a
grand jury and the video and the audio recording belie any claim
that they did not have probable cause to arrest Smith. In addition,
after a later phase of Edmond, which wound up in the Fourth
Circuit for reasons unnecessary to describe, the court held that
government officials have absolute immunity from civil liability
for their grand jury testimony. Lyles v. Sparks, 

,
378-79 (4th Cir. 1996). The Supreme Court has now agreed.
Rehberg v. Paulk, 

, 1506 (2012). And so we
analyze Smith’s Bivens action as one for unconstitutional false
arrest and malicious prosecution. Like their common law
counterparts, both of these claims require the absence of probable
cause. See 

, 993.
                                9

         As to Smith’s contentions regarding probable cause, he
neglects the critical point that the “assessment of probable cause
is an objective one. An arrest is supported by probable cause if,
‘at the moment the arrest was made, . . . the facts and
circumstances within [the arresting officers’] knowledge and of
which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing’ that the suspect
has committed or is committing a crime.” Wesby v. District of
Columbia, 

, 19 (D.C. Cir. 2014) (quoting Beck v.
Ohio, 

, 91 (1964)) (alteration in original). Even if
Officer Rogers’ post-arrest statement that Smith’s car “brushed”
his leg meant something different than his pre-arrest radio
transmission that Smith “almost struck” him, this would not affect
the existence of probable cause to arrest and prosecute Smith
based on the video. See Wardlaw v. Pickett, 

, 1304-05
(D.C. Cir. 1993); District of Columbia v. Murphy, 

,
932 (D.C. 1993). The prosecutor’s awareness of Officer Rogers’
differing accounts also forecloses any argument that the officer’s
statement about being “brushed,” as opposed to the video and
audio recordings, led to the assault charge against Smith. The
district court therefore properly granted summary judgment on the
false arrest, malicious prosecution and Bivens claims.

        We also agree with the district court’s dismissal of
Smith’s claim that he was subjected to intentional infliction of
emotional distress. The elements of this tort are: “(1) extreme
and outrageous conduct on the part of the defendant which (2)
intentionally or recklessly (3) causes the plaintiff severe
emotional distress.” Minch v. District of Columbia, 

, 940 (D.C. 2008) (quoting District of Columbia v. Thompson,

, 289-90 (D.C. 1990)). Smith’s distress from the
arrest would not suffice because the officers had probable cause
to arrest him. 

. Nor is distress from the
prosecution sufficient: the prosecutor charged Smith with assault
on a police officer because of the evidence that Smith had
                                10

committed that offense. Smith cites District of Columbia v. Tulin,

(D.C. 2010), arguing that the actions of Officers
Rogers and Anyaso are highly similar to the offending conduct of
the officer in that case. We disagree. In Tulin, an off-duty officer
rear-ended the plaintiff, falsely reported on her radio that she was
in distress, and pressured her subordinate to make an arrest. 

Unlike in Tulin, however, there is undisputed evidence
here establishing that the police had probable cause to arrest
Smith. And, we agree with the district court that nothing here
“rises to the level of ‘outrageousness’ as to be beyond all possible
levels of decency and utterly incomprehensible in a civilized
society.” Smith, 

at 125 (quoting Lyles v.
Micenko, 

, 187 (D.D.C. 2005)); see, e.g.,
Ortberg v. Goldman Sachs Grp., 

, 163 (D.C. 2013).

                                                          Affirmed.
     EDWARDS, Senior Circuit Judge, concurring: It is clear
that the existence of probable cause defeats Smith’s claims of
false arrest/imprisonment and malicious prosecution. In my
view, the question regarding Smith’s claim of intentional
infliction of emotional distress is more difficult, although I
ultimately agree that we must dismiss this claim as well.

    Nevertheless, there are aspects of this case that distress
me, so I am stirred to write separately. The law does not
always produce just results and this case may be a good
example. As I see it, the incident between Smith and Officer
Rogers was much ado about nothing — a needlessly absurd
faceoff between a seemingly hot-headed citizen and a
seemingly impetuous police officer. The citizen invariably
loses in such exchanges, as Smith found out. Smith’s
imprudent action gave Officer Rogers just enough to assert
probable cause, and the officer acted on it.

     I do not doubt that Officer Rogers was within his rights to
pursue someone like Smith, who appeared to have violated
the law. What is distressing here is that, although he had
probable cause to arrest Smith, Officer Rogers did much
more. The officer embellished and fabricated his official
reports and post-arrest statements, claiming that Smith’s car
brushed or grazed his leg. See JA 84, 130–32. These claims
were untrue. And, of course, as the officer had reason to
know, his fabrications were included in the papers filed with
the prosecutor who ultimately charged Smith. See JA 72–76.
In these circumstances, it would not have been implausible for
Smith to claim that, separate and apart from the events giving
rise to his arrest, Officer Rogers’ dishonesty in recounting
those events caused him great emotional distress.

    A prosecutor is not obliged to charge a person merely
because he has been arrested pursuant to probable cause. The
prosecutor has discretion to weigh the evidence before her
and decide whether to pursue the matter. Many factors may
                               2
affect a prosecutor’s decision to press criminal charges.
Therefore, in a case such as this, Smith might have reasonably
claimed that Rogers’ fabrications unduly influenced the
prosecutor, resulting in him being charged, and then causing
him to be engaged with the criminal justice system for months
before the prosecution was finally dismissed as meritless. The
net result of Smith’s prolonged encounter with the criminal
justice system – arguably attributable in no small part to
Rogers’ fabrications – was that he lost his job and his security
clearance. Surely some might view this as enough to produce
great emotional distress. In other words, given the impact that
the criminal prosecution had on his life, Smith might have
raised an emotional distress claim even if there was probable
cause for arrest.

      There are three problems with my analysis. First, the
theory that I have propounded was not raised by Smith. So the
issue was never joined, either at the trial court or on appeal.
Second, because the issue was not properly raised, I have no
grounds upon which to conclude that the prosecutor was
duped by Rogers’ fabrications. In other words, there is
nothing in the record to indicate that the prosecutor relied on
anything other than the original reason given by Rogers to
support probable cause for Smith’s arrest. Third, the standard
for intentional infliction of emotional distress is very high and
it is far from clear that Smith could meet this standard even on
the most generous view of my theory of emotional distress. I
am therefore obliged to concur in the judgment of the court.