BERYL A. HOWELL, United States District Judge.
The plaintiff, Terrell D. Hargraves, filed this lawsuit against the District of Columbia and two D.C. Metropolitan Police Department ("MPD") Officers Kevin Lally and Sean Connors, alleging that, on September 30, 2011, the plaintiff sustained a "brutal" beating and wrongful arrest by the two defendant officers, in violation of the plaintiff's Fourth Amendment and Fifth Amendment rights, under 42 U.S.C. § 1983. See Am. Compl. ¶¶ 6-7, 53-66 (Count III), ECF No. 8.
As indicated by the pendency of cross-motions for summary judgment, the factual
In the evening of September 30, 2011, at approximately 7:00 p.m., the defendant officers were driving in uniform and in a marked police vehicle northbound in the left lane of Minnesota Avenue, NE, near the intersection of Dix Street, NE, in Washington, D.C. Defs.' SMF ¶ 1, ECF No. 33; Pl.'s Resp. Defs.' SMF ("Pl.'s Resp. SMF") ¶ 1, ECF No. 37-1. The parties do not dispute that this a high crime area. Pl.'s Resp. SMF ¶ 1. The defendant officers' police vehicle was passed on the right side by a car, in which the plaintiff was seated in the front passenger seat. Id. Upon noticing what they thought was a defective rear brake light on the passing car, the defendant officers switched over to the right lane behind the car. Defs.' SMF ¶ 1; Pl.'s Resp. SMF ¶ 1; Defs.' Mot. Ex. B ("Lally Dep.") 24:21-22, ECF No. 33-2.
The defendant officers then observed the plaintiff looking over his shoulder and around, including in the direction of the police car. Pl.'s SMF ¶ 8, ECF No. 31-2; Lally Dep. at 27:14-22, ECF No. 33-2 (testifying that officers observed the plaintiff "look over his shoulder several times back at the police vehicle"); Pl.'s Opp'n Def.'s Summ. J. ("Pl.'s Opp'n") Ex. B ("Connors Dep.") at 23:11-17, ECF No. 37-3 (testifying that after police car pulled behind plaintiff's car, the plaintiff "start[ed] exhibiting nervous behavior in the form of — he starts looking over his shoulder, but he's looking over rapidly. And he's looking over briefly and rapidly, you know, to the point where it's almost like he's jerking his neck back, looking at us, looking forward, looking at us, looking forward.").
Officer Lally then exited the police vehicle and approached the plaintiff, smelling "a strong odor of marijuana emanating from his person." Lally Dep. at 33:12-14,
Officer Lally repeatedly yelled at the plaintiff to get on the ground, which the plaintiff did not do. Lally Dep. 26:2-3, ECF No. 31-3; Pl.'s Dep. 26:4-7, ECF No. 33-2. Officer Lally then called Officer Connors for backup. Lally Dep. 70:7-9, ECF No. 31-3. When the plaintiff's loose arm was pulled from the waistband of his shorts, he held both his hands in fists and stood in what Officer Lally described as a "traditional fighting stance." Id. 70:13-20. Around this time, Officer Lally used his metal ASP baton to hit the plaintiff's right leg, and Officer Connors performed a tactical takedown of the plaintiff in order to bring him to the ground. Id. 71:9-13. The plaintiff's loose arm was put into handcuffs when he was finally seated on the ground. Pl.'s Dep. 71:9-13, ECF No. 33-2. The parties dispute the precise amount of time that elapsed during this encounter, but the plaintiff agreed that it took no more than a few minutes. Id. 28:16-20; Defs.' SMF ¶ 8.
The plaintiff explains that he resisted giving Officer Lally his loose, right arm because he suffered nerve damage in that arm due to a previous gunshot wound and, further, that he said this this during the struggle. Pl.'s Dep. 28:3-12, ECF No. 33-2; Pl.'s Resp. SMF ¶ 6; Am. Compl. ¶¶ 13. Indeed, Officer Lally testified that he heard the plaintiff say "I've been shot, I've been shot," but did not understand that he meant a gunshot had caused nerve damage and was the reason for resisting having handcuffs placed on his loose hand. Lally Dep. 62:14-22, ECF No. 31-3.
The plaintiff was subsequently charged with two counts of assault on a police officer ("APO") for his active resistance to arrest, one count of possession of a controlled substance, and one count of destruction of the evidence of the controlled substance due to his alleged ingestion of an ecstasy pill. Pl.'s SMF ¶¶ 29-30. The two controlled substance charges and one of the APO charges were voluntarily dismissed by the government and, following a bench trial, on March 9, 2012, the Superior Court dismissed the remaining APO charge. Pl.'s Mot. Ex. F ("Tr. Super. Ct. Hr'g") 151:21-23, ECF No. 31-8. Noting that the government "was unable to produce the testimony of Officer Laly [sic]" due to disclosure issues, id. 149:14-20, the court found that "based upon the prior use of excessive force that started off this encounter, the fact that Mr. Hargraves testified that the cuff on his right hand was exceedingly tight and the injury to his right hand and the physical suffering that he would experience as a result of both hands cuffed behind them [sic], that the combination certainly of all of those factors provides a reason for me to doubt that Mr. Hargraves was not, in fact, acting without justification or excuse in simply refusing to put his left hand behind his back in order to be cuffed," id. 151:10-20. Based on this finding, the court concluded that the government had not proven, "beyond a reasonable doubt that Mr. Hargraves acted without justification or excuse," when that "burden is squarely on the Government...." Id. at 149:10-13.
The plaintiff's arrest by the defendant officers constituted a violation of a parole condition from a prior conviction and resulted in his detention for over seven months until he was cleared of the charges. Am. Compl. ¶ 29-31. During that time, unfortunately, the plaintiff lost his job at the Washington Hospital Center and missed the birth of his son. Id. ¶¶ 32-33.
Six months after dismissal of the criminal charges, the plaintiff, on September 4, 2012, filed the instant lawsuit. Id. ¶ 30. After denial of the defendants' partial motion to dismiss the amended complaint, see Mem. & Order Denying Dismissal, ECF No. 12, the parties engaged in extended discovery for over a year. See Minute Orders, dated March 20, 2014; June 30, 2014; July 21, 2014; September 15, 2014 (granting requests for extensions of discovery from April 15, 2014 until October 17, 2014). Pending before the Court are the parties' cross-motions for summary judgment. See generally Pl.'s Mot; Defs.' Mot.
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). Summary judgment is properly granted against a party who, "after adequate time for discovery and upon motion, ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden to demonstrate the "absence of a genuine issue of material fact" in dispute, id. at 323, 106 S.Ct. 2548, while the nonmoving party
"Evaluating whether evidence offered at summary judgment is sufficient to send a case to the jury," is "as much art as science." Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C.Cir.2011). This evaluation is guided by the related principles that "courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment," Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014), and "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor," id. at 1863 (quoting Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505). Courts must avoid making "credibility determinations or weigh[ing] the evidence," since "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); see also Burley v. Nat'l Passenger Rail Corp., 801 F.3d 290, 293-94, 2015 WL 5474078, *1 (D.C.Cir. Sept. 18, 2015). In addition, for a factual dispute to be "genuine," the non-moving party must establish more than "[t]he mere existence of a scintilla of evidence in support of [its] position," Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505, and cannot rely on "mere allegations" or conclusory statements, see Equal Rights Ctr. v. Post Props., 633 F.3d 1136, 1141 n. 3 (D.C.Cir.2011); Veitch v. England, 471 F.3d 124, 134 (D.C.Cir.2006); Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir. 1993); accord FED. R. CIV. P. 56(e). If "`opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.'" Lash v. Lemke, 786 F.3d 1, 6 (D.C.Cir.2015) (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). The Court is only required to consider the materials explicitly cited by the parties, but may on its own accord consider "other materials in the record." FED. R. CIV. P. 56(c)(3).
In cases, such as this one, involving cross-motions for summary judgment, "each side concedes that no material facts are at issue only for the purposes of its own motions." Sherwood v. Washington Post, 871 F.2d 1144, 1147 n. 4 (D.C.Cir. 1989) (citation omitted). In other words, "[t]he fact that both parties simultaneously are arguing that there is no genuine issue of fact ... does not establish that a trial is unnecessary thereby empowering the court to enter judgment as it sees fit." CHARLES A. WRIGHT AND ARTHUR R. MILLER, ET AL. 10A FED. PRAC. & PROC. CIV. § 2720 (3d Ed.2014); see CEI Wash. Bureau, Inc. v. U.S. Dep't of Justice, 469 F.3d 126, 129 (D.C.Cir.2006) (noting that cross-motions for summary judgment and absence of argument about existence of material facts "does not concede the factual assertions of the opposing motion"); B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 593 (6th Cir.2001) (holding "summary judgment
In suits brought under 42 U.S.C. § 1983, "[p]ublic officials are immune from suit ... unless they have `violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.'" City and County of San Francisco v. Sheehan, ___ U.S. ___, 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015) (quoting Plumhoff v. Rickard, ___ U.S. ___, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014)). The doctrine "exists to protect officers `from undue interference with their duties and from potentially disabling threats of liability.'" Lash, 786 F.3d at 5 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "Qualified immunity `gives government officials breathing room to make reasonable but mistaken judgments' and `protects all but the plainly incompetent or those who knowingly violate the law.'" Messerschmidt v. Millender, ___ U.S. ___, 132 S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011)). Consequently, whether qualified immunity applies "`generally turns on the objective legal reasonableness of the [official's] action, assessed in light of the legal rules that were clearly established at the time.'" Id. at 1245 (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
The Supreme Court in Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), mandated a two-step protocol for evaluating a government officials' qualified immunity defense to a § 1983 claim. First, the court must determine whether the plaintiff has "alleged facts showing a violation of a constitutional right," and, second, the court must decide "whether the constitutional right was clearly established at the time of the incident." Fox v. District of Columbia, 794 F.3d 25, 29 (D.C.Cir.2015) (quoting Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). The test is flexible in that a court may address either of the two steps first. Pearson, 555 U.S. at 242, 129 S.Ct. 808; Fox, 794 F.3d at 29 (same).
A right is "clearly established" if it is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Taylor v. Barkes, ___ U.S. ___, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (quoting Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012)). "`Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or [] Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.'" Doe v. District of Columbia, 796 F.3d 96, 104 (D.C.Cir.2015) (quoting Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001)). In other words, "existing precedent must have placed the statutory or
The plaintiff contends that the defendant officers used metal ASP batons on his body and a tactical takedown maneuver to arrest him when he "had done nothing wrong or illegal prior to being handcuffed and arrested," Pl.'s Mem. Supp. Mot. Summ. J. ("Pl.'s Mem.") at 8, ECF No. 31-1, thereby establishing the defendant officers' use of excessive force and wrongful stop and arrest underlying his constitutional and common law claims. Relying on deposition testimony by MPD Sergeant George F. O'Bryant, Jr., the witness designated by the District of Columbia to testify about the MPD's procedures and standards, under FED. R. CIV. P. 30(b)(6), the plaintiff deems the District of Columbia to have "agreed" that the defendant officers had "no reasonable suspicion to stop the vehicle in which [the plaintiff] was a passenger," or to stop the plaintiff, Pl.'s SMF ¶¶ 11-15, and that these defendant officers had no "probable cause to believe that he was involved in any wrongdoing, id. ¶ 27. Based on these purported concessions, the plaintiff argues that he is entitled to summary judgment in his favor on all seven of his claims, and requests a jury trial only "for the purpose of determining a damages figure." Pl.'s Mot. at 1.
Not surprisingly, the defendants vehemently dispute that Sgt. O'Bryant's testimony amounts to the concessions cited by the plaintiff and, instead, contend that the defendant officers conducted a lawful investigatory stop of the plaintiff, using an appropriate amount of force against the plaintiff, who appeared to be resisting arrest, and that the plaintiff's arrest for APO was, consequently, supported by probable cause. Defs.' Mem. Supp. Summ. J. ("Defs.' Mem.") at 5-6, ECF No. 33. As such, the defendants argue that the plaintiff's claims fail as a matter of law and summary judgment should be granted to the defendants. Defs.' Mot. at 1.
As noted, the parties do not disagree about the material facts but only whether those facts and the inferences that can be drawn from them establish, as a legal conclusion, that the defendant officers (1) had articulable reasonable suspicion when they first stopped the plaintiff and, then, had probable cause when the stop turned into an arrest; and (2) used appropriate force in making both the stop and the arrest. In resolving the parties' dispute over the correct legal conclusions to reach from the facts presented, the Court first addresses the individual defendants' claim to qualified immunity on the plaintiff's Fourth and Fifth Amendment claims, set out in Count III, before turning to consideration of the common law claims.
The plaintiff alleges, in Count III of the Amended Complaint, that the defendant officers are liable, under § 1983, for violating the plaintiff's Fourth Amendment rights when they unlawfully seized and arrested him and used excessive force to effectuate this stop and arrest.
Generally, "searches [and seizures] must be supported by a warrant obtainable upon a showing of probable cause," United States v. Jackson, 415 F.3d 88, 91 (D.C.Cir.2005), but "[a]s an exception to the Fourth Amendment's warrant requirement, officers may conduct a brief investigative `Terry stop' so long as they have `reasonable, articulable suspicion' of criminal conduct," United States v. Goddard, 491 F.3d 457, 460 (D.C.Cir.2007) (per curiam) (citing Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). While "Terry stops require only that officers have a `minimal level of objective justification,'" id. (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)), "[t]he prohibition against unreasonable seizures requires that all seizures, even ones involving `only a brief detention short of traditional arrest,' be founded upon reasonable, objective justification," United States v. Gross, 784 F.3d 784, 786 (D.C.Cir.2015) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)).
The Supreme Court made clear in Illinois v. Wardlow, 528 U.S. at 125, 120 S.Ct. 673, that police officers are justified in making a Terry stop where a suspect flees from the scene without any other provocation than the presence of the police, particularly in a high crime area. See also California v. Hodari D., 499 U.S. 621, 624 n. 1, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ("That it would be unreasonable to stop,
In the instant case, the officers were patrolling in a marked police vehicle in a high-crime area. Defs.' SMF ¶ 1; Defs.' Mem. at 2. They observed a car with a defective brake light, and when they changed lanes to get behind that car, they saw the plaintiff look back in their direction, look around in a nervous manner, then tap the driver's shoulder with brief conversation as if requesting a stop, followed by the abrupt stop of the car in the middle of a busy street for the plaintiff's "expedient" exit from the car. Lally Dep. 27:14-22, ECF No. 33-2; Defs.' Resp. SMF ¶¶ 6-10. Given the close proximity in time between the plaintiff's apparent observation of the police's presence, combined by the officers' observation of the plaintiff's nervousness, followed by the plaintiff's prompt exit from the car, the officers suspected that the plaintiff was attempting to flee from the officers. The officers' perception of the plaintiff's classic unprovoked flight suggesting potential criminal conduct was corroborated when Officer Lally smelled the odor of marijuana on the plaintiff's person and asked him to stop. Lally Dep. 33:12-14, ECF No. 39-3. As in Wardlow, these circumstances support the officers' reasonable, articulable suspicion of criminal conduct when Officer Lally first asked the plaintiff to stop after his exit from the car.
The plaintiff argues that Wardlow is inapplicable because there "it was established that the individual did, in fact, notice the police, and upon noticing the police, took flight," when such facts are absent here. Pl.'s Opp'n. at 8. According to the plaintiff, the defendants were unable to establish either that the plaintiff was looking back at the police rather than the passengers in the backseat or, even if the plaintiff were looking back at the police car, that he recognized the car as belonging to the police. Id at 8-9. These arguments are to no avail. The plaintiff is incorrect to read Wardlow as requiring the suspect, in fact, to have noticed the police, since the Supreme Court stated only that "[a]s the caravan passed 4035 West Van Buren, Officer Nolan observed respondent
The plaintiff also contends that his exit from the car was not a flight because no stop had been conducted yet and he could not flee from officers who were not then pursuing him. Pl.'s Opp'n at 9. This is a misunderstanding of Wardlow. The suspicious behavior recognized in Wardlow is precisely that the respondent fled before the police approached him. Wardlow, 528 U.S. at 124-25, 120 S.Ct. 673. In that case, too, the police had not yet conducted a stop but Wardlow, upon seeing the police, fled from the scene. It is exactly the unprovoked nature of the perceived flight after seeing the police in a high crime area that was suspicious and provided the reasonable suspicion for the police to conduct an investigative stop. This significant contextual difference distinguishes the situation from that in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), which is cited by the plaintiff. See Pl.'s Mem. at 16. As the Supreme Court explained in Wardlow, Royer held that an "individual has the right to ignore the police and go about his business," when an officer approaches without reasonable suspicion, but unprovoked flight in itself may give rise to reasonable suspicion. Wardlow, 528 U.S. at 125, 120 S.Ct. 673. In this case, the nervous behavior of the plaintiff after looking in the direction of the police in a high crime area, together with his unorthodox exit from the abruptly stopped car in the middle of a busy street, provided objectively reasonable grounds for suspicion and renders the investigative stop of the plaintiff lawful. Lally Dep. 27:14-17, ECF No. 33-2; Lally Interrogs. No. 7.
The conclusion that the defendant officers conducted a lawful Terry stop does not end the inquiry. The typical Terry stop involves only a brief detention, without physical restraint. Nevertheless, the use of handcuffs during a Terry stop does not automatically convert it into an arrest since "the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The amount of force that the officers may reasonably use during a Terry stop depends on the "facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. As the D.C. Circuit explained in United States v. Wilson, No. 11-0275, 1994 WL 408264, at *2 (D.C.Cir. May 5, 1994) (per curiam), if members of the police cannot use some amount of force to restrain a detainee where necessary, "Terry stops would be outlawed. Defendants would simply disobey the police and run, knowing that the police would then need probable cause to chase and tackle them."
The D.C. Circuit's discussion in United States v. Dykes, 406 F.3d 717, 720 (D.C.Cir.2005), of the allowable use of force during a Terry stop is illustrative. The Dykes Court upheld the reasonableness
The parties agree that at some point during the struggle to handcuff the plaintiff, the investigative stop ripened into an arrest, for which the Fourth Amendment requires probable cause. "Probable cause exists if a reasonable and prudent police officer would conclude from the totality of the circumstances that a crime has been or is being committed." United States v. Holder, 990 F.2d 1327, 1328 (D.C.Cir.1993); see also Dukore v. District of Columbia, 799 F.3d 1137, 1142-43, 2015 WL 5022397, at *5 (D.C.Cir.2015) (same); Wesby v. District of Columbia, 765 F.3d 13, 19 (D.C.Cir.2014) ("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.") (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)) (alterations in original); United States v. Washington, 670 F.3d 1321, 1324 (D.C.Cir.2012) (same). Thus, for the plaintiff's arrest to be lawful, the defendant officers must have had probable cause or a reasonable good faith belief that the plaintiff committed a crime at the time the arrest took place.
Assessment of whether the officers had probable cause to make an arrest
The plaintiff contests that these facts support probable cause for an APO arrest. First, he points out that resisting arrest in violation of the APO statute could not provide probable cause supporting the arrest because the plaintiff was placed in at least one handcuff before any resistance began. As support, the plaintiff cites the Superior Court's finding that, "[the Officers,] in less than 10 seconds began striking him on the legs with his [metal ASP] baton[] ... and that
Second, the plaintiff argues that efforts to handcuff the plaintiff should have stopped once the officer discovered that the plaintiff had no weapon in his waistband. Pl.'s Opp'n at 10. Again, timing is important. As discussed supra, the handcuffing was part of the investigative stop. Officer Lally acted reasonably in attempting to handcuff the plaintiff during a lawful investigative stop because the plaintiff was perceived to still be in flight, this officer was acting alone against a bigger person, who had reached into his waistband indicating that he may have been armed. Officer Lally could not have realized that the plaintiff was unarmed until he had secured the plaintiff with handcuffs, at which point the plaintiff was actively resisting by not providing access to his loose arm and had balled his hands into fists, as if in "a traditional fighting stance." Lally Dep. 70:13-20, ECF No. 39-3. Even though the officer may have realized that the plaintiff was unarmed mid-struggle, he had objective reason to subdue the plaintiff, because the plaintiff continued to appear to pose both a flight risk and a risk to the safety of the officers and others on the public sidewalk where the struggle occurred.
Third, the plaintiff contests a finding of probable cause for his arrest because the plaintiff was, in fact, not resisting the officers during the investigative stop but, due to an old gunshot wound in one arm, sought to avoid any significant physical pain or discomfort from having that arm handcuffed. Pl.'s Opp'n at 10. The parties do not dispute that the plaintiff tried to communicate this old injury to the officers as a reason for not giving the officers' his loose arm, but Officer Lally disclaims understanding the import of what the plaintiff was saying. Defs.' Resp. SMF ¶ 22. The plaintiff avers that he tried to explain to the officer that he had a previous gunshot wound in his right hand and therefore could not give him that arm because holding his arms in a certain way caused pain. Am. Compl. ¶ 13. Officer Lally, on the other hand, testified that the plaintiff merely shouted "I've been shot! I've been shot!" Lally Dep. 62:14-22, ECF No. 31-3. The woman, who had been in the back seat of the car in which the plaintiff had exited, observed the plaintiff's encounter with the police through the car window and testified at the plaintiff's criminal hearing that the plaintiff looked like he was resisting arrest and that she shouted to the plaintiff to stop resisting, but the plaintiff shouted back that he could not because he had been shot and cannot move his loose arm that way. Tr.Super. Ct. Hr'g 150:18-23.
Even crediting the plaintiff's account that he tried to communicate to the officers that he could not provide his loose arm to be handcuffed due to an old gunshot wound, probable cause to arrest the plaintiff would nonetheless be present. Assessment of reasonable suspicion is made "objectively, that is, from the perspective of a reasonable police officer." United States v. Thompson, 234 F.3d 725, 729 (D.C.Cir.2000). From the perspective of the officers, the plaintiff tried to flee soon after he noticed the police car, Officer Lally smelled marijuana on the plaintiff, and the plaintiff refused to give up his loose arm to handcuffs and refused to get on the ground as directed but instead kept his loose hand in the waistband of his shorts and then balled up into a fist. The
Moreover, even if the defendant officers' observations of the plaintiff's nervousness, flight and resistance to arrest were incorrect and, instead, the plaintiff was looking at the passengers in the back seat of the car coincidentally when the police car pulled behind, and he jumped out of the car to buy cigarettes, Pl.'s Mem. at 1-2, and was neither attempting to flee from the police or resist arrest, the result would be the same. Merely because the plaintiff may have innocent explanations for each of the particular observations underlying the officers' reasonable suspicion does not defeat the lawfulness of the investigative stop. See Navarette v. California, ___ U.S. ___, 134 S.Ct. 1683, 1691-1692, 188 L.Ed.2d 680 (2014) (finding possibility of innocent explanation for observed behavior does not undermine reasonable suspicion); United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ("A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct.").
That being said, given the plaintiff's innocent explanations for his conduct, the plaintiff's encounter with the police may have had a different outcome with fewer adverse consequences for the plaintiff had the police handled the stop differently, for example, by trying to resolve their suspicions more patiently with additional questions and by exercising more restraint before resorting to any show of force. Yet, the Supreme Court has instructed that "[t]he reasonableness of the officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques." United States v. Sokolow, 490 U.S. 1, 10-11, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (rejecting respondent's argument that investigative stop was unreasonable because "the agents should have simply approached and spoken with him, rather than forcibly detaining him"). Indeed, the Supreme Court has directed courts to refrain from "indulg[ing] in unrealistic second-guessing," id. (internal quotations and citations omitted), of the investigative steps taken by police to dispel their reasonable suspicion and focus instead on the objective circumstances, even if the officers' perceptions turn out to be incorrect on both the law and the facts, see Heien v. North Carolina, ___ U.S. ___, 135 S.Ct. 530, 534, 536, 190 L.Ed.2d 475 (2014) (noting that "a search or seizure may be permissible even though the justification for the action includes a reasonable factual mistake ... or the law turns out to be not what was thought"). These legal strictures must guide this Court's analysis.
The Court next considers the plaintiff's claim that the defendant officers used excessive force.
Claims based on a police officer's use of "excessive force in the course of making an arrest, investigatory stop, or other `seizure' of [one's] person" are "properly analyzed under the Fourth Amendment's `objective reasonableness' standard." Graham, 490 U.S. at 388, 109 S.Ct. 1865. "The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight[,]" id. at 396, 109 S.Ct. 1865, considering such factors as "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [s]he is actively resisting arrest or attempting to evade arrest by flight," id. (citations omitted). Excessive force may be found "if `the nature and quality of the intrusion on the individual's Fourth Amendment interests'
The plaintiff cites, as grounds for his excessive force claim, the defendant officers' use of handcuffs, a metal ASP baton and a tactical takedown. Am. Compl. ¶ 14, 16, 58; Pl.'s Mem. at 14-15. Under the circumstances, the use of each of these methods was reasonable.
First, as explained supra Part III.A.1, the officers reasonably used handcuffs during their investigative stop of the plaintiff because he appeared to be in flight and, by his hand gestures (i.e., loose hand in waistband and balled fist), posed a danger to others, including the officers. Second, Officer Lally's use of his baton was reasonable. Officer Lally used his baton twice on the plaintiff's right leg in order to lower the plaintiff to the ground, after the plaintiff refused to comply with the officer's commands to do so. Lally Dep. 62:9-22; 70:13-20; 71:7-9, ECF No. 31-3. Considering the factors described in Graham, the Court finds that it was reasonable for the officer to use the baton because, from the perspective of the officer, the plaintiff, who appeared to be actively resisting the officers, posed a significant risk to the safety of the officers and others on the public sidewalk where the volatile struggle occurred. Third, Officer Connors reasonably used a tactical takedown maneuver to force the plaintiff to ground. Officer Lally called Officer Connors to assist in the handcuffing of plaintiff precisely because Officer Lally was struggling to do it alone given the plaintiff's resistance and refusal to comply voluntarily with verbal commands. Id. 70:1-71:13. At the moment that Officer Connors performed a tactical takedown to take the plaintiff to the ground, Officer Lally was still unable to handcuff the plaintiff's loose arm. Id. 70:7-13. The takedown may have forestalled the need for additional baton strikes since this step apparently brought the plaintiff to the ground. The escalating force used to secure the plaintiff — beginning with a command to stop, and then use of handcuffs, leading to use of a baton when resistance persisted and the plaintiff's hand gestures indicated an potential increased safety threat, and, finally, a tactical takedown — not only worked effectively, but, in a short period during a volatile struggle on a public sidewalk. This use of force was reasonable in such circumstances. See Westfahl v. District of Columbia, 75 F.Supp.3d 365, 373-74 (D.D.C.2014) (granting summary judgment based on qualified immunity to the defendant officers where officer used baton strikes and tactical takedowns to subdue the plaintiff while he was struggling with another officer in an effort to resist restraints).
The plaintiff stresses that the officers' use of force was excessive because the plaintiff had done nothing wrong. Pl.'s Opp'n at 11. Indeed, the "severity of the criminal activity at issue" is one of the factors cited in Graham in evaluating excessive force claims. Graham, 490 U.S. at 396, 109 S.Ct. 1865. Yet, the nature of the criminal activity is only one of three factors, the other two being the danger posed by the plaintiff and the flight risk. In this case, the officers were suspicious that the plaintiff's actions indicated involvement in some form of criminal activity or the pendency of an outstanding warrant, Connors Dep. 23:11-17, ECF No. 33-2, and conducted the investigative stop to either allay or confirm those suspicions. The plaintiff's
Review of other excessive force cases resolved in favor of police officers in this jurisdiction confirms that the officers' use of force, including the use of handcuffs, batons and a tactical takedown to lower the plaintiff to the ground when he was noncompliant with commands and appeared to be resisting arrest, was not excessive. See, e.g., Oberwetter v. Hilliard, 639 F.3d 545, 555-56 (D.C.Cir.2011) (holding that excessive force was not used when officer shoved plaintiff against a pillar and twisted her arm, after she twice refused the officer's orders to stop dancing in the Jefferson Memorial, late at night in the midst of a large group of other dancers); Wasserman v. Rodacker, 557 F.3d 635, 641 (D.C.Cir.2009) (holding that excessive force was not used where the plaintiff was forcibly handcuffed after refusing an officer's orders to stop); Jackson v. District of Columbia, 83 F.Supp.3d 158, 168-69 (D.D.C.2015) (granting summary judgment to defendants on plaintiff's excessive force claim, holding that no excessive force used when, after plaintiff refused to open car door, officers pulled plaintiff out of car and bent his arm to put on handcuffs, breaking the plaintiff's arm); Westfahl, 75 F.Supp.3d at 373 (officer's use of baton on arrestee was not excessive force where arrestee was struggling with another officer in an "uncontrolled manner"); Brown v. Wilhelm, 923 F.Supp.2d 314, 318 (D.D.C.2013) (holding that no excessive force was used where arrestee was handcuffed after a "brief struggle"); Armbruster v. Frost, 962 F.Supp.2d 105, 115 (D.D.C.2013) (holding that no excessive force was used where arrestee was pushed onto the hood of her car, held on the ground and handcuffed after actively resisting arrest).
The plaintiff cannot establish his claim that the defendant officers used excessive force, in violation of the Fourth Amendment. Consequently, the Court ends its inquiry without reaching the second step of the Saucier test, see Hirpassa v. Albert, 648 F.Supp.2d 148, 151-52 (D.D.C.2009) (ending inquiry before reaching the second step of the qualified immunity analysis because plaintiff's factual allegations could not support her claim of excessive force), and next considers the plaintiff's Fifth Amendment claim.
In denying the defendants' partial motion to dismiss the Amended Complaint,
Despite the clear record that the plaintiff was transported to the hospital after his encounter with, and arrest by, the police, he strains to support his motion for summary judgment by criticizing the reason he was taken to the hospital. Specifically, the plaintiff argues that the officers did not dispense with their Fifth Amendment obligation to provide medical care because he was sent to the hospital as a result of his alleged admission about having ingested ecstasy rather than for treatment of his arm and leg injuries, which allegedly occurred during the struggle with the defendant officers. Pl.'s Mem. at 17.
The plaintiff's argument is not persuasive. Even if the plaintiff is correct that he was taken to the hospital for treatment due to ecstasy ingestion and not because of his physical altercation with the officers, this does not detract from the obvious fact that he was delivered for such medical treatment. Moreover, contrary to the plaintiff's assertion that "nowhere in the record is it established that Mr. Hargraves was given any medical treatment for his injuries," Pl.'s Opp'n at 14, evidence in the record confirms that the plaintiff received treatment for physical abrasions appearing on his leg and arm, Pl.'s Mot. Ex. G ("MPD Final Investigative Report") (including hospital/attending physician report) at 12, ECF No. 31-9 (filed under seal). Thus, given the uncontroverted fact that the plaintiff was sent to the hospital and treated, no reasonable jury could conclude that a violation of the plaintiff's Fifth Amendment Due Process right to medical care occurred.
Accordingly, the defendant officers, who were the only defendants named in Count III, are entitled to summary judgment on the plaintiff's claim that his Fifth Amendment were violated by an alleged failure to furnish medical attention.
The defendant officers are entitled to summary judgment on the only two federal claims in this suit, leaving only state common law claims against the defendants. In this circumstance, where all federal law claims have been eliminated, the court must consider whether to exercise supplemental jurisdiction over the remaining state claims by balancing "judicial economy, convenience, fairness, and comity." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
The plaintiff and defendants seek summary judgment in their favor on Count I of the Amended Complaint alleging that the individual defendant officers are liable for common law battery because they used excessive force to effectuate the plaintiff's stop and subsequent arrest, and that the District of Columbia is likewise liable for the actions of its officers-employees under the theory of respondeat superior. Pl.'s Mem. at 7.
Under District of Columbia law, a battery is "an intentional act that causes a harmful or offensive bodily contact." Evans-Reid v. District of Columbia, 930 A.2d 930, 937 (D.C.2007) (quoting Etheredge v. District of Columbia, 635 A.2d 908, 916 (D.C.1993) (quotations omitted). At the same time, "District law provides a government actor with a privilege defense to such tort claims when `(1) he or she believed, in good faith, that his or her conduct was lawful, and (2) this belief was reasonable.'" Doe v. District of Columbia, 796 F.3d 96, 107 (D.C.Cir.2015) (quoting Bradshaw v. District of Columbia, 43 A.3d 318, 323 (D.C.2012) (citations and alterations omitted) and citing Marshall v. District of Columbia, 391 A.2d 1374, 1380-81 (D.C.1978)); see also Smith v. District of Columbia, 882 A.2d 778, 787-88 (D.C. 2005) (in evaluating an assault and battery claim involving allegations of excessive force by police officers, "the inquiry is whether the officer's conduct was reasonably necessary and thereby privileged"); Etheredge, 635 A.2d at 916 (noting undisputed facts "that Officer [] assaulted and battered [plaintiff] when he shot him," but that "the question is whether, under the circumstances [the officer] had the legal right to do so," since "[a] police officer has a qualified privilege to use reasonable force to effect an arrest, provided that the means employed are not "in excess of those which the actor reasonably believes to be necessary.") (internal quotations and citations omitted).
While the analysis of qualified immunity for both an excessive force claim under Section 1983 and the privileged use of force defense to a common law assault and battery claim implicate similar "realistic" concerns about "the perils of police work," Etheredge, 635 A.2d at 916 n. 10, the D.C. Court of Appeals has recognized "that there are differences between a federal constitutional claim and a tort suit brought under District of Columbia law," id.; see also Enders v. District of Columbia, 4 A.3d 457, 465 n. 11 (D.C.
Nevertheless, the plaintiff cites three pieces of evidence to support his claim that the conduct of the defendant officers is not subject to privilege and that he is entitled to recover on his assault claim: (1) "the Officers were required to start at the lowest level of the Use of Force Continuum [but instead] the Officers bypassed multiple steps and proceeded to use their ASP batons and a tactical takedown, rather than attempt to verbally persuade Mr. Hargraves to comply;" Pl.'s Mem. at 8; (2) the plaintiff's expert consultant, Wendell France, opines that the officers' conduct was "extremely over-reaching," id. at 9; and (3) the District's own witness, designated under Rule 30(b)(6), testified that officers were "not permitted" to make an investigative stop or to handcuff the plaintiff, id. at 8. None of these evidentiary items is persuasive.
First, the plaintiff mischaracterizes MPD policy regarding the Use of Force Continuum as requiring the defendant officers to start at the lowest level of force on the continuum. To the contrary, MPD General Order 901.07 expressly states that "Members are not required to start at the lowest level of options listed in the Use of Force Continuum. Members should select the appropriate level of force based on what a reasonable member and the circumstances require." Pl.'s Mot. Ex. H ("Consultant Report") at 8 (quoting MPD General Order 901.07), ECF No. 3110 (emphasis supplied). Thus, the defendant officers do not appear to have violated the MPD policy cited by the plaintiff. In any event, the officers reasonably used a continuum of force, beginning with a verbal command to stop, then use of handcuffs on a suspect perceived to be in flight, followed by use of a baton and takedown maneuver, when the suspect failed to comply and continued struggling.
Second, the plaintiff relies on his expert consultant's conclusion that the conduct was extremely over-reaching. While expert testimony regarding whether an officer acted "outside the scope of accepted police practice in the United States and outside the D.C. Metropolitan Police Department policy governing use of force" may be useful in the assessment of excessive force, McKnight v. District of Columbia, No. 00-2607, 2006 WL 6904002, at *2 (D.D.C. Jan. 17, 2006), the expert report submitted by the plaintiff is not helpful since it is based on incorrect or incomplete premises. For example, in reaching his conclusion that the officers' conduct in this case was "extremely over-reaching and [] entirely inconsistent with acceptable police
Finally, the plaintiff's heavy reliance on the testimony of the District's 30(b)(6) witness, is misplaced. The plaintiff asserts that the District admitted that the officers wrongfully stopped him based on Sgt. O'Bryant's testimony that the plaintiff did not do anything "wrong" when he walked away from "a contact." Pl.'s Opp'n at 14 (quoting Ex. C ("30(b)(6) Dep.") 70:14-71:4, ECF No. 37-4); see also id. at 9-10, 15. The testimony of Sgt. O'Bryant was in response to the plaintiff's counsel's hypothetical questions that did not fully incorporate the "totality of the circumstances" confronting the defendant officers in this case, and framed the context, incorrectly, as officers making a "contact," rather than an investigative stop, which is what occurred in this case. In short, examination of the testimony at issue makes clear that Sgt. O'Bryant was asked about a different set of circumstances than the facts presented in this case. See 30(b)(6) Dep. 28:10-30:3 ("Q: So do you recall the previous example that we were talking about in which the two cars had coincidentally pulled over and the cops had maybe intended to make a traffic stop, but hadn't yet activated their lights or sirens and then the individual sprinted away from the car? ... Are you intending to say that the officer, who didn't have reasonable suspicion to conduct the traffic stop, could attempt to make contact with that individual or stop him by sheer fact of him sprinting away from the car? ... A: You could make a contact."). The facts of the hypothetical lacks crucial facts presented in this case such as the plaintiff acting nervously and looking in the direction of the police before abruptly exiting the car in the middle
The evidence relied upon by the plaintiff to show that the defendant officers' belief that they needed to use force against the plaintiff was unreasonable falls short. Instead, the force used by the defendant officers was privileged, defeating the plaintiff's battery claim. Since the defendant officers did not commit battery against the plaintiff, the District of Columbia cannot be liable under the doctrine of respondeat superior. Accordingly, all defendants are entitled to summary judgment on Count I.
The plaintiff's next common law claim is that the defendant officers and the District are liable for the intentional infliction of emotional distress ("IIED"). Am. Compl. ¶¶ 47-52. The plaintiff alleges that his unlawful stop and arrest, along with the alleged excessive use of an ASP baton and tactical takedown to force him to the ground, amounted to extreme and outrageous conduct that caused him to suffer severe emotional distress.
To prevail on an IIED claim under District of Columbia law, the plaintiff must show: "`(1) extreme and outrageous conduct on the part of the defendants, which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress.'" Amobi v. D.C. Dep't of Corr., 755 F.3d 980, 995 (D.C.Cir.2014) (quoting Futrell v. Dep't of Labor Fed. Credit Union, 816 A.2d 793, 808 (D.C.2003)); see also Cooke-Seals v. District of Columbia, 973 F.Supp. 184, 188 (D.D.C.1997) (citing Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 935 (D.C.1995)). This common law claim has been described as "a very narrow tort with requirements that `are rigorous, and difficult to satisfy.'" Snyder v. Phelps, 562 U.S. 443, 464-65, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (Alito, J., dissenting) (quoting W. Keeton, D. Dobbs, R. Keeton, & D. Owen, PROSSER AND KEETON ON LAW OF TORTS § 12, p. 61 (5th ed.1984)); see also Drejza v. Vaccaro, 650 A.2d 1308, 1312 (D.C.1994) (noting that the standard is "not an easy one to meet"). Indeed, with respect to the first element, the D.C. Circuit has explained that the "conduct alleged must be `so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Amobi, 755 F.3d at 995 (quoting Bernstein v. Fernandez, 649 A.2d 1064, 1075 (D.C. 1991); see also Baltimore v. District of Columbia, 10 A.3d 1141, 1155 (D.C.2011).
Moreover, merely suffering from mental anguish and stress is insufficient to meet the third element, which instead requires "the level of severe emotional distress," which is "so acute ... that harmful physical consequences [are likely]
The Court finds that no reasonable juror could view the defendant officers' use of force under the circumstances presented here, which involved a volatile struggle on a public sidewalk with a suspect whom the officers had reason to believe was in flight, was non-compliant with commands, and had been using marijuana, as so outrageous in nature as to go beyond all possible bounds of decency. To the contrary, the defendant officers' use of force in this case is well within the realm of conduct that courts have found to not rise to the level of extreme and outrageous. See Harris v. District of Columbia, 696 F.Supp.2d 123, 137 (D.D.C.2010) (dismissing the plaintiff's intentional infliction of emotional distress claim because the alleged conduct was not extreme and outrageous, where the plaintiff alleged that he was arrested without a warrant, and that 12 officers used excessive force when they performed the search with their guns drawn); Stevens v. Stover, 727 F.Supp. 668, 672-73 (D.D.C.1990) (finding that the defendant officer's use of force to effectuate the arrest of the resisting plaintiff "[did] not rise to the level of extreme and outrageous conduct required for a claim of intentional infliction of emotional distress as the [c]ourt has already found that the degree of force that [the arresting officer] employed in arresting plaintiff was reasonable in view of plaintiff's resisting arrest"); Smith, 882 A.2d at 794 (affirming the trial court's order granting judgment as a matter of law on the plaintiff's intentional infliction of emotional distress claim where the defendant used an illegal chokehold on the plaintiff in order to break up a fight between the plaintiff and a third party).
The Court finds that the defendant officers' use of force does not rise to the level of extreme and outrageous conduct required to establish an IIED claim and, therefore, the plaintiff is unable to satisfy the first element of his IIED claim.
The plaintiff's negligent supervision and negligent infliction of emotional distress claims, in Counts IV and V, respectively, against the defendant officers are predicated on the same factual allegations and will be analyzed together, before turning to the plaintiff's negligence claims against the District.
Even if the plaintiff is unable to show that the defendant officers violated his constitutional rights, the defendants could still be liable for negligence. Scales, 973 A.2d at 731. In order to prevail on a negligence cause of action, the plaintiff must prove, using expert testimony on the standard of care, "`the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff's injury.'" Hill v. Metropolitan African Methodist Episcopal Church, 779 A.2d 906, 908 (D.C.2001) (quoting Levy v. Schnabel Found. Co., 584 A.2d 1251, 1255 (D.C. 1991)); see also Butera v. District of Columbia, 235 F.3d 637, 659 (D.C.Cir.2001) ("Under District of Columbia law, `[t]he plaintiff in a negligence action bears the burden of proof on three issues: the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between the deviation and the plaintiff's injury.'") (quoting Toy v. District of Columbia, 549 A.2d 1, 6 (D.C.1988). The plaintiff fails to present sufficient evidence in support of his negligence claims to go to a jury.
As support for his negligence claims against the individual officers, the plaintiff alleges that each officer negligently supervised the other and failed to intervene when his fellow officer allegedly violated MPD rules. See Pl.'s Opp'n at 19 ("Mr. Hargraves's negligence claims are premised on, inter alia, an MPD Officer's duty to intervene and prevent other officers from violating MPD rules and/or orders — not use of force."). Specifically, the plaintiff points to MPD Special Order 97-31, titled "Code of Ethics," which establishes a duty for each individual officer to conduct him or herself in an ethical way, and MPD General Order 201.26, titled "Duties, Responsibilities and Conduct of Members of the Department," which establishes a duty for each officer to report any violations of the rules of the MPD by any other members of the MPD. Pl.'s Mem. at 18-19. Although neither rule appears to impose a duty on MPD officers to intervene actively to stop MPD rule violations by fellow officers, the flaw in the plaintiff's claims is more fundamental. Even if the cited MPD Special Orders, or other rules, imposed such a duty on the defendant officers, the record does not reflect that either defendant officer engaged in improper or unlawful conduct warranting any intervention. In other words, even assuming, arguendo, that the MPD Special Orders cited by the plaintiff, or other such orders, provide an applicable standard of care, the officers' conduct in
Accordingly, the Court grants summary judgment to the defendant officers on Counts IV and V.
The plaintiff asserts two theories to hold the District liable for negligence: first, under the doctrine of respondeat superior, see Pl.'s Mem. at 20, 22; and, second, due to faulty orders and enforcement of regulations, id. The first theory of liability fails because the Court has concluded that the defendant officers did not engage in tortious conduct. Consequently, the District of Columbia cannot be liable to the plaintiff under the doctrine of respondeat superior.
The second theory of liability stems from the plaintiff's allegations that the District is independently liable under Count IV for negligent supervision as a result of "`[1] giving improper or ambiguous orders or [2] in failing to make proper regulations' and/or [3] `for permitting ... negligent or other tortious conduct by [the Officers] ... with instrumentalities under his control.'" Pl.'s Mem. at 20 (quoting Linares v. Jones, 551 F.Supp.2d 12, 19 (D.D.C.2008) (alterations in the original).
The plaintiff's evidence that the District gave improper or ambiguous orders is that the District, in an investigation of the plaintiff's case, found that the defendant officers acted within their authority, when Sgt. O'Bryant, in his capacity as the District's 30(b)(6) witness, purportedly admitted that "the Officers were not permitted to stop, use force on, handcuff or arrest Mr. Hargraves because he had done nothing wrong," id. creating an obvious contradiction. As discussed, supra Part III.C.1, the plaintiff mischaracterizes the portions of Sgt. O'Bryant's testimony containing responses to plaintiff's counsel's hypotheticals, which did not capture the totality of the circumstances confronting the defendant officers during their encounter with the plaintiff. Without any shred of evidence that the District actually gave out ambiguous or improper orders, the plaintiff cannot establish this allegation, let alone prevail on his negligence claims against the District on this basis.
The plaintiff also alleges that the District permitted the negligent and tortious conduct of the defendant officers "by failing to reprimand or terminate the Officers for their conduct in stopping, using force on, handcuffing, and arresting Mr. Hargraves[.]" Pl.'s Mem. at 20-21. Since the defendant officers' conduct was lawful, the premise of this allegation is flawed and, consequently, cannot support the plaintiff's negligence claim against the District.
The plaintiff alleges, in Count VI, that the defendant officers falsely arrested and imprisoned the plaintiff, resulting in his incarceration for almost eight months since his arrest triggered a violation of his parole conditions stemming from a prior conviction, Am. Compl. ¶¶ 85-92, and that the District of Columbia is liable for this claim based on the doctrine of respondeat superior, Pl.'s Mem. at 23. Under District of Columbia law, police officers are entitled to immunity from false arrest and false imprisonment claims by establishing either of "two affirmative defenses (which are distinct from `qualified privilege')," Scales, 973 A.2d at 729: (1) that the officers had probable cause for the arrest "based entirely on the objective facts and in this context," id.; and (2) a "`usually easier-to-meet,'" so-called "partially subjective test" that the officer "believed, in good faith, that his [or her] conduct was lawful, and [] this belief was reasonable," id. (first alteration in original) (quoting District of Columbia v. Murphy, 635 A.2d 929, 932 (D.C.1993)); see also Dukore, 970 F.Supp.2d at 33 (recognizing that officers' actions are privileged as justified by "showing that there was probable for arrest of the plaintiff on the grounds charged," or "[a] lesser showing ... that the officer acted in good faith"); Pointer v. District of Columbia, 736 F.Supp.2d 2, 9 (D.D.C.2010) (noting that, under District law, police officers' actions are privileged even if they lacked probable cause, as long as "the defendant officers had merely a reasonable, good faith belief that probable cause existed") (quoting Liser v. Smith, 254 F.Supp.2d 89, 98 (D.D.C.2003)). The District "must affirmatively rely on" the partially subjective test for this defense to apply, Scales, 973 A.2d at 729, and where, as here, the District has not done so, "the objective `probable cause' test applies," id. (citing Karriem v. District of Columbia, 717 A.2d 317, 320 n. 8 (D.C.1998)).
The D.C. Court of Appeals has made clear that the tort of false arrest and its defenses at common law are "indistinguishable as a practical matter from the common law tort of `false imprisonment,'" since the "gravamen of a complaint for false arrest or false imprisonment is an unlawful detention." Bradshaw, 43 A.3d at 322 n.7 (quoting Enders, 4 A.3d at 461); see also Rice v. District of Columbia, 774 F.Supp.2d 18, 21 (D.D.C.2011) (noting that "practically identical" analysis used for false arrest and false imprisonment). The "central issue" in evaluating claims for both false arrest and false imprisonment "`is whether the arresting officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the arresting office is privileged and the action fails.'" Bradshaw, 43 A.3d at 323 (quoting Scott v. District of Columbia, 493 A.2d 319, 321 (D.C.1985)).
The Court has already found that the defendant officers, objectively, had reasonable suspicion to support the initial investigative stop of the plaintiff and, further, that during the struggle to handcuff the plaintiff, who was not following police commands, the defendant officers developed probable cause for arrest.
The plaintiff's last claim, in Count VII, is that the defendant officers engaged in a conspiracy to commit the underlying torts of false arrest and imprisonment, battery and IIED, Am. Comp. ¶¶ 95-97, and that the District is also liable under the doctrine of respondeat superior, Pl. Mem. at 28. The defendants argue that because "Plaintiff is not entitled to judgment on his tort claims, he is also not entitled to judgment on his conspiracy claim." Defs.' Opp'n at 14. The defendants are correct.
The law "is widely accepted" that a plaintiff may bring suit "for civil conspiracy only if he ha[s] been injured by an act that was itself tortious." Beck v. Prupis, 529 U.S. 494, 501, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000) (citing 4 RESTATEMENT (SECOND) OF TORTS § 876, Comment b (1977) ("The mere common plan, design or even express agreement is not enough for liability in itself, and there must be acts of a tortious character in carrying it into execution"); W. Prosser, LAW OF TORTS § 46, p. 293 (4th ed. 1971) ("It is only where means are employed, or purposes are accomplished, which are themselves tortious, that the conspirators who have not acted but have promoted the act will be held liable")). Thus, a civil conspiracy claim requires the "performance of some underlying tortious act." Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 738 (D.C.2000) (quoting Halberstam v. Welch, 705 F.2d 472, 479 (D.C.Cir.1983)). "Consistent with this principle," the Supreme Court has observed that "a conspiracy claim was not an independent cause of action, but was only the mechanism for subjecting co-conspirators to liability when one of their member committed a tortious act." Beck, 529 U.S. at 503, 120 S.Ct. 1608; see also Nader v. Democratic Nat'l Committee, 567 F.3d 692, 697 (D.C.Cir.2009) (stating that "`[c]ivil conspiracy is not an independent tort but only a means for establishing vicarious liability for an underlying tort'" (brackets in original)(quoting Hill v. Medlantic Health Care Group, 933 A.2d 314, 334 (D.C.2007)); Halberstam, 705 F.2d at 479 (stating that civil conspiracy requires "an overt tortious act in furtherance of the agreement that causes injury.... Since liability for civil conspiracy depends on performance of some underlying tortious act, the conspiracy is not independently actionable; rather, it is a means for establishing vicarious liability for the underlying tort"). Consequently, to establish a civil conspiracy claim, the plaintiff must adequately show an underlying tort and the following elements: "(1) an agreement between two or more persons; (2) to participate in an unlawful act, or a lawful act in an unlawful manner; (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement; (4) which overt act was done pursuant to and in furtherance of the common scheme." Halberstam, 705 F.2d at 477.
In light of the findings that, as a matter of law, the defendant officers are not liable to the plaintiff for false arrest and imprisonment, battery and IIED, no other underlying tort exists that the defendant officers could have conspired to commit. The
Despite the unfortunate confluence of events that led to the plaintiff's encounter with the police, on September 30, 2011, and his arrest on charges, which led to no conviction but his incarceration nonetheless for almost eight months, his efforts to hold the individual police officers and the District of Columbia civilly liable are unavailing. The plaintiff has attested to the pain and suffering he "went through" as a result of this interaction with the police, including "I couldn't see my son born. I wasn't able to continue my job." Pl.'s Mot. Ex. D ("Pl.Dep.") 56:14-17, ECF No. 31-6. Yet, not every injury is compensable or is the result of unlawful conduct. In this case, the undisputed factual record establishes that the defendant officers' actions were defensible and reasonable under the circumstances.
Accordingly, the defendants' motion for summary judgment on all claims against them is granted and the plaintiff's cross-motion for summary judgment is denied.
An order consistent with this Memorandum Opinion will issue contemporaneously.
