Bushrod v. District of Columbia ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KEVIN BUSHROD,
Plaintiff,
v. Case No. 1:18-cv-02462 (TNM)
DISTRICT OF COLUMBIA,
ZACHARY BLIER,
Defendants.
MEMORANDUM OPINION
This action arises from a police shooting in Washington, D.C. Plaintiff Kevin Bushrod
sues Officer Zachary Blier and the District of Columbia alleging that Blier used excessive force,
committed assault, and intentionally inflicted emotional distress when he shot and injured
Bushrod following Bushrod’s flight from a traffic stop. Defendants move for summary
judgment, contending that Bushrod cannot prevail given the undisputed facts and the protections
granted by the doctrines of qualified immunity and qualified privilege. Having scrutinized the
parties’ briefs, the entire record, and the applicable law, the Court will grant Defendants’
motions.
I. BACKGROUND
Many facts here are in dispute and—critically—what can be disputed is a matter of
dispute. Let us begin with what is undisputed.
In the early evening on September 10, 2014, Officer Blier of the Metropolitan Police
Department (“MPD”) was driving his cruiser while on patrol in Northeast D.C. See Def.
Zachary Blier’s Statement of Undisputed Material Facts in Support of Mot. for Summ. J.
(“SUMF”) at 2, ECF No. 28-1; Second Am. Compl. (“Compl.”) at 5; ECF No. 8. 1 Officer
Gregory Collins rode shotgun. Id. The officers spotted Bushrod driving down South Dakota
Avenue in a Ford Crown Victoria. Id. Both recognized him as someone they had arrested
several weeks earlier for driving a car without a valid license and with expired registration.
SUMF at 2–3; Pl.’s Statement of Disputed Facts in Opp’n to Summary Judgment (“Pl.’s Facts”)
at 5–6 , ECF No. 35-1. Bushrod was out on bail but had been ordered not to drive in the city
without a valid permit. Id.
Seeing Bushrod driving the Crown Victoria, Collins checked the car’s registration,
confirming that it remained expired. SUMF at 3; Pl.’s Facts at 6–7. The officers then followed
Bushrod’s car to pull him over. Id. The parties dispute what happened next.
According to Bushrod, he did not realize that the officers were following him or trying to
pull him over. Pl.’s Facts at 7–8. He drove safely down a quiet residential street in “tame
circumstances” before turning back onto South Dakota Avenue, which was clogged with slow-
moving rush hour traffic. Compl. at 5. While Bushrod’s car was in an intersection waiting for
traffic to move, Blier pulled up directly behind him. Id. at 6. Both officers leapt from the cruiser
with their guns drawn. Id. Blier yelled expletives and demanded that Bushrod exit his car. Id.
Before Bushrod could react, Blier opened the driver’s side door, thrust himself across Bushrod’s
body, and reached for the keys in the ignition. Id. at 6–7. Bushrod tried to put the car back into
gear to drive away but, before the car moved, Blier jumped backward out of the car and shot him
once without warning. Id. The bullet traveled about three feet through the open car door and
struck Bushrod in the left shoulder. 2 Id. The wound required emergency surgery and left
1
All citations are to the page numbers generated by this Court’s CM/ECF system.
2
Bushrod’s complaint contains no facts about the day of the incident beyond the moment of the
shot. See Compl. at 7–8.
2
Bushrod with permanent physical and psychological damage. Id. at 7–8. He suffers from
chronic pain and limited use of his arm and torso. Id.
Unsurprisingly, Defendants offer a different story. After confirming that the registration
on Bushrod’s car remained expired, the officers activated the cruiser’s lights and siren. SUMF at
4. Bushrod then pulled to the right lane and slowed down, but as the officers exited the cruiser
and approached the car, Bushrod sped off. Id. The officers jumped in their cruiser and chased
Bushrod down several streets. Id. He eventually drove back toward South Dakota Avenue,
which was blocked by traffic. Id. at 5. Bushrod maneuvered into the busy intersection anyways,
stopping only after sideswiping the front of an occupied Honda CR-V and rolling over the curb
of the median that divided the inbound and outbound lanes. Id. At this point the rear of the
Crown Victoria was partially in front of the Honda CR-V’s left bumper. Id. at 6.
After seeing that Bushrod’s car had stopped, both officers exited their cruiser. Id. Blier
walked around the back of the Honda CR-V and approached the driver’s side of Bushrod’s car.
Id. With his gun drawn but pointed toward the ground, he opened the driver’s door of the Crown
Victoria with his left hand. Id. at 7. He grabbed Bushrod’s arm and tried to pull him out of the
car while directing him to comply. Id. Bushrod instead shifted the car into reverse and pressed
the accelerator. Id. at 7–8. As the car reversed, the open front door struck Officer Blier in the
leg and pushed him backward toward the Honda CR-V. Id. at 8. Officer Blier hopped onto the
front hood of the CR-V, with his legs dangling off the front. Id. at 8–9. Officer Blier “feared for
his life and that he was in risk of severe bodily harm” so he “discharged his firearm once to stop
[Bushrod] from continuing to drag or crush him with Crown Victoria” that was still reversing.
Id. at 9.
3
Right after the shot, Bushrod shifted the car into drive and drove off. Id. at 10. He hit a
Ford Escape and a Mercedes Benz as he drove between them, before finally colliding with a
Honda Accord down the street. Id. Bushrod abandoned the Crown Victoria and ran away but
was apprehended and taken to a hospital. Id.
The parties largely agree on the later legal proceedings. 3 The U.S. Attorney’s Office
charged Bushrod with 15 offenses and the case proceeded to a jury trial in the Superior Court for
the District of Columbia. 4 Defense counsel conceded that Bushrod drove without a license,
eluded the police, and struck Officer Blier with his car, but he contested that Bushrod had
committed felony-level assault of a police officer. See Pl.’s Facts at 24–25. Counsel stated
during closing arguments: “[Bushrod] resisted. He tried to get away and he shouldn’t have.
Absolutely. The question is was he armed with a dangerous weapon. And did he put Officer
Blier at grave risk of serious bodily injury. The answer is, to both of those questions, [] no.”
Trial Tr. at 97, ECF No. 45-1. As to the car hitting Blier, counsel explained that he “was hit in
the lower, left shin by the lower part of the door . . . He was bumped.” Id. at 96. He also
3
The parties dispute the conclusions and significance of an MPD investigation into the shooting.
But the results are immaterial to the Court’s analysis and thus do not require explanation. See
City & Cty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600 (2012) (“Even if an officer acts
contrary to her training . . . that does not itself negate qualified immunity where it would
otherwise be warranted.”).
4
The charges were: (1) operating a vehicle after suspension of a permit, in violation of D.C.
Code § 50-1403.01 (Count 1); (2) contempt based on violating a condition of release (Count 2),
(3) felony flight from law enforcement officers, in violation of D.C. Code § 2201.05b (Count 3);
(4) misdemeanor destruction of property (the Honda CRV) causing damage of $1,000 or less, in
violation of D.C. Code § 22-303 (Count 4); (5) leaving the scene after causing property damage
(to the Honda CRV), in violation of D.C. Code § 50-2201.05c (Count 5); (6) assault on a police
officer, in violation of D.C. Code § 22-405 (Count 6); (7) assault with a dangerous weapon, in
violation of D.C. Code § 22-402 (Count 7); (8) malicious destruction of property worth less than
$1,000 (Count 8); (9) three counts of malicious destruction of property causing damage of
$1,000 or more (Counts 10, 12, 14); and (10) four more counts of leaving the scene after causing
property damage (Counts 9, 11, 13, 15). See SUMF at 12–13; Pl.’s Facts at 22.
4
asserted: “[Bushrod] didn’t even know Officer Blier was there for all he knew. He backed it up
and Officer Blier was in the way. He got bumped.” Id. at 99.
A D.C. jury convicted Bushrod of most of the charges. 5 Relevant here, the jury found
him guilty of fleeing from law enforcement officers while on release for a crime (Count 3);
destruction of property for damaging the Honda CR-V (Count 4); and leaving the scene after
damaging the Honda CR-V (Count 5). See Trial Tr. at 15–16, ECF No. 45-2. The jury also
acquitted him of felony assault on a police officer but convicted him of the lesser included
offense of misdemeanor assault on a police officer (Count 6). Id. at 16. Bushrod did not appeal
his convictions. See SUMF at 15; Pl.’s Facts at 25–26.
Several years later, Bushrod sued the District of Columbia (“the District”) and Blier in
Superior Court. 6 Defendants removed the case here. See ECF No. 5. Bushrod alleges that Blier
violated the Fourth Amendment under 42 U.S.C. § 1983 by using excessive force against him
(Count I), assaulted and battered him under D.C. common law (Count II), and intentionally
inflicted emotional distress (Count III). Compl. at 11–12. Bushrod also seeks to hold the
District vicariously liable for Counts II and III. Id. The parties concluded discovery, and
motions for summary judgment by Blier and the District are now ripe. 7
5
The Government withdrew counts 12, 13, and 14, which concerned damage to cars other than
the Honda CR-V. See Trial Tr. at 41, 75, ECF No. 45-1.
6
Bushrod also sued MPD’s then-Chief, Peter Newsham, but did not renew the claims against
him in his latest complaint.
7
This Court has jurisdiction over Count I under the federal question statute, 28 U.S.C. § 1331.
It has supplemental jurisdiction over Counts II and III because they formed “part of the same
case or controversy” as the federal claim over which the Court has original jurisdiction. 28
U.S.C. § 1367(a). Because the Court will grant summary judgment on the only federal claim, it
may decline to exercise supplemental jurisdiction over the remaining common law claims. See
28 U.S.C. § 1367(c)(3) (“A district court may decline to exercise supplemental jurisdiction over
[claims outside of its original jurisdiction] if . . . the district court has dismissed all claims over
5
II. STANDARD OF REVIEW
Summary judgment is appropriate if “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). A fact is
material if it “might affect the outcome of the suit under the governing law” and a dispute is
genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If evidence conflicts, courts
“view the evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in its favor” when determining whether summary judgment is appropriate. Mastro v.
Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006).
The moving party has the initial burden of identifying those portions of the record that
show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). Once the moving party has met that burden, the nonmoving party must “designate
specific facts showing that there is a genuine issue for trial.” Id. at 324 (cleaned up). It is not
enough to advance unsupported allegations or denials in the pleadings. See Fed. R. Civ. P. 56(c).
which it has original jurisdiction.”). When all federal-law claims have “left the building” before
trial, the Court will decline to exercise jurisdiction over the remaining state-law claims in the
“usual case.” Araya v. JPMorgan Chase Bank, N.A., 775 F.3d 409, 417–19 (D.C. Cir. 2014).
But the decision is a discretionary one. See Osborn v. Haley, 549 U.S. 225, 245 (2007). In
deciding, the Court must consider equitable factors including “judicial economy, convenience,
fairness, and comity.” Hargraves v. District of Columbia, 134 F. Supp. 3d 68, 89–90 (D.D.C.
2015) (cleaned up) (retaining jurisdiction over D.C. law claims after determining that qualified
immunity applied to police officers’ use of force during arrest). Here, the parties completed
comprehensive discovery before this Court, where they have litigated for over two years. See id.
at 90 (relying on “extensive and already completed” discovery). This discovery included
supplemental record material ordered by the Court. See Order, ECF No. 44; Response to Order
of the Court, ECF No. 45. More, the remaining claims do not raise any novel issues of D.C. law.
Cf. Araya, 775 F.3d at 419 (explaining remand appropriate where “the local claims involve novel
and complex issues”). In fact, the analysis in all three claims substantially overlaps. Judicial
economy and convenience weigh against having the parties relitigate the issues elsewhere. The
Court finds that the factors overall warrant retaining jurisdiction over the two common law
claims.
6
Because the non-moving party must provide evidence that, if true, would permit a reasonable
jury to find in his favor, the non-moving party “must have more than a scintilla of evidence to
support his claims.” Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir.
2001). “If the evidence is merely colorable, or is not significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at 249–50 (cleaned up).
In cases involving allegations that a police officer used excessive force, “‘a defendant’s
motion for summary judgment is to be denied only when, viewing the facts in the record and all
reasonable inferences derived therefrom in the light most favorable to the plaintiff, a reasonable
jury could conclude that the excessiveness of the force is so apparent that no reasonable officer
could have believed in the lawfulness of his actions.’” Elshazli v. District of Columbia, 415 F.
Supp. 3d 20, 23–24 (D.D.C. 2019) (quoting Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir.
1993)).
III. ANALYSIS
A. Collateral Estoppel Precludes Bushrod from Disputing Certain Facts
Defendants maintain that Bushrod’s Superior Court convictions preclude him from
advancing certain arguments here. 8 They first point to issue preclusion, also known as
“collateral estoppel.”
8
The District alone raises two other doctrines, neither of which applies. First, the District states
in passing that Bushrod’s “criminal conviction for assaulting a police officer is res judicata for
the purpose of this civil lawsuit,” and then cites a case applying the doctrine of res judicata.
Dist. of Columbia’s Mem. of P. & A. in Support of Mot. for Summ. J. (“D.C. Mem.”) at 9, ECF
No. 29-1. Also known as “claim preclusion,” res judicata bars lawsuits addressing “the same
claims or cause of action” as an earlier case “between the same parties or their privities.” Porter
v. Shah, 606 F.3d 809, 813 (D.C. Cir. 2010). But Defendants were not parties in Bushrod’s
criminal prosecution. And that case did not adjudicate Officer Blier’s use of force—nor could it
have. Second, the District contends that the Rooker-Feldman doctrine bars Bushrod’s claim.
D.C. Mem. at 8–9. This exceedingly narrow doctrine applies only to foreclose improper
appeals—that is, federal-court actions that erroneously seek to “reverse, reject, overturn or undo
7
“Under collateral estoppel, once a court has decided an issue of fact or law necessary to
its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of
action involving a party to the first case.” U.S. Postal Serv. v. Am. Postal Workers Union, 553
F.3d 686, 696 (D.C. Cir. 2009) (cleaned up). The doctrine applies with equal force when the
prior case was a criminal prosecution and the latter case raises a federal claim under 42 U.S.C.
§ 1983. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 82–83 (1984). A party
cannot rely on collateral estoppel when the opposing party did not have a “full and fair
opportunity” to litigate the issue in the earlier case. Allen v. McCurry, 449 U.S. 90, 95 (1980).
But otherwise, federal courts must “give preclusive effect to state-court judgments whenever the
courts of the State from which the judgments emerged would do so.” Id. at 96 (interpreting 28
U.S.C. § 1738).
The prior case here is Bushrod’s criminal prosecution in Superior Court, so D.C.’s
preclusion law applies. See Migra, 465 U.S. at 87. In the District of Columbia, collateral
estoppel renders an “an issue of fact or law” conclusive in a subsequent case when “(1) the issue
is actually litigated and (2) determined by a valid, final judgment on the merits; (3) after a full
and fair opportunity for litigation by the parties or their privies; (4) under circumstances where
the determination was essential to the judgment, and not merely dictum.” Modiri v. 1342 Rest.
Group, Inc., 904 A.2d 391, 394 (D.C. 2006) (cleaned up). In other words, collateral estoppel
“precludes the relitigation of issues actually litigated and necessary to the outcome of a prior
case involving the party against whom estoppel is asserted.” Carr v. Rose, 701 A.2d 1065, 1076
state-court judgments.” Target Media Partners v. Specialty Mktg. Corp., 881 F.3d 1279, 1290
(11th Cir. 2018) (Newsom, J. concurring) (cleaned up); see also Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 291–94 & n.8 (2005) (explaining relationship between
Rooker-Feldman doctrine and preclusion). Bushrod does not seek to overturn or appeal his
criminal convictions through this civil suit.
8
(D.C. 1997). The party asserting collateral estoppel bears the burden of showing that an issue in
question is identical to what was determined in the prior proceeding. Merle v. United States, 683
A.2d 755, 762 (D.C. 1996).
“[D]istrict courts in this Circuit have routinely treated criminal convictions . . . as
conclusive proof of the facts supporting the conviction, and have thus given them preclusive
effect in subsequent civil actions.” Hume v. Watson, 680 F. Supp. 2d 48, 50 (D.D.C. 2010)
(cleaned up). To determine what issues were “necessary” to a prior conviction, “the Court must
examine the record, including the pleadings, the evidence submitted, the jury instructions, and
any opinions of the courts, to discern which matters were directly put in issue and actually
decided in the antecedent proceeding.” Cumis Ins. Soc’y, Inc. v. Clark, 318 F. Supp. 3d 199, 216
(D.D.C. 2018) (cleaned up). But courts “must take a practical view of all the circumstances in
deciding whether collateral estoppel applies.” United States v. Bowman, 609 F.2d 12, 17 (D.C.
Cir. 1979). “The rule of collateral estoppel in criminal cases is not to be applied with the
hypertechnical and archaic approach of a 19th century pleading book, but with realism and
rationality.” Ashe v. Swenson, 397 U.S. 436, 444 (1970).
Defendants assert that several issues raised or facts contested by Bushrod were
adjudicated in his criminal proceedings, rendering them indisputable. See Def. Zachary Blier’s
Mot. for Summ. J. (“Blier Mot.”) at 10–14, ECF No. 28; D.C. Mem. at 10–11, 14. The Court
recognizes that the prior convictions have some preclusive effect but does not agree entirely with
Defendants as to their import. The Court will address the convictions in turn.
1. Bushrod’s Convictions for Striking the Honda CR-V have Preclusive Effect
The Court first addresses the preclusive effect of Bushrod’s convictions related to hitting
the Honda CR-V before the shooting. Two offenses are at issue: malicious destruction of
9
property worth less than $1,000 (Count 4) and leaving the scene after a car collision (Count 5).
See Blier Mot. Ex. 10 (“Superior Court Docket”) at 12, ECF No. 28-10; Trial Tr. 15–16, ECF
No. 45-2. Bushrod’s complaint fails to mention colliding with the Honda CR-V, and his brief
opposing summary judgment states that it is “[d]isputed that Bushrod sideswiped the CR-V.”
Pl.’s Facts at 9. But Bushrod did not dispute that Counts 4 and 5 pertained to damage from
striking the Honda CR-V. See Pl.’s Facts at 22 (stating “Undisputed” as to the fact that the
charges included “misdemeanor destruction of property (the Honda CRV) causing damage of
$1,000 or less, D.C. Code § 22-303 (Count 4)” and “leaving after causing property damage to the
Honda CRV, D.C. Code § 50-2201.05c (Count 5)”). More, the jury instructions on Count 4
confirm that it pertained to damaging the Honda CR-V. See Trial Tr. at 123–24, ECF No. 45-1. 9
Defendants have met their burden to show that collateral estoppel applies. “A criminal
conviction is conclusive proof and operates as an estoppel on [a] defendant[] as to the facts
supporting the conviction in a subsequent civil action.” Hinton v. Shaw Pittman Potts &
Trowbridge, 257 F. Supp. 2d 96, 100 (D.D.C. 2003) (cleaned up). It hardly requires stating that
Bushrod ramming the Honda CR-V was “necessary to the outcome of” his convictions for
maliciously damaging the CR-V and for fleeing after the collision. Carr, 701 A.2d at 1076.
“Realism and rationality” demand that conclusion. Ashe, 397 U.S. at 444. Nor is there any
doubt that a conviction in Superior Court is a “valid, final judgment on the merits,” Modiri, 904
9
The instructions included that advisement that, among other elements, the jury must find
beyond a reasonable doubt that: “Kevin Bushrod damaged or destroyed property, that
is, a Honda CRV; the property was not his property; he acted voluntarily and on purpose, and not
by mistake or accident; Kevin Bushrod intended to damage or destroy the property or was aware
that his conduct created a substantial risk of harm to that property but engaged in that conduct
nonetheless.” Trial Tr. at 123–24, ECF No. 45-1.
10
A.2d at 394, or that Bushrod received a “full and fair opportunity” to litigate the issue in that
setting, Allen, 449 U.S. at 95.
Bushrod’s briefing offers no rebuttal on this point. See Pl.’s Mem. in Opp’n to Summary
Judgment (“Pl.’s Opp’n”) at 2–6, ECF No. 35. Bushrod contends that the jury in his criminal
case did not decide whether Blier used excessive force because that issue was not before them.
Pl.’s Opp’n at 2–3, 5. True enough. But that does not mean that Bushrod’s criminal case lacks
preclusive effects. The very cases that Bushrod cites explain as much, rejecting arguments that a
prior conviction for assault precluded a § 1983 claim but then determining that certain facts were
established in the prior adjudications. See Fenwick v. United States, 926 F. Supp. 2d 201, 217–
19 (D.D.C. 2013) (precluding plaintiff in § 1983 suit from advancing certain factual assertions
based on determinations in prior case), rev’d on other grounds sub nom. Fenwick v. Pudimott,
778 F.3d 133 (D.C. Cir. 2015); Lassiter v. District of Columbia, 447 A.2d 456, 460 (D.C. 1982)
(determining that certain facts in § 1983 suit were established in prior juvenile adjudication).
So too here. A jury convicted Bushrod of criminally damaging the Honda CR-V and then
driving away. Trial Tr. at 15–16, ECF No. 45-1. Bushrod cannot now challenge the facts that
the jury necessarily found to convict him beyond a reasonable doubt. So Bushrod’s convictions
on Counts 4 and 5 preclude him from contesting that, before the shooting, he struck the Honda
CR-V with his car and then drove away, as Defendants allege.
2. Bushrod’s Conviction for Fleeing from Police has Preclusive Effect
Defendants next contend that Bushrod’s conviction for fleeing from police precludes him
from arguing that he never engaged in any dangerous or noncompliant behavior before the
shooting. See Blier Mot. at 18–21. A jury convicted Bushrod for fleeing from law enforcement
officers in a motor vehicle (Count 3). Defendants argue that the jury necessarily accepted the
11
prosecution’s arguments that Bushrod fled from the officers before the shooting, specifically by
speeding away “reckless[ly]” when they tried to pull him over on a side street. Blier Mot. at 12;
see also SUMF at 7 (“[A]s the officers proceeded to exit the cruiser the plaintiff drove away
recklessly at a speed above the posted speed limit.”). If Defendants are right, Bushrod cannot
now assert that he drove safely down a quiet residential street under “tame circumstances,”
Compl. at 5, and “did not believe he was being pulled over or drive away recklessly,” Pl.’s Facts
at 7 (cleaned up).
Defendants are mostly correct. The trial court advised that to convict Bushrod on Count
3, the jury must find beyond a reasonable doubt that:
Kevin Bushrod was operating a motor vehicle; a law enforcement officer signaled
him to bring the motor vehicle to a stop; after the signal from a law enforcement
officer, Kevin Bushrod failed or refused to bring the motor vehicle to an immediate
stop, or attempted to elude the law enforcement officer; and he did so voluntarily,
on purpose, and not by mistake or accident; and while failing or refusing to bring
the motor vehicle to an immediate stop, the defendant damaged property and drove
recklessly.
Trial Tr. at 122–23, ECF No. 45-1. The court also instructed the jury on the definition of
“signaled” and the elements of reckless driving. 10 The closing arguments to the jury confirm that
the prosecution’s evidence on Count 3 related to Bushrod’s flight from the officers after the
initial attempt to pull him over but before the shooting. Id. at 78–80. Defense counsel contested
the degree to which Bushrod drove erratically, suggesting that he “wasn’t even going very fast.”
Id. at 88. But in convicting on Count 3, the jury necessarily accepted the prosecution’s version
of events that Bushrod at least fled from the officers “on purpose” and drove “recklessly.” Id. at
122–23. The jury could not have convicted Bushrod otherwise under the judge’s instructions.
10
Those latter elements were: “That Kevin Bushrod drove a motor vehicle on a public road; he
did so carelessly; and he knew or should have known that his acts created an unreasonable risk of
injury to persons or damage to property.” Trial Tr. at 123, ECF No. 45-1.
12
More, a finding of “reckless” driving required determining that Bushrod’s “acts created an
unreasonable risk of injury to persons or damage to property.” Id. at 123.
Collateral estoppel applies here as well. See Hinton, 257 F. Supp. at 100 (“A criminal
conviction is conclusive proof . . . as to the facts supporting the conviction.”). As with his
convictions on Counts 4 and 5, Bushrod had a “full and fair opportunity” to contest the facts that
were necessary to his conviction. Allen, 449 U.S. at 95. Defense counsel’s attempt at mitigation
during closing argument shows this to be true. And the jury instructions make clear which facts
were “necessary.” Carr, 701 A.2d at 1076. So Bushrod cannot now dispute what the jury as
factfinder determined. He may not contest that he “understood a traffic stop was being attempted
or initiated against him” before he was shot, that he “fled from the officers,” that he was ever in
“flight from the officers,” and that he drove away from them “recklessly.” Pl.’s Facts at 7, 9.
But Bushrod may still contest that he drove away “at a speed above the posted speed
limit.” Pl.’s Facts at 7; SUMF at 4. That fact was disputed at the criminal trial and unnecessary
to the jury’s findings that Bushrod drove recklessly and fled from the officers. The streets were
congested with rush-hour traffic, see Pl.’s Facts at 8–9, presenting opportunities to unreasonably
risk harm without achieving a high rate of speed. After all, speeding can be reckless, but
reckless driving does not require exceeding the speed limit. Rather, it requires driving that
creates an “unreasonable risk of injury to persons or damage to property.” Trial Tr. at 123, ECF
No. 45-1. So one could, for example, recklessly run through stoplights, weave around cars, drive
on the shoulder, or endanger pedestrians all without exceeding a posted speed limit. Indeed, the
driver of the Honda CR-V testified that Bushrod drove only “as fast as you were able to go
weaving in and out of traffic . . . about 25 or 30 miles an hour,” summing it up as “aggressive
driving.” Trial Tr. at 39, ECF No. 28-3. The jury need not have—and apparently did not—
13
determine the precise nature of Bushrod’s dangerous driving, other than to conclude that it rose
to the level of recklessness. So while he must accept that he drove “recklessly,” Bushrod may
contest that he was speeding.
3. Bushrod’s Conviction for Assault on a Police Officer has Preclusive Effect
Defendants contend that Bushrod’s conviction on Count 6 for misdemeanor assault on a
police officer, in violation of D.C. Code § 22-405, 11 settles several more factual disputes. See
Blier Mot. at 19–21. The Court agrees.
The parties spend much of their briefing arguing over the scope of the statute. 12 But for
collateral estoppel purposes, what matters is what the jury determined in Bushrod’s criminal
11
Bushrod contends that he was in fact convicted of D.C. Code § 22-505, but this statute was
superseded in 2001 by § 22-405, which contains nearly identical language. See Dickens v.
United States, 19 A.3d 321, 323 n.3 (D.C. 2011); Wasserman v. Rodacker, No. CIV.A.06 1005
RWR, 2007 WL 2071649, at *4 n.6 (D.D.C. July 18, 2007).
12
As the parties note, the statute’s language swept broadly. At the time of Bushrod’s arrest in
2015, the statute covered whoever “without justifiable and excusable cause, assaults, resists,
opposes, impedes, intimidates, or interferes with a law enforcement officer on account of, or
while that law enforcement officer is engaged in the performance of his or her official duties.”
D.C. Code § 22-405(b) (2013); Foster v. United States, 136 A.3d 330, 332 (D.C. 2016). Despite
this capacious language, case law pre-dating Bushrod’s conviction narrowed the conduct that
could support a conviction. An individual could not be found guilty for “mere passive resistance
or avoidance” or for merely fleeing from officers. Coghill v. United States, 982 A.2d 802, 806
(D.C. 2009) (upholding conviction for defendant who forcibly resisted officers as they
handcuffed him but reversing conviction for defendant who fled from officers). Rather, the
“conduct must cross the line into active confrontation, obstruction or other action directed
against an officer’s performance in the line of duty by actively interposing some obstacle that
precluded the officer from” completing the arrest. Id. (cleaned up); see also In re C.L.D., 739
A.2d 353, 357 (D.C. 1999) (interpreting D.C. Code § 22-505, an older statute criminalizing the
same conduct). The jury instructions in Bushrod’s criminal case incorporate these limitations by
restricting the offending conduct, asking whether Bushrod “assaulted, resisted, intimidated, or
interfered with” Officer Blier. See Trial Tr. at 131–32, ECF No. 45-1. Well after the events
here, the D.C. Council amended § 22-405 out of “concern that the statute was over inclusive.”
Coleman v. United States, 194 A.3d 915, 917 (D.C. 2018). So the current statute criminalizes
only “assault[ing] a law enforcement officer,” D.C. Code § 22-405 (2016), while a separate
provision addresses resisting arrest, see D.C. Code § 22-405.01.
14
case, not what was theoretically possible. See Carr, 701 A.2d at 1076; Ashe, 397 U.S. at 444.
Bushrod faced three charges on Count 6: (1) Assault on a Police Officer while Armed, (2)
Assault on a Police Officer while Unarmed, and (3) Misdemeanor Assault on a Police Officer.
Trial Tr. at 132, ECF No. 45-1. The latter two are lesser included versions of the first charge.
The court instructed the jury that to convict Bushrod of the lowest charge—misdemeanor assault
on a police officer—it must find beyond a reasonable doubt that:
Zachary Blier was a police officer operating and authorized to act in the District of
Columbia[;] Kevin Bushrod assaulted, resisted, intimidated, or interfered with
Zachary Blier[;] Kevin Bushrod did so voluntarily, on purpose, and not by mistake
or accident[;] Kevin Bushrod did so while Zachary Blier was engaged in the
performance of his official duties[;] [and] at the time Kevin Bushrod did so, he
knew or had reason to believe that Zachary Blier was a police officer operating and
authorized to act in the District of Columbia.
Trial Tr. at 131–32, ECF No. 45-1. To find Bushrod guilty of the greater offense of felony-level
assault while unarmed, the jury had to find the above facts and that Bushrod “committed a
violent act that created a grave risk of causing significant bodily injury to” Officer Blier. Id. at
129. And to find Bushrod guilty of felony-level assault while armed, the jury had to furthermore
find that “at the time of the offense, Kevin Bushrod was armed with, or had readily available, a
dangerous weapon.” Id. at 126.
To prove its case on § 22-405, the prosecution alleged the same set of facts that
Defendants advance here: that when Officer Blier tried to make an arrest, Bushrod shifted the
car into reverse and pressed the accelerator, and so the car reversed and struck Officer Blier. Id.
at 82–84. As for the “violent act that caused a grave risk of causing significant bodily injury,”
the prosecution relied on the reversing Crown Victoria that threatened to pin Officer Bushrod
against the Honda CR-V. Id. For the “dangerous weapon,” the prosecution pointed to the
Crown Victoria. Id. at 85.
15
Bushrod did not testify, but he also did not seek to rebut the bare facts as part of his
defense. Defense counsel did not dispute that the car door hit or “clipped” Officer Blier. See id.
at 98. He explained in his closing arguments that the car “bumped” Officer Blier when Bushrod
backed it up, but that Bushrod “didn’t even know Officer Blier was there.” Id. at 99. Counsel
likewise accepted the occurrence when probing the testifying officers on exactly where the door
struck Officer Blier’s leg. 13 Conceding that Bushrod was indeed “guilty” of misdemeanor
assault on a police officer, the defense instead worked to convince the jury that the car was not a
“dangerous weapon” and that any assault did not present a “grave risk of serious bodily injury.”
Id. at 97. These efforts succeeded, as the jury acquitted Bushrod of the two felony-level assault
charges and convicted him only of the lesser-included misdemeanor. 14
To be sure, Bushrod is not bound by every argument and comment—strategic or
offhand—made by counsel during his previous trial. 15 But the arguments of counsel and the
prosecutor clarify what the jury considered. See United States v. Uzzell, 648 F. Supp. 1362, 1365
(D.D.C. 1986) (looking to trial transcripts for “facts revealed and admissions made” in prior
13
For example, counsel asked Officer Blier, “[Y]ou agree that it was the bottom of the door that
hit you . . . [i]t sort of caught you in the shin area, didn’t it?” Trial Tr. at 33, ECF No. 28-3.
14
No preclusion results from the jury acquitting Bushrod of felony-level assault on a police
officer. See Trial Tr. at 16, ECF No. 45-2. All that means is that the jury determined that the
evidence presented did not show that Bushrod was guilty beyond a reasonable doubt of that
offense. But another factfinder could determine by a preponderance of the evidence that
Bushrod’s actions presented a grave threat of serious bodily injury. Bushrod concedes as much.
See Pl.’s Opp’n at 5.
15
Defendants have not suggested that judicial estoppel applies here, and for good reason.
Counsel’s apparent concessions to the jury did not rise to litigation “positions” or “claims,” nor
would any inconsistency establish that Bushrod actively “misled” this Court or a prior court. See
Moses v. Howard Univ. Hosp., 606 F.3d 789, 798–99 (D.C. Cir. 2010) (outlining factors for
applying judicial estoppel); cf. Lassiter, 447 A.2d at 461 (applying judicial estoppel to bar
defendant from advancing different set of facts than those to which he had testified under oath in
earlier criminal trial).
16
criminal case). In convicting on the misdemeanor charge, the jury must have found that Bushrod
purposefully “assaulted, resisted, intimidated, or interfered with” Blier. Trial Tr. at 131, ECF
No. 45-1. And to do so, the jury “had to develop a coherent view of how [Bushrod and Blier]
dealt with each other” during the incident. Lassiter, 447 A.2d at 460. Both the prosecution and
Bushrod’s counsel acknowledged that Bushrod reversed the car and struck Blier. And—
critically—there were no other factual allegations before the jury for it to find that Bushrod
committed misdemeanor assault of Blier. Had the jury for some reason rejected the facts that the
parties appeared to agree upon, then it would have had to acquit Bushrod of that misdemeanor
charge too. “[R]ealism and rationality” compel the conclusion that the jury could not “have
grounded its verdict upon an issue other than that which [Blier] seeks to foreclose from
consideration.” Ashe, 397 U.S. at 444.
As before, Bushrod provides no arguments specifically refuting the collateral estoppel
effects of his misdemeanor assault conviction. Pl.’s Opp’n at 2–6. And Defendants have again
met their burden to show that collateral estoppel applies. A criminal conviction provides
“conclusive proof of the facts supporting the conviction,” Hume, 680 F. Supp. 2d at 50, and the
jury instructions and trial record show which facts the jury necessarily accepted. So based on his
conviction for assaulting Blier, Bushrod cannot advance the following assertions that appear in
his complaint:
• that “Bushrod’s stalled car was going nowhere, no show of force or arms had come from
the Crown Vic, and there was no other actual threat of physical violence,” Compl. at 6;
and
• that “Bushrod managed to get the car into gear, but before the car moved, Blier fired his
gun at Bushrod,” id. at 7.
Bushrod’s assault conviction also means that he cannot dispute (as he did in his summary
judgment briefing) that the following facts occurred before the shooting:
17
• that he “place[d] the Crown Victoria in reverse and hit the accelerator,” SUMF at 7–8;
Pl.’s Facts at 13–14; and
• that “the front door of the Crown Victoria [struck Blier’s] left leg,” SUMF at 8; Pl.’s at
13–14.
Indeed, through its verdict the jury implicitly found that Bushrod purposefully struck
Blier, “not by mistake or accident.” Trial Tr. at 131, ECF No. 45-1. But Bushrod may still
dispute how hard the door hit Blier and the extent of his injuries and fear as a result. Those
details were disputed at Bushrod’s trial but not necessarily resolved by the jury’s guilty verdict.
B. The Same Factual Assertions are Precluded under Heck v. Humphrey
Blier argues that Bushrod’s factual assertions are also barred by Heck v. Humphrey, 512
U.S. 477 (1994). Under Heck, “a section 1983 damages claim that is based on conduct whose
unlawfulness would demonstrate the invalidity of a conviction or sentence is not cognizable
unless the conviction or sentence has been invalidated or called into question by issuance of a
writ of habeas corpus.” In re Jones, 652 F.3d 36, 37–38 (D.C. Cir. 2011). The doctrine
recognizes that “civil tort actions are not appropriate vehicles for challenging the validity of
outstanding criminal judgments.” Taylor v. U.S. Prob. Office, 409 F.3d 426, 429 (D.C. Cir.
2005). But “Heck’s application is limited to suits that, if successful, would necessarily imply the
invalidity of the plaintiff’s conviction or sentence, i.e., suits challenging the fact or duration of
confinement.” Id. at 427. And the Supreme Court has been “careful . . . to stress the importance
of the term ‘necessarily’” in concluding that damages actions are barred. Nelson v. Campbell,
541 U.S. 637, 647 (2004).
An excessive force claim brought against a police officer for his use of force during an
arrest does not necessarily cast doubt on the validity of the arrestee’s conviction(s) pertaining to
that arrest, so Heck does not always bar such a claim. “Even the fact that a defendant was
convicted of assault on a police officer does not, under Heck, as a matter of law necessarily bar a
18
§ 1983 claim of excessive force.” Thore v. Howe, 466 F.3d 173, 180 (1st Cir. 2006) (cleaned
up). Rather, courts will permit a § 1983 suit to proceed when the facts could allow both a
successful § 1983 suit and the underlying conviction to coexist without contradicting each other.
See Ramos-Ramirez v. Berwick Borough, 819 F. App’x 103, 106 n.18 (3d Cir. 2020) (collecting
cases).
Blier does not suggest that Bushrod’s convictions bar the § 1983 claim under the Heck
doctrine. Rather, as with collateral estoppel, he contends that Bushrod cannot advance certain
factual assertions because, if accepted here, they would “demonstrate the invalidity” of the prior
convictions. Blier Mot. at 22. For his part, Bushrod does not respond to this argument. He only
asserts what Blier concedes: that the Heck doctrine does not categorically preclude Bushrod
from pursuing his excessive force claim. See Pl.’s Opp’n at 2–4.
Blier is correct. Bushrod cannot prevail on his § 1983 claim by relying on any factual
allegations that would “necessarily imply the invalidity of” his convictions for destruction of
property, leaving the scene after a car collision, fleeing law enforcement, and misdemeanor
assault on a police officer. Taylor, 409 F.3d at 427. Here, Heck bars the same factual assertions
as collateral estoppel. Put another way, those facts that would necessarily imply the invalidity of
Bushrod’s convictions are the same that were “necessary” to his convictions under the collateral
estoppel analysis. See Fenwick, 926 F. Supp. 2d at 222–23 (determining that there “the outcome
demanded by Heck v. Humphrey dovetails with the requirements of collateral estoppel”). 16 So
16
Although the D.C. Circuit reversed the district court’s opinion in Fenwick, it did not alter its
analysis of Heck, and it incorporated the results into its decision. See Fenwick v. Pudimott, 778
F.3d 133, 138 (D.C. Cir. 2015).
19
collateral estoppel aside, the Heck doctrine provides an independent basis to limit the factual
dispute here.
C. Qualified Immunity Bars the Section 1983 Claim Against Blier (Count I)
Bushrod sues Blier under 42 U.S.C. § 1983. 17 He alleges that the shooting amounted to
excessive force, violating his Fourth Amendment right to be secure from unreasonable seizures.
See Compl. at 11. Blier denies that the shooting amounted to excessive force under the
circumstances. See Blier Mot. at 23–29.
Blier also raises qualified immunity as a defense. Id. at 23. The doctrine provides that
“government officials performing discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). Immunity is warranted for a police officer’s actions “if a reasonable
officer could have believed that his or her actions were lawful” at the time, “in light of clearly
established law and the information the officer possessed.” Youngbey v. March, 676 F.3d 1114,
1117 (D.C. Cir. 2012) (cleaned up). The inquiry turns on the objective legal reasonableness of
the official’s action, so it is a question of law for the Court. Pitt v. District of Columbia, 491
F.3d 494, 509 (D.C. Cir. 2007).
“Qualified immunity depends upon the answers to two questions: (1) Did the officer’s
conduct violate a constitutional or statutory right? If so, (2) was that right clearly established at
the time of the violation?” Jones v. Kirchner, 835 F.3d 74, 84 (D.C. Cir. 2016). Courts may
17
The statute provides: “Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper proceeding for
redress.” 42 U.S.C. § 1983.
20
answer the questions in either order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). So a
court “may grant qualified immunity on the ground that a purported right was not ‘clearly
established’ by prior case law, without resolving the often more difficult question whether the
purported right exists at all.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting Pearson,
555 U.S. at 227). The Court will address both prongs. Blier prevails on each independently.
1. Officer Blier’s Use of Force was Reasonable
under the Totality of the Circumstances.
A claim of excessive force turns on the Fourth Amendment’s “objective reasonableness”
standard, which “tracks the constitutional text by asking whether the force applied was
reasonable.” Johnson v. District of Columbia, 528 F.3d 969, 973 (D.C. Cir. 2008) (cleaned up).
This inquiry “requires a careful balancing of ‘the nature and quality of the intrusion on the
individual’s Fourth Amendment interests’ against the countervailing governmental interests at
stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471 U.S. 1,
8 (1985)).
A police officer’s “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.” Id. Officers are
often required to make “split-second judgments” on what force to use in “tense, uncertain, and
rapidly evolving” circumstances. Id. at 397. Assessing the degree of force requires examining
“the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Id. at 396. But the inquiry remains an objective one, so an officer’s subjective intent
is irrelevant. Wasserman v. Rodacker, 557 F.3d 635, 641 (D.C. Cir. 2009).
The use of deadly force against a fleeing suspect must pass muster under Garner and
Graham. “[I]t is unreasonable for an officer to ‘seize an unarmed, nondangerous suspect by
shooting him dead.’” Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (quoting Garner, 471 U.S.
21at 11). But deadly force, such as firing a gun at a suspect, is reasonable where an officer has
“probable cause to believe that the suspect poses a threat of serious physical harm, either to the
officer or to others.” Garner, 471 U.S. at 11. If feasible, an officer should give a warning before
shooting. Id. at 11–12.
When weighing the degree of force used, the Court must pay “careful attention to 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.” Graham, 490 U.S. at 396.
This inquiry is necessarily fact-bound, but it does not preclude summary judgment. Certain
facts, while disputed, may be immaterial to the objective reasonableness of the force. See Louis
v. District of Columbia, 59 F. Supp. 3d 135, 143 n.3 (D.D.C. 2014). Even where there are
material facts in dispute, the Court’s task is to “determine[] the relevant set of facts” by
“draw[ing] all inferences in favor of the nonmoving party to the extent supportable by the
record,” at which point the Court must determine reasonableness as a matter of law. Scott v.
Harris, 550 U.S. 372, 381 n.8 (2007) (emphasis in original); see also Elshazli, 415 F. Supp. 3d at
27 (ruling officers entitled to qualified immunity on excessive force claim where video evidence
undermined plaintiff’s factual allegations). After all, qualified immunity is “an immunity from
suit rather than a mere defense to liability,” so “it is effectively lost if a case is erroneously
permitted to go to trial.” Pearson, 555 U.S. at 232 (reiterating “the importance of resolving
immunity questions at the earliest possible stage in litigation”).
For that reason, the parties’ submissions are crucial to the Court’s analysis. Under Local
Rule 7(h), a party moving for summary judgment must submit “a statement of material facts as
to which the moving party contends there is no genuine issue, which shall include references to
22
the parts of the record relied on to support the statement.” Defendants did so. See SUMF at 2–
17; District of Columbia’s Mot. for Summ. J. Ex 3, at ECF No. 29-3. The rule also requires a
party opposing summary judgment to submit “a separate concise statement of genuine issues
setting forth all material facts as to which it is contended there exists a genuine issue necessary to
be litigated, which shall include references to the parts of the record relied on to support the
statement.” LCvR 7(h). The Court’s Standing Order repeats this instruction. See Standing
Order ¶ 14(B)(i), ECF No. 3. It states that a party opposing summary judgment “must, in turn,
submit a statement enumerating all material facts which the party contends are genuinely
disputed and thus require trial.” Id.Bushrod did not do so. 18 While he explicitly disputed many assertions made by
Defendants in their filings, his submission does not include a “statement enumerating all material
facts which the party contends are genuinely disputed.” Id. Bushrod identified some “additional
facts in dispute,” but many are unsupported by citations to the record or address immaterial
issues. 19 This leaves the Court shorthanded. It is not the Court’s role to “sift and sort through
the record” to identify possible material disputed issues that would preclude summary judgment.
Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 153 (D.C. Cir.
1996). The Court’s rules operate to avoid such a situation, and the local rule “embodies the
18
Bushrod’s submission references the Court’s Standing Order and reflects an attempt to
comply with it. See Pl.’s Facts at 1. But the Order also states: “The parties are strongly
encouraged to carefully review Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner,
101 F.3d 145 (D.C. Cir. 1996).” Standing Order ¶ 14(B)(i), ECF No. 3. That opinion spells out
how parties should present a statement of genuine disputed material issues. See Jackson, 101
F.3d at 153–54.
19
For example, Bushrod’s facts assert that Blier “lost his temper,” “moved in anger,” and “was
completely unhinged.” Pl.’s Facts at 32. These disputed “facts” lack citations to evidence. Nor
would peering into Blier’s amygdala aid the Court in determining what “a reasonable officer on
the scene” would have experienced. Graham, 490 U.S. at 396.
23
thought that judges ‘are not like pigs, hunting for truffles buried in briefs’ or the record.” Potter
v. District of Columbia, 558 F.3d 542, 553 (D.C. Cir. 2009) (Williams, J., concurring) (quoting
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam)). The Court will forge
ahead and determine the relevant set of facts, which establish that no constitutional violation
occurred. But this might have been a closer case had Bushrod submitted a well-supported list of
material disputed facts.
Assessing the “reasonableness” of the shooting requires examining “the perspective of a
reasonable officer on the scene.” Graham, 490 U.S. at 396. So the Court will—after making all
supportable inferences in Bushrod’s favor—determine the relevant set of facts, with a focus on
what a reasonable officer in Blier’s position would have experienced.
The officers began following Bushrod based on his expired registration. SUMF at 2–3;
Pl.’s Facts at 5–6. They had arrested Bushrod several weeks earlier for operating the same car
without a valid license or valid registration. 20 Id. Bushrod rebuffed the officers’ initial attempt
to carry out a safe traffic stop. Instead, as the jury found, Bushrod purposefully fled from the
officers and drove recklessly through rush-hour traffic, ultimately hitting another car in an
intersection. See supra at III.A.1 and III.A.2. Blier and Collins surrounded his car with their
guns drawn, and Blier shouted at Bushrod to get out of the car. SUMF at 6; Pl.’s Facts at 11.
20
The parties dispute what Blier knew at the time of the incident about Bushrod’s criminal
history. See D.C. Mem. at 10; Pl.’s Facts at 2–3, 6–7. The District contends that Blier must have
known about Bushrod’s prior conviction for unlawful possession of a firearm because he had
searched his criminal history on several occasions before the shooting. See District of
Columbia’s Reply in Support of its Mot. For Summ. J. at 11, ECF No. 29. More, it seems
exceedingly unlikely that the officers would have forgotten what they assuredly would have
learned at Bushrod’s prior arrest: that he had a felony conviction for unlawful gun possession.
This is especially true if Bushrod is correct that these officers had been “targeting” him since his
first arrest. See Pl.’s Facts at 29–30. Nonetheless, the Court will indulge the supposition that
Blier knew nothing about Bushrod’s criminal history beyond the arrest he participated in several
weeks earlier.
24
Blier opened Bushrod’s door and reached inside. SUMF at 7; Pl.’s Facts at 12. A struggle
ensued. Id. Bushrod pressed his foot down on the accelerator reversing the car, purposefully
striking Blier with his door and propelling him backward toward the Honda CR-V. 21 See SUMF
at 8; supra at III.A.2 and III.A.3. Without first giving a warning, 22 Blier fired once at Bushrod
who was still in the driver’s seat, striking him in the back. SUMF at 9–10; Pl.’s Facts at 16–17.
Blier’s actions were reasonable under Garner and Graham. First, Bushrod engaged in
dangerous, felony-level misconduct as he fled from the officers. 23 To be sure, the officers pulled
Bushrod over because his car lacked registration, and their previous encounter—when they
arrested him for the same conduct—was not dangerous. See Pl.’s Facts at 2–4. But the situation
on this day soon escalated because of Bushrod’s decision to flee. And he piled up dangerous and
arrestable offenses as he evaded the police. See Monzon v. City of Murrieta, 978 F.3d 1150,
1157 (9th Cir. 2020) (determining “severity” of crime at issue supported use of deadly force
where suspect led officers on dangerous car chase and refused to surrender, even after his car
was surrounded); cf. Hedgpeth v. Rahim, 213 F. Supp. 3d 211, 224 (D.D.C. 2016) (characterizing
suspect’s offenses as “minor” crimes under Graham because they were misdemeanors and
officers did not initially seek to arrest suspect for them), aff’d, 893 F.3d 802 (D.C. Cir. 2018).
Bushrod’s precise speed in fleeing from the officers remains uncertain, but that he drove
recklessly and endangered others is not. So while the officers did not initially pursue Bushrod
21
In convicting Bushrod of assault, the jury necessarily found that he assaulted Blier
“voluntarily, on purpose, and not by mistake or accident.” Trial Tr. at 131, ECF No. 45-1.
22
Neither party in their briefing mentions the presence or absence of an explicit warning by
Blier that he might fire. Bushrod does, however, state in his complaint that the shot came
“without warning.” Compl. at 7. The Court will assume this fact in Bushrod’s favor.
23
The record confirms that at least one destruction of property conviction and the fleeing from
police offense were felonies. See Trial Tr. at 18, ECF No. 45-2.
25
for a “violent” crime, Garner, 471 U.S. at 21, his offenses and conduct were indeed “dangerous”
by the time of the shooting, id. at 20–21.
Second, Bushrod was “actively resisting arrest [and] attempting to evade arrest by flight”
before, during, and after the shooting. Graham, 490 U.S. at 396. In fact, at his criminal trial
Bushrod’s defense to the assault charge was that he was (merely) trying to resist arrest and flee.
See Trial Tr. at 97, ECF No. 45-1. More, Blier and Bushrod were engaged in a physical struggle
moments before the shooting.
Third, and most importantly, Bushrod “pose[d] an immediate threat to the safety of the
officers [and] others.” Graham, 490 U.S. at 396. Bushrod’s conduct did not merely risk injuring
others; by the time of the shooting he had struck one occupied car (the Honda CR-V) and one
person (Blier). When the officers approached Bushrod with their guns drawn, his response was
to try to maneuver the car yet again and resume his flight. He was, apparently, also undeterred
by a police officer yelling at him to stop or by physically struggling with the armed officer.
Behind the wheel of a powerful sedan, Bushrod threatened the safety of officers and innocent
bystanders, giving a reasonable officer a compelling reason to end the encounter. After all, “the
law does not require officers in a tense and dangerous situation to wait until the moment a
suspect uses a deadly weapon to act to stop the suspect.” Wallace v. District of Columbia, 685 F.
Supp. 2d 104, 111 (D.D.C. 2010); accord Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007)
(concluding that stationary car posed deadly threat); see also Brosseau, 543 U.S. at 200(acknowledging that “a car can be a deadly weapon”).
The Court assumes that Blier gave no explicit warning before firing. But this omission is
not determinative. Officers must give a warning “where feasible.” Garner, 471 U.S. at 11–12.
When the chaotic nature of the situation and an immediate threat to the safety of one or more
26
individuals justifies deadly force, it may often be infeasible to give a warning and wait for it to
be heeded (or not). And here, Bushrod already knew of Blier’s presence and intent to stop his
flight. He had ignored the officers’ signal to stop and even physically struggled over the keys in
the car, with Blier yelling at Bushrod while brandishing a gun. A reasonable officer could
conclude that a more formal vocal warning about how the gun might be used would add very
little compared to what could happen during the delay such a warning would require.
Unlike an officer in the heat of the moment, the Court can dissect the incident at its
leisure and evaluate the actions of Bushrod and Blier piecemeal when weighing the
reasonableness of the use of force. And it has. But the Court must look ultimately to the totality
of the circumstances. See Graham, 490 U.S. at 396. The Court is mindful that Blier did not
encounter words on a page; he faced a suspect who appeared determined to resume his reckless
flight and put others at risk even after striking a police officer with his car. Bushrod’s actions
left Blier precious little time—really, no time at all—to make a “split-second judgment” in this
“tense, uncertain, and rapidly evolving” encounter. Id. at 397. For the Court to rule that Blier’s
shot was unreasonable, it would have to ignore the chaotic nature of the situation in favor of the
verboten “20-20 vision of hindsight.” Graham, 490 U.S. at 396. Under the totality of the
circumstances, the force was reasonable.
Recent case law confirms this. In Plumhoff v. Rickard, the Supreme Court determined
that police officers’ actions were objectively reasonable when they shot at a fleeing motorist.
572 U.S. 765, 777–78 (2014). The officers at first pulled over the car for a broken headlight. Id.
at 768. When asked to get out of the car, Rickard drove off and led police on a high-speed chase
through traffic. Id. at 769. During the flight, he caused “contact to occur” between his car and
27
police cruisers several times. Id. He eventually came to halt in a parking lot while surrounded
by police cars. Id. The Court explained:
Now in danger of being cornered, Rickard put his car into reverse in an attempt to
escape. As he did so, Evans and Plumhoff got out of their cruisers and approached
Rickard’s car, and Evans, gun in hand, pounded on the passenger-side window. At
that point, Rickard’s car made contact with yet another police cruiser. Rickard’s
tires started spinning, and his car was rocking back and forth, indicating that
Rickard was using the accelerator even though his bumper was flush against a
police cruiser. At that point, Plumhoff fired three shots into Rickard’s car. Rickard
then reversed in a 180 degree arc and maneuvered onto another street, forcing Ellis
to step to his right to avoid the vehicle. As Rickard continued fleeing down that
street, Gardner and Galtelli fired 12 shots toward Rickard’s car, bringing the total
number of shots fired during this incident to 15.
Id. at 769–70 (internal citations and quotations omitted).
The Court determined that all 15 shots were objectively reasonable under the Fourth
Amendment. Id. at 776. “Rickard’s outrageously reckless driving posed a grave public safety
risk.” Id. When the officers opened fire the only thing “a reasonable police officer could have
concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do
so, he would once again pose a deadly threat for others on the road.” Id. at 777.
So too for Blier. To rule otherwise, the Court would have to distinguish the reckless
driving in Plumhoff by such uncertain factors as the speed of the flight and the number of
“contacts” the drivers made with other vehicles—all while ignoring that a mere risk of harm that
justified 15 shots in Plumhoff actually occurred here when Bushrod struck Blier with his car and
continued fleeing.
Even if Blier’s single shot was less reasonable than the 15 shots in Plumhoff, the Supreme
Court did not suggest that the police conduct there was even near the line of unreasonableness.
Rather, the unanimous Court held that it was “beyond serious dispute” that “the police acted
reasonably in using deadly force to end” Rickard’s flight. Id. at 777. More, the Court in
28
Plumhoff noted that it had the discretion to dismiss the plaintiff’s claims as failing to articulate a
clearly established right at issue, but it chose to address the constitutional question anyways to
“promote[] the development of constitutional precedent” in this area. Plumhoff, 572 U.S. at 774;
see also Mullenix v. Luna, 577 U.S. 7, 15 (2015) (noting that the Supreme Court has “never
found the use of deadly force in connection with a dangerous car chase to violate the Fourth
Amendment, let alone to be a basis for denying qualified immunity”). 24 As it must, the Court
here falls in line with that precedent.
Or take the remarkably similar circumstances in Martin for Estate of Webb v. City of
Newark, 762 F. App’x 78 (3d Cir. 2018). There, an officer shot an unarmed suspect sitting in the
driver’s seat of a stationary car moments after “the two engaged in a struggle at the open driver’s
side door.” Id. at 83. The Third Circuit determined that the officer’s three shots were
objectively reasonable, explaining that he “was faced with an erratic and noncompliant driver
who disregarded his explicit warning not to start the car, despite [his] proximity to, and presence
(of at least his hands) within, the vehicle.” Id. The suspect “posed a threat to [the officer]’s life:
being injured by a moving vehicle,” so he “need not have awaited movement of the car to protect
himself.” Id.
Blier also faced an “an erratic and noncompliant driver” who disregarded warnings and
posed a threat by his “bold actions” behind the wheel. Id. The Third Circuit assumed that the
officer gave a warning specifically about using his gun, see id., while here the Court assumes
that Blier did not. But unlike the suspect in Martin, Bushrod had shown how he would use the
car: recklessly operating it on busy streets and refusing to cease his flight even after hitting
24
The Supreme Court has not since found a Fourth Amendment violation involving the use of
deadly force following a car chase.
29
another car and an officer. A reasonable officer in Blier’s shoes thus had even more reason to
fear.
While some facts here remain disputed, none of them alter the constitutionality of the use
of force. Chief among them are the precise position of Blier relative to Bushrod’s car at the time
of the shot, and in what direction the car was moving. Blier says that as he lay against the Honda
CR-V after being struck by the Crown Victoria, he fired because he was afraid of being crushed
or trapped by the car reversing toward him. SUMF at 9. Bushrod contends that the Crown
Victoria must have been moving forward and away from Blier at the time of the shot. Pl.’s Facts
at 17–18. If Blier is correct, courts have repeatedly confirmed as reasonable the use of deadly
force when a suspect’s moving car threatens an officer on foot. 25
If the car was instead moving away, this case still falls under Plumhoff. There, the Court
held that the officers’ 12 shots (after the initial three) were reasonable, even though the officers
fired upon a car that was driving away from the officers. Plumhoff, 572 U.S. at 770. 26 The
25
See, e.g., Vann v. City of Southaven, Mississippi, 884 F.3d 307, 310 (5th Cir. 2018) (per
curiam) (ruling deadly force reasonable where it was “undisputed that [the officer] shot [the
suspect] after his colleague, [another officer], was knocked to the ground by [the suspect]’s car
and as [the] car approached [the other officer] for a second time”); Clark v. Bowcutt, 675 F.
App’x 799, 810 (10th Cir. 2017) (finding deadly force reasonable where it was “beyond
peradventure that [the suspect] was making hostile motions with his weapon—i.e., his car—
toward Deputy Bowcutt”); McCullough v. Antolini, 559 F.3d 1201, 1207 (11th Cir. 2009) (“We
have . . . consistently upheld an officer’s use of force and granted qualified immunity in cases
where the decedent used or threatened to use his car as a weapon to endanger officers or civilians
immediately preceding the officer’s use of deadly force.”); Robinson v. Arrugueta, 415 F.3d
1252, 1254, 1256 (11th Cir. 2005) (shooting justified where officer fired on car moving toward
him “at a likely speed of around one to two miles per hour” because “reasonable officer could
have perceived that [suspect] was using the [car] as a deadly weapon”). The D.C. Circuit’s
decision in Fenwick v. Pudimott, 778 F.3d 133 (D.C. Cir. 2015) is not to the contrary. There the
panel merely determined that constitutionality of the force was “far from obvious,” so it declined
to decide it. Id. at 137.
26
The district court’s opinion in Plumhoff confirms this detail more explicitly. See Estate of
Allen v. City of W. Memphis, No. 05-2489, 2011 WL 197426, at *3 (W.D. Tenn. Jan. 20, 2011)
30
Court noted that the threat to public safety was ongoing, even though the suspect’s car “came to
a temporary standstill” when the officers began shooting. Id. at 777. Other courts have likewise
found even a stationary car to pose a deadly threat. 27 Blier and Collins faced a dynamic situation
with an ongoing threat from Bushrod’s driving. A reasonable officer would not have believed
that the threat had ended when the Crown Victoria struck Blier—no matter the precise speed and
direction it was moving at the time of the shot.
Bushrod spends several pages attacking Blier’s record and his motives in pursuing him
that day. See Pl.’s Facts at 28–34. Those disputed facts are immaterial here. An officer’s
subjective intent is irrelevant to the objective reasonableness of the use of force. Wasserman,
557 F.3d at 641. Bushrod advances no other disputed facts material to the constitutionality of the
use of force. See Pl.’s Facts at 28–36.
Taking all supportable inferences in favor of Bushrod, the Court has assumed a set of
facts about what occurred before and during the shooting. Under the totality of those
circumstances, Blier’s use of force was objectively reasonable.
(“Gardner fired all ten shots while the vehicle was moving forward (i.e., away from the officers)
. . . . Galtelli also fired two shots at the vehicle . . . [as the suspect] was fleeing down Jackson
Avenue.”).
27
See, e.g., Martin, 762 F. App’x at 83 (determining that officer reasonably shot driver in the
back “even assuming the car had not yet moved at the time of the shooting”); Long, 508 F.3d at
581 (11th Cir. 2007) (“Even if we accept that the threat posed by Long to Deputy Slaton was not
immediate in that the cruiser was not moving toward Slaton when shots were fired, the law does
not require officers in a tense and dangerous situation to wait until the moment a suspect uses a
deadly weapon to act to stop the suspect.”); Pace v. Capobianco, 283 F.3d 1275, 1282 (11th Cir.
2002) (concluding that officers did not use excessive force in shooting at suspect who had
stopped his car “for, at most, a very few seconds” after a high-speed chase).
31
2. Even if the Use of Force was Unreasonable, Bushrod Failed
to Plead and Show a Violation of Clearly Established Law.
Blier prevails for an independent reason. Even if Blier used excessive force, Bushrod has
failed to show a violation of a right that was clearly established at the time of the incident.
Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). So immunity applies unless the unlawfulness
of an official’s conduct was “clearly established at the time” of its occurrence. District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). “Clearly established” means “that, at the time of
the officer’s conduct, the law was sufficiently clear that every reasonable official would
understand that what he is doing is unlawful.” Id. (cleaned up).
A legal principle is clearly established only if it has a “sufficiently clear foundation in
then-existing precedent.” Wesby, 138 S. Ct. at 589. “While there does not have to be a case
directly on point, existing precedent must place the lawfulness of the particular action beyond
debate.” City of Escondido v. Emmons, 139 S. Ct. 500, 504 (2019) (per curiam) (cleaned up). It
is “not enough that the rule is suggested by then-existing precedent.” Wesby, 138 S. Ct. at 590.
The rule must be “settled law,” meaning dictated by “controlling authority” or “a robust
consensus of cases of persuasive authority.” Id. at 589–90 (cleaned up). There remains,
however, an exception for the “obvious case” where a violation is sufficiently clear even without
precedent addressing similarly circumstances. Brosseau, 543 U.S. at 199.
Plaintiffs bear the burden to show that a right in question was clearly established. Dukore
v. District of Columbia, 799 F.3d 1137, 1145 (D.C. Cir. 2015). More, they must define the
clearly established right with specificity. Emmons, 139 S. Ct. at 503. The Supreme Court “has
repeatedly told courts . . . not to define clearly established law at a high level of generality.”
Kisela, 138 S. Ct., at 1152 (internal quotation marks omitted).
32
This precision is “particularly important” in excessive-force cases. Emmons, 139 S. Ct.
at 503. “Use of excessive force is an area of the law in which the result depends very much on
the facts of each case, and thus police officers are entitled to qualified immunity unless existing
precedent squarely governs the specific facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153
(2018) (per curiam) (cleaned up). For deadly force, “the general rules set forth in Garner and
Graham do not by themselves create clearly established law outside an ‘obvious case.’” Id.Blier raised qualified immunity in his motion for summary judgment. Blier Mot. at 23–
29. He need not have done more to shift the burden to Bushrod, yet he did. He identifies several
similar cases in which appellate courts found an officer’s use of deadly force reasonable. See id.at 24–25. More, he contends that the lack of a clearly established right is apparent from
Fenwick. See Fenwick, 778 F.3d at 138 (concluding that right not clearly established where
officers opened fire on suspect fleeing in car who “posed no immediate threat to either officers or
bystanders” but who had created “a grave risk of causing significant bodily injury” to an officer
just moments beforehand). 28
For his part, Bushrod is nearly silent on the “clearly established” prong of qualified
immunity. His opposition brief offers one drive-by citation to Tennessee v. Garner for the
proposition “that that the Fourth Amendment prohibits the use of deadly force to seize a non-
dangerous fleeing felon.” Pl.’s Opp’n at 7 (citing Garner, 471 U.S. at 10). Otherwise, he briefly
distinguishes Fenwick on the ground that in that case the “suspect who clipped an officer with his
28
Although the events at issue in Fenwick occurred in 2007, the D.C. Circuit handed down its
decision in 2015. So even if the court had decided that the use of force was unconstitutional—a
question it explicitly did not reach—the decision could not have clarified the law for Blier, who
shot Bushrod in 2014.
33
car had done so intentionally,” id., with the unstated presumption presumably being that Bushrod
did not. 29 Bushrod’s arguments end there. 30
Bushrod bore the burden to identify a clearly established right. Dukore, 799 F.3d at
1145. He failed to attempt that lift. Had he done so, he could have tried to show such a right in
one in two ways. First, by identifying a “controlling authority” or “a robust consensus of cases
of persuasive authority.” Wesby, 138 S. Ct. at 590 (cleaned up). But the closest controlling
authority works against Bushrod. See Plumhoff, 72 U.S. 769–70. 31 And as explained above, so
do persuasive authorities. See supra at notes 25 & 27. Second, absent relevant case law,
Bushrod could have showed that the constitutional violation was “obvious.” Brosseau, 543 U.S.
at 199. Having explained above why no violation occurred at all, the Court will not belabor the
point here.
In sum, Bushrod has at the very least failed to meet his burden to show that Blier’s shot
violated a clearly established right. He did not define the alleged right with enough specificity,
see Emmons, 139 S. Ct. at 503, because he did not define it at all. Qualified immunity applies.
29
Recall that this contention contradicts the jury’s finding that Bushrod was guilty of assaulting
Blier, which required finding that he acted “voluntarily, on purpose, and not by mistake or
accident.” Trial Tr. at 131, ECF No. 45-1.
30
Bushrod’s complaint does not come to the rescue. Its only statement on the issue provides:
“[Blier’s] acts and omissions violated clearly established rights of Mr. Bushrod of
which a reasonable officer should have known, and constituted the use of force sufficiently
excessive to overcome . . . Officer Blier’s qualified immunity from Fourth Amendment
liability within the meaning of Graham v. Connor, 490 U.S. 386, 396 (1989).” Compl. at 10.
31
Nor is there any reason to think a right became clearly established in the four months between
the Supreme Court’s decision in Plumhoff and the incident in this case.
34
D. Qualified Privilege Bars the Assault and Battery
Claim Against Blier and the District (Count II)
Bushrod next contends that Blier committed common law assault and battery. See
Compl. at 11–12. Under D.C. law, an assault is “an intentional and unlawful attempt or threat,
either by words or acts, to do physical harm to the victim.” Etheredge v. District of Columbia,
635 A.2d 908, 916 (D.C. 1993). A battery is an “intentional act that causes harmful or offensive
bodily contact.” Id. (cleaned up). The District is vicariously liable for the intentional and
negligent acts of its officers when they act within the scope of their employment. Evans-Reid v.
District of Columbia, 930 A.2d 930, 937 (D.C. 2007).
Neither Defendant argues in the summary judgment briefing that the elements of assault
and battery have not been met. Rather, “[a]s in most cases involving intentional shootings by
police officers . . . the issue of liability turns on the defense of privilege.” Id. “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.’”
Etheredge, 635 A.2d at 916 (quoting Jackson v. District of Columbia, 412 A.2d 948, 956 (D.C.
1980)). “Moreover, any person, including an officer, ‘is justified in using reasonable force to
repel an actual assault, or if he reasonably believes he is in danger of bodily harm.’” Id. (quoting
Johnson v. Jackson, 178 A.2d 327, 328 (D.C. 1962)). “Use of ‘deadly force,’ however, is lawful
only if the user actually and reasonably believes, at the time such force is used, that he or she (or
a third person) is in imminent peril of death or serious bodily harm.” Id.To evaluate whether qualified privilege applies, “District of Columbia courts use the
same objective reasonableness standard applicable to qualified immunity under § 1983.”
Wallace, 685 F. Supp. 2d at 112 (dismissing assault claim against officers and city based on
qualified privilege after determining that qualified immunity applied to § 1983 claim); see also
35
Etheredge, 635 A.2d at 916 & n.10 (applying objective reasonableness standard of Graham,
which “reflects a realistic recognition of the perils of police work” that “does not turn on the
forum in which the plaintiff subsequently seeks redress”); Evans-Reid, 930 A.2d at 945 n.23
(explaining that because “the evidence admitted is insufficient to overcome the defense of
privilege to a claim of assault and battery, it would be similarly insufficient in the context of an
immunity defense to a constitutional claim”).
Bushrod does not contest that the applicability of qualified privilege tracks the qualified
immunity analysis. In fact, his brief does not mention “qualified privilege” at all. See Pl.’s
Opp’n at 1–11. As in Wallace, Blier is “privileged from tort liability for the same reasons [he is]
immune from constitutional liability.” 685 F. Supp. 2d at 112. So the Court must reject the
assault and battery claim against Defendants. See id; see also Jenkins v. District of Columbia,
223 A.3d 884, 900 (D.C. 2020) (noting that the District “may avoid vicarious liability for what
would otherwise be common-law assault and battery by a police officer” if “the conduct was
constitutional”); Evans-Reid, 930 A.2d at 937–42 (affirming dismissal of assault claim against
District after determining that qualified privilege applied to police officer’s shooting).
E. The Claim of Intentional Infliction of Emotional Distress Against Blier and the District
of Columbia (Count III) Fails Because Blier’s Conduct was not Extreme or Outrageous
Bushrod also brings a claim of intentional infliction of emotional distress against Blier
and the District based on the shooting. See Compl. at 12. The elements of intentional infliction
of emotional distress consist of (1) “extreme and outrageous” conduct on the part of the
defendant, which (2) intentionally or recklessly (3) causes the plaintiff “severe emotional
distress.” See Waldon v. Covington, 415 A.2d 1070, 1076 (D.C. 1980); Restatement (Second) of
Torts § 46 (1965). As to the first element, the conduct 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
36
atrocious, and utterly intolerable in a civilized community.” Kowalevicz v. United States, 302 F.
Supp. 3d 68, 76 (D.D.C. 2018) (citing District of Columbia v. Tulin, 994 A.2d 788, 800 (D.C.
2010)); see Restatement § 46, cmt. d. The factfinder may infer the existence of the second
element—intent or recklessness—from the very outrageousness of a defendant’s conduct. See
Waldon, 415 A.2d at 1077. “Finally, the defendant’s actions must proximately cause the plaintiff
emotional distress of so acute a nature that harmful physical consequences might be not unlikely
to result.” Kotsch v. District of Columbia, 924 A.2d 1040, 1046 (D.C. 2007) (cleaned up).
Whether the conduct complained of is sufficiently outrageous is a question of law for the Court
to decide. Kowalevicz, 302 F. Supp. 3d 68 at 76.
The “‘extreme and outrageous’ standard for intentional infliction of emotional distress is
different from, and more exacting than, the ‘reasonableness’ standard used for evaluating claims
of excessive force.” Kotsch, 924 A.2d at 1046 n.5. So Defendants argue that, having failed to
show that Blier’s conduct was objectively unreasonable, Bushrod has also failed to establish that
it was “extreme and outrageous.” Blier Mot. at 29–30; D.C. Mem. at 13–14. Courts have agreed
with this reasoning when considering police officers’ use of force. See, e.g., Stevens v. Stover,
727 F. Supp. 668, 672–73 (D.D.C. 1990) (rejecting claim for intentional infliction of emotional
distress because court found force used by officer was reasonable when assessing § 1983 claim);
Williams v. Park Place Inc., No. 16-cv-1931 (RJL), 2019 WL 6877923, at *7 n.4 (D.D.C. Dec.
16, 2019) (concluding that claim of intentional infliction of emotional distress “would similarly
fail because . . . the force employed by [the officer] was not unreasonable”).
Bushrod does not respond to this. His summary judgment brief does not mention
Defendants’ arguments here or “intentional infliction of emotional distress” at all. See Pl.’s
Opp’n at 1–11. He thus concedes the argument. See Wannall v. Honeywell, Inc., 775 F.3d 425,
37
428 (D.C. Cir. 2014) (explaining that when an opposition to a motion for summary judgment
“addresses only some of the movant’s arguments, the court may treat the unaddressed arguments
as conceded”). Blier’s conduct was not unreasonable, and it was therefore not “extreme and
outrageous” either. Kotsch, 924 A.2d at 1046 n.5. Bushrod’s claim for intentional infliction of
emotional distress fails.
IV. CONCLUSION
Bushrod’s shooting and his resulting injuries are tragic. But his criminal, dangerous, and
assaultive conduct in the moments before the shooting are to blame. Blier and the District
cannot be held responsible for the results of Bushrod’s misconduct. The Court will grant
Defendants’ motions for summary judgment. A separate Order will issue.
2021.02.22
11:15:56 -05'00'
Dated: February 22, 2021 TREVOR N. McFADDEN, U.S.D.J.
38