Wood v. Government of the District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
DAVID WOOD, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-2066 (EGS)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
________________________________)
MEMORANDUM OPINION
David Wood brings this action against the District of
Columbia and Metropolitan Police Department officers Charles
Kiel, Charandip Sekhon, Andrew Smith, Michael Rodd, Jonathan
Rosnick, Daniel Chodak, Jason Bagshaw, and Alicia Carter. His
claims arise from an altercation he had with several of the
defendant officers that occurred in the front yard of his home
the evening of October 27, 2013 and from his subsequent
prosecution on charges of assault on a police officer (“APO”).
His complaint alleges various common law tort claims, including
assault, false arrest, abuse of process, malicious prosecution,
and negligent training and supervision, and that the officers
violated federal law under 42 U.S.C. § 1983 when they falsely
arrested him, used excessive force against him, maliciously
prosecuted him, and prosecuted him based on false evidence.
Pending before the Court is defendants’ motion for summary
1
judgment. Upon review of defendants’ motion, the response and
reply thereto, the parties’ supplemental filings, the applicable
law, and the entire record, defendants’ motion for summary
judgment is GRANTED IN PART and DENIED IN PART.
I. Background
A. Factual Background
Around 8:00 p.m. on the evening of October 27, 2013,
Officers Charles Kiel, Andrew Smith, Charandip Sekhon, Michael
Rodd, and Jonathan Rosnick were in a 7-Eleven convenience store
on South Dakota Avenue in Northeast Washington, D.C. when a
woman entered the store and alerted them that a taxi cab driver
was being assaulted and robbed on nearby Jamaica Street. Defs.’
Statement of Material Facts (“Defs.’ SMF”), ECF No. 43 ¶ 1;
Deposition of Charles Kiel (“Kiel Dep.”), ECF No. 43-4 at 8:14-
18; Deposition of Charandip Sekhon (“Sekhon Dep.”), ECF No. 43-7
at 10:1-8; Deposition of David Wood (“Wood Dep.”), ECF No. 43-9
at 22:7-9. The officers immediately reported to Jamaica Street,
saw a taxi cab parked in the road with its door open, and then
saw a person——whose face was bloodied——on the street calling for
help. Defs.’ SMF, ECF No. 43 ¶¶ 2, 10. That person was the cab’s
driver, Minwiylte Gebyehu, who had been attacked and robbed by
his passenger and a second assailant who entered the cab on
Jamaica Street after the passenger had instructed Mr. Gebyehu to
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stop the cab on that street. Id. ¶ 41; Gebyehu Aff., ECF No. 45-
8 at 1-2.
Mr. Gebyehu communicated to the officers that two persons
had attacked him. Kiel Dep., ECF No. 43-4 at 12:6-8. But the
record is not clear as to what exactly Mr. Gebyehu communicated
to the officers regarding where the two assailants fled.
According to the officers, Mr. Gebyehu, when asked where his
assailants fled, pointed to a specific house located at 1214
Jamaica Street——the house in which Mr. Wood lived with his
mother and from which he was soon to emerge. Kiel Dep., ECF No.
43-4 at 11:1-3, 12:6-8; Deposition of Michael Rodd (“Rodd
Dep.”), ECF No. 43-5 at 11:2-4; Deposition of Jonathan Rosnick
(“Rosnick Dep.”), ECF No. 43-6 at 13:1-3, 15:10-12; Sekhon Dep.,
ECF No. 43-7 at 12:11-17; Deposition of Andrew Smith (“Smith
Dep.”), ECF No. 43-8 at 13:17-22. Additionally, in an affidavit
provided to the Court by Mr. Wood, Mr. Gebyehu affirmed that he
showed the officers who arrived on the scene the house that his
assailant-passenger had indicated was his house on Jamaica
Street. Gebyehu Aff., ECF No. 45-8 at 3. But Mr. Gebyehu’s
testimony from Mr. Wood’s criminal trial is in tension with this
evidence. At one point during his testimony, Mr. Gebyehu said
that he did not see where his assailants fled and that he told
the officers as much when they asked him where his assailants
had gone. Aug. 1, 2014 Criminal Trial Tr., ECF No. 45-3 at 19:2-
3
10. However, at another point during his testimony, Mr. Gebyehu
seems to have said that he did point out a specific house to the
officers: the house in front of which he had parked his cab. Id.
at 29:1-15. Mr. Wood contends that if Mr. Gebyehu did identify a
specific house for the officers, the house identified could not
have been his at 1214 Jamaica Street, as the cab was not parked
in front of his house. Pl.’s Opp. to Defs.’ Mot. for Summ. J.
(“Pl.’s Opp.”), ECF No. 45 at 10 n.2. The officers’ testimony as
to the location of the cab in relation to 1214 Jamaica Street is
inconsistent. Compare Kiel Dep., ECF No. 43-4 at 11:12-14 (“Q:
Where was his cab in relation to the [1214 Jamaica Street]
house? A: About two to three doors down, closer to Eastern
Avenue.”), with Rosnick Dep., ECF No. 43-6 at 14:21-15:6 (“Q: So
how did it come about that you were almost in front of the [1214
Jamaica Street] home? A: We were, again, we were walking from
Eastern back towards the scene of the event where the cab was. .
. . And [Mr. Gebyehu] had indicated that the two men that had
assaulted him had ran into that home, and pointed towards it.”).
Whatever directional information Mr. Gebyehu actually
conveyed to the officers, Officers Kiel, Sekhon, and Smith ended
up walking towards Mr. Wood’s house at 1214 Jamaica Street,
while Officers Rodd and Rosnick remained in the street with Mr.
Gebyehu. Defs.’ SMF, ECF No. 43 ¶ 4; Rosnick Dep., ECF No. 43-6
at 19:6-8, 22:16-18. Inside the living room of the house, Mr.
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Wood, who had “had a few drinks,” Wood Dep., ECF No. 43-9 at
22:2-3, was on the telephone when he saw a red streak reflect on
his television screen. Defs.’ SMF, ECF No. 43 ¶ 33; Wood Dep.,
ECF No. 43-9 at 13:8-10. Thinking that the flashing red light
could have been from an emergency vehicle arriving for a beloved
elderly neighbor, Mr. Wood——after jumping up and unsuccessfully
attempting to reach his neighbor by telephone——exited the house,
heading to his neighbor’s house to check on her. Wood Dep., ECF
No. 43-9 at 17:1-3, 19:8-9, 20:7-22; Pl.’s Answers to Defs.’
Interrogs., ECF No. 45-10 at 9.
When Mr. Wood exited his house he was clad in just his
underwear and a tee shirt and was “worried” and “panicking.”
Defs.’ SMF, ECF No. 43 ¶ 15; Wood Dep., ECF No. 43-9 at 13:18-
14:1, 19:4-6; Sekhon Dep, ECF No. 43-7 at 18:5. Officer Rosnick
observed that Mr. Wood had “an agitated character and
expression,” Rosnick Dep., ECF No. 43-6 at 25:6-7, and Officer
Kiel observed that Mr. Wood “had a very confused something-was-
wrong-with-him look in his eyes” and “appeared to be under the
influence of some kind of substance.” Defs.’ SMF, ECF No. 43 ¶
17; Kiel Dep., ECF No. 43-4 at 15:7-8, 17:18-19. Officer Kiel
identified himself as a police officer and told Mr. Wood that he
needed to stop and speak with the officers in view of the
assault and robbery that had just occurred nearby, Kiel Dep.,
ECF No. 43-4 at 15:16-20, 16:20-17:10; Sekhon Dep., ECF No. 43-7
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at 18:14-19:8; Smith Dep., ECF No. 43-8 at 19:10-20, but,
according to the officers, Mr. Wood refused to stop and speak
with them. Kiel Dep., ECF No. 43-4 at 17:3-4, 18:15; Sekhon
Dep., ECF No. 43-7 at 25:7-26:18; Smith Dep., ECF No. 43-8 at
19:16-20:4. Mr. Wood maintains that at this point——prior to
Officer Kiel grabbing him and handcuffing one of his arms——he
was unaware of any police presence. Wood Dep., ECF No. 43-9 at
17:10-17, 21:1-22:1.
Officer Kiel told Mr. Wood that he would have to handcuff
him and proceeded to grab and handcuff one of Mr. Wood’s arms.
Kiel Dep., ECF No. 43-4 at 18:15-18, 20:7-8; Rosnick Dep., ECF
No. 43-6 at 26:17-18; Sekhon Dep., ECF No. 43-7 at 27:3-22;
Smith Dep., ECF No. 43-8 at 20:6-7. Now aware of the officers’
presence, Wood Dep., ECF No. 43-9 at 17:10-15, Mr. Wood contends
that, upon being grabbed, he told Officer Kiel to “stop” and
raised his hand to Officer Kiel to indicate that he should stop
grabbing him. Wood Dep., ECF No. 43-9 at 17:1-7, 22:18-24:5.
According to the officers, Mr. Wood did not merely raise his
hand to indicate that they should “stop”; rather, he swung at
Officer Kiel right after Officer Kiel had secured one of his
arms in handcuffs. Kiel Dep., ECF No. 43-4 at 21:7-10; Rosnick
Dep., ECF No. 43-6 at 31:2-5; Sekhon Dep., ECF No. 43-7 at 31:7-
22; Smith Dep., ECF No. 43-8 at 24:19-21.
6
Whether Mr. Wood merely raised his hand at Officer Kiel or
swung at him, at about the same time or immediately after
Officer Sekhon commanded Mr. Wood, “On the ground,
motherfucker,” to which Mr. Wood responded by telling Officer
Sekhon, “Don’t try it, Junior.” Wood Dep., ECF No. 43-9 at
22:21-23:4. Telling Mr. Wood not to call him “Junior,” Officer
Sekhon then “ram[med] himself into [Mr. Wood],” tackling Mr.
Wood with the help of Officers Kiel and Smith. Id. at 14:9-13,
23:5-10. A melee ensued during which the officers punched,
pulled, stepped on, and kicked Mr. Wood. Id. at 14:14-20, 23:5-
10, 25:8-26:7; Sekhon Dep., ECF No. 43-7 at 42:1-22; Smith Dep.,
ECF No. 43-8 at 28:15-29:21. Soon after the struggle began,
Officers Rodd and Rosnick ran over to assist the three other
officers. Rosnick Dep., ECF No. 43-6 at 33:11-14. Officer Rodd
was able to grab ahold of Mr. Wood’s free arm and pull it behind
his back so that it could be handcuffed. Defs.’ SMF, ECF No. 43
¶ 9; Rodd Dep., ECF No. 43-5 at 33:14-34:1. Although Mr. Wood
insists that he “[c]ouldn’t struggle” because of the handcuffs,
Wood Dep., ECF No. 43-9 at 27:1-2, he concedes that during the
melee he was hitting the officers while they were hitting him.
Wood Dep., ECF No. 43-9 at 26:10-16 (“Q: And while they were
hitting you, where were your hands? A: Well, I was hitting——they
were hitting me at one point, my hands were in front of me. They
put them behind me. They grabbed them, they’re pulling it, they
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yanked and pulled and then put them in handcuffs.”). After Mr.
Wood was handcuffed and subdued, he contends that the officers
continued to punch, kick, and step on him. Id. at 15:4-6 (“I was
handcuffed and I remember one of the officers just punching me
and punching me.”), 23:13-15 (“[W]hen I was on the ground they
had me in handcuffs and still were still stepping on me,
punching me.”). The officers maintain that any use of force
ceased once Mr. Wood was fully handcuffed. Kiel Dep., ECF No.
43-4 at 35:10-15 (“A: At some point we were able to handcuff
him. Yes. Q: And then what happened? A: We all immediately got
off of him, assessed what the rest of the situation, and carried
on with the investigation.”).
Officer Daniel Chodak arrived on the scene after the melee
was in progress but stayed on the street with Mr. Gebyehu
throughout its duration. Defs.’ SMF, ECF No. 43 ¶¶ 24-26. During
a subsequent show-up procedure that occurred after Sergeants
Jason Bagshaw and Alicia Carter arrived on the scene, Mr.
Gebyehu did not identify Mr. Wood as one of his assailants. Id.
¶¶ 28-31; Deposition of Jason Bagshaw, ECF No. 43-1 at 15:1-3.
Mr. Wood was then transported from the scene to a police station
house and eventually taken to a hospital to receive medical
attention for atrial fibrillation, an accelerated heart rate,
post-concussive syndrome, and injuries to his head and shoulder.
Defs.’ SMF, ECF No. 43 ¶ 39; Pl.’s Opp., ECF No. 45 at 4.
8
B. Procedural Background
Mr. Wood was subsequently charged with misdemeanor APO but,
following a bench trial on July 31 and August 1, 2014 in the
Superior Court of the District of Columbia, was found not
guilty. Defs.’ SMF, ECF No. 43 ¶ 40; Criminal Trial Docket
Sheet, ECF No. 45-9. On October 24, 2014, Mr. Wood commenced
this lawsuit in the Superior Court alleging: (1) common law
assault against all defendants (Counts I and II); (2) common law
false arrest against all defendants (Counts III and IV); (3)
common law abuse of process against all defendants (Counts V and
VI); (4) common law malicious prosecution against all defendants
(Counts VII and VIII); (5) excessive force in violation of the
Fourth Amendment, pursuant to 42 U.S.C. § 1983, against all
individual officers (Count IX); (6) false arrest in violation of
the Fourth Amendment, pursuant to 42 U.S.C. § 1983, against all
individual officers (Count X); (7) prosecution based on false
evidence in violation of unspecified civil rights, pursuant to
42 U.S.C. § 1983, against all individual officers (Count XI);
(8) malicious prosecution in violation of the Fourth and Fifth
Amendments, pursuant to 42 U.S.C. § 1983, against all individual
officers (Count XII); and (9) negligent training and supervision
against the District of Columbia (Count XIII). See Compl., ECF
No. 19-1 ¶¶ 39-87.
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Defendants removed the case to this Court on December 5,
2014. See Joint Notice of Removal, ECF No. 1. The Court
partially granted Officer Chodak’s motion to dismiss, dismissing
Counts I, V, IX, and XI as to him. Order, ECF No. 27. On
December 23, 2015, defendants filed the motion for summary
judgment that is presently before the Court. See Defs.’ Mot. for
Summ. J., ECF No. 43. In his brief in opposition, Mr. Wood
expressly abandons and requests the Court to dismiss the
following claims: all Counts as to Officers Bagshaw and Carter,
and Counts V, VI, XI, and XIII in full. Pl.’s Opp., ECF No. 45
at 1 n.1. The Court thus grants defendants’ motion as to those
abandoned claims and has considered the parties’ summary
judgment arguments as they pertain to the remaining claims.
II. Legal Standards
A. Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should 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);
Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.
2002). The moving party must identify “those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which
it believes demonstrate the absence of a genuine issue of
10
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (internal quotation marks omitted). To defeat summary
judgment, the nonmoving party must demonstrate that there is a
genuine issue of material fact. Id. at 324. A material fact is
one that is capable of affecting the outcome of the litigation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
genuine dispute is one where “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Id. Further, in the summary judgment analysis “[t]he evidence of
the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Id. at 255.
B. Qualified Immunity
Section 1983 provides a private cause of action against
persons acting under color of District of Columbia law who
deprive another of his or her federal constitutional or
statutory rights. 42 U.S.C. § 1983. However, the doctrine of
qualified immunity “exists to protect officers ‘from undue
interference with their duties and from potentially disabling
threats of liability.’” Lash v. Lemke, 786 F.3d 1, 5 (D.C. Cir.
2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982)).
“In resolving questions of qualified immunity at summary
judgment, courts engage in a two-pronged inquiry.” Tolan v.
Cotton, 134 S. Ct. 1861, 1865 (2014). The first prong asks
“whether the facts, [t]aken in the light most favorable to the
11
party asserting the injury, . . . show the officer’s conduct
violated a [federal] right[.]” Id. (internal quotation marks
omitted). The second asks “whether the right in question was
‘clearly established’ at the time of the violation.” Id. at 1866
(citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)). “To be
clearly established, the precedent must give officials clear
warning of unconstitutional conduct.” Doe v. District of
Columbia, 796 F.3d 96, 104 (D.C. Cir. 2015) (internal quotation
marks omitted). “In determining whether officers strayed beyond
clearly established bounds of lawfulness, [this Court] look[s]
to cases from the Supreme Court and [the D.C. Circuit], as well
as to cases from other courts exhibiting a consensus view.”
Johnson v. District of Columbia, 528 F.3d 969, 976 (D.C. Cir.
2008). Although courts have discretion to decide the order in
which to engage the two prongs of the qualified immunity
analysis, Tolan, 134 S. Ct. at 1866 (citing Pearson v. Callahan,
555 U.S. 223, 236 (2009)), under either prong “courts may not
resolve genuine disputes of fact in favor of the party seeking
summary judgment.” Id.
III. Analysis
Mr. Wood’s remaining claims arise under § 1983 and several
common law torts. Under § 1983, he claims the officers violated
his constitutional rights by falsely arresting him, maliciously
prosecuting him, and using excessive force against him. See
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Compl., ECF No. 19-1 ¶¶ 67-76, 80-83. His tort claims are false
arrest, malicious prosecution, and assault. Id. ¶¶ 39-54, 61-66.
The Court will address these claims below.
A. § 1983: False Arrest and Malicious Prosecution
Mr. Wood contends that there was no reasonable, articulable
suspicion to permit the officers to initially stop him, Pl.’s
Opp., ECF No. 45 at 10-11 & n.2, and that the probable cause
required for an arrest never materialized during his interaction
with the officers. Id. at 10-13. Accordingly, he argues that the
officers falsely arrested him in violation of his Fourth
Amendment rights. Id. at 12-13. Defendants counter that the
totality of the circumstances gave rise to the reasonable
suspicion required for an initial investigatory stop, Defs.’
Reply, ECF No. 48 at 2-4, and that, based on Mr. Wood’s
resistant conduct during that lawful stop, they had probable
cause to arrest him for APO or, in the alternative, they are
shielded by qualified immunity because it was not unreasonable
for them to believe that they had probable cause to arrest him
for APO. Defs.’ Mem. in Supp. of Mot. for Summ. J. (“Defs.’ Mem.
Supp.”), ECF No. 43 at 26-28; id. at 4.
As a preliminary matter, the Court concludes that, when
considering only the facts not in dispute and when drawing all
reasonable inferences in Mr. Wood’s favor, the officers had the
reasonable, articulable suspicion required to permissibly
13
effectuate an investigatory stop of Mr. Wood.1 Defendants do not
dispute that Mr. Wood was “seized” for Fourth Amendment purposes
when Officer Kiel grabbed one of his arms and handcuffed it. See
Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) (“Only when the
officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may we conclude
that a ‘seizure’ has occurred.”). The inquiry then becomes
whether that initial stop was constitutionally justified.
Officers are permitted to conduct a warrantless investigatory——
or “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) (citing Illinois v. Wardlow, 528
1 Mr. Wood does not assert a stand-alone § 1983 Fourth Amendment
claim of an unlawful seizure arising from the initial stop, see
generally Compl., ECF No. 19-1, and instead limits his § 1983
claims to those of false arrest, malicious prosecution, and
excessive force. See id. ¶¶ 67-76, 80-83. Even so, “[a] court
may deny a motion to dismiss or for summary judgment on the
basis of a legal theory never embraced by the plaintiff, as long
as that theory is supported by the facts alleged and as long as
the defendant is not prejudiced on the merits.” Hanson v.
Hoffmann, 628 F.2d 42, 53 n.11 (D.C. Cir. 1980) (internal
citations omitted). Here, denying summary judgment as to an
unlawful seizure claim based on the initial investigatory stop
would not prejudice the officers because they have not been
taken by surprise; in their briefing, they addressed the
legality of the initial stop, in addition to addressing the
other claims that Mr. Wood has explicitly articulated. See
Defs.’ Reply, ECF No. 48 at 2-4 (arguing that the officers had
the reasonable, articulable suspicion required for an
investigatory stop). For this reason, and because analysis of
the false arrest claim benefits from a preliminary analysis of
the initial investigatory stop, the Court scrutinizes the
propriety of the initial stop.
14
U.S. 119, 123 (2000)). This determination depends on an
assessment of the totality of the circumstances “as viewed
through the eyes of a reasonable and cautious police officer on
the scene, guided by his experience and training.” United States
v. Bailey, 622 F.3d 1, 6 (D.C. Cir. 2010) (internal quotation
marks omitted). In this totality of the circumstances analysis,
“factors individually susceptible to an innocent explanation may
suffice[ ] to form a particularized and objective basis when
taken together.” United States v. Castle, 825 F.3d 625, 634-35
(D.C. Cir. 2016) (internal quotation marks omitted). Further, a
Terry stop only requires that “officers have a ‘minimal level of
objective justification.’” Goddard, 491 F.3d at 460 (quoting INS
v. Delgado, 466 U.S. 210, 217 (1984)).
Here, there is a factual dispute as to whether Mr. Gebyehu
told the officers that his assailants fled to Mr. Wood’s house;
told them that they fled to a different house on Jamaica Street;
or told them nothing regarding the whereabouts of his
assailants. Compare Aug. 1, 2014 Criminal Trial Tr., ECF No. 45-
3 at 19:2-10, with Kiel Dep., ECF No. 43-4 at 11:1-3. Even so,
there is no dispute that a violent crime had occurred on Jamaica
Street in the immediate vicinity of the home from which Mr. Wood
emerged, Defs.’ SMF, ECF No. 43 ¶¶ 1-2; that the crime was
perpetrated by two persons, Kiel Dep., ECF No. 43-4 at 12:6-8;
that the altercation between Mr. Wood and the officers occurred
15
at night, Wood Dep., ECF No. 43-9 at 22:7-9 (“Q: And about what
time did this all occur? A: I would say around, say, 8:00.”);
that Mr. Wood was “panicking” and “worried” when he exited his
house to check on his neighbor after seeing a flashing red light
from his living room, Wood Dep., ECF No. 43-9 at 13:8-14:2; and
that Officer Kiel——the officer who initiated the investigatory
stop——noted that Mr. Wood, clad in only underwear and a tee
shirt, “appeared to be under the influence of some kind of
substance” and “had a very confused something-was-wrong-with-him
look in his eyes.” Kiel Dep., ECF No. 43-4 at 15:7-10, 17:18-19.
The Court concludes that the undisputed facts are
sufficient to sustain a finding of reasonable, articulable
suspicion here because “[a]lthough an officer does not have
articulable suspicion a person is committing a crime merely
because a person is in an area of suspected criminal activity,
‘officers are not required to ignore the relevant
characteristics of a location in determining whether the
circumstances are sufficiently suspicious to warrant further
investigation.’” Bailey, 622 F.3d at 5-6 (quoting Wardlow, 528
U.S. at 124). Thus “[a]n officer may initiate a Terry stop based
not on certainty but on the need ‘to ‘check out’ a reasonable
suspicion.’” Id. at 6 (quoting United States v. Clark, 24 F.3d
299, 303 (D.C. Cir. 1994)). The scenario that confronted Officer
Kiel and his fellow officers is a quintessential example of one
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where it was necessary to at least “check out” Mr. Wood to
dispel their suspicion that he was connected to the crime that
they were responding to. When Mr. Wood emerged from his house in
the immediate vicinity of the crime that had been committed, the
officers were searching for two suspects, and the officers’
observation of Mr. Wood’s strange conduct and appearance——
consistent with his own description that he was “worried” and
was “panicking” when he emerged from his house, Wood Dep., ECF
No. 43-9 at 13:8-14:2——was enough to permit them to effectuate
an investigatory stop to dispel their suspicion. See United
States v. Brown, 334 F.3d 1161, 1165-68 (D.C. Cir. 2003)
(holding that there was reasonable suspicion for an
investigatory stop of persons in a car in a high crime area when
the car was only one of two occupied cars in a parking lot where
gunshots had recently been fired, a person that exited the car
engaged in “peculiar” behavior, and the persons remaining in the
car engaged in “furtive movements”). Although Officer Kiel and
his fellow officers only barely passed the reasonable suspicion
threshold, based on Mr. Wood’s panicked demeanor in the
immediate vicinity of a violent crime they had the “‘minimal
level of objective justification’” needed to effectuate an
investigatory stop. See Goddard, 491 F.3d at 460 (quoting
Delgado, 466 U.S. at 217). Certainly Mr. Wood’s conduct was
“‘ambiguous and susceptible of an innocent explanation,’” but
17
“‘Terry recognized that . . . officers could detain [such] [an]
individual[ ] to resolve the ambiguity.’” Brown, 334 F.3d at
1168 (quoting Wardlow, 528 U.S. at 125-26).2
That the officers had the reasonable suspicion required to
effectuate an initial investigatory stop of course does not end
the Court’s inquiry, as at some point the investigatory stop
morphed into an arrest, and an arrest requires not mere
reasonable suspicion but rather probable cause. Martin v.
Malhoyt, 830 F.2d 237, 262 (D.C. Cir. 1987). “Probable cause
2 Although the Court concludes that there was reasonable
suspicion justifying an investigatory stop, to the extent that
there was not, defendants are still entitled to summary judgment
on any claim of an unlawful seizure arising from the initial
stop of Mr. Wood under the second prong of the qualified
immunity analysis. That prong entitles defendants to immunity so
long as the violation in question was not “clearly established.”
Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (internal
quotation marks omitted). “In determining whether officers
strayed beyond clearly established bounds of lawfulness, [this
Court] look[s] to cases from the Supreme Court and [the D.C.
Circuit], as well as to cases from other courts exhibiting a
consensus view.” Johnson, 528 F.3d at 976. Mr. Wood fails to
cite a single case from the Supreme Court or the D.C. Circuit
that clearly establishes the absence of reasonable suspicion
under factual circumstances generally similar to those that are
undisputed in his case. See generally Pl.’s Opp., ECF No. 45.
And though Mr. Wood does not cite to any out-of-Circuit cases
relevant to this analysis, the Court’s own research indicates
the absence of any consensus view. Compare United States v.
Williams, 11 F. App’x 842, 843-44 (9th Cir. 2001) (holding that
there was no reasonable suspicion when the person stopped was in
the vicinity of a crime scene and “looked nervously back at the
crime scene”), with United States v. Broomfield, 417 F.3d 654,
655 (7th Cir. 2005) (explaining that there was reasonable
suspicion when the person stopped matched a highly generalized
description of the suspect and was less than a mile from the
scene of a robbery when the streets were nearly deserted).
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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). Like the reasonable suspicion inquiry,
the probable cause inquiry is an objective one that assesses
“the facts and circumstances known to the officers at the time
of the arrest without regard to the ‘actual motivations’ or
‘[s]ubjective intentions’ of the officers involved.” United
States v. Bookhardt, 277 F.3d 558, 565 (D.C. Cir. 2002) (quoting
Whren v. United States, 517 U.S. 806, 813 (1996)).
Mr. Wood maintains that the probable cause required for an
arrest was absent. Pl.’s Opp., ECF No. 45 at 12-13. Defendants
counter, as indicated above, that Mr. Wood’s Fourth Amendment
false arrest claim must fail because there was probable cause to
arrest him for APO or, in the alternative, because they had the
reasonable belief that they had probable cause to arrest him for
APO. Defs.’ Mem. Supp., ECF No. 43 at 26-28. Defendants’
fallback qualified immunity argument thus relies on the well-
settled rule that “law enforcement officials who reasonably but
mistakenly conclude that probable cause is present are entitled
to immunity.” Hunter v. Bryant, 502 U.S. 224, 227 (1991)
(internal quotation marks omitted).
The D.C. APO statute applicable here directs that anyone
who, “without justifiable and excusable cause, assaults,
19
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 shall be guilty of a misdemeanor.” D.C. Code § 22-405(b).3
And even when an investigatory stop or arrest is unlawful, a
person does not have justifiable and excusable cause to use
force to resist that stop or arrest when he knows it is being
carried out by a law enforcement officer. See id. § 22-405(d).
To “constitute an offense under [the APO statute], a person’s
conduct must go beyond speech and mere passive resistance or
avoidance, and cross the line into active confrontation,
obstruction or other action directed against an officer’s
performance in the line of duty.” Howard v. United States, 966
A.2d 854, 856 (D.C. 2009) (quoting In re C.L.D., 739 A.2d 353,
357 (D.C. 1999)). The “key is the active and oppositional nature
of the conduct for the purpose of thwarting a police officer in
his or her duties.” Id. (quoting C.L.D., 739 A.2d at 357).
Defendants argue that there was probable cause for an APO
arrest or that it was at least reasonable to conclude that such
3 The current version of D.C.’s APO statute——which became
effective on June 30, 2016, well after the events in question
here——reads as follows: “Whoever without justifiable and
excusable cause assaults a law enforcement officer on account
of, or while that law enforcement officer is engaged in the
performance of his or her official duties shall be guilty of a
misdemeanor . . . .” D.C. Code § 22-405(b).
20
probable cause existed because they contend that: Mr. Wood was
walking away from the officers when they were approaching him on
his front lawn; when he was grabbed by Officer Kiel he told the
officers to “stop” and motioned at the officers to stop; he
said, “Don’t try it, Junior” when Officer Sekhon ordered that he
fall to the ground; and, in the ensuing melee, he was hitting
the officers at the same time that they were hitting him. Defs.’
Mem. Supp., ECF No. 43 at 27-28; Defs.’ Reply, ECF No. 48 at 4.
Under those circumstances, the defendants contend that they had
probable cause or a reasonable belief of probable cause for an
APO arrest. Defs.’ Mem. Supp., ECF No. 43 at 28. For his part,
Mr. Wood only contends that because there is a dispute of fact
as to whether Mr. Gebyehu directed the officers on the scene to
Mr. Wood’s house there was no probable cause for an arrest.
Pl.’s Opp., ECF No. 45 at 12-13.
The Court finds that the officers had probable cause for an
APO arrest, and thus they are entitled to summary judgment as to
Mr. Wood’s Fourth Amendment false arrest claim. There is no
dispute that when Officer Kiel initially grabbed Mr. Wood as
part of his investigatory stop Mr. Wood responded by saying
“stop” and by raising his hand to the officers in a motion
intended to emphasize that they should “stop” grabbing and
handcuffing him. Wood Dep., ECF No. 43-9 at 22:18-22 (“One
[officer] grabbed my arm, one tried to come at me. I said, stop,
21
you know.”), 23:16-24:5 (“Q: So you raised your hand at the
officer? A: Yeah. ‘Stop.’ You know. I don’t have——as many
medical injuries as I have, I’m not trying to get hurt
anymore.”). It is also undisputed that Mr. Wood then refused to
go to the ground when Officer Sekhon ordered him to do so. Id.
at 22:21-23:6 (“I said, stop, you know. And then the other one .
. . he came up to me and said, ‘On the ground, motherfucker.’ I
then said, ‘Don’t try it, Junior.’ And he said, ‘Don’t call me
Junior.’ And then they all just grabbed me.”). Because probable
cause for an APO arrest requires an arrestee’s conduct to “go
beyond speech and mere passive resistance or avoidance, and
cross the line into active confrontation, obstruction or other
action directed against an officer’s performance in the line of
duty,” Howard, 966 A.2d at 856 (quoting C.L.D., 739 A.2d at
357), the Court is uncertain as to whether Mr. Wood’s refusal to
go to the ground during the course of the investigatory stop
when commanded to do so provides probable cause for an APO
arrest. Compare Howard, 966 A.2d at 856-57 (holding that a
defendant engaged in only passive resistance when she refused to
remove her hands from her pockets when an officer ordered her to
do so), and CLD, 739 A.2d at 357-58 (holding that a defendant
engaged in only passive resistance when he refused to provide
his name and walked away when an officer ordered him to state
his name and not walk away), with Cromartie v. District of
22
Columbia, 479 F. App’x 355, 357 (D.C. Cir. 2012) (holding that
there was probable cause for an APO arrest when a plaintiff “was
belligerent, refused to obey instructions, and loudly cursed at
the officers”), and Hargraves v. District of Columbia, 134 F.
Supp. 3d 68, 84 (D.D.C. 2015) (holding that a plaintiff engaged
in active confrontation when he “refused to get down on the
ground as the officer commanded” and “refused to provide his
loose arm to be handcuffed” during the course of an
investigatory stop). Even so, when Officer Kiel initially
grabbed Mr. Wood and began to handcuff him, Mr. Wood’s raised
hand motion to emphasize that he wanted the officers to “stop”
was sufficiently “active confrontation” to give rise to probable
cause for an APO arrest. In In re J.S., 19 A.3d 328 (D.C. 2011),
the D.C. Court of Appeals held that J.S. “actively resisted”
officers’ attempts to handcuff him when, while lying on the
ground, he rolled his body from side to side and broke from an
officer’s grip by “swinging his arm forward.” 19 A.3d at 332.
The Court found that although J.S. did not assault the officers
by swinging at them and his arm movement was motivated by pain
rather than a specific intent to evade being handcuffed, that
conduct still crossed the line from passive resistance into
active confrontation. Id. at 331-33. Relying on its prior
precedent, the Court said that “resisting handcuffing
constitutes the type of active resistance directed against
23
police that is prohibited by the APO statute.” Id. at 331
(citing Coghill v. United States, 982 A.2d 802, 805-06, 808
(D.C. 2009)). Here, there is a dispute as to whether Mr. Wood
swung at Officer Kiel, but there is no dispute that Mr. Wood at
least raised his hand to Officer Kiel to emphasize that he
should “stop” grabbing and handcuffing him. Mr. Wood’s sudden
hand movement in response to Officer Kiel’s attempt to grab and
handcuff him might be minimal resistance, but it is resistance
sufficiently analogous to J.S.’s “swinging his arm forward” to
sustain the conclusion that “active resistance directed against
police” had materialized, giving the officers probable cause to
arrest Mr. Wood for APO. See id. at 331-32.4 Accordingly, because
the officers had probable cause to arrest Mr. Wood for APO, they
are entitled to summary judgment as to his Fourth Amendment
false arrest claim under the first prong of the qualified
immunity analysis. And because the officers had probable cause
to arrest Mr. Wood for APO, his § 1983 malicious prosecution
claim also fails. See Pitt v. District of Columbia, 491 F.3d
4 Because the Court concludes that probable cause for an APO
arrest materialized when Mr. Wood told Officer Kiel to “stop”
and raised his hand to Officer Kiel to emphasize his desire that
he stop grabbing and handcuffing him, the Court has no need to
assess whether there was independently probable cause for an APO
arrest when Mr. Wood was exchanging blows with the officers in
the ensuing melee. See Wood Dep., ECF No. 43-9 at 26:10-13 (“Q:
And while they were hitting you, where were your hands? A: Well,
I was hitting——they were hitting me at one point, my hands were
in front of me.”).
24
494, 511 (D.C. Cir. 2007) (“We join the large majority of
circuits in holding that malicious prosecution is actionable
under 42 U.S.C. § 1983 to the extent that the defendant’s
actions cause the plaintiff to be unreasonably ‘seized’ without
probable cause, in violation of the Fourth Amendment.”).
B. § 1983: Excessive Force
Mr. Wood also claims that excessive force was used against
him in violation of his Fourth Amendment rights during his
altercation with the officers on his front lawn. Pl.’s Opp., ECF
No. 45 at 6-10. Defendants argue that they did not use excessive
force or that they were not clearly on notice that the amount of
force that they used during the altercation was excessive.
Defs.’ Mem. Supp., ECF No. 43 at 21-25.
A claim of “excessive force in the course of making an
arrest, investigatory stop, or other ‘seizure’ of [one’s]
person” is “properly analyzed under the Fourth Amendment’s
‘objective reasonableness’ standard.” Graham v. Connor, 490 U.S.
386, 388 (1989). That reasonableness standard “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.” Id. at 396
(internal quotation marks omitted). Accordingly, the
reasonableness analysis “requires careful attention to the facts
and circumstances of each particular case, including the
25
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. Further, the objective 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. Thus, the “calculus of reasonableness
must embody allowance for the fact that police officers are
often forced to make split-second judgments——in circumstances
that are tense, uncertain, and rapidly evolving——about the
amount of force that is necessary in a particular situation.”
Id. at 396-97. “[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.” Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir.
1993).
In their altercation with Mr. Wood, the officers used force
on four different occasions: first, when Officer Kiel initially
grabbed Mr. Wood and handcuffed one of his arms; second, when
Officers Sekhon, Kiel, and Smith tackled Mr. Wood to the ground;
third, when Officers Sekhon, Kiel, Smith, Rodd, and Rosnick
26
struggled to subdue Mr. Wood with punches and grabs while he was
“hitting” them in return; and fourth, when, according to Mr.
Wood, punches and kicks were leveled against him after he had
been fully handcuffed and subdued. Although the Court concludes
that the first three uses of force here did not involve
excessive force that was so apparent that no reasonable officer
could have believed in the lawfulness of his actions, the last
use of force——the alleged gratuitous, post-submission use of
force——did involve that degree of egregiously excessive force.
Accordingly, defendants are not entitled to summary judgment as
to this version of Mr. Wood’s excessive force claim.
First, it is undisputed that Officer Kiel grabbed and
handcuffed one of Mr. Wood’s arms as part of his investigatory
stop. Kiel Dep., ECF No. 43-4 at 20:5-8; Wood Dep., ECF No. 43-9
at 17:3-5. But the right to make an investigatory stop
“necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.” Graham, 490
U.S. at 396. Officer Kiel’s grabbing and handcuffing of Mr.
Wood’s arm to effectuate the investigatory stop was not
excessive because the stop was justified based on Mr. Wood
appearing in the immediate vicinity of the scene of a violent
crime with a panicked appearance when the officers were
canvassing for the two perpetrators of the crime. See supra Part
III.A. Under those circumstances, it was reasonable for Officer
27
Kiel to restrain Mr. Wood’s arms by means of handcuffs until his
suspicions about him could be dispelled. See Cotton v. District
of Columbia, 541 F. Supp. 2d 195, 203-05 (D.D.C. 2008) (holding
that an officer did not use excessive force when he pushed the
plaintiff to the ground and placed her in handcuffs during an
investigatory stop even though bystanders had already informed
the officer that the plaintiff’s knife-wielding assailant had
fled the scene). In any event, even if Officer Kiel’s initial
use of force was excessive, it was certainly not so excessive
that no reasonable officer in his position could have believed
it was lawful. See United States v. Dykes, 406 F.3d 717, 720
(D.C. Cir. 2005) (holding that officers did not use excessive
force when, during the course of an investigatory stop, they
tackled a suspect who was in full flight and then placed him in
handcuffs once they had brought him to the ground); Kyle v.
Bedlion, 177 F. Supp. 3d 380, 393-95 (D.D.C. 2016) (holding that
it was not clearly established that an officer used excessive
force against a non-arrestee plaintiff when the officer shoved
the plaintiff into a hot barbeque grill, resulting in burns,
when the plaintiff had inserted herself between the officer and
a person that the officer was attempting to arrest).
Second, it is undisputed that, after Officer Kiel grabbed
and attempted to handcuff Mr. Wood, Mr. Wood raised his hand to
the officers and refused to obey Officer Sekhon’s command to
28
fall to the ground, and Officers Sekhon, Kiel, and Smith
responded by tackling him to the ground. Wood Dep., ECF No. 43-9
at 22:21-24:5. As explained above, when Mr. Wood raised his hand
to the officers when Officer Kiel was trying to handcuff him
pursuant to the investigatory stop, the officers had probable
cause to arrest Mr. Wood for APO. See supra Part III.A. Just as
officers are permitted a reasonable amount of force to carry out
an investigatory stop, they are permitted a reasonable amount of
force to make an arrest. Graham, 490 U.S. at 396. But, in this
Circuit, the amount of force deemed reasonable in the context of
an arrest is markedly greater than the amount of force deemed
reasonable in the investigatory stop context. See, e.g.,
Cromartie, 479 F. App’x at 357 (holding that “the ordinary
degree of physical coercion used by police officers to
effectuate an arrest” was used when arrestee was “slammed to the
ground, handcuffed, and forcibly kept on the ground by one or
both officers”) (emphasis added) (internal quotation marks
omitted); Oberwetter v. Hilliard, 639 F.3d 545, 548, 555 (D.C.
Cir. 2011) (holding that an officer did not use excessive force
when he arrested a plaintiff who was dancing at the Jefferson
Memorial by “ripping apart her earbud, shoving her against a
pillar, and violently twisting her arm”); Wasserman v. Rodacker,
557 F.3d 635, 641 (D.C. Cir. 2009) (holding that an officer did
not use excessive force when she applied force to the arrestee’s
29
arm to secure compliance during the arrest because the
arrestee’s refusal to obey the officer’s order prior to the
arrest suggested that the arrestee might try to resist or
escape); Scott v. District of Columbia, 101 F.3d 748, 759 (D.C.
Cir. 1996) (holding that the degree of force used to make an
arrest was not so excessive that no reasonable officer could
have believed in the lawfulness of his actions when an officer
struck an arrestee, a second officer joined the first officer in
slamming the arrestee to the ground, and then five officers
dragged the arrestee to a police transport vehicle); Martin, 830
F.2d at 262 (holding that an officer did not use excessive force
when he grabbed an arrestee about the waist, threw him into the
driver’s seat of a car, and then slammed the door on his legs).
In view of the substantial amount of force the Circuit Court has
said officers can reasonably use to make an arrest, tackling Mr.
Wood after he raised his hand to the officers and refused to
obey a command to go to the ground is not excessive, let alone
so excessive that no reasonable officer could have believed that
use of force was lawful.
Third, it is undisputed that, after Mr. Wood was brought to
the ground, in an attempt to handcuff Mr. Wood the five officers
involved in the melee punched, grabbed, and pulled Mr. Wood and
he, in turn, was “hitting” them. Sekhon Dep., ECF No. 43-7 at
42:1-22; Smith Dep., ECF No. 43-8 at 28:15-29:21; Rodd Dep., ECF
30
No. 43-5 at 33:14-34:1; Wood Dep., ECF No. 43-9 at 26:10-21.
Drawing all reasonable inferences in Mr. Wood’s favor, the Court
assumes that Mr. Wood did not start “hitting” until after the
officers began to hit him. Even so, the Court concludes that the
officers’ use of force prior to the moment Mr. Wood was secured
in handcuffs was not so excessive that no reasonable officer
could have believed that use of force was lawful. As explained
above, the Circuit Court has repeatedly said that even severe
force is not clearly excessive in the arrest context,
particularly when an arrestee has already refused to obey an
order, as was the case here. See Oberwetter, 639 F.3d at 548,
555 (explaining that the plaintiff’s refusal to stop dancing and
leave the Jefferson Memorial when ordered to do so was a primary
factor permitting the arresting officer “to take decisive action
to subdue [the plaintiff] quickly and forcefully, thereby
reducing the risk of interference or escape”); see also
Cromartie, 479 F. App’x at 357 (holding that it was not
excessive for officers to slam arrestee to the ground, handcuff
him, and forcibly keep him on the ground, “especially in light
of the fact that [the arrestee’s] belligerence and disobedience
suggested he might try to resist or escape”).
Fourth, Mr. Wood alleges that, after he was completely
handcuffed and had submitted to their authority, the officers
continued to punch, kick, and step on him. Wood Dep., ECF No.
31
43-9 at 15:4-6 (“I was handcuffed and I remember one of the
officers just punching me and punching me.”), 23:13-15 (“[W]hen
I was on the ground they had me in handcuffs and still were
stepping on me, punching me.”). The officers, on the other hand,
contend that any use of force ceased once Mr. Wood was
handcuffed. Kiel Dep., ECF No. 43-4 at 35:10-15 (“A: At some
point we were able to handcuff him. Yes. Q: And then what
happened? A: We all immediately got off of him, assessed what
the rest of the situation, and carried on with the
investigation.”). It is clearly established that punching,
kicking, and stepping on a handcuffed and submissive arrestee is
excessive force. See Johnson, 528 F.3d at 975 (holding that an
officer who kicked a prone and submissive arrestee in the groin
had used excessive force); Arrington v. United States, 473 F.3d
329, 331-33 (D.C. Cir. 2006) (holding, in a case where a suspect
was punched, beaten with a baton, pistol-whipped, and attacked
by a police dog, that such violence “was more force than was
reasonably necessary” if the suspect had already been disarmed
and handcuffed). Summary judgment here would be premature
because there exists a genuine issue of material fact, namely,
whether any of the five officers involved in the stop, arrest,
and ensuing melee punched, kicked, or stepped on Mr. Wood after
he had been completely handcuffed and had fully submitted to
their authority by ceasing his own “hitting.” Because resolution
32
of this dispute must be left to a fact-finder at trial,
defendants are not entitled to summary judgment as to this
version of Mr. Wood’s excessive force claim. See Saucier v.
Katz, 533 U.S. 194, 216 (2001) (Ginsburg, J., concurring in the
judgment) (“Of course, if an excessive force claim turns on
which of two conflicting stories best captures what happened on
the street, Graham will not permit summary judgment in favor of
the defendant official.”).
C. Common Law Claims
“The elements of a constitutional claim for false arrest
are substantially identical to the elements of a common-law
false arrest claim,” Scott, 101 F.3d at 753-54, and, thus,
“[c]onstitutional and common law claims of false arrest are
generally analyzed as though they comprise a single cause of
action.” Amobi v. District of Columbia Dep’t of Corr., 755 F.3d
980, 989 (D.C. Cir. 2014). Accordingly, if the probable cause
exists that negates a Fourth Amendment false arrest claim, that
same probable cause negates a common law false arrest claim. See
District of Columbia v. Minor, 740 A.2d 523, 529 (D.C. 1999)
(explaining that insufficiency of the evidence as to a Fourth
Amendment false arrest claim “will effectively negate the
common-laws false arrest claim”); see also Smith v. United
States, 121 F. Supp. 3d 112, 119 (D.D.C. 2015) (“Under District
of Columbia law, the existence of probable cause is an
33
affirmative defense that can be raised in response to an
accusation of false arrest.”), aff’d, 843 F.3d 509 (D.C. Cir.
2016). As explained above, the officers had probable cause to
arrest Mr. Wood for APO. See supra Part III.A. That probable
cause that entitles defendants to summary judgment as to Mr.
Wood’s constitutional false arrest claim likewise entitles
defendants to summary judgment as to Mr. Wood’s common law false
arrest claim. And because there was probable cause for the
arrest, defendants are also entitled to summary judgment as to
Mr. Wood’s common law malicious prosecution claim. See DeWitt v.
District of Columbia, 43 A.3d 291, 295-96 (D.C. 2012) (“The
existence of probable cause will likewise defeat a claim for
malicious prosecution . . . .”) (internal quotation marks
omitted); see also Amobi, 755 F.3d at 992 (“We think our
discussion of probable cause for the false arrest is
sufficiently analogous so as to be dispositive on the malicious
prosecution claim.”).
Mr. Wood also asserts a common law assault claim against
defendants. In the District of Columbia, an assault is “an
intentional and unlawful attempt or threat, either by words or
by acts, to do physical harm to the victim.” Etheredge v.
District of Columbia, 635 A.2d 908, 916 (D.C. 1993). However, a
“police officer has a qualified privilege to use reasonable
force to effect an arrest, provided that the means employed are
34
not in excess of those which the actor reasonably believes to be
necessary.” Id. (internal quotation marks omitted). Thus,
“unless the threatened use of force is clearly excessive, an
officer is protected against liability for assault.” Jackson v.
District of Columbia, 412 A.2d 948, 956 (D.C. 1980). “This
standard is similar to the excessive force standard applied in
the Section 1983 context.” Rogala v. District of Columbia, 161
F.3d 44, 57 (D.C. Cir. 1998); see also Harris v. Allison, No.
14-1104, 2016 WL 3166296, at *4 (D.D.C. June 6, 2016) (“[A]n
assault claim against D.C. law enforcement officials should be
held to the same standard as its federal counterpart——an
excessive force claim under 42 U.S.C. § 1983.”). Accordingly,
because there is a genuine dispute as to a material fact
concerning the officers’ use of force after Mr. Wood was
handcuffed and had fully submitted to their authority, as with
the § 1983 excessive force claim, defendants are not entitled to
summary judgment as to the common law assault claim. See Dormu
v. District of Columbia, 795 F. Supp. 2d 7, 27-28 (D.D.C. 2011)
(denying a defendant’s motion for summary judgment as to a
District of Columbia assault and battery claim “for the same
reasons [relied upon] in analyzing [plaintiff’s] excessive force
claim under § 1983”).
35
IV. Conclusion
For the reasons stated above, the Court will GRANT IN PART
and DENY IN PART defendants’ motion for summary judgment. A
separate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
May 31, 2017
36