UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) SHALONYA KYLE, ) ) Plaintiff, ) ) v. ) Civil Action No. 12-cv-1572 (KBJ) ) DUNCAN BEDLION, DIANE DAVIS, ANDREW GAMM, BENJAMIN RUBIN, AND RONALD WRIGHT, ) ) ) ) Defendants. ) )

MEMORANDUM OPINION Plaintiff Shalonya Kyle is suing Sergeant Duncan Bedlion and fo ur other officers of the District of Columbia Metr opolitan Police Department beca use of their actions during and after a dispute at a party that she and her boyfrien d attended in September of 2011. Kyle asserts that, when the officers arrived to respond to a noise complaint, a confrontation between her boyfriend and the officers ensued, an d when she attempted to defuse the brewing altercation, Sergeant Bedlion pushed her int o a hot barbeque grill and ordered another officer to arrest her. In the instant eigh t-count complaint, Kyle has brought various common-law tort claims, including assault and b attery, negligence, and abuse of process, and she also alleges that the officers violat ed federal law

— specifically, 42 U.S.C. § 1983

— when, among other things, they falsely arrested her and used excessive force against her in violation of her Fourth and/or Fifth Amendment rights.2 Before this Court at present is Defendants’ motion for summary judgment, which argues that the officers are entitled to immunity for the alleg ed vi olations of Kyle’s constitutional rights. As explained fully below, this Court co ncludes that, even assuming arguendo that the officers’ treatment of Kyle transgressed the Constitution, the officers are entitled to qualified immunity because clearlyestablished law did not prohibit Bedlion’s use of force or Kyle’s arrest as the facts presented themselves here (even when the facts are viewe d in the light most favorable to Kyle). And because this Court has determined that Kyle’s federal claims cannot procee d, it will decline to exercise jurisdiction over Kyle’s pendent state -law tort claims. Accordingly, Defendants’ motion for summary judgment will be GRANTED with respect to Counts Six and Seven of Kyle’ s complaint, and the remaining claims will be DISMISSED . A separate order consistent with this memorandum opinion wil l issue concurrently.

I. BACKGROUND A. The Facts Pertaining To The Officers’ Handling And Arrest Of Kyle The relevant facts, which have been construed as much as reason ably possible in Kyle’s favor, are largely undisputed and are as follows. 1

1 Kyle has failed to adhere to the local rule that requires a no n-movant facing a summary-judgment motion to append “a separate concise statement of genuine issues” of m aterial fact, with reco rd references and citations. LCvR 7(h)(1). T hus, this Court “may” deem undisputed the facts that Defendants have identified, see Bruder v. Chu , 953 F. Supp. 2d 234, 236 (D.D.C. 2013) (citation omitted); however, the Court may also decline to find that Kyle has conceded facts that appear to be plainly disputed in light of the record and the colloquy betwee n the parties. See Robinson v. District of Columbia , No. 09-2294, 2015 WL 5442434, at *3

– 4 (D.D.C. Sept. 15, 2015) (declining to treat defendants’ undis puted statement of material facts as completely conceded and ex amining facts in the record where plaintiff had included statements of facts in her briefs and noted record conflicts); Matthews v. District of Columbia , 924 F. Supp. 2d 115, 117 n.2 (D.D.C. 2013) (same). Given tha t the Court must “draw reasonable inferences in the light most favora ble” to the non -movant, Fenwick v. Pudimott , 778 F.3d 133, 137 (D.C. Cir. 2015) (citation omitted), it is reluctant to construe Kyle’s apparently inadvertent omission of a statement of facts as a re linquishment of her entitlement to the3 On the evening of September 11, 2011, Sergeant Duncan Bedlion a nd Officer Diane Davis arrived at a party in the northeast quadrant of the District of Columbia in response to a complaint about the noise level; they were joinedshortly thereafter by Officer Andrew Gamm. ( See Defs.’ Statement of Undispute d Material Facts in Supp. of Defs.’ Mot. for Summ. J. (“Undisputed Facts”), ECF No. 51, 37– 39, ¶¶ 1

– 3.) During the course of the officers’ investigation, they entered th e home, where Kyle was sitting on a couch with her boyfriend Darious Lewis. ( See Excerpts From Kyle’s Trial Testimony (“Kyle’s Trial Testimony”), Ex. 1 to Defs.’ Mot. for Summ. J., ECF No. 51

- 1, at 6

– 7.) 2Some sort of confrontation en sued between the officers and an other person in the home, and Lewis got up from the couch to try to exit, bu t the officers stopped him in the doorway. ( See Kyle’s Deposition, Ex. 1 to Defs.’ Reply, ECF No. 55 -1, at 13

– 14.) Bedlion and Lewis then began to argue on the home’s front porch. ( See Undisputed Facts ¶¶ 5 –6; Kyle’s Deposition at 14. ) During this argument, Kyle stepped between the two men, with her back to Bedlion ( see Undisputed Facts ¶¶ 7, 12), grabbed Lewis’s waist (Kyle’s Deposition at 15), and placed her hand o ver Lewis’s mouth ( id. ; Undisputed Facts ¶ 7). Kyle never touched the officer. ( See Superior Court Trial Transcript, Ex. 1 to Defs.’ Mot. for Partial Summ. J., EC F No. 38 -1, at 45.) The argument escalated; at one point, Bedlion grabbed Lewis by the arm and Lewis pulled away, cursing at Bedlion. ( See Undisputed Facts ¶¶ 8

– 11.) Bedlion then

benefit of such inferences. Therefore, while this Court will view Defendants’ statement of undisputed material facts as generally admitted ( see generally Defs.’ Statement of Undispute d Material Facts in Supp. of Defs.’ Mot. for Summ. J. (“Undisputed Facts”), ECF No. 51, 37– 39), and will not sift through the record to ascertain controverted facts on Kyle’s behalf, it will not accept any characterizations that are obviously belied by the record or that contravene summary-j udgment principles.

2Page-number citations to the documents the parties have filed refer to the page numbers that the Court’s electronic filing system automatically assigns.4 immediately fired his pepper spray at Lewis ( see Kyle ’s Deposition at 16), while Kyle was still between the two men ( see Undisputed Facts ¶¶ 12

– 13). Kyle and Lewis stumbled away and “tumbl [ed] down the steps” to the porch, with Kyle still holding on to Lewis. ( Kyle’s Trial Testimony at 4; see also Undisputed Facts ¶ 14.) Bedlion followed behind them, and then grabbed and threw (or shoved) Ky le away from Lewis

— Kyle landed in a hot barbeque grill about six feet away. ( See Kyle’s Trial Testimony at 4 (“The police officer . . . placed [his] hands on my arms and just tossed me away into the grill.”); Undisputed Facts ¶ 15 .) Kyle sustained a second-degree burn on her arm (Kyle’s Trial Testimony at 4) , and Officer Davis, who had been in her police car up until that point, came over to assist Kyle, ( see Undisputed Facts ¶ 19). Davis helped Kyle up from the ground and told her to go inside and si t down, but Bedlion overruled this directive, ordering Davis to arrest Kyle. ( See Kyle’s Deposition at 20 (“[B]y the time I reached the top of the steps a male officer s aid, ‘No, arrest her, too.’”); see also Undisputed Facts ¶¶ 19

– 21.)
B. Procedural History Following the arrest, Kyle was charged in Superior Court with t wo counts of assault on a police officer (“APO”) under D.C. law. ( See Superior Court Trial Transcript at 95

– 96); see also D.C. Code § 22- 405(b) (making it unlawful to “without justifiable and excusable cause, assault[], resist[], oppose[], impede[], intimidate[], or interfere[] with a law enforcement officer on account of, or wh ile that law enforcement officer is engaged in the perfor mance of his or her official du ties”). 3 Lewis had also been arrested for APO, and both d efendants went to trial. In A pril of 2012, Kyle was

3 Like the parties, the Court cites to the current version becau se the operative language has not changed since the events in question.5 found not guilty on both APO counts ( see Superior Court Trial Transcript at 96), while Lewis, who was tried separately, was found guilty of this offen se ( see generally Darious Lewis Docket Sheet, Ex. 5 to Defs.’ Mot. for Summ. J., ECF No. 51-5). After her acquittal, on September 21, 2012, Kyle filed the inst ant lawsuit against Bedlion, Davis, Gamm, and two ot her officers, Benjamin Rubin an d Ronald Wright, who were involved at later stages of her arrest and prosecution . ( See generally Compl. (“Initial Compl.”), ECF No. 1 .) Kyle subsequently amended her complaint ( see Am. Compl. (“Compl.”), ECF No. 13), to bring eight claims: (1) False arrest/false imprisonment under D.C. law against Bedlion, Davis, Gamm, and R ubin (Count One); (2) assault and battery under D.C. law against Bedlion (Count T wo); (3) negligence under D.C. law against Bedlion, Davis, Gamm, Rubin, and Wright (Count Three); (4) abuse of process under D.C. law against Bedlion, Davis, Gam m, and Rubin (Count Four); (5) defamation under D.C. law against Bedlion, Davis, Ga mm, and Rubin (Count Five); (6) unreasonable seizure (through false arrest and the u se of excessive force) in violation of the Fourth Amendment, pursuant to 42 U.S.C. § 1983 , against Bedlion, Davis, Gamm, and Rubin (Count S ix); (7) in the alternative to C ount Six, use of excessive force in violation of th e Fifth Amendment, pursuant t o 42 U.S.C. § 1983, against Bedlion (Count Seven); and (8) violation of the First A mendment, pursuant to 42 U.S.C. § 1983, against Bedlion (Count Eight). ( See id. ¶¶ 96

– 177.) 4 On July 23, 2014, Defendants filed an initial partial motion fo r summary judgment ( see Defs.’ Mot. for Partial Summ. J., ECF No. 38 ); this Court denied that

4To the extent that Kyle ’ s Count Six allegations cursorily reference “ civil conspiracy ” ( see Compl. ¶ 166), the complaint is patently insufficient on that front be cause it fails to allege with any specificity the elements of such a claim, see Lyles v. Hughes , 83 F. Supp. 3d 315, 323 (D.D.C. 2015), nor does the evidence in the summary-judgment record support any such allega tion.6 motion without prejudice, finding that an antecedent period of discovery was necessary ( see Mem. Op. and Order, ECF No. 45). Thereafter, the parties engag ed in a full round of discovery, followed by a period of mediation. ( See Joint Status Report, ECF No. 50, at 1.) Then, on July 31, 2015, Defendants filed the motion for summary judgment that is before this Court at present. ( See Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 51, at 1

– 4.) In their summary-judgment motion, Defendants argue generally th at they are entitled to qualified immunity against Kyle’s section 1983 claims and that her state-law claims fail either because of applicable state-law privileges o r because they fail to state a claim under D.C. law. ( See generally Defs.’ Mot. ; Defs.’ Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 51 , 5

– 36.) For her part, Kyle ’s brief in opposition begins by expressly “consent [ing] to the dismissal” of severa l of her claims, either partially or in full; specifically, she declines to pursue Coun ts One and Six as to Rubin and Gamm, and Counts Three, Five, and Eight in full. ( See Pl.’s Opp’n to Defs.’ Mot. (“Pl.’s Opp’n”), ECF No. 53, at 2.) With respect to the remaining claims, Kyle argues that the facts here entitle her to proceed to trial because, wi th respect to her section 1983 claims, she can overcome the qualified-immunity hurdle, an d with respect to her state-law claims, she has stated a claim upon which relief can be granted and can prevail with respect to any applicable state-law privileges. This Court ha s considered the parties’ summary -judgment arguments as they pertain to the remaining contested claims

— i.e. , the excessive-force claim brought under section 1983 against Bedlion based on the Fourth Amendment (Cou nt Six), or alternatively, the Fifth Amendm ent (Count Seven); the false-arr est claim brought under7 section 1983 against Bedlion and Davis based on the Fourth Amen dment (also Count Six); and the false-arrest, assault, and abuse-of-process tort claims that are based on D.C. law, ( see Compl. ¶¶ 96

– 101 (alleging false arrest and false imprisonment against Bedlion and Davis (Count One)); id. ¶¶ 102

– 110 (claiming assault and battery against Bedlion (Count Two)); id. ¶¶ 138

– 48 (asserting an abuse-of-process claim against Bedlion, Davis, Rubin, and Gamm (Count Four)). Defendants’ motion for summary judgment with respect to these claims is now ripe for this Court’s review

. II. LEGAL STANDARDS A. Qualified Immunity Section 1983 of Title 42 of the U nited States Code provides fora cause of action against any state actor (includi ng those from the District of C olumbia) who “under color of any statute, ordinance, regulation, custom, or usage . . . 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 immuni ties secured by the Constitution and laws[.]” 42 U.S.C. § 1983. Thus, section 1983 permits a plaintiff who claims that her constitutional rights have been violated to see k vindication in federal court, and to receive money damages as relief. See Butera v. District of Columbia , 235 F.3d 637, 645 (D.C. Cir. 2001). It is well established that section 1983 permits a state actor to be held accountable in his individual capacity for conduct that violate s constitutional rights, see Atherton v. District of Columbia Office of Mayor , 567 F.3d 672, 689 (D.C. Cir. 2009); however, it is also clear that immunity doctrines may apply to curtail that individual liability. One such doctrine is that of qualified immunity, pr eviously commonly known as “good

- faith immunity,” see, e.g. , Harlow v. Fitzgerald , 457 U.S. 800, 807 (1982),8 which shields state actors from “liability for civil damages if their act ions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known[,] ” Tolan v. Cotton , 134 S. Ct. 1861, 1866 (2014) (per curiam) (internal quotation marks and citation omitted). 5 Put another way, qualified immunity prevents officials who violate the law from having to defend against lawsuits for money damages unless “the legal rules that were clearly established at the ti me [the action] was taken ” gave those officials ‘ fair warning ’ that they were acting contrary to law. Messerschmidt v. Millender , 132 S. Ct. 1235, 1245 (2012) (internal quotation marks and citation omitted); see also Tolan , 134 S.Ct. at 1866; Ashcroft v. Al-Kidd , 131 S. Ct. 2074, 2085 (2011) (explaining that “[q]ualified immunitygives government officials breathing room to mak e reasonable but mistaken judgme nts about open legal questions” and that, “[w]hen pr operly applied, it protects all but the plainly incompetent or those who knowingly violate the law” (internal quotation mar ks and citation omitted)). A defendant bears the burden of raising the defense of qualifie d immunity in response to a claim brought under section 1983, see Crawford-El v. Britton , 523 U.S. 574, 587 (1998), and once the defense is asserted, “the burden of proof then falls t o the plaintiff to show that the official is not entitled to qualifie d immunity.” Winder v.
Erste , 905 F. Supp. 2d 19, 28 (D.D.C. 2012) (citation omitted); see also Dukore v.

5 Unlike absolute immunity, which categorically immunizes certai n actors for wrongful conduct, see, e.g. , Burns v. Reed , 500 U.S. 478, 484

– 86 (1991), “ good-f aith” immunity turns on whether or not the official should have known that his conduct violated the rights of the affected individuals but acted in that fashion anyway. See Erwin Chemerinsky, Federal Jurisdiction 570 (6th ed. 2012). This immunity is largely about how much notice the actor had that his action was wrong

— an objective assessment made in light of governing legal principles at that time

— and it can be lost if sufficient notice existed, see Tolan , 134 S. Ct. at 1866. The label “good

- faith” is synonymous with insufficient notice in this context, and should not be taken to suggest a subjective compon ent to the qualified-immunity analysis, which the Supreme Court rejected long ago in Harlow , see 457 U.S. at 815

– 819.9 District of Columbia , 799 F.3d 1137, 1145 (D.C. Cir. 2015). At the summary-judgmen t stage, the qualified-immunity question involves a “two -pronged inquiry. ” Tolan , 134 S. Ct

. at 1865. At the first prong, the Court asks “whether the facts, [t]aken in the light most favorable to the party asserting the injury, . . . sho w the officer’s conduct violated a [federal] right[.]” Id. at 1865 (alterations in original) (internal quotation marks and citation omitted). At the second, the Court looks to “the legal rules that were cl early established” at the time of the relevant ac tion, Messerschmidt , 132 S. Ct. at 1245 (internal quotation marks and citation omitted), to determine w hether they gave the officer “fair notice” that his conduct was contrary to law, City & Cty. of S.F. v. Sheehan , 135 S. Ct. 1765, 1777 (2015) (internal quotation marks and ci tation omitted). These two areas of inquiry may be addressed in any order, see Pearson v. Callahan , 555 U.S. 223, 236 (2009), and an affirmative answer to both is requ ired in order for the plaintiff to succeed at establishing that the officer is not en titled to immunity’s protection.
B. Summary Judgment When a defendant asserts that he or she is entitled to summary judgment on the basis of qualified immunity, the “evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor[,] ” just as with consideration of summary judgment in other contexts. Tolan , 134 S. Ct. at 1863 (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986)). As always, the c ourt’s job is “not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.’” Id. at 1866 (quoting Liberty Lobby , 477 U.S. at 249). To decide the issue of whether or not the non-movant may surviv e summary judgment

— i.e. , whether he has provided enough evidence “that a reasonable jury could10 return a verdict” in his favor, Liberty Lobby , 477 U.S. at 248 —the court must “first identify[] the version of events that best comports with the su mmary judgment standard and then ask[] whether, given that set of facts, a reasonable o fficer should have known that his actions were unlawful.” Morelli v. Webster , 552 F.3d 12, 19 (1st Cir. 2009) (citations omitted); see also Tolan , 134 S. Ct. at 1866. This is because, once the court has “determined the relevant set of facts and drawn all inferences in favor of the nonmoving party to the extent supportable by the record, ” the “ reasonableness of [the officer’s] actions . . . is a pure question of law

. ” Scott v. Harris , 550 U.S. 372, 381 n.8 (2007) (emphasis deleted) (citation omitted).
III. ANALYSIS In her complaint, Kyle contends that Sergeant Bedlion and Offic er Davis violated her constitutional rights in two ways: Bedlion allegedly used e xcessive force to seize her in the course of carrying out his duties ( see Compl. ¶¶ 160

– 162, 168), and both Bedlion and Davis allegedly arrested her without probable cause to believe she was committing a crime ( see id. ¶¶ 164

– 165). Furthermore, she raises the excessive-force allegations against Bedlion in r eference to two different const itutional provisions

— the Fourth Amendment and, alternatively, the Fifth Amendment. ( See id . ¶¶ 158

– 162, 168.) As explained below, this Court c oncludes that the force Bedlion used on Kyle did not violate clearly established law with respect to the use of forc e by police officers under the Fourth Amendment, which is the only potentially cognizable constitutional provision in light of the seizure of Kyle that indisputably occ urred. Kyle’s section 1983 claim based on the false-arrest allegation fares no better beca use, given the law regarding the commission of APO offenses at the time of the eve nts at issue, a reasonable officer would not necessarily have known that he or she lacked probable11 cause to arrest Kyle under the circumstances presented. Conseq uently, even if the actions of Sergeant Bedlion and Officer Davis amounted to viola tions of Kyle’s Fourth Amendment rights, they were not clearly established violations; thus, those defendant officers are entitled to qualified immunity, and the Court must grant Defendants ’ motion for summary judgment with respect to Kyle’s section 1983 claims. Moreover, because this determination resolves the only federal-law claims remaining in this case, this Court will decline to exercise jurisdiction over the remai ning pendent state-law claims, and Kyle’s entire complaint will be dismissed.
A. Sergeant Bedlion Is Entitled To Q ualified Immunity With Respect To Kyl e’s Excessive -Force Claim Because It Was Not Clearly Established That Bedlion’s Use Of Force Violated Kyle’s Fourth Amendment Rights As explained, Kyle h as alleged that Sergea nt Bedlion’s act of grabbing her and pushing her into the hot barbeque grill was an exhibition of ex cessive force that violated her constitutional right s in a manner that entitles he r to money damages. ( See Compl. ¶¶ 160

– 61, 168.) Kyle contends that Bedlion’s conduct violates the Fourth Amendment or the Fifth Amendme nt in the alternative, either bec ause Bedlion used excessive force in contravention of Kyle’s Fourth Amendment rig ht to be free of unreasonable seizures, see Graham v. Connor , 490 U.S. 386, 394 (1989), or if his conduct did not effect a seizure, Bedlion used excessive force in contravention of her substantive-due-process rights under the Fifth Amendment, see Cty. of Sacramento v.
Lewis , 523 U.S. 833, 843

– 47 (1998). Of course, for either contention to survive summary judgment, Kyle must show that the facts regarding Bedli o n’s actions , when construed in her favor, could suppo rt a claim under either Four th or Fifth Amendment principles. And the parties disagree on the applicability of e ither provision:12 Defendants’ motion for summary judgment makes clear their view that the Fourth Amendment framework is the only applicable legal analysis in li ght of the undisputed facts regarding Sergeant Bedlion’s actions ( see Defs.’ Mem. at 10– 11), while Kyle responds that it is not at all clear that the Fourth Amendment provides the pertinent legal standard, which is precisely why her complaint pleads alt ernative constitutional bases for the violation that she must establish ( see Pl.’s Opp’n at 3– 6). Thus, a threshold question in this Court’s analysis of whether or not Kyle has met her burden of overcoming the qualified-immunity barrier wit h respect to her excessive-force claim is which constitutional right is actually at issue based on the facts the complaint alleges and the record establishes. For the reas ons stated below, this Court concludes that the Fourt h Amendment provides the exclusiv e frame of reference for Kyle’s section 1983 claim, which means that, to defeat Bedlion’s qualifiedimmunity contention, Kyle needs to show both (1) that Bedlion’s force was unreasonable insofar as it violated the Fourth Amendment ’s protection against unreasonable seizures, and (2) that this alleged constitutional violation was clearly established under the law at the time of the events at issue he re. See Saucier v. Katz , 533 U.S. 194, 204

– 06 (2001), abrogated on other grounds by Pearson v. Callahan , 555 U.S. 223 (2009). The Court will exercise its discretion to con sider the second prong of the qualified-immunity analysis first, see Pearson , 555 U.S. at 236, and as explained in Part III.A.2, infra , it concludes that the law governing excessive-force claims di d not put Bedlion on sufficient notice that the force he used constit uted a Fourth Amendment violation, and thus, he is entitled to qualified immunity.13 1. Sergea nt Bedlion’s Act Of Grabbing Kyle And Pushing Her Into The Barbeque Grill Was A Seizure, And Thus, Only The Fourth Amendment Right To Be Free From Unreasonable Seizures Is Implicated It is axiomatic that “[w]here a particular Amendment provides a n explicit textual source of constitutional protection against a particular sort o f government behavior, that Amendment, not the more generaliz ed notion of substantive due p rocess, must be the guide for analyzing a claim.” Abdelfattah v. U.S. Dep’t of Homeland Sec. , 787 F.3d 524, 541 (D.C. Cir. 2015) (internal quotation marks and citatio n omitted). As pertinent here, all “claims that law enforcement officers have used excessive force

— deadly or
not—in the course of an arrest, investigatory stop, or other ‘seiz ure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonab leness standard[.]’” Graham , 490 U.S. at 395; see also Bolger v. District of Columbia , 608 F. Supp. 2d 10, 17 n.4 (D.D.C. 2009) (“[T]he Fourth Amendment was tailored expl icitly for the criminal justice system, and its balance between individual andpublic interests always has been thought to define the process that is due for seizures of persons or property in criminal cases.” (internal quot ation marks omitted) (quoting Gerstein v. Pugh , 420 U.S. 103, 125 n.27 (1975)). Kyle’s excessive -force claim is expressly premised solely on Sergeant Bedlion’s shove , not his employment of the pepper spray ( see Compl. ¶ 161 (“Sgt. Bedlion used excessive force by seizing Ms. Kyle and thr owing her into a barbeque pit.”) ), so the issue to be resolve d in determining which constitutio nal provision is potentially implicate d is whether that shove quali fies as a seizure. This Court has little doubt that it does. A seizure occurs forthe purposes of the Fourth Amendment “when physical force is used to restrain movement or when a person submits to an officer’s show of authority.” United States v. Brodie , 742 F.3d 1058,14 1061 (D.C. Cir. 2014) (internal quotation marks and citation om itted). No less an authority than the Supreme Court of the United States has made clear that a citizen is seized through physical force “when there is a governmental termination of freedom of
movement through means intentionally applied [,] ” Brower v. Cty. of Inyo , 489 U.S. 593, 596

– 97 (1989) (emphasis in original), and that “ [w]henever an officer restrains the freedom of a person to walk away, he has seized that person[,] ” Tennessee v. Garner , 471 U.S. 1, 7 (1985) (citation omitted); see also Muhammad v. District of Columbia , 881 F. Supp. 2d 115, 120 (D.D.C. 2012) (citing Scott , 550 U.S. at 381) (same). Moreover, a “seizure can be accomplished in an instant,” West v. Davis , 767 F.3d 1063, 1070 (11th Cir. 2014) (citation omitted), and there is no minim um time that a plaintiff’s freedom of movement must be terminated in order to establish th at a seizure has occurred. See Brodie , 742 F.3d at 1061 (rejecting the argument that “the short duration” of the defendant’s submission to an officer’s show of authority meant that no seizure occurred). It is also clear that a seizure need not be in service of an arrest; that is, a seizure for the purpose of the Fourth Amendment can occurin myriad contexts that do not involve the arrest of the person seized. See, e.g. , Atkinson v. City of Mountain
View , 709 F.3d 1201, 1208

– 09 (8th Cir. 2013) (concluding that an officer seized the plaintiff when he shoulder checked him “ten to fifteen feet bac kward into the side of a truck”); Slusher v. Carson , 540 F.3d 449, 452, 454

– 55 (6th Cir. 2008) (holding that an officer seized the plaintiff when he momentarily grabbed her ha nd to retrieve a paper she was holding); Acevedo v. Canterbury , 457 F.3d 721, 724

– 25 (7th Cir. 2006) (explaining that an officer seized the plaintiff with a single punch that briefly knocked him to the ground).15 The allegations and facts relating to what happened between Ser geant Bedlion and Kyle easily fit the well-established seizure definition. A ccording to the complaint, Bedlion “grabbed Ms. Kyle from behind and threw her to the left” (Compl. ¶ 43); in her deposition, Kyle similarly recalled, “I just g [o]t lift[ed] up

— swept off my feet and just thrown into the ground” ( Kyle’s Deposition at 17). Neither party suggests that Bedlion accidentally shoved Kyle, and indeed, Kyle affirmed at her deposition that Bedlion grabbed her from behin d “on [her] forearms” ( id. ), which is hardly indicative of an accidental action. Volitionally grabbing and throwing an indiv idual to the ground indisputably qualifies as termination of movement through means intentionally applied, cf. Muhammad , 881 F. Supp. 2d at 120

– 21 (indicating that this standard would apply to a claim that a police officer shoved a parade-goer), and the pa rties have not offered any case to the contrary. Kyle’s only apparent objection is that there is a dispute between the parties here regarding whether Bedlion shoved her in the course of arresting her, as opposed to prior to her arrest. ( See Pl.’s Opp’n at 6 (claiming that there “is no certainty as to whether Sgt. Bedlion threw Ms. Kyle into the barbecue during the course of her own arrest or that of Mr. Lewis”).) But even if the timing of Bedlion’s shove relative to the arrest is a disputed issue in this case, t hat dispute is immaterial to th e question of whether Bedlion’s act counted as a seizure, because it is clear that one may be seized for Fourth Amendment purposes withoutbeing arrested. See Graham , 490 U.S. at 395 (speaking of arrests, investigatory stops, “or other ‘seizure[s]’” (emphasis added)); Michigan v.
Summers , 452 U.S. 692, 696

– 97 (1981) (noting that officers seized defendant by barring him from leaving his home during a search); see also Cavanaugh v. Woods Cross City ,16 718 F.3d 1244, 1251 (10th Cir. 2013) (observing that the issue of “whether an individual resisted arrest may not always ” be relevant to the excessive-force inquiry because “evading arrest is not the only instance when a seizure can be effected or force can be used” (emphasis in original) (citation omitted)); Howard v. Kan. City Police Dep’t , 570 F.3d 984, 988

– 89 (8th Cir. 2009) (holding t hat officers who “pushed [plaintiff] to the ground and restrained him on the asphalt” se ized him although he was neither suspected of a crime nor arrested and the officers had restrained him “to render medical aid”) ; Smith v. City of Hemet , 394 F.3d 689, 700

– 701 (9th Cir. 2005) (en banc) (“[E]xcessive force claims arising before or during arrest are to be analyzed exclusively under the [F]ourth [A]mendment’s reasonableness standard[.]” (second and third alterations in original) (emphasis added) (citation omitted)). To Kyle’s credit, there is no question that an arrest is, by definition, one type of seizu re. See Graham , 490 U.S. at 395. But if all that mattered was whether the action in que stion took place during an arrest, surely the Supreme Court would not have spent several p ages in Brower crafting its seizure definition in a non-arrest context. See 489 U.S. at 595

– 99. The bottom line is this: the allegations of Kyle’s complaint and the claims she has brought based on the record evidence relate to how Bedlion intentionally terminated her freedom of movement (allegedly excessively), and thus, the Fourth Amendment
governs. See Scott , 550 U.S. at 384 n.10. As a result, there is no cognizable substantive-due-process claim arising out of these facts, which means that Count Seven of the complaint (the Fifth Amendment excessive-force claim) mu st be dismissed. 6

6To the extent that Kyle’s opposition brief suggests another basis for the Fifth Amendment substantivedue-process claim

— i.e. , the allegation that the defendant officers fabricated evidenc e in violation of her Fifth Amendment rights ( see Pl.’s Opp’n at 6– 7)

— this Court sees no such claim in her amended complaint, and it is clear beyond cavil that “a plaintiff may n ot amend her complaint by making new17 2. At The Time Of The Challenged Conduct, It Was Not Clearly Established That The Fourth Amendment Prohibited Sergeant Bedlion ’s Actions Having invoked the protections of the Fourth Amendment by bring ing an excessive-force claim under section 1983 based on Sergeant Bedl ion ’s seizure, Kyle must satisfy the well-worn objective reasonableness standard in order to surmount the first part of the qualified immunity hurdle. See Brower , 489 U.S. at 599 (“‘Seizure’ alone is not enough for § 1983 liability; the seizure must be ‘ unreasonable.’”) ; see also Tolan , 134 S. Ct. at 1866 (reiterating tha t, at summary judgment, th e prong-one question is whether the facts construed in the light most favor able to the non-movant make out a constitutional violation). But even if Kyle managed to show that Bedlion’s shove was objectively unreasonable and thus violated the Fourth Amendment based on “the facts and circumstances of [this] particular case, ” Graham , 490 U.S. at 396 (citation omitted); see also id. at 397 (noting that the core question in evaluating whether a Fourth Amendmen t violation occurred is “whether the officers’ actions [were] objectively reasonable in light of the facts and circumstances co nfronting them” (internal quotation marks and citation omitted)), the qualified -immunity standard adds a
secondlayer of protection against officer liability. That is, in ad dition to showing that the facts (construed in her favor) demonstrate an objectively u nreasonable seizure, Kyle must also show, in effect, that it was so clear under then-exis ting law that the seizure constituted a Fourth Amendment violation that only an officer who was “pla inly incompetent” or “knowingly violat[ing] the law” would have effected it. Al-Kidd , 131 S. Ct. at 2085 (internal quota tion marks and citation omitted).

allegations in her opposition brief.” Budik v. Ashley , 36 F. Supp. 3d 132, 144 (D.D.C. 2014) (citing Larson v. Northrop Corp. , 21 F.3d 1164, 1173

– 74 (D.C. Cir. 1994)).18 The critical question in determining whether an officer’s conduct was a “ clearly established ” violation of the law is “whether the state of the law at the time of an incident provided fair warning to the defendant[] ” that he was acting contrary to law.
Tolan , 134 S. Ct. at 1866 (internal quot ation marks and citations om itted). Whether or not fair warn ing existed “generally turns on the objective legal reasonablen ess of the action, assessed in light of the l egal rules that were clearly established at the time it was taken.” Messerschmidt , 132 S. Ct. at 1245 (quoting Anderson v. Creighton , 483 U.S. 635, 639 (1987) (internal quotati on marks omitted)). Notably, the Supreme Court has warned that courts may not “define clearly established law at a high level of generality ” ; instead, they must ask “ whether the violative nature of particular conduct [wa]s cle arly established” under the law. Mullenix v. Luna , 136 S. Ct. 305, 308 (2015) (per curiam) (emphasis in original) (internal quotation marks and citations omitted). Kyle has done little to demonstrate that Bedlion’s conduct violated clearly established constitutional law at the time of the events in que stion. First of all, Kyle fails to cite a single Fourth Amendment excessive-force case

— from this jurisdiction or elsewhere

— that plainly establishes the impermissibility of Bedlion’s shove. To delineate the body of governing law that a reasonable officer s hould have been aware of, 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) (citation omitted), and it is significant that , in cases involving at least somewhat similar “intrusion [s] on [an] individual’s Fourth Amendment interests[,]” Graham , 490 U.S. at 396 (internal quotation marks and citation omitted), courts have repeatedly found that there was no Fourth Amendment19 violation, after balancing that intrusion against the officer’s conceded i nterest in effecting the seizure, id. See, e.g. , Oberwetter v. Hilliard , 639 F.3d 545, 548, 555 (D.C. Cir. 2011) (holding there was no excessive force where an officer 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 ” (internal quotation marks and citation omitted)); Scott v. District of Columbia , 101 F.3d 748, 759

– 60 (D.C. Cir. 1996) (finding no Fourth Amendment violation where officers struck a suspect once and pinned him to the ground because their actions “were reasonably calculated toward” a reasonable, l awful goal of “securing [plaintiff] and placing him in handcuff s, while minimizing his opportunity to escape”); Martin v. Malhoyt , 830 F.2d 237, 261

– 62 (D.C. Cir. 1987) (finding no Fourth Amendment violation where an offi cer grabbed plaintiff arrestee, thr ew him into the driver’s seat of a car, and slammed the door on plaintiff’s leg). And the kind of officer conduct that the Supreme Court a nd the D.C. Circuit has found to violate the Fourth Ame ndment rights of seized individu als generally extends well beyond the single shove tha t Bedlion indisputably employedto seize Kyle under the circumstances presented here. See, e.g. , Johnson , 528 F.3d at 974

– 75 (denying qualified immunity to an officer who repeatedly kicked a prone surrendering suspect in his groin); Arrington v. United States , 473 F.3d 329, 331

– 33, 336

– 37 (D.C. Cir. 2006) (noting that there would have been a Fourth Amendment violation if, as plaintiff claimed, he had been punched, b eaten with a baton, pistol-whipp ed, and attacked by a police dog after he had been disarmed and handcuffed). To be sure, Kyle has suggested that the force used here was app lied before Bedlion ordered her arrest ( see Pls.’ Opp’n at 6); thus, the Court will assume that the20 force at issue was employed with respect to a non-arrestee (Kyle herself). 7But it is not at all clear why the distinction between arrestee and non-arres tee matters for purposes of demarcating the applicable Fourth Amendment standards in thi s circumstance, and, regardless, it is undisputed that Bedlion was undertaking to pe rform an arrest (of Lewis) at the time the allegedly excessive force was employed. See Graham , 490 U.S. at 395 (observing that the Fourth Amendment’s objective -reasonableness standard governs all seizures of free citizens); id. at 396 (noting bedrock principle that at least some force is permissible to effect an arrest). Furthermore, and in any even t, this Court has found no case that would have put a reasonable officer in Bedlion’s posi tion on notice that he could not apply the quantum of force he applied here to a non-a rrestee who was standing between him a nd his intended target. Cf. Saucier , 533 U.S. at 209 (“[N]ot every push or shove, even if it may later seem unnecessary in t he peace of a judge’s chambers, violates the Fourth Amendment.” (quoting Graham , 490 U.S. at 396)); id. at 208

– 09 (rejecting at prong two of qualified immunity an arrestee’s cla im that a single “gratuitously violent shove” was excessive force ); compare Howard , 570 F.3d at 988

– 92 (finding that officers violated clearly established Fourth A mendment law when they pushed a recently shot non-suspe ct non-arrestee plaintiff to th e ground and restrained him for seven minutes on burning asphalt, ostensibly to question him and “render

7 The Court has assumed arguendo that Bedlion’s shove occurred before Kyle’s arrest , consistent with the mandate that the qualified-immunity question must be answer ed after construing the facts in accordance with the summary-judgment standard, i.e. , as favorably as reasonably possible to the nonmovant, see Tolan , 134 S. Ct. at 1863, 1866. This assumption regarding the timing of Bedlion’s conduct favors Kyle, in contrast to a contention that he shoved her while effecting her arrest, because it is well established that the authority to arrest carries with i t the right to use a reasonable amount of physical force in doing so, see Graham , 490 U.S. at 396; and as the Supreme Court often reiterates, “[n]ot every push or shove” by an officer in the course of an a rrest violates the Fourth Amendment. Saucier , 533 U.S. at 209 (alteration in original) (citation omitted); see also id. (rejecting the plaintiff’s contention that a single allegedly unnecessary shove during an arrest violated clearly established excessive-force principles).21 medical aid”) . In other words, Kyle’s non -arrestee status, without more, does not transform Bedlion’s action into a violation of clearly established law. Notably, this is so notwithstanding t he regrettable fact that Bedlion’s shove actually resulted in Kyle being injured when she fell into the barbeque grill. Kyle has not identified (and the Court has not discovered) any evidence upon which a reasonable jury could find that Bedlion meant to push her into the grill, or that he was even aware of the grill at the time that he administered the push. The co nstitutionality prong of the qualified-immunity analysis in a Fourth Amendment case is undou btedly premised on
intentional conduct, see Brower , 489 U.S. at 596 –97 (observing that the “Fourth Amendment addresses misuse of power, not the accidental effects of otherwise lawful government conduct” (internal quotation marks and c itation omitted)), which makes the notice question here simply and solely whether or not Bedlion’s intentional conduct— the push

— violated clearly established law. See, e.g. , Slusher , 540 F.3d at 456 & n.4 (observing that the fact that plaintiff had a hand disorder “play[ed] no role” in determining whether an officer used excessive force in grabbing her hand because she had “presented no facts that suggest[ed that ] a reasonable officer would have been aware of her disorder”). And, in this Court’s judgment, it cannot be said that the state of Fourth Amendment jurisprudence at the time would have given Bedlion clear notice that his shoving Kyle once to effect Lewis’s arrest— albeit forcefully

— constituted excessive force in violation of her Fourth Amendment rights. Cf. Johnson , 528 F.3d at 976 (“An officer’s act of violence violates the Fourth Amendmen t’s prohibition against unreasonable seizures if it furthers no governmental interest, such as apprehending a suspect or protecting an officer or the public.” (emphasis added)).22 In short, where, as here, the law does not clearly proscribe t he ostensibly prohibited conduct, an officer is entitled to qualified immunit y. See Messerschmidt , 132 S. Ct. at 1245. This is not to suggest that Kyle needs to identify a specific case with facts that mirror her own in order to prevail. See Brousseau v. Haugen , 543 U.S. 194, 198 –99 (2004) (explaining that in the “obvio us case, the[] standards can clearly establish the answer, even without a body of relevant case law” (internal quotation marks omitted) (citing Hope v. Pelzer , 536 U.S. 730, 738 (2002)). But in this instance, the governing standards do not clearly dictate the outcome when applied to these facts, and Kyle “has not cited any case, and the Court has found none, that rea sonably would have placed [Defendant] on notice that her limited restraint of plaintiff’s movement . . . violated a cle arly established right[.]” Muhammad , 881 F. Supp. 2d at 122. Therefore, Bedlion is entitled to qualified immunity on Kyle’s excessive -force claim.
B. Bedlion And Davis Cannot Be Held Liable For False Arrest, Even If There Was No Probable Cause To Arrest Kyle Under These Circumstances Kyle’s false -arrest claim is subject to a similar analysis. To overcome th e qualified-immunity hurdle with respect to the false-arrest clai m, Kyle must be able to show that her arrest was objectively unreasonable because there was no probable cause to arrest her ( i.e. , that her arrest violated the F ourth Amendment), and also that established law so clearly precluded a reasonable officer from believing that he had probable cause to arrest her for APO that the arrest decision h ere could be explained only by incompetence or bad faith. See Al-Kidd , 131 S. Ct. at 2085. There is no question that police o fficers “who ‘reasonably but mistakenly conclude that probable cause is present’ are entitled to immunity[,]” Hunter v. Bryant , 502 U.S. 224, 227 (1991) (quoting Anderson , 483 U.S. at 641), and this limitation on liability “applies23 regardless of whether the . . . e rror is a mistake of law, a mi stake of fact, or a mistake based on mixed questions of law and fact[,] ” Pearson , 555 U.S. at 231 (internal quotation marks and citation omitted). With respect to the qua lified-immunity contention relating to the false-a rrest claim in the instant ca se, this Court has opted to examine the state of APO law at the time of Kyle’s arrest to determine whether it was clearly established that Bedlion and Davis lacked probable caus e to arrest Kyle for APO

— i.e. , prong two of the applicable immunity doctrine. 1. It Was Not Clearly Established That Bedlion Lacked Probable Cause To Order Kyle Arrested D.C.’s APO statute directs that anyone who, “without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or int erferes with a law enforcement officer on account of[] or while that law enforceme nt officer is engaged in the performance of his or her official duties shall be guilty o f a misdemeanor[.] ” D.C. Code § 22-405(b). D.C. courts have explained that, to “constitute an offense unde r [the APO statute], a person’s conduct must go beyond speech and mere passive resistance or avoidance, and cross the line into active confrontation, obstru ction 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) (alteration in original) (quoting In re C.L.D. , 739 A.2d
353 , 357 (D.C. 1999)). The “key is the active and oppositional na ture of the conduct for the purpose of thwarting a police officer in his or her dut ies.” Id. (quoting C.L.D. , 739 A.2d at 357); see also Coghill v. United States , 982 A.2d 802, 806 (D.C. 2009) (same) (citing Dolson v. United States , 948 A.2d 1193, 1202 (D.C. 2008)). That said, the statute is not a specific- intent statute; the phrase “for the purpose of thwarting a police officer” merely “indicate[s] that such conduct must be directed against police24 officers,” and not that the person acted wit h the specific intent to thwar t the officer. In
re J.S. , 19 A.3d 328, 333 (D.C. 2011) (emphasis in original) (citation omitted). Thus, “despite its breadth,” the APO statute “does not criminalize every refusal to submit to a police officer or every prevention or hindrance of an officer i n his duties.” Id. at 331 (internal quotation marks and citation omitted). Notably, for the purpose of the instant qualified-immunity dete rmination, this Court is disclaiming any duty to begin its analysis by answerin g the question of whether or not there was actually probable cause to arrest Kyle under t hese circumstances. The legal issue of whether or not Bedlion and Davis “had sufficient information to support a

reason able belief” that Kyle had committed or was committing the APO crime, Rice v. District of Columbia , 774 F. Supp. 2d 18, 22 (D.D.C. 2011), is prong one of the qualified-immunity test, which the Supreme Court has explained need not be addressed first, see Pearson , 555 U.S. at 236. The Court here aims its focus on prong two, and thus has evaluated what courts interpreting D.C. law have said about the reach of the APO statute’s “active and oppositional” standard in order to determine whether, even assuming that there was not probable cause to arrest Kyle, the lack of probable cause under the circumstances presented here was so clearly establish ed that Bedlion and Davis would have had fair notice of its absence. This Court has not found any case that is entirely on all fours with the undisputed facts of Kyle’ s arrest, but there are cases from the D.C. Court of Appeals construing the APO statute (in the context of post-conviction c hallenges to the sufficiency of the evidence) that are important and instructive . For example, in In re
C.L.D. , the D.C. Court of Appeals interpreted the APO statute and expla ined that25 refusing to identify oneself, cursing at the police officer, an d walking away despite the officer’s instruction to remain was an insufficient basis upon which to rest an APO conviction. 739 A.2d at 354. Similarly, in Howard v. United States , the D.C. Court of Appeals reversed an APO conviction that was based solely on the defendant’s “refus[al] to take her hands out of her pockets” despite a concededly lawf ul request to do so , and the court also rejected the argument that the defendant’s disobedience “‘inter fered’ with the officer’s performance of his duties by heightening his conc ern for his own safety and thus making it more difficult to sort out and calm a noisy confrontation.” 966 A.2d
at 855

– 56. B ut even as D.C.’s highest court has rejected the conclusion that the APO statute was violated under those circumstances, it has affirmedconvictions for APO (effectively holding that probable cause existed a fortiori ) in other circumstances that might reasonably resonate with an officer who was observing K yle’s conduct, such as when the accused person’s actions consisted of shutting and holding closed a gate in order to prevent an officer from entering an apartment, see Dolson , 948 A.2d at 1195,
1202

– 03; and when the defendant proceeded to “swing [] [his] ar m forward” to prevent being handcuffed, J.S. , 19 A.3d at 329 (internal quotation marks omitted); and when a defendant, among other things, “brac[ed] himself in [his] car a nd resist[ed] being removed[,] ” Coghill , 982 A.2d at 806. Cases such as these demonstrate the fuzzy parameters of D.C.’s APO crime, and the question for this Court is whether the jurisprudence relate d to when an APO violation has occurred clearly es tablishes that Bedlion and Dav is did nothave probable cause to arrest Kyle for committing such a violation under the circumstances presented here. Notwithstanding Kyle’s contentions to the contrary, the mere fact that an APO26 violation requires active and oppo sitional conduct directed at the officer does not plainly resolve this case in herfavor, because, in light of th e applicable case law, a reasonable officer easily could have interpreted the known fact s related to Kyle’s conduct to fit into that category. Recall that, when Bedlion a nd Davis arrived on the scene to investigate the noise complaint, Bedlion entered the h ome and Lewis attempted to exit it, which led to a verb al confrontation between Lewis a nd Bedlion on the porch. (Undisputed Facts ¶¶ 5

– 6.) Kyle stepped in between them , with her back to the officer ( see id. ¶¶ 7, 12), and she covered Lewis’s mouth with one hand ( see id. ¶ 7). And although Kyle did not touch Bedlion at all ( see Superior Court Trial Transcript at 45), she was certainly a part of the ensuing commotion once Bedlion deployed his pepper spray ( see Undisputed Facts ¶¶ 12 –13; Kyle’s Deposition at 16– 17), and she tumbled down the porch steps along with Lewis, who Bedlion was attempti ng to arrest ( see Undisputed Facts ¶¶ 14

– 16). It is also significant that Bedlion shoved Kyle out of th e way before arresting Lewis. ( See Kyle’s Trial Testimony at 4; Undisputed Facts ¶¶ 14– 16; Compl. ¶ 46.) The plain language of the APO statute is addressed to one who “impedes” an officer, among other things, and the D.C. Court of Appeals has emphasized that in order to commit this crime, the individual’s conduct must be “directed against an officer’s performance in the line of duty. ” Howard , 966 A.2d at 856 (internal quotation marks and citation omitted). It is clear on the instant facts that K yle had deposited herself in the midst of the melee, and her actions at the very least had t he effect of physically blocking Bedlion’s access to Lew is, such that, even if Bedlion’s decision to arrest Kyle for APO was impermissible, no cl early established law put him o n notice that Kyle’s27 conduct did not constitute that crime. At the very least, it i s certainly not so abundantly clear from the case law that Kyle

— who had admittedly interposed herself between the angry officer and her oppositional boyfriend

— was notimpeding Bedlion such that only a police officer who was “plainly incompetent” could have thought otherwise. Al-Kidd , 131 S. Ct. at 2085 (internal quotation marks and citation omitt ed). And perhaps even more to the point, because the APO inquiry inherently involves an “intensely factual analysis,” Jones v. United States , 16 A.3d 966, 971 (D.C. 2011) (internal quotation marks and citation omitted), an d, here, no authority clearly placed Kyle’s behav ior beyond the APO statute’s purview , Bedlion lacked sufficient notice that his actions contravened the law, and as a re sult, he is entitled to qualifi ed immunity. Cf. Lyons v. City of Xenia , 417 F.3d 565, 573, 575 (6th Cir. 2005) (considering an Ohio o bstruction statute that required “an affirmative act that interrupt[ed] police business ” and observing that it was unnecessary to “determine exactly where O hio dr[ew] the line on the affirmative- act requirement” to grant qualified immunity on a false-arrest claim). 8
2. Davis Reasonably Relied On Bed lion’s Determination That There Was Probable Cause To Arrest Kyle Kyle’ s failure to show that clearly established law prohibited her a rrest for committing the crime of APO under the circumstances presented

— and thus that a reasonable police officer would have been on notice that he lac ked probable cause to arrest her for that crime

— resolves the false-arrest claim against Bedlion, who ordered

8 Kyle’s brief in opposition to Defendants’ qualified -immunity motion does not establish otherwise. Although she spends some time marshaling probable-cause argumen ts to support the prong-one conclusion that there was no probable cause in this case, she o ffers nothing on the clearly established (notice) point beyond the conclusory statement that “ [u]nder the governing legal standards [and under Kyle’s] version of the facts, the officers involved did not hav e even arguable probable cause[.]” (Pl.’s Opp’n at 9.) This effort falls far short of demonstrating the “controlling authority” or “robust consensus of cases of persuasive authority” that is necessary to deprive the officers here of the cloak of qualified immunity. Al-Kidd , 131 S. Ct. at 2084 (internal quotation marks and citation omi tted).28 the arrest. But Kyle has also pressed a separate false-arrest claim against Officer Davis, who was the actual arresting officer, and who relied on Bedlion ’ s direction to arrest Kyle, lacking firsthand knowledge of the events on the porch. ( See Undisputed Facts ¶¶ 19

– 20 (noting that Davis “had been in the police car running criminal background[] checks”); Compl. ¶ 47 (indicating that Davis “returned from hercar” after Bedlion pushed Kyle).) In this regard, Kyle asserts that “[t]he other defendants [including Davis] knew that Sgt. Bedlion lacked probable cause to have Ms. Kyle arres ted but arrested her anyway” (Compl. ¶ 165 (emphasis added)); however, the same lack of notice that shields Bedlion from liability for his alleged mist ake regarding the existence of probable cause would also apply to Davis, who would have rel ied on that same body of case law to evaluate Bedlion’s determination that probable c ause existed

. 9 Furthermore, under the collectiv e-knowledge doctrine, an arrest ing officer need not have “sufficient firsthand knowledge to constitute probable cause”; it suffices if “the police officer initiating the chain of communication . . . had firsthand knowledge[.]” Reiver v. District of Columbia , 925 F. Supp. 2d 1, 11 (D.D.C. 2013) (alterations in original) (quoting Daniels v. United States , 393 F.2d 359, 361 (D.C. Cir. 1968) (internal quotation marks omitted)). Moreover, officers who make an arrest based on another officer ’ s first-hand knowledge “remain entitled to the protections of qualified immunity if it was objectivel y reasonable” to rely on the other officer’s word

9If Kyle means to argue that

— notwithstanding any probable cause

— Davis acted unconstitutionally because she effected the arrest with the goal of covering up Bedlion’s allegedly improper behavior ( see, e.g. , Compl. ¶ 165), it is axiomatic that the “ actual motivations of individual officers ” are inapposite and that “ [s]ubjective intentions play no role in ordinary, probable-caus e Fourth Amendment an alysis.” Arkansas v. Sullivan , 532 U.S. 769, 771

– 72 (2001) (alteration in original) (internal quotation marks omitted) (quoting Whren v. United States , 517 U.S. 806, 813 (1996)). No claim can arise from any alleged nefarious purpose on Davis’s part, and in any event, this argument is entirely undeveloped in Kyle’s briefing.29 “under the circumstances.” Bolger , 608 F. Supp. 2d at 24 (citing, inter alia , Barham v. Salazar , 556 F.3d 844, 850 (D.C. Cir. 2009)); see also Barnhardt v. District of Columbia , 723 F. Supp. 2d 197, 216 (D.D.C. 2010). Here, Kyle suggests that Davis should be held liable independen tly of Bedlion, presumably on the grounds that she “possessed information at the time that would tend to undermine the existence of probable cause[,] ” Bolger , 608 F. Supp. 2d at 24, but Kyle fails to identify such information, or to point to a case that would have fairly notified Davis that she was not entitled to rely on Bedlion’ s decision, and this Court is aware of none. Indeed, existing case law suggests the opposite

. See Muhammad , 881 F. Supp. 2d at 122 (“Plausible instructions from a superior or fellow officer support qualified immunity where, viewed objectively in light of the su rrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justification for [her] actions exists[.]” (first alteration inoriginal) ( internal quotation marks and citation omitted)). Thus, Davis, too, is entitled to qualified immunity.
C. The Court Declines To Exe rcise Jurisdiction Over Kyle’s Not
Conceded State-Law Claims Having concluded that Bedlion and Davis are entitled to qualifi ed immunity based on the lack of fair notice that their conduct when seizin g Kyle and ultimately arresting her violated the law, this Court notes that the only claims that remain are state-law claims; specifically, (1) the false-arrest and false- imprisonment claims against Bedlion and Davis (Count One), (2) the assault-and-battery clai m against Bedlion (Count Two), and (3) the abuse-of-process claim against Bedlion , Davis, Rubin, and Gamm (Count Four). 10This Court had jurisdiction over these claims when this actio n

10The defendants listed here are those remaining in light of Kyl e ’ s concessions. ( See Pl. ’ s Opp ’ n at 2.)30 was filed because they formed “part of the same case or controversy” as t he federal claims over which it had original jurisdiction. 28 U.S.C. § 13 67(a). However, now that the federal claims must be dismissed, the Court has authority t o “decline to exercise supplemental jurisdiction” over the state -law claims. Id. § 1367(c)(3); Robinson v. Pezzat , 83 F. Supp. 3d 258, 270 (D.D.C. 2015) (“Supplemental jurisdic tion is not obligatory[.]” (citation omitted)). General equitable factors guide the decision whether to exercis e supplemental jurisdiction, “including ‘judicial economy, convenience, fairne ss, and comity.’”
Robinson , 83 F. Supp. 3d at 270 (quoting Shekoyan v. Sibley Int’l , 409 F.3d 414, 424 (D.C. Cir. 2005)). As courts have noted, in the “usual case in which all federal-law claims are dismissed before trial, the balance of factors to be considered under the pendent jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over the remaining state- law claims.” Araya v. JPMorgan Chase Bank, N.A. , 775 F.3d 409, 417 (D.C. Cir. 2014) (alteration in original) (quoting Shekoyan , 409 F.3d at 424) (internal quotation marks omitted)). And the D.C. Circuit has cautioned that the Court has “an obligation to exercise its discretion to remand the cas e to the District of Columbia courts once the federal question, like Elvis, ha[s] le ft the building.” Id. at 418

– 19. In light of that directive, and al so because the state-law clai ms raise some unique issues

— e.g. , Kyle’s assault-and- battery claim is premised in part on Bedlion’s shove but it also contends that the officer’s pepper spray was unlawful

— the Court will dismiss the remaining state-law claims without prejudice. As o ther courts have noted, no unfairness attaches to that decision, because section 1367(d ) of Title 28 of the31 United States Code “tolls the statute of limitations during the pendency of the fe deral case and for at least 30 days thereafter.” Robinson , 83 F. Supp. 3d at 271 (citation omitted).
IV. CONCLUSION Because any Fourth Amendment viol ation that may have occurred u nder the circumstances presented in this case was not clearly establishe d at the time of the officers’ conduct such that they would have had fair notice that their conduct violated the law, Defendants are entitled to qualified immunity and thus summary judgment must be entered in their favor with respect to Plaintiff’s constitutional claims. Furthermore, in the absence of any valid claim under federal la w, this Court declines to exercise pendent jurisdiction over the remaining state-law clai ms. Accordingly, and as provided in the accompanying Order, Defendants’ motion for summary judgment will be GRANTED with respect to the section 1983 excessive-force and false-arre st claims (Counts Six and Seven) and judgment will be entered in Defendants’ favor on those counts. The claims that Kyle has conceded (Counts Three, Five, and Eight in full, and Counts One and Six with respe ct to Rubin and Gamm) will be DISMISSED WITH PREJUDICE , and the remaining state-law cl aims (Counts Two and Four, and Count One with respect to Bedlion and Davis) will be DISMISSED WITHOUT PREJUDICE

. 11
DATE: March 31, 2016 

# Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

11 The dismissals with prejudice follow from Plaintiff ’ s consent to their dismissal. See Grissom v. District of Columbia , 853 F. Supp. 2d 118, 125 (D.D.C. 2012) (dismissing conceded c laim with prejudice).