UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) ELEANOR MCKOY , individually and as ) the personal representative of the estate of ) Timothy Lionel Williams, ) ) Plaintiff, ) )
v. ) Civil Action No. 18

- 416 (RBW) ) DISTRICT OF COLUMBIA, et al. , ) ) Defendan t s
. ) )

M EMORANDUM OPINION The plaintiff, Eleanor McKoy , brings this civil action individually and as the personal representativ e of the estate of Timothy Li onel l Willia ms , against the defendants, the District of
Columbia and District of Columbia Metropolitan Police Department ( “ M PD ” ) officers Patrick
Bacon and Antoine Brathwaite , asserting a claim of excessive force pursuant to 42 U. S .C. § 19 83 (Count III ) , as well as common - law claims of assault (Count I V) , battery (Count V) , and false arrest (Count VI)

. 1 See Am ended Complaint and Jury Demand ( “ Am. Compl. ” ) ¶¶ 38

– 85. Currently pending before the Court is the Defendants ’ Motion f or Summ ary Judgm ent ( “ D e f s. ’

1 Counts I and II o f the Amended Complaint allege that the plaintiff brings th is action pur suant to the Sur viva l A ct , D .C. C ode § 1 2

- 101 an d th e Wrongful Death Act, D.C. Code § 16

- 2701

. Am. Compl. ¶¶ 32

– 37. The Survival Act merely “ allows a surviving representative to stand in the shoes of the deceased, and to sue as the deceased would have had a righ t to sue had he lived. ” Perry v. Criss Bros. Iron Works , 741 F. Supp. 985, 987 (D.D.C. 1990) (citing Semler v. Psychiatric Inst. of Washington, D.C. , 575 F.2d 922, 925 (D.C. Cir. 1978); Jones v. Rogers Memorial Hosp. , 442 F.2d 773 (D.C. Cir. 1971) ). Simi larly , t he Wrongful Death Act permits the survi ving legal representative

“ to sue for an y damages [the legal representative] suffered due to the loss of [the decedent ]

. ” Buruca v. D istrict of Columbia , 902 F. Supp. 2d 75, 87 (D.D.C. 2012)

. “ [N]either stat ute prov ides any substantive rights; they simply establish the pr ocedural methods for filing suit. ” Id. Therefore, to the extent C ounts I and II may attempt to allege separate claims, the Court must dismiss them. See id. ( citing Wallace v. District of C olumbia , 685 F.Supp.2d 104, 112

– 13 (D.D.C. 2010) )

.2 M ot. ”)

. Upon careful consideration of the parties’ submissions, 2 the Court concludes for the
fo llowing reasons that it must grant in part and deny in part the defendant s ’ motion

. I. BACKGROUND
The follow ing fact s a re u ndis put ed by the partie s, u nl e s s otherwise indicated. On February 23, 2017, at approximately 10:37 p.m., Officers Antoine Brathwai t e and P a trick Bacon , while “ in full uniform with [ ] badges and pa tches di splayed,

. . . were patrolling the Trinidad
area of North east, Washington , D. C

. ” Def s
. ’ Facts ¶ ¶ 1

– 3; see Pl

. ’ s Facts ¶¶ 1

– 3. Officer Bacon, with Officer Br athwaite as the passenger, were in an unmarked MPD vehicle , Defs. ’ Facts ¶¶ 2

– 3; see Pl

. ’ s Facts ¶¶ 2

– 3 , when they observed “ anoth er un ma rked MPD vehicle [ ] conducting a traf fic s t op on Florida Aven ue, N.E. ” Defs. ’ Facts ¶ 4 ; see also Pl. ’ s Facts ¶ 4. The

two officers also “ observed [ ] [ Timo thy Li onel l ] W illiams wal king down the street , ” D efs. ’
Facts ¶ 5 ; see Pl

. ’ s Facts ¶ 5 , and “ Officer Brathwaite roll ed down the passenger side window of the police cruiser and asked [ ] Williams if he could speak to him , ” Defs

. ’ Facts ¶ 9; Pl. ’ s Fa cts ¶
10. “ Officer Brathwai te then exited the vehicle and began to follow [ ] Willia ms. ” Defs. ’ Facts ¶ 10 ; see Pl. ’ s Fact s ¶ 10. Shortly thereafter, “ Williams ran westbound across Holbrook St re et, and then fled

ea stbound on Holbrook Street. ” Defs. ’ Fac ts ¶ 12 ; see Pl. ’ s Facts ¶ 12. O fficer Brathwaite, who suspected Wil liams was carryi ng a weapon, pursued Williams and Offic er Bacon maneuvered
the MPD vehi cle “ just past t he int e rsection of Holbrook and Mor se St reets. ” Defs. ’ Facts ¶ 13 ;

2 In addition to the filings alread y identif ied, the C ourt considered the f ollowi ng su bmis sions in rendering i ts decision: (1) the Memorandum of Po ints and A u thorities in Support o f Defendant s ’ Motion f or Summa ry Judgment ( “ Def s. ’ Mem. ” ); (2) the D efendants ’ Statement o f Mate rial Facts a s to Whi ch T h ere I s No Genui ne Is sue (“Def s
. ’ Fac ts”); ( 3 ) the P l ai ntiff’s Op position t o Defendant s ’ Motion for Sum mary J udgment (“Pl.’s Opp’n”); ( 4 ) the Memorandum of Po ints and Authorities i n S upport of the Plaintiff ’ s Opposition to Def endant s ’ S e cond Moti on for Su mmar y Judgme nt ( “ Pl. ’ s Me m
. ” ) ; ( 5 ) the Plaintiff ’ s Re spo nse to Defendants ’ Sta t ement of Material Facts a s to W hich T here I s No Genuine Issue (“Pl.’s Fa cts ”) ; a nd ( 6 ) t he De fendants ’ Re ply to Plaintiff ’ s Opposi tion to Their Motion for Sum m ary Ju dgm ent (“D ef s
. ’ R eply” )

.3 see Pl. ’ s Fac ts ¶ 13. W il lia ms “ attempte d to run westbound across Holbrook Street, when he tripped a nd struck the unmarked MPD vehicle

. ” D efs. ’ Facts ¶ 14 ; see Pl. ’ s Facts ¶ 14.

“ W illiam s fell to the ground and dropped ” an item that the defendants contend

— and the plai ntiff disputes

— wa s “ a 9mm pis tol magazine. ” See Defs. ’ Facts ¶ 15 ; Pl. ’ s Facts ¶ 15. “ Of ficer
Brathwaite t hen attempted to subdue [ ] Williams [,] ” whil e “ Officer Bacon exited the vehicle to
assist

. . . . ” Defs. ’ Facts ¶¶ 16

– 17 ; see Pl. ’ s Facts ¶¶ 16

– 17. According to the defendants, a fter so me fu rther physical engagement between the officers
and Willia ms , see Def s
. ’ Facts ¶ 23, Williams “ beg an fir ing [a] gun that he p ossessed , ” i d. ¶ 24

. T he pl ain tif f disputes this characterization

. 3 See Pl. ’ s Facts at ¶¶ 23

– 24. The defendants
contend that Offic er Brathwaite “ disengaged from [ ] Wil liams and ret urned [ ] gunfire ” before

“ clos [ing ] the distance betwee n himself and [ ] Williams , who . . . continued to fig ht with Officer
Bacon. ” Defs

. ’ Facts ¶¶ 26

– 27 ; see Pl. ’s Fact s ¶¶ 26

– 27. “ As Officer Brathwaite app roached,
Officer Bacon shouted for Officer Br athwa ite to shoot [ ] Willi ams
. ” Defs. ’ Fac ts ¶ 2 8 ; see Pl

. ’s
Facts ¶ 28. Of ficer Brathwaite then “ fired his se rvice pistol ” t hree times and “ Wil liams ’ body

we nt l imp. ” Defs. ’ Facts ¶¶ 30

– 31 ; see Pl. ’s Facts ¶¶ 30

– 31. Thereafter, Officer Bacon

“ realized [ ] he had b een shot by [ ] Will iams

. ” Defs. ’ Facts ¶ 32 ; see Pl. ’s Facts ¶ 32. The
officers and Williams “ were taken by ambulance to the hospital , [ and ] crime

- scene techn icians
recovered ” the f ollowing evidence f rom the location of the sho oting : (1) “ a S pringfie ld XD

- 9 ”
hand gun ; (2) a “ 9mm semi

- automatic pistol ” ; (3) “ a firearms mag azine ” ; a nd (4) “ twelve WIN

3 The Officers ’ body

- worn camera footage, Defs

. ’ Mot., E x hibit ( “ Ex

. ” ) 4 ( Bacon Video ) , Def s
. ’ Mot., Ex. 5 (Brathwaite Video ), depict many of the pertinen t events from the Officers ’ individual point s of view . Officer Bacon ’ s vid eo d emonstrates that gunfire oc curred prior to Officer Brath waite dis engaging from the struggle that he and Officer Ba con were having with Williams

. See Defs

. ’ Mot., E x hibi t ( “ Ex

. ” ) 4 ( Bacon Video ) at 01:26

.4 9mm Luger cartrid ge casi ngs [,] which were ultimately found to have been fired by t he Springfield XD

- 9 [that was recovered] at the scene

. ” Defs. ’ Facts ¶ 3 3 ; 4 see Pl. ’ s Fact s ¶ 3 3

. On N ovember 12, 2018 , the plaintiff filed her Amended C om plaint in this case

. See

gene rally Am. Compl. In response, o n December 21, 2018, the defendants f iled th eir first

summary judgment motion, see Defend ants ’ Motion for Summary Judg me nt ( Dec ember 2 1,
2 018 ) , ECF No. 18 , which the Court denied, see Order at 1 (Mar

. 8, 2019) , ECF No

. 22

. Foll o wing the completion of discove ry, s ee O rder (Dec. 2, 2019), ECF N o. 27 , th e def endants
renewed their motion for summary judgmen t , s ee generally D ef s. ’ Mot

. , which is the subject of
this M emora ndum O pinion.
II. STANDARD OF R EVIEW
A cour t may grant a m otion for summary judgment pursuant to Federal Rule of Civil
Procedure 56 only if “t he re is n o genuine d ispute as to any mate ria l fact and the movant is
entitl ed to judgment as a matter of law. ” Fed. R. Ci v. P. 56(a). “A f act i s material if it ‘ might
affect the outcome of the s uit un der the governing law, ’ and a dispute about a material f act is genuine ‘ if the evidence is such th a t a reasonable jury could retu rn a verdict f or th e nonmoving

par ty. ’ ” Steele v. Schafer , 535 F .3d 6 89, 692 (D .C. Cir. 2008) (quoting Anderson v. Liber ty
Lob by, Inc. , 477 U.S . 242, 248 (1986)). When ruling on a m otion f or summar y judgment, “[t]he
evid enc e of the non

- movant is to be be lie ved, and al l jus tifiable infere nces are to b e drawn in h[er] fav or. ” Anderso n , 47 7 U.S. at 255. “Cred ibility determi nation s, the weighing o f the evidence, and the drawing of le gi timate inference s fr om the facts are ju ry f unctions, not those of a judge

. . . ruling on a motion for summ ary judgment [

. ] ” Id. The movant h a s th e burden of
d emonstrating the abse nce of a genuin e issu e of material fac t and that the non

- moving party

4 While the defendants ’ facts label this paragraph as the thirty

- first paragraph, it is actually the thirty

- third paragraph. The Court will therefore refer to it as the thirty

- third paragraph moving forward.5 “fail [e d] to m ake a sho wing sufficient to esta bli s h the existence of an element e ssential to t hat

p arty ’ s case, an d on which that party will bear t h e bu rden of proof at trial.” Celotex Corp. v.
Catret t , 477 U.S. 317, 322 (1 986). In responding to a motion for su mmary j udgment, the non - moving party “m ust do more than simply show that t here is some metap hysical doubt a s to the materi al facts.” Matsus h ita
Elec. In dus. Co. v. Zenith Radio C orp. , 475 U.S. 574, 5 86 (1986). Accor dingly, the non

- moving party “must se t forth s pecific f acts showing that there [a r e] genuine issue[s] for trial. ” Anderson , 4 77 U. S. at 248. “Th e mere existenc e of a scintilla o f evi dence in supp ort of the [non

- movin g party ’ s] posi tion

. . . [is] insuffi cient” to withstand a motion for summ ar y judgm ent ; rath er,
“there must be [som e] e vidence on which the jury coul d reasonably f ind f or the [non

- mov ant].”
Id. at 252.
III. AN ALYSIS
T he defe ndant s a rgue t h a t the plaintiff ’ s claim s must be dismissed as a matter of law

. See Defs. ’ Mot. at 1

– 2. Spe ci fica lly, the defendants contend that the Co urt must grant summary judgment in their favo r on : (1) the plaint iff ’ s excessive force claim ( Count III ) 5 b ecause the
officers ’ “ conduct was o bjecti vely reasonable , ” and they are theref ore entitled to qualified immunity ; (2) the plainti ff ’ s assault claim (Count IV) “ beca use the officers ’ pursuit of [ Williams ] was lawful ” ; (3) the plain tiff ’ s battery claim (Co unt V) “ because the officers’ use of
f o rce was reasonably necessary an d priv ileged ” ; and ( 4) the plaintiff ’ s false arrest claim ( Count

5 The p lai ntiff br ought h er exces siv e f o rce c l aim under the Fourth, Fifth , and Fourteent h Amendments. See Am. C ompl. ¶ ¶ 38

– 61

. However, the plaintiff now concedes that this “ claim is not properly broug ht un der the Fif t h and Fourteenth Amend ments to the Co nstitutio n
. ” Pl. ’ s Mem

. at 4. Accord in gly , th e C our t wi ll di s miss as conceded t hose aspects of the claim and consi der her exces sive force cl aim only unde r the F ourth Amendment

.6 V I) “ becau se the officers were privileged to con duc t a Terry [ v. Ohio , 392 U.S . 1 (1968) ,] s top o f [ Williams ]

. ” I d

. at 1. The C ourt will address each o f the d efendant s ’ arguments in t u rn
. 6

A. The Plaintiff’s False Arrest Claim (Co unt VI )
T he plaintiff alleges that the defendants falsely arrested Will iam s w it hout “probable

cause ” o r “ l egal justification

. ” Am. Compl. ¶¶ 80

– 81. The defendant s argue in response tha t

“ the officers had an artic ul able suspicion [under Terry ] that [ ] Williams was carrying a gun and
therefore [they] could lawfully detain him f or investiga t ory pu rposes
. ” Defs. ’ Reply at 8; see
also Defs. ’ Mem. at 7

– 9 ; Defs. ’ M o t. at 1 ( “ [T] he officers w ere privileged to cond uct a Terry

s top of [the p]laintiff [ .] ” ). But for the reasons that follow, whether the officers acted reasonably
under Te rry such that they are shielded from liability is a question for a jury to decide

— and not
the Court

— on summary judgment. S ee Goolsby v. D istrict of Columbia , 317 F. Supp. 3d 582, 596 (D.D.C. 2018) ( concluding “ that a genuine issue of material fact preclud e[d] summary judgment ” on a false arrest claim) ; Wood v. D istrict of Columbia , Civ. Action No. 14

- 2066 (EGS), 2017 WL 2374346, at *5 (D.D.C. May 31, 2017) (concluding that a plaintiff ’ s false arrest claim failed only where “ officers had the reasonable susp icion required to effectuate an initial investigatory stop ” a nd where “ officers had probable cause for an [ ] arrest [] ” ); District of
Columbia v. Minor , 740 A.2d 523, 529 (D.C. 1999) ( holding juries are the “ finders of fact ” that
would as sess, for example, a “ probable cause determination ” ).

P ursua nt to Terr y ,

w here a police officer observes unusual conduct which leads h im reasonably to conclude in light of his experience that criminal activity may be a foot and that the

6 The defendant also argues that the plaintiff has effectively admitted the defendant s ’ versi on of the facts becau se she “ merely states ‘ disp uted ’ in response to many of [ the d ] efendants’ statements , which were supported by a record citation

. ” Def s. ’ Reply at 2. However, the Court concludes that the plaintiff has satisfied her o bligation to prov ide

“ a separate conci se sta tement of genuine issues

. . . , include [ ing] referen ces to the parts of the re cord relied on to support the statement

. ” LCvR 7(h)(1) ; see Fed. R. Civ. P. 56 (c)(1)(A)

. S ee generally Pl. ’ s Facts; Pl. ’ s Mem. at 2

– 3

.7 persons wi th whom he is dealin g may be arme d and presently dangerous, where in the course of investigating this behavior he identifies himself as a polic e man and makes reasonable inquiries, and where nothing in the initial stages of the
e ncounter serves to dispel hi s reasonable fear fo r his own or others ’ safety, he is entitled for the protection of himself and others in the area to conduct a carefu lly limi ted search of the outer clothing of such persons in an attempt to discover weapons w hich might be used to assaul t him

. Terry , 39 2 U.S. a t 30. Thus, Te rry requires evaluating : “ [ ( 1 ) ] whether the officer ’ s actio n was justified at its incepti on, and [ ( 2 ) ] whether it was reasonably rel a ted in scope to the
ci r cumstances which justified th e inte rference in the first pl ace.” Id. at 20

. And , a s the District
of C o lumbia Circuit explained in United States v. Bailey , [a] T erry stop requires only a minimal level of objective justification

. . . . An officer may initiate a Terry sto p based not o n certainty but on the need t o check out a re asonab l e s uspicion. M oreover, whether reasonab le suspicion exists depends on the totali ty of circumstances as viewed through th e eyes of a reasonable and c autiou s police officer on the scene, guide d by his expe rience and training.
622 F.3 d 1, 5 (D.C. Cir

. 2010 ) (i nternal quotation ma r ks and citations omitted). Here, t he Court must eva lu ate “ whet her , viewing the facts in th e li g ht most favorable to [the p]laintif f, [the d efendants] seized [ Williams] in violation of his Fo urth Amendment ri ght to
be free from unreas onable seizures

. ” S ee Maddux v. District of Columbia , 144 F. Supp. 3d 131,
1 40

– 41 (D. D. C. 2015)

. According to the de fendants, four events justified the of ficer s ’ stop of
Williams

. See Def s
. ’ Mem. at 8

– 9

. First, “ the o ffic ers observed [ ] Williams walki n g down the street and continually looking back at the police lights ” from another un ma rked MPD vehicle
that was conduc ting a tr affic stop on Florida Avenue, N.E. Id. at 8. Second, “ Officer Bacon [ ]
observed [ ] Willia ms walk between two parked vehicles while he adjust ed the wa istband of h is

pan ts [ , ] ” and “ [b ]ased o n his experience , Officer Bac o n , suspected th at [ ] William s ’ actions
were characteristic of an armed gunman. ” Id. Third, Officer Brathwaite followed Willi ams on
foot and “ a sked [ ] Williams if he could speak with him , but [ Wil liams] refused. ” I d. Fourth , the8 defen dants as sert that “ W illiams ran westbound across Holbrook Street, Northeast , and then fled
eastbound on Holbrook Stre et. ” Id. at 8

– 9 . In sum , t h e de fendants argu e that “ [g]iven [ ]
Williams’ nervous res ponse to the sight of a pol ice ve hicle, his walking between two parked cars to adjus t his waistband, and his subsequent flight, the officers acquire d an articulable suspicion
sufficient to condu ct a Terry sto p
. ” Id

. at 9

. In resp onse, the plaintiff argues tha t “ the
determination of whether or not [ ] Williams was unlawfully detained sho uld be left to the jury to
decide and not resolved at th is stage of the litigation

. ” Pl. ’ s Mem. at 7.
The Cou rt agrees with the plaintiff. Cruc ially , there is a factual dispute as to (1) whe ther
Williams was contin ually l ooking back at the police light s from the traffic stop , compare Defs. ’ Facts ¶ 6 with Pl

. ’ s Facts ¶ 6 (citing Defs

. ’ Mot., Ex

. 3 ( Brathwaite V i deo ) ) , a nd (2) whether
Willi ams w al ked between t wo vehi c le s while he adjuste d the wa istband of his pants , compare
Defs. ’ Facts ¶ 7 with Pl

. ’ s Fa cts ¶ 7 (citing Defs

. ’ Mot., Ex

. 3 ( Brathwaite V ideo ) )

. N either of
the officers ’ body

- worn camera s captured the se events , s ee generally Defs

. ’ Mo t

. , Ex

. 3 ( B r athw aite Vide o ) ; Defs

. ’ Mot. , Ex

. 4 ( Bacon Video ) , and there is no indisputable proof from
the reco rd that the cameras would not have captured those acti ons by Williams

. Indeed , t he
d efendant s ’ sole s upport for their contentions are the office rs ’ declarations , s ee Defs. ’ Facts ¶¶ 6 , 7 , which arguably conflict with the lack of a ny support provided by the body

- worn camera footage

. B ecaus e o f th is plausible conflict and the requirement that “ the evi d ence [ ] be analyz ed in the light most favorable t o the no n - mo vant , ” Johnson v. D istr ict of Columbia , Civ. Action No.
17

- 883 (CKK), 2020 WL 5816236, at *4 (D.D.C. S ept. 30, 2020) , the Court can not conclude , for summary judgment purpo ses, that th e undisputed facts demonst rate a valid reasonable stop under Terry

.9 Furt he rm ore , the Court cannot agree with the defendants that “ [o]nce [ ] Williams fled the scene, the officers were privileg ed to give chase and to use force to s eize him to effectuate
their investiga tion. ” Defs. ’ Mem . at 9.
The [Supreme] Court in [ Illinoi s v. ] Wardlow [ , 528 U.S. 119 (2000),] applied the standard for reasonable suspicion articulated in Terry to hold that ‘ unprovoked, ’

‘ [h]eadlon g fl ight ’ in combination w ith ‘ presence in an area o f expected criminal activity ’

— elsewhe re referr ed to in the opini o n a s a ‘ high[

- ]crime area ’ or ‘ area of heavy narcotics trafficking ’

— suffices to justify further investigation through a brief detention. ”
Un ited States v. Gor ham , 3 17 F. Supp. 3d 45 9, 463 (D .D.C. 2018) (quoting Wardlow , 528 U.S.
at 124

– 26) (fourth and fift h alterations in original) )

. While it i s un disputed that Williams ran
from the off icers , t he defendan t s have not alleged tha t the Officers ’ encounter with Williams
occurred in a “ high

- cri me area
. ” See id

. ( “ B ecause [the ] flight from the police occurr ed i n a high

- crime area [

— her e, an area recently experiencing a rising level of gun violence

— ] , the
Court concludes that the seizure . . . did no t violate the Fourth Amendment. ” ) Moreover , t he
Court can not otherwise con clude that Williams ’ flight was “ i ndicati ve of wrong doing ” without weighing disput ed material facts

. S ee Wa rdlow , 528 U.S. at 124

. Indeed, there is no “ per se rule authorizing the te mporary detention of anyon e who flees upon seeing a police offi cer [,] ” Danie ls
v. District of Columbia , 89 4 F. S upp. 2d 61, 66 (D.D.C. 2012) , as the S u preme Court concluded
in Wardlow , that flight is not “ necessarily indicat ive of wrongdoing[,] ” 528 U.S. at 120.
In sum, by a sking the Court to conclude that as a matter of law there was a valid Terry
stop based on t he record in this case , the defendan ts are “ essen tially a sking the Court to draw
infer ences in their fav or
. ” S e e id. However, when r uling on a motion for summary judgment,

t h e Court is required to do precisely the opposi te

. Anderso n , 47 7 U.S. at 255 ( n o ting that, w hen ruling on a m otion f or summar y judgment, “[ t ] he evid ence of the non

- movant is to be be li eved,10 a nd al l jus tifiable infe rences are to b e drawn in h[er] fav or.” )

. T he C ourt must therefore deny the
de fendants ’ motion for summary judgment on th e plaintiff ’s false ar rest claim

. B. The Plaintiff ’ s Excessive F orce Claim (Count III ) Where, a s in this ca se, a plain tiff br ings a cl aim und er 42 U.S.C. § 198 3 , a defendant may
raise t he defens e of qualified immunity. See Har low v. F itzgerald , 457 U.S. 800, 815 (1982)

. The d oct rin e of q ualified immunity shields police officers “ from lia bility for civil damages
i nsofar as their conduct do es not violate clearly est ablished st atutory or con stitut ional rights of which a reasonable person would have kn o w n.” Pea rson v. Callahan , 5 55 U. S. 223 , 231 (2009) (internal quotation marks omitted) ( quoting Harlow , 457 U.S. at 8 18 ). Onc e a defendant ass erts
the defen se of quali fied immunity, “ the burden of proof then falls to the pl aintif f to show t hat th e [ d efendan ] t is n ot entitled to qualifi ed immunity

. ” W inder v. Erste , 905 F. Supp. 2d 19, 28 (D.D.C. 2012)

. “ [W]hether a

. . . def endant ’ s con duct v iolat es the ‘cle arly established’
constituti onal rights of the p laintiff is a p ure qu estio n of law that mus t be resolved b y the [C] ourt.” Pitt v. District of C o lumbia , 491 F.3d 494, 509 (D.C. Cir. 2007).

T o decid e the issue of whether or not the n on - mov ant m ay survive summary judgment [on a S ecti on 1983 claim]

— i.e. , whether [s] he has pr ovide d enough evidence t hat a reasona ble j ury could return a verdict in h[er ] favo r

— the [C] ourt must firs t identify [] the ver sion of e vents that best comports with the sum mary ju dgment stan dard and then as k [ ] whether, given that set of f acts, a r easona ble of ficer should have know n th at his ac tions w ere unlawful. Kyle v. Bedlion , 17 7 F. S upp. 3d 380, 38 9 (D.D.C. 2 016) ( fifth and s ixth alt eration s i n or iginal ) ( citation and interna l quotation mar ks omit ted )

. [A] defendant ’ s moti on for summary judgm ent is to be de nied o nly w hen, viewing the f a cts in the record and all reasonable inferen ces deri ved th erefrom in the light most favorable to th e plain ti ff, a reasonable jury coul d concl ude that th e excessive ness of th e force is so appa rent that no re asona ble offic er cou ld hav e bel ieved in the lawf u l ness of his actio n s
.11 Wardlaw v. Pickett , 1 F.3d 129 7, 130 3 (D.C. Cir. 1993) (citing Martin v. Malh oyt , 83 0 F.2d 237,
253

– 54 (D.C. Cir

. 1987) )

. However , “ [q] ualif ied immunity cannot be grant ed on summary j udgme nt

. . . if the re is a gen uine issue as to a material issue of fact

. ” Arrington v. United
States , 473 F.3d 329, 33 9 (D.C. Cir. 200 6). Here, t he plai nt iff asserts that “ [a]t the time o f [ ] Williams ’ dea th , [Williams] enjoyed
the constitution al right to be secur e in his person [,] ” and “ [w]h en [ ] [ O] fficer Br a thwaite
di scharged his weapon a second and third time into the back of [ ] Williams as [Williams] lay
disabled and defense less causing [Williams ’ ] death, [ ] [ O ] fficer Bra thwaite violate d [ ] Williams [ ’ ] constitutio nal right to be secu re in his perso n
. ” Pl. ’ s Mem. a t 5. T he defendant s respond th a t the “ [ p]laintiff fails to consider th e split

- second decision that Offi cer Brat hwait e
was requ ire d to make w hen hi s life and Officer Bacon ’ s li fe were literally o n the line. ” Defs. ’ Reply at 5.
T he Fourth Amendment to th e United States Constitut ion prote cts “[t]he right of the people to be secure in their persons, hou ses, papers, and effects, ag ainst u nreason able s earches
and seizures [

. ] ” U. S. Const. amend. IV. “ [ A ] ll claims that law enforc eme n t of ficers have used

e xces sive force

— deadly or not

— in the course of an ar rest, investigatory stop, or other ‘ seizure ’

o f a free citizen sh ou ld be analyzed under t he Four th A me ndment and its ‘ reasonablenes s ’
standard [.] ” Graham v. Connor , 490 U.S. 386, 39 5 (19 89)

. Whether a partic ular use of forc e is
reasonable is “ judged from the perspective of a reas onable officer on the scene, rather tha n with
th e 20/20 visio n of hindsig ht. ” Id. at 396 (cit in g Terry , 392 U.S. at 20

– 22 )

. The Court must also
make “ allowance for the f act that police o fficers a re often forced to make split

- second judgme nts

— in circumstances that are tense, uncertain, and rap idly evolving

— about the amount
of f orce that i s n ecessa ry in a particular situ ation. ” Id. at 397.12 With regard to all th ree gunsho ts fired by Offic er Brathwaite , the C o urt concludes that
th ere is sufficient u ndisp uted evidence in the r ecord to establish t hat Offi cer Brathwaite is entitled to qualified immunity because he “ acted as a ny re asonable offi cer would have whe n
fa ce d with the same situation [

. ] ” See Arrington v. Distric t o f Columbia , 597 F. Supp. 2d 52, 61 (D.D.C. 2 0 09) (Walton, J.). I n examinin g Officer Brathwaite ’ s conduc t , the Court must assess

“ whether an objectively reasonable officer would have believed his co nduct to be lawful, in ligh t of clearly established law[.] ” Pitt , 491 F.3d at 50 9

– 10. As noted earlier , “ th [ e ] Court applies an analysis that ‘ allow [s] fo r the fact th at police offic e rs are often forced to make split

- second judgmen ts

— in circumstances tha t are tense, uncertain and rapid ly evolving

— a b out the amount of force that is necessary in a particular situation

. ’ ” United States v. Slatten , 865 F.3d 767, 814 (D.C. Ci r. 2017) ( second alter a tion in original ) (quot ing Robinson v. Pezzat , 818 F.3d 1, 8 (D .C. Cir. 2016))

. Here , t he offi ce rs ’ bod y - worn camer a footage clearly establishes that Williams fi red multiple shots just prior to Officer Brathwaite sepa rating himself from the altercation with
William s and Officer Bacon. See Defs

. ’ Mot., Ex

. 4 ( Bacon V ideo ) at 01:26

. Indeed, Offic er
Brathwaite observed Williams “ continue [] to figh t with Officer Bacon , ” Def s. ’ Facts ¶ 27 ; see
Pl. ’s Facts ¶ 2 7 , whic h , after the in itial gunfire, resulted in “ Offic er Bacon shout [ ing ] for O fficer

Br athwa ite to shoo t [ ] Wil liam s [,] ” Defs. ’ Fac ts ¶ 2 8 ; see Pl

. ’s Facts ¶ 28

. Officer Brathwaite
th en “ fired his service pistol t hree times ” in rapid succession , Defs. ’ Facts ¶ 30 ; see Pl. ’ s Facts ¶
30 ; see also Defs

. ’ Mot., Ex

. 3 ( Brathwaite Video ) at 01: 5 9 , striking Williams, see Defs. ’ Facts ¶ 31; Pl. ’ s Facts ¶ 31. “ It was not until [ ] Williams was no longer a threat that [ ] O fficer Bacon
realized he had b een shot by [ ] Will ia ms
. ” Defs. ’ Facts ¶ 32 ; see Pl. ’s Facts ¶ 32

.

“ Af ter [ ] Wi lliams and Officer Bacon were taken by ambulance to the hospital, crime scene tech ni cians recovered a . . . semi

- aut omatic pist ol, a firearm s magazin e, and twelve . . . cartridge casings which we re ultimately found to have been fired by the [s emi

- automatic pistol that was recovered ] at the scen e. ”13 Defs. ’ Facts ¶ 3 3 ; see Pl

. ’ s Facts ¶ 3 3

. Given these facts, the Court can only conclude that th e
situation facin g Officer B rathwaite at the moment he fired his weapon was e mblematic of a

“ tense, unc ertain[,] and rapid ly evolving ” s cenario , Slatten , 86 5 F.3d at 814, that precludes the
Court second

- guess ing the actions of Officer Brathwaite , s ee Graha m , 490 U .S. a t 3 96

– 97 ( “ [T] h e que stion is whether the o fficers ’ actions are ‘ objectively reasonable ’ in light of the facts and circumstances confronting them, without regard to their un derlyin g intent or motivation

. ”)

. In firing multiple sho ts at Williams , O fficer Brathwaite reacted to his reasonable perception of a rapidly developing and potentially deadly situation by acting to protect himself and Offi cer
Bacon

. S ee , e. g. Plumhoff v. Rickard , 572 U.S. 765, 777 (2014) (holding that “ if poli ce officers

a re justified in firing at a suspect in order to end a severe threa t to public safety, the officers need not stop shooting until the threa t has ended ” and con cluding that it was not unreasonable for
officers to fire fifteen shots in a ten

- secon d span) ; Rush v. City of Lansing , 644 F

. App ’ x 415,
419

– 25 (6 th Cir . 2016) ( holding th at i t was not unreasonable for an officer to fire a second shot at a suspect the officer reasonably still perceived as a threat, “even if [the officer] was ultimately
mis taken in maki ng a split

- second assessment ”)

. The plaintiff ar gues t hat the “ officers s houl d have known that the shooting of an arrestee who lay defens eless on the gro und would be clearl y an assault and batte ry and therefore
unlawful. ” Pl. ’ s Mem

. at 6. Ho wever, the pl aintiff identifies no evidence in the record that
de monstrates Williams was “ lay[ing] defenseless on the ground [

. ] ” See id. To the contrary, as
the Cou rt noted above, the record reflects that Williams continually fou ght the offi cers onc e he

wa s tackled , which include d sho oting a firearm during the struggle

. See Defs. ’ Facts ¶ ¶ 2 6

– 28,
30

– 33 ; Pl. ’ s Facts ¶ ¶ 2 6

– 28, 30

– 33

. T he plaintiff ’ s position also fails to ac count for t he

uncer t ain and dangero us aspects of the e volving situation

— namely , the contin ued struggle, the14 initial gunshots, and Officer B a con ’ s dire shouts for help

— during which the defendants corre ctly

note “ it was not unr easonable for Officer B rathwait e to fire [three sh ots 7 ] within sec onds

. ” See
Def s
. ’ Reply at 5 ( citing Defs

. ’ Mot., Ex

. 3 ( Brathwaite Video ) at 01: 5 9 ). The plaintiff further
fail s to distinguish the a bun dant c ase law requiring def ere nce to officers acting quic kly and in

respons e to da ngerous situations. See Pl. ’ s Mem. at 6 (referring only to D.C. Code § 5

- 123.02 to

argue the “ officers should have known that t he shooting . . . would be cle arly an assault and battery) ; see also Defs ’ Mem. at 7 (citing cases)

. Accordingly, the C ourt mus t grant in part the
defen d ant s ’ mot ion for summary judgment on the plaintiff ’ s excessive f o rce claim as to the shots fired by Officer Brathwaite because Officer Brathwaite is entitled to qualified immunity for firing those shots

. How ever, the Court must also deny in part t he defe ndant ’ s motion for summary judgment on the pl ain tiff ’ s excessive force claim in all other resp ect s. “ I n assessing whether a party is entitled to qualified immunity, the facts must be taken in the light most favorable to the party asserting the cons titutional injury

. ” Pitt v. D istrict of Columbia , 558 F. Supp. 2d 11, 16 (D.D.C. 2008)

. Here, t he plausible factual conflict the Court previousl y identified in connection with the plaintiff ’ s false arrest claim

— n am e ly, the d ich otomy between the off icers ’ body

- worn camera footage and their subsequent statements

— requires that the Court construe the applicable facts in favor of the plaintiff. Accordingly , the Court cannot de termi ne as a matter of law that the
officers are entitled to qualified immu nity in connection with al l other actions tha t occur red prior
to and durin g th e confron ta tio n with Willi ams , namely, the pursuit and physical altercation

7 The def endan ts ’ point here pertains to the “second and third shot[s]” being fired within seconds. Defs. ’ Reply at 5. This appears to be because “[the p]laintiff does not take exception to the first shot but argues that it should have been plainly clear to Of ficer Br athwai te that he only neede d to shoot once to eliminate the t ` hreat.” Defs.’ Reply at 5. Regardless of the plaintiff ’ s argument on this point , the C o urt already concluded that Officer Brathwaite reasonably fired all three shots

.15 before the initial shots were fi red by W illiams

. 8 See Magliore v. Bro oks , 844 F. Supp. 2d 38, 45 (D.D .C. 2012) ( denyin g District of Columbia police officers ’ summary ju dgment motion regarding , inter alia , excessive force, assault , and battery claim s where material facts were in
dis put e a nd the e valuation of wi tn ess tes timony and other evidence were “ ul tim ately [ ] decision[s] to be made by a ju ry, not in a summary judgme nt ruling ” ).
C. The Plaintiff ’ s Assault a nd Battery Claims (Count s IV and V )
T he plaintiff also all eges t h at t he defendan t s (1) a ssa u lted W illiams by eng aging in

“ harm ful conduct to ward s [ him ] , ” Am. Compl. ¶ 63, that “ caused

. . . W illiams to reasonabl y apprehend that he would be subjected to imminent harmful or offens ive contact and that [the officers] had the cl ear an d prese nt ability to ca rry o ut th e expected harm ful or off ens ive con t act , ”
id. ¶ 64 , and (2) “ i ntentio na lly battered Williams by holdin g [him ] on the ground and shooting him without provocation o r a valid basis to do so, which resulted in [ ] Wil li ams ’ de ath [ , ] ” id. ¶ 73

. T he defen d ant s a rgue i n r e sponse that th e of ficers are entitled to qualified privilege u nder
District of Colum bia law , and that because “ the use of deadly force was objecti vely reasonable, the common law qualified privilege bar s [the] [p] l aintiff’s battery cla ims

. ” Defs. ’ Mem. at 1 0.
T he plainti ff respo n ds that “ Officers Brathwai te and Baco n intentionally harmed [ ] Wi lliams in derogation of his Fourth Amendment rights and did so by using unnecessary and wanton severity
in a rresti ng him [ , ] ” Pl. ’ s Mem. at 7

– 8, and “ [n]o rea son able poli c e offer can plau sib ly claim tha t
h e lacked the knowledge regarding [ ] fundame ntal res trictions upon police conduct , ” id.

8 Whi le the plaintiff in h e r o ppo si tion has only s pec ifi cally re f er ed to the shots fired by Officer Brathwaite in responding to the defendant ’ s challenge to her excessive for ce claim , see Pl. ’ s Mem. at 7

– 8 , t he plaintiff ’ s assertion in prior briefing that “ [t ]he central factual iss u e in this litigation remains whethe r the [d ]efendant office rs used excessive force during the stop and subsequent arrest of [Williams , ] ” Memorandum o f Points a nd Authorities i n Support o f t he Plaintiff’s Opposition t o Defendants’ [First] Motion For Summar y Judgment at 6 , ECF No. 20

- 1 togeth er with the Amended Complaint ’ s allegations of addit ional underlying facts , s ee, e.g. , Am. Compl. ¶ 4 8 ( referencing “ h[o]ld[ing] [Williams] d o w n i n t h e m i d d l e o f t h e s t r e e t ” ) , are sufficient to implicate al l of the offic e r s ’ actions c ommit t ed in conn ection with the attempts to stop a nd subdue Williams

.16 U nder Dist rict of Columbia law, “ [a] police officer has a qualified priv ilege to u se

reas onable force to effec t an a rr est, ” s o l ong as “ the mea n s emp l o yed are not in excess of th ose
which the [officer] reasonab ly belie ves
. . . [are] necessary

. ” Etheredge v. District of Columbia , 635 A.2d 908, 916 (D.C. 1993) (internal quotation mark s o mi tted)

. “ T his standa rd i s s i milar to
the ex ce ssiv e force sta n dard appl ied in the S ection 1983 context

. ” Ro gal a v. Dist rict o f
Columb i a , 161 F.3d 44, 57 ( D.C. C ir. 1998) (citing Etheredge , 635 A.2d at 915 n. 10 )

. The parties make fundamentally similar arguments regarding the plaintiff ’ s excessive assault and battery cl aims to those made regardin g th e plaintiff ’ s excess ive force clai m in Count

III

. Se e Defs. ’ Mem

. at 5

– 7, 9

– 1 1 (asserting the application of qualified imm unity and qualified privilege to the officers ’ use s of force ) ; Pl. ’ s Mem . at 4

– 6, 7

– 8 (arguing against the application of qu alifi ed i mmunity for all claims involving t he offi cers ’ alleg ed use of force). Specifi cally ,
t he plaintiff here argues that “ [t] he body [

- ] worn camera footage plainly demonstrates that [ ] [O] f ficer Brathwaite sh o [] t [ ] Williams a se cond and third time a f ter t he fir st shot dis a bled him
and left him defenseles s on the ground [,] ” and that “ [t]his conduct constitut es assault and battery
and [,] at the very leas t[,] presents a question for [ the ] fact

- finder

. . . . ” Pl. ’s Mem. at 8

. In

r esponse, the d efen dant s co r rectly note tha t the plaintiff is “ ess en tially mak [ing] th e i dentica l

argumen t [ adva nced in support of her ] Fourth Amendment claim[.] ” Defs. ’ Reply at 8. Indeed , the plaintiff ’ s argument s regarding Officer Brathwaite ’ s use of d eadly force withi n the con te xt of
her assault and battery claims can be a nalyzed under the s a me reaso nab leness standard discussed
earl ier in this Memorandum Opinion in the context of analyzing the plaintiff ’ s excessive force claim, see Part III. B , supra
. See Rogala , 161 F.3d at 57 ( concluding that a ssault and battery
cla im s against an officer and the D istrict of Co l umbia faile d “ [f] or substantially t he reaso ns
discussed [ concern ing an excessive force clai m under Section 1983] ” ). To the extent th e assault17 and batter y alleged by the plaintiff implica te the shots fired by Offi cer B rathwaite , the Court
conclude s , for the s ame r e asons provided in its discussion of the pl aintiff ’ s e xce ssive for ce claim,
tha t summar y judgment f or the defendants is required

. Howeve r, as the Court also previousl y conclu ded regarding the plaintiff ’ s excessive force claim, the Court cannot de termi ne as a matter of law that the def e ndant s ’ conduc t was objectively reasonable such that qualified privilege precludes liability for all actions taken by
Officer Brathwaite and Bacon before the initial shots w ere fired by Williams and Officer Bacon
told Officer Brathwaite to shoot Williams

. 9 See Magliore , 84 4 F. Supp. 2d at 45

. Accordingly,
the Court must similarly (1) grant the def endants ’ motion for summary jud gmen t on the plaint iff ’ s assa u lt and batte ry claims to the extent these claims per tain to Officer Brathwaite ’ s
decision to fire multiple s hots at Wi lliams , and (2) deny the defendant s ’ motion for summary judgment on the plaintiff ’ s assault and battery claims i n all other resp ect s.
IV. C ONCLUSION
For the foregoing reasons, th e Court concl ude s that the defendant ’ s sum mary jud gment
motion must be granted in part and denied in part

. Specifically, the Court concludes that , to the
extent that the plaintiff ’ s excessive f orce , assault , and battery c laims pertain to the three sho ts fired by Officer Brathwaite, the defendant ’ s motion for s ummary judgment must be gr anted as to

9 Whi le the plai ntiff has made her p osition ob scure on this point

— as she similarly did in addressing her excessive force claim

— by s pec ifi cally re fer r ing to the s e cond and third shot s in responding to the defendant ’ s challenge to her
a ssaul t and battery claims , see Pl. ’ s Mem. at 8 ( “ T he body [

- ] worn camera footage pl ainly de monstrates that [ ] [O] fficer Brathwaite sho [] t [ ] Williams a sec ond and third time after the first sho t disabled him and left him defenseless on th e ground [,]

. . . [which] constitutes assault and battery [

. ] ” ), t he plaintiff ’ s assertion that “ Of ficers B rathwaite and Bacon intentionally harmed [ ] Williams in de rog ation of hi s Fourth A m endment rights and di d so by us ing unnecessary and wanton severity in arre s ting hi m[,] ” id. at 7

– 8, is sufficient to address al l of the officer s ’ act ions c ommit t ed in conn ection w ith the attempts to stop a nd subdue Williams. Furthermore , the Amended Complaint alleges facts un derlying t he plaintiff ’ s batter y and assault claims that go beyond just the second and third shots

. See, e.g. , Am. Comp l. ¶ 63 ( referencing the offi c ers ’ “ pursuit of [ ] Williams ” ) ; id. ¶ 65 (referencing all three shots fired by Office r Brathwaite) ; id. ¶ 73

– 74 (re ferencing the officers ’ acts of “ ho lding [Williams] on the gro und and shooting him ” ).18 these components of the claims . However, the Court concludes that , due to t he presence of disputed facts rega rding the officers’ initi al pursuit of and eventual co nfrontation with Williams,
the C ourt must deny the defendant s ’ summary j u dgment motion i n all other respects

. SO O RDE RED this 27th day of January , 20 2 1

. 10

R EGGIE B. WALTON Unite d St ates Dist rict Judge

10 T he Court will c o ntemporaneously iss ue an Order con siste nt with th is Mem o randum Opinion.