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., )

)

Defendants. )

)

MEMORANDUM OPINION

The plaintiff, Eleanor McKoy, brings this civil action individually and as the personal 

representative of the estate of Timothy Lionell Williams, against the defendants, the District of 

Columbia and District of Columbia Metropolitan Police Department (“MPD”) officers Patrick 

Bacon and Antoine Brathwaite, asserting a claim of excessive force pursuant to 42 U.S.C. § 1983

(Count III), as well as common-law claims of assault (Count IV), battery (Count V), and false 

arrest (Count VI).

1 See Amended Complaint and Jury Demand (“Am. Compl.”) ¶¶ 38–85. 

Currently pending before the Court is the Defendants’ Motion for Summary Judgment (“Defs.’

 1 Counts I and II of the Amended Complaint allege that the plaintiff brings this action pursuant to the Survival Act, 

D.C. Code § 12-101 and the 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 right 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)). Similarly, the Wrongful Death Act permits the surviving legal representative

“to sue for any damages [the legal representative] suffered due to the loss of [the decedent].” Buruca v. District of 

Columbia, 902 F. Supp. 2d 75, 87 (D.D.C. 2012). “[N]either statute provides any substantive rights; they simply 

establish the procedural methods for filing suit.” Id. Therefore, to the extent Counts I and II may attempt to allege 

separate claims, the Court must dismiss them. See id. (citing Wallace v. District of Columbia, 685 F.Supp.2d 104, 

112–13 (D.D.C. 2010)). 
2

Mot.”). Upon careful consideration of the parties’ submissions,2 the Court concludes for the

following reasons that it must grant in part and deny in part the defendants’ motion. 

I. BACKGROUND

The following facts are undisputed by the parties, unless otherwise indicated. On 

February 23, 2017, at approximately 10:37 p.m., Officers Antoine Brathwaite and Patrick Bacon, 

while “in full uniform with [ ] badges and patches displayed, . . . were patrolling the Trinidad 

area of Northeast, Washington, D.C.” Defs.’ Facts ¶¶ 1–3; see Pl.’s Facts ¶¶ 1–3. Officer 

Bacon, with Officer Brathwaite as the passenger, were in an unmarked MPD vehicle, Defs.’

Facts ¶¶ 2–3; see Pl.’s Facts ¶¶ 2–3, when they observed “another unmarked MPD vehicle [ ] 

conducting a traffic stop on Florida Avenue, N.E.” Defs.’ Facts ¶ 4; see also Pl.’s Facts ¶ 4. The

two officers also “observed [ ] [Timothy Lionell] Williams walking down the street,” Defs.’

Facts ¶ 5; see Pl.’s Facts ¶ 5, and “Officer Brathwaite rolled down the passenger side window of 

the police cruiser and asked [ ] Williams if he could speak to him,” Defs.’ Facts ¶ 9; Pl.’s Facts ¶ 

10. “Officer Brathwaite then exited the vehicle and began to follow [ ] Williams.” Defs.’ Facts 

¶ 10; see Pl.’s Facts ¶ 10.

Shortly thereafter, “Williams ran westbound across Holbrook Street, and then fled 

eastbound on Holbrook Street.” Defs.’ Facts ¶ 12; see Pl.’s Facts ¶ 12. Officer Brathwaite, who 

suspected Williams was carrying a weapon, pursued Williams and Officer Bacon maneuvered

the MPD vehicle “just past the intersection of Holbrook and Morse Streets.” Defs.’ Facts ¶ 13; 

 2 In addition to the filings already identified, the Court considered the following submissions in rendering its 

decision: (1) the Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment 

(“Defs.’ Mem.”); (2) the Defendants’ Statement of Material Facts as to Which There Is No Genuine Issue (“Defs.’

Facts”); (3) the Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Opp’n”); (4) the 

Memorandum of Points and Authorities in Support of the Plaintiff’s Opposition to Defendants’ Second Motion for 

Summary Judgment (“Pl.’s Mem.”); (5) the Plaintiff’s Response to Defendants’ Statement of Material Facts as to 

Which There Is No Genuine Issue (“Pl.’s Facts”); and (6) the Defendants’ Reply to Plaintiff’s Opposition to Their 

Motion for Summary Judgment (“Defs.’ Reply”).
3

see Pl.’s Facts ¶ 13. Williams “attempted to run westbound across Holbrook Street, when he 

tripped and struck the unmarked MPD vehicle.” Defs.’ Facts ¶ 14; see Pl.’s Facts ¶ 14. 

“Williams fell to the ground and dropped” an item that the defendants contend—and the plaintiff 

disputes—was “a 9mm pistol magazine.” See Defs.’ Facts ¶ 15; Pl.’s Facts ¶ 15. “Officer 

Brathwaite then attempted to subdue [ ] Williams[,]” while “Officer Bacon exited the vehicle to 

assist . . . .” Defs.’ Facts ¶¶ 16–17; see Pl.’s Facts ¶¶ 16–17. 

According to the defendants, after some further physical engagement between the officers 

and Williams, see Defs.’ Facts ¶ 23, Williams “began firing [a] gun that he possessed,” id. ¶ 24. 

The plaintiff disputes this characterization.

3 See Pl.’s Facts at ¶¶ 23–24. The defendants 

contend that Officer Brathwaite “disengaged from [ ] Williams and returned [ ] gunfire” before 

“clos[ing] the distance between himself and [ ] Williams, who . . . continued to fight with Officer 

Bacon.” Defs.’ Facts ¶¶ 26–27; see Pl.’s Facts ¶¶ 26–27. “As Officer Brathwaite approached, 

Officer Bacon shouted for Officer Brathwaite to shoot [ ] Williams.” Defs.’ Facts ¶ 28; see Pl.’s 

Facts ¶ 28. Officer Brathwaite then “fired his service pistol” three times and “Williams’ body 

went limp.” Defs.’ Facts ¶¶ 30–31; see Pl.’s Facts ¶¶ 30–31. Thereafter, Officer Bacon

“realized [ ] he had been shot by [ ] Williams.” Defs.’ Facts ¶ 32; see Pl.’s Facts ¶ 32. The 

officers and Williams “were taken by ambulance to the hospital, [and] crime-scene technicians 

recovered” the following evidence from the location of the shooting: (1) “a Springfield XD-9”

handgun; (2) a “9mm semi-automatic pistol”; (3) “a firearms magazine”; and (4) “twelve WIN 

 3 The Officers’ body-worn camera footage, Defs.’ Mot., Exhibit (“Ex.”) 4 (Bacon Video), Defs.’ Mot., Ex. 5

(Brathwaite Video), depict many of the pertinent events from the Officers’ individual points of view. Officer 

Bacon’s video demonstrates that gunfire occurred prior to Officer Brathwaite disengaging from the struggle that he 

and Officer Bacon were having with Williams. See Defs.’ Mot., Exhibit (“Ex.”) 4 (Bacon Video) at 01:26.
4

9mm Luger cartridge casings[,] which were ultimately found to have been fired by the 

Springfield XD-9 [that was recovered] at the scene.” Defs.’ Facts ¶ 33;

4 see Pl.’s Facts ¶ 33. 

On November 12, 2018, the plaintiff filed her Amended Complaint in this case. See

generally Am. Compl. In response, on December 21, 2018, the defendants filed their first 

summary judgment motion, see Defendants’ Motion for Summary Judgment (December 21, 

2018), ECF No. 18, which the Court denied, see Order at 1 (Mar. 8, 2019), ECF No. 22. 

Following the completion of discovery, see Order (Dec. 2, 2019), ECF No. 27, the defendants 

renewed their motion for summary judgment, see generally Defs.’ Mot., which is the subject of 

this Memorandum Opinion. 

II. STANDARD OF REVIEW

A court may grant a motion for summary judgment pursuant to Federal Rule of Civil 

Procedure 56 only if “there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is material if it ‘might 

affect the outcome of the suit under the governing law,’ and a dispute about a material fact is 

genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving 

party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986)). When ruling on a motion for summary judgment, “[t]he 

evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in 

h[er] favor.” Anderson, 477 U.S. at 255. “Credibility determinations, the weighing of the 

evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of 

a judge . . . ruling on a motion for summary judgment[.]” Id. The movant has the burden of 

demonstrating the absence of a genuine issue of material fact 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[ed] to make a showing sufficient to establish the existence of an element essential to that 

party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 322 (1986). 

In responding to a motion for summary judgment, the non-moving party “must do more 

than simply show that there is some metaphysical doubt as to the material facts.” Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the non-moving 

party “must set forth specific facts showing that there [are] genuine issue[s] for trial.” Anderson, 

477 U.S. at 248. “The mere existence of a scintilla of evidence in support of the [non-moving 

party’s] position . . . [is] insufficient” to withstand a motion for summary judgment; rather, 

“there must be [some] evidence on which the jury could reasonably find for the [non-movant].” 

Id. at 252. 

III. ANALYSIS

The defendants argue that the plaintiff’s claims must be dismissed as a matter of law.

See Defs.’ Mot. at 1–2. Specifically, the defendants contend that the Court must grant summary 

judgment in their favor on: (1) the plaintiff’s excessive force claim (Count III)5 because the 

officers’ “conduct was objectively reasonable,” and they are therefore entitled to qualified 

immunity; (2) the plaintiff’s assault claim (Count IV) “because the officers’ pursuit of 

[Williams] was lawful”; (3) the plaintiff’s battery claim (Count V) “because the officers’ use of 

force was reasonably necessary and privileged”; and (4) the plaintiff’s false arrest claim (Count 

 5 The plaintiff brought her excessive force claim under the Fourth, Fifth, and Fourteenth Amendments. See Am. 

Compl. ¶¶ 38–61. However, the plaintiff now concedes that this “claim is not properly brought under the Fifth and 

Fourteenth Amendments to the Constitution.” Pl.’s Mem. at 4. Accordingly, the Court will dismiss as conceded 

those aspects of the claim and consider her excessive force claim only under the Fourth Amendment.
6

VI) “because the officers were privileged to conduct a Terry [v. Ohio, 392 U.S. 1 (1968),] stop of 

[Williams].” Id. at 1. The Court will address each of the defendants’ arguments in turn.

6

A. The Plaintiff’s False Arrest Claim (Count VI)

The plaintiff alleges that the defendants falsely arrested Williams without “probable 

cause” or “legal justification.” Am. Compl. ¶¶ 80–81. The defendants argue in response that 

“the officers had an articulable suspicion [under Terry] that [ ] Williams was carrying a gun and 

therefore [they] could lawfully detain him for investigatory purposes.” Defs.’ Reply at 8; see 

also Defs.’ Mem. at 7–9; Defs.’ Mot. at 1 (“[T]he officers were privileged to conduct a Terry

stop of [the p]laintiff[.]”). But for the reasons that follow, whether the officers acted reasonably 

under Terry such that they are shielded from liability is a question for a jury to decide—and not 

the Court—on summary judgment. See Goolsby v. District of Columbia, 317 F. Supp. 3d 582, 

596 (D.D.C. 2018) (concluding “that a genuine issue of material fact preclude[d] summary 

judgment” on a false arrest claim); Wood v. District 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 suspicion required to effectuate an initial 

investigatory stop” and 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 assess, for example, a “probable cause determination”). 

Pursuant to Terry,

where a police officer observes unusual conduct which leads him reasonably to 

conclude in light of his experience that criminal activity may be afoot and that the 

 6 The defendant also argues that the plaintiff has effectively admitted the defendants’ version of the facts because 

she “merely states ‘disputed’ in response to many of [the d]efendants’ statements, which were supported by a record 

citation.” Defs.’ Reply at 2. However, the Court concludes that the plaintiff has satisfied her obligation to provide

“a separate concise statement of genuine issues . . . , include[ing] references to the parts of the record relied on to

support the statement.” LCvR7(h)(1); see Fed. R. Civ. P. 56(c)(1)(A). See generally Pl.’s Facts; Pl.’s Mem. at 2–3.
7

persons with whom he is dealing may be armed and presently dangerous, where in 

the course of investigating this behavior he identifies himself as a policeman and 

makes reasonable inquiries, and where nothing in the initial stages of the 

encounter serves to dispel his reasonable fear for his own or others’ safety, he is 

entitled for the protection of himself and others in the area to conduct a carefully 

limited search of the outer clothing of such persons in an attempt to discover 

weapons which might be used to assault him.

Terry, 392 U.S. at 30. Thus, Terry requires evaluating: “[(1)] whether the officer’s action was 

justified at its inception, and [(2)] whether it was reasonably related in scope to the 

circumstances which justified the interference in the first place.” Id. at 20. And, as the District 

of Columbia Circuit explained in United States v. Bailey, 

[a] Terry stop requires only a minimal level of objective justification. . . . An 

officer may initiate a Terry stop based not on certainty but on the need to check 

out a reasonable suspicion. Moreover, whether reasonable suspicion exists 

depends on the totality of circumstances as viewed through the eyes of a 

reasonable and cautious police officer on the scene, guided by his experience and 

training.

622 F.3d 1, 5 (D.C. Cir. 2010) (internal quotation marks and citations omitted). 

Here, the Court must evaluate “whether, viewing the facts in the light most favorable to 

[the p]laintiff, [the defendants] seized [Williams] in violation of his Fourth Amendment right to 

be free from unreasonable seizures.” See Maddux v. District of Columbia, 144 F. Supp. 3d 131, 

140–41 (D.D.C. 2015). According to the defendants, four events justified the officers’ stop of 

Williams. See Defs.’ Mem. at 8–9. First, “the officers observed [ ] Williams walking down the 

street and continually looking back at the police lights” from another unmarked MPD vehicle 

that was conducting a traffic stop on Florida Avenue, N.E. Id. at 8. Second, “Officer Bacon [ ]

observed [ ] Williams walk between two parked vehicles while he adjusted the waistband of his 

pants[,]” and “[b]ased on his experience, Officer Bacon, suspected that [ ] Williams’ actions

were characteristic of an armed gunman.” Id. Third, Officer Brathwaite followed Williams on 

foot and “asked [ ] Williams if he could speak with him, but [Williams] refused.” Id. Fourth, the 
8

defendants assert that “Williams ran westbound across Holbrook Street, Northeast, and then fled 

eastbound on Holbrook Street.” Id. at 8–9. In sum, the defendants argue that “[g]iven [ ]

Williams’ nervous response to the sight of a police vehicle, his walking between two parked cars 

to adjust his waistband, and his subsequent flight, the officers acquired an articulable suspicion 

sufficient to conduct a Terry stop.” Id. at 9. In response, the plaintiff argues that “the 

determination of whether or not [ ] Williams was unlawfully detained should be left to the jury to 

decide and not resolved at this stage of the litigation.” Pl.’s Mem. at 7. 

The Court agrees with the plaintiff. Crucially, there is a factual dispute as to (1) whether

Williams was continually looking back at the police lights from the traffic stop, compare Defs.’

Facts ¶ 6 with Pl.’s Facts ¶ 6 (citing Defs.’ Mot., Ex. 3 (Brathwaite Video)), and (2) whether

Williams walked between two vehicles while he adjusted the waistband of his pants, compare

Defs.’ Facts ¶ 7 with Pl.’s Facts ¶ 7 (citing Defs.’ Mot., Ex. 3 (Brathwaite Video)). Neither of 

the officers’ body-worn cameras captured these events, see generally Defs.’ Mot., Ex. 3

(Brathwaite Video); Defs.’ Mot., Ex. 4 (Bacon Video), and there is no indisputable proof from 

the record that the cameras would not have captured those actions by Williams. Indeed, the

defendants’ sole support for their contentions are the officers’ declarations, see Defs.’ Facts ¶¶ 6, 

7, which arguably conflict with the lack of any support provided by the body-worn camera 

footage. Because of this plausible conflict and the requirement that “the evidence [ ] be analyzed 

in the light most favorable to the non-movant,” Johnson v. District of Columbia, Civ. Action No. 

17-883 (CKK), 2020 WL 5816236, at *4 (D.D.C. Sept. 30, 2020), the Court cannot conclude, for 

summary judgment purposes, that the undisputed facts demonstrate a valid reasonable stop under

Terry.
9

Furthermore, the Court cannot agree with the defendants that “[o]nce [ ] Williams fled 

the scene, the officers were privileged to give chase and to use force to seize him to effectuate 

their investigation.” Defs.’ Mem. at 9. 

The [Supreme] Court in [Illinois v.]Wardlow[, 528 U.S. 119 (2000),] applied the 

standard for reasonable suspicion articulated in Terry to hold that ‘unprovoked,’

‘[h]eadlong flight’ in combination with ‘presence in an area of expected criminal 

activity’—elsewhere referred to in the opinion as a ‘high[-]crime area’ or ‘area of 

heavy narcotics trafficking’—suffices to justify further investigation through a 

brief detention.” 

United States v. Gorham, 317 F. Supp. 3d 459, 463 (D.D.C. 2018) (quoting Wardlow, 528 U.S. 

at 124–26) (fourth and fifth alterations in original)). While it is undisputed that Williams ran 

from the officers, the defendants have not alleged that the Officers’ encounter with Williams

occurred in a “high-crime area.” See id. (“Because [the] flight from the police occurred in a 

high-crime area[—here, an area recently experiencing a rising level of gun violence—], the 

Court concludes that the seizure . . . did not violate the Fourth Amendment.”) Moreover, the 

Court cannot otherwise conclude that Williams’ flight was “indicative of wrongdoing” without 

weighing disputed material facts. See Wardlow, 528 U.S. at 124. Indeed, there is no “per se rule 

authorizing the temporary detention of anyone who flees upon seeing a police officer[,]” Daniels 

v. District of Columbia, 894 F. Supp. 2d 61, 66 (D.D.C. 2012), as the Supreme Court concluded 

in Wardlow, that flight is not “necessarily indicative of wrongdoing[,]” 528 U.S. at 120. 

In sum, by asking the Court to conclude that as a matter of law there was a valid Terry

stop based on the record in this case, the defendants are “essentially asking the Court to draw 

inferences in their favor.” See id. However, when ruling on a motion for summary judgment, 

the Court is required to do precisely the opposite. Anderson, 477 U.S. at 255 (noting that, when 

ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, 
10

and all justifiable inferences are to be drawn in h[er] favor.”). The Court must therefore deny the 

defendants’ motion for summary judgment on the plaintiff’s false arrest claim.

B. The Plaintiff’s Excessive Force Claim (Count III)

Where, as in this case, a plaintiff brings a claim under 42 U.S.C. § 1983, a defendant may 

raise the defense of qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). 

The doctrine of qualified immunity shields police officers “from liability for civil damages 

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) 

(internal quotation marks omitted) (quoting Harlow, 457 U.S. at 818). Once a defendant asserts 

the defense of qualified immunity, “the burden of proof then falls to the plaintiff to show that the 

[defendan]t is not entitled to qualified immunity.” Winder v. Erste, 905 F. Supp. 2d 19, 28 

(D.D.C. 2012). “[W]hether a . . . defendant’s conduct violates the ‘clearly established’ 

constitutional rights of the plaintiff is a pure question of law that must be resolved by the

[C]ourt.” Pitt v. District of Columbia, 491 F.3d 494, 509 (D.C. Cir. 2007). 

To decide the issue of whether or not the non-movant may survive summary 

judgment [on a Section 1983 claim]—i.e., whether [s]he has provided enough 

evidence that a reasonable jury could return a verdict in h[er] favor—the [C]ourt 

must first identify[] the version of events that best comports with the summary 

judgment standard and then ask[] whether, given that set of facts, a reasonable 

officer should have known that his actions were unlawful.

Kyle v. Bedlion, 177 F. Supp. 3d 380, 389 (D.D.C. 2016) (fifth and sixth alterations in original)

(citation and internal quotation marks omitted). 

[A] defendant’s motion for summary judgment is to be denied only when, 

viewing the facts in the record and all reasonable inferences derived therefrom in 

the light most favorable to the plaintiff, a reasonable jury could conclude that the 

excessiveness of the force is so apparent that no reasonable officer could have 

believed in the lawfulness of his actions.
11

Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993) (citing Martin v. Malhoyt, 830 F.2d 237, 

253–54 (D.C. Cir. 1987)). However, “[q]ualified immunity cannot be granted on summary 

judgment . . . if there is a genuine issue as to a material issue of fact.” Arrington v. United 

States, 473 F.3d 329, 339 (D.C. Cir. 2006). 

Here, the plaintiff asserts that “[a]t the time of [ ] Williams’ death, [Williams] enjoyed 

the constitutional right to be secure in his person[,]” and “[w]hen [ ] [O]fficer Brathwaite 

discharged his weapon a second and third time into the back of [ ] Williams as [Williams] lay 

disabled and defenseless causing [Williams’] death, [ ] [O]fficer Brathwaite violated [

]Williams[’] constitutional right to be secure in his person.” Pl.’s Mem. at 5. The defendants

respond that the “[p]laintiff fails to consider the split-second decision that Officer Brathwaite 

was required to make when his life and Officer Bacon’s life were literally on the line.” Defs.’

Reply at 5. 

The Fourth Amendment to the United States Constitution protects “[t]he right of the 

people to be secure in their persons, houses, papers, and effects, against unreasonable searches 

and seizures[.]” U.S. Const. amend. IV. “[A]ll claims that law enforcement officers have used 

excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’

of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’

standard[.]” Graham v. Connor, 490 U.S. 386, 395 (1989). Whether a particular use of force is 

reasonable is “judged from the perspective of a reasonable officer on the scene, rather than with 

the 20/20 vision of hindsight.” Id. at 396 (citing Terry, 392 U.S. at 20–22). The Court must also

make “allowance for the fact that police officers are often forced to make split-second 

judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount 

of force that is necessary in a particular situation.” Id. at 397. 
12

With regard to all three gunshots fired by Officer Brathwaite, the Court concludes that 

there is sufficient undisputed evidence in the record to establish that Officer Brathwaite is 

entitled to qualified immunity because he “acted as any reasonable officer would have when 

faced with the same situation[.]” See Arrington v. District of Columbia, 597 F. Supp. 2d 52, 61 

(D.D.C. 2009) (Walton, J.). In examining Officer Brathwaite’s conduct, the Court must assess 

“whether an objectively reasonable officer would have believed his conduct to be lawful, in light 

of clearly established law[.]” Pitt, 491 F.3d at 509–10. As noted earlier, “th[e] Court applies an 

analysis that ‘allow[s] for the fact that police officers are often forced to make split-second 

judgments—in circumstances that are tense, uncertain and rapidly evolving—about the amount 

of force that is necessary in a particular situation.’” United States v. Slatten, 865 F.3d 767, 814 

(D.C. Cir. 2017) (second alteration in original) (quoting Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. 

Cir. 2016)). Here, the officers’ body-worn camera footage clearly establishes that Williams fired 

multiple shots just prior to Officer Brathwaite separating himself from the altercation with 

Williams and Officer Bacon. See Defs.’ Mot., Ex. 4 (Bacon Video) at 01:26. Indeed, Officer

Brathwaite observed Williams “continue[] to fight with Officer Bacon,” Defs.’ Facts ¶ 27; see

Pl.’s Facts ¶ 27, which, after the initial gunfire, resulted in “Officer Bacon shout[ing] for Officer 

Brathwaite to shoot [ ] Williams[,]” Defs.’ Facts ¶ 28; see Pl.’s Facts ¶ 28. Officer Brathwaite 

then “fired his service pistol three times” in rapid succession, Defs.’ Facts ¶ 30; see Pl.’s Facts ¶ 

30; see also Defs.’ Mot., Ex. 3 (Brathwaite Video) at 01:59, striking Williams, see Defs.’ Facts ¶ 

31; Pl.’s Facts ¶ 31. “It was not until [ ] Williams was no longer a threat that [ ] Officer Bacon 

realized he had been shot by [ ] Williams.” Defs.’ Facts ¶ 32; see Pl.’s Facts ¶ 32. 

“After [ ] Williams and Officer Bacon were taken by ambulance to the hospital, 

crime scene technicians recovered a . . . semi-automatic pistol, a firearms

magazine, and twelve . . . cartridge casings which were ultimately found to have 

been fired by the [semi-automatic pistol that was recovered] at the scene.” 
13

Defs.’ Facts ¶ 33; see Pl.’s Facts ¶ 33. Given these facts, the Court can only conclude that the

situation facing Officer Brathwaite at the moment he fired his weapon was emblematic of a

“tense, uncertain[,] and rapidly evolving” scenario, Slatten, 865 F.3d at 814, that precludes the 

Court second-guessing the actions of Officer Brathwaite, see Graham, 490 U.S. at 396–97

(“[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts 

and circumstances confronting them, without regard to their underlying intent or motivation.”). 

In firing multiple shots at Williams, Officer Brathwaite reacted to his reasonable perception of a 

rapidly developing and potentially deadly situation by acting to protect himself and Officer 

Bacon. See, e.g. Plumhoff v. Rickard, 572 U.S. 765, 777 (2014) (holding that “if police officers 

are justified in firing at a suspect in order to end a severe threat to public safety, the officers need 

not stop shooting until the threat has ended” and concluding that it was not unreasonable for 

officers to fire fifteen shots in a ten-second span); Rush v. City of Lansing, 644 F. App’x 415, 

419–25 (6th Cir. 2016) (holding that it 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 

mistaken in making a split-second assessment”).

The plaintiff argues that the “officers should have known that the shooting of an arrestee

who lay defenseless on the ground would be clearly an assault and battery and therefore 

unlawful.” Pl.’s Mem. at 6. However, the plaintiff identifies no evidence in the record that

demonstrates Williams was “lay[ing] defenseless on the ground[.]” See id. To the contrary, as 

the Court noted above, the record reflects that Williams continually fought the officers once he 

was tackled, which included shooting a firearm during the struggle. See Defs.’ Facts ¶¶ 26–28, 

30–33; Pl.’s Facts ¶¶ 26–28, 30–33. The plaintiff’s position also fails to account for the 

uncertain and dangerous aspects of the evolving situation—namely, the continued struggle, the 
14

initial gunshots, and Officer Bacon’s dire shouts for help—during which the defendants correctly 

note “it was not unreasonable for Officer Brathwaite to fire [three shots7

] within seconds.” See

Defs.’ Reply at 5 (citing Defs.’ Mot., Ex. 3 (Brathwaite Video) at 01:59). The plaintiff further 

fails to distinguish the abundant case law requiring deference to officers acting quickly and in 

response to dangerous situations. See Pl.’s Mem. at 6 (referring only to D.C. Code § 5-123.02 to 

argue the “officers should have known that the shooting . . . would be clearly an assault and 

battery); see also Defs’ Mem. at 7 (citing cases). Accordingly, the Court must grant in part the

defendants’ motion for summary judgment on the plaintiff’s excessive force claim as to the shots 

fired by Officer Brathwaite because Officer Brathwaite is entitled to qualified immunity for 

firing those shots. 

However, the Court must also deny in part the defendant’s motion for summary judgment 

on the plaintiff’s excessive force claim in all other respects. “In assessing whether a party is 

entitled to qualified immunity, the facts must be taken in the light most favorable to the party

asserting the constitutional injury.” Pitt v. District of Columbia, 558 F. Supp. 2d 11, 16 (D.D.C. 

2008). Here, the plausible factual conflict the Court previously identified in connection with the

plaintiff’s false arrest claim—namely, the dichotomy between the officers’ 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 determine as a matter of law that the 

officers are entitled to qualified immunity in connection with all other actions that occurred prior

to and during the confrontation with Williams, namely, the pursuit and physical altercation

 7 The defendants’ 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 Officer Brathwaite that he only needed to shoot once to eliminate the t`hreat.” Defs.’ Reply at 

5. Regardless of the plaintiff’s argument on this point, the Court already concluded that Officer Brathwaite 

reasonably fired all three shots.
15

before the initial shots were fired by Williams.

8

 See Magliore v. Brooks, 844 F. Supp. 2d 38, 45 

(D.D.C. 2012) (denying District of Columbia police officers’ summary judgment motion 

regarding, inter alia, excessive force, assault, and battery claims where material facts were in 

dispute and the evaluation of witness testimony and other evidence were “ultimately [ ] 

decision[s] to be made by a jury, not in a summary judgment ruling”).

C. The Plaintiff’s Assault and Battery Claims (Counts IV and V)

The plaintiff also alleges that the defendants (1) assaulted Williams by engaging in

“harmful conduct towards [him],” Am. Compl. ¶ 63, that “caused . . . Williams to reasonably 

apprehend that he would be subjected to imminent harmful or offensive contact and that [the 

officers] had the clear and present ability to carry out the expected harmful or offensive contact,” 

id. ¶ 64, and (2) “intentionally battered Williams by holding [him] on the ground and shooting 

him without provocation or a valid basis to do so, which resulted in [ ] Williams’ death[,]” id.

¶ 73. The defendants argue in response that the officers are entitled to qualified privilege under 

District of Columbia law, and that because “the use of deadly force was objectively reasonable, 

the common law qualified privilege bars [the] [p]laintiff’s battery claims.” Defs.’ Mem. at 10.

The plaintiff responds that “Officers Brathwaite and Bacon intentionally harmed [ ] Williams in 

derogation of his Fourth Amendment rights and did so by using unnecessary and wanton severity 

in arresting him[,]” Pl.’s Mem. at 7–8, and “[n]o reasonable police offer can plausibly claim that 

he lacked the knowledge regarding [ ] fundamental restrictions upon police conduct,” id. 

 8 While the plaintiff in her opposition has only specifically refered to the shots fired by Officer Brathwaite in 

responding to the defendant’s challenge to her excessive force claim, see Pl.’s Mem. at 7–8, the plaintiff’s assertion 

in prior briefing that “[t]he central factual issue in this litigation remains whether the [d]efendant officers used 

excessive force during the stop and subsequent arrest of [Williams,]” Memorandum of Points and Authorities in 

Support of the Plaintiff’s Opposition to Defendants’ [First] Motion For Summary Judgment at 6, ECF No. 20-1

together with the Amended Complaint’s allegations of additional underlying facts, see, e.g., Am. Compl. ¶ 48

(referencing “h[o]ld[ing] [Williams] down in the middle of the street”), are sufficient to implicate all of the officers’

actions committed in connection with the attempts to stop and subdue Williams.
16

Under District of Columbia law, “[a] police officer has a qualified privilege to use 

reasonable force to effect an arrest,” so long as “the means employed are not in excess of those 

which the [officer] reasonably believes . . . [are] necessary.” Etheredge v. District of Columbia, 

635 A.2d 908, 916 (D.C. 1993) (internal quotation marks omitted). “This standard is similar to 

the excessive force standard applied in the Section 1983 context.” Rogala v. District of 

Columbia, 161 F.3d 44, 57 (D.C. Cir. 1998) (citing Etheredge, 635 A.2d at 915 n.10). 

The parties make fundamentally similar arguments regarding the plaintiff’s excessive 

assault and battery claims to those made regarding the plaintiff’s excessive force claim in Count 

III. See Defs.’ Mem. at 5–7, 9–11 (asserting the application of qualified immunity and qualified 

privilege to the officers’ uses of force); Pl.’s Mem. at 4–6, 7–8 (arguing against the application 

of qualified immunity for all claims involving the officers’ alleged use of force). Specifically, 

the plaintiff here argues that “[t]he body[-]worn camera footage plainly demonstrates that [ ]

[O]fficer Brathwaite sho[]t [ ] Williams a second and third time after the first shot disabled him 

and left him defenseless on the ground[,]” and that “[t]his conduct constitutes assault and battery 

and[,] at the very least[,] presents a question for [the] fact-finder . . . .” Pl.’s Mem. at 8. In 

response, the defendants correctly note that the plaintiff is “essentially mak[ing] the identical 

argument [advanced in support of her] Fourth Amendment claim[.]” Defs.’ Reply at 8. Indeed, 

the plaintiff’s arguments regarding Officer Brathwaite’s use of deadly force within the context of

her assault and battery claims can be analyzed under the same reasonableness standard discussed 

earlier 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 assault and battery 

claims against an officer and the District of Columbia failed “[f]or substantially the reasons 

discussed [concerning an excessive force claim under Section 1983]”). To the extent the assault
17

and battery alleged by the plaintiff implicate the shots fired by Officer Brathwaite, the Court 

concludes, for the same reasons provided in its discussion of the plaintiff’s excessive force claim, 

that summary judgment for the defendants is required.

However, as the Court also previously concluded regarding the plaintiff’s excessive force 

claim, the Court cannot determine as a matter of law that the defendants’ conduct was 

objectively reasonable such that qualified privilege precludes liability for all actions taken by 

Officer Brathwaite and Bacon before the initial shots were fired by Williams and Officer Bacon 

told Officer Brathwaite to shoot Williams.

9

 See Magliore, 844 F. Supp. 2d at 45. Accordingly, 

the Court must similarly (1) grant the defendants’ motion for summary judgment on the 

plaintiff’s assault and battery claims to the extent these claims pertain to Officer Brathwaite’s 

decision to fire multiple shots at Williams, and (2) deny the defendants’ motion for summary 

judgment on the plaintiff’s assault and battery claims in all other respects.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that the defendant’s summary judgment 

motion must be granted in part and denied in part. Specifically, the Court concludes that, to the 

extent that the plaintiff’s excessive force, assault, and battery claims pertain to the three shots 

fired by Officer Brathwaite, the defendant’s motion for summary judgment must be granted as to

 9 While the plaintiff has made her position obscure on this point—as she similarly did in addressing her excessive 

force claim—by specifically referring to the second and third shots in responding to the defendant’s challenge to her 

assault and battery claims, see Pl.’s Mem. at 8 (“The body[-]worn camera footage plainly demonstrates that [ ] 

[O]fficer Brathwaite sho[]t [ ]Williams a second and third time after the first shot disabled him and left him

defenseless on the ground[,] . . . [which] constitutes assault and battery[.]”), the plaintiff’s assertion that “Officers 

Brathwaite and Bacon intentionally harmed [ ] Williams in derogation of his Fourth Amendment rights and did so 

by using unnecessary and wanton severity in arresting him[,]” id. at 7–8, is sufficient to address all of the officers’

actions committed in connection with the attempts to stop and subdue Williams. Furthermore, the Amended 

Complaint alleges facts underlying the plaintiff’s battery and assault claims that go beyond just the second and third

shots. See, e.g., Am. Compl. ¶ 63 (referencing the officers’ “pursuit of [ ] Williams”); id. ¶ 65 (referencing all three 

shots fired by Officer Brathwaite); id. ¶ 73–74 (referencing the officers’ acts of “holding [Williams] on the ground 

and shooting him”).
18

these components of the claims. However, the Court concludes that, due to the presence of 

disputed facts regarding the officers’ initial pursuit of and eventual confrontation with Williams, 

the Court must deny the defendants’ summary judgment motion in all other respects.

SO ORDERED this 27th day of January, 2021.

10

REGGIE B. WALTON

United States District Judge

 10 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.