1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) JEAN ALIX LOUIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 12-918 (ESH) ) DISTRICT OF COLUMBIA, et al ., ) ) Defendants. ) )

MEMORANDUM OPINION Plaintiff Jean Alix Louis, individually and as a representative of th e estate of Jean Edny Louis, has sued the District of Columbia a nd Metropolitan Police Department (“MPD”) Officer Paul Riggins, in his individua l and official capacity, under 42 U.S.C. § 1983 and assorted provisions of state law. The suit grows out of an encounter between plaintiff’s mentally ill brother, Jean Edny Louis (“Louis” ), and MPD officers, during whic h Officer Riggins fatally shot

Louis. Before the Court is defendants’ Mo tion for Summary Judgment. (“Mot.”, Feb. 19, 2014 [Dkt. No. 35].) Having considered the record and the parties’ br iefs, and for the reasons stated below, the Court will grant defendants’ motion as to plaintiff’s federal-law claims and dismiss plaintiff’s remaining state-law claims w ithout prejudice for lack of jurisdiction.

FACTUAL BACKGROUND On June 14, 2011, the MPD was called to Louis’ s apartment to assist the D.C. Mobile Crisis Unit in effecting an FD-12 applicati on for Louis’s emergency hospitalization. (FIT Report, Aug. 29, 2012 [Dkt. No. 40-1 Ex. C] at 1.) Louis had been acting irrationally, and his case manager and the Mobile Crisis Unit had concluded he needed emergency psychiatric services pursuant to D.C. Code § 21-521 (2003).2 When MPD officers arrived at Louis’s apartm ent, the three mental health professionals

on the scene informed the officers that Louis wa s in an agitated state and was armed with a screwdriver. (FIT Report at 1

. ) At the time, Louis was locat ed inside the bathroom. ( Id. ) After fifteen to twenty minutes of failed attempts to convince Louis to exit the bathroom, the officers attempted to enter. (Dep. of Gordon Peterson, Oct. 3, 2013 [Dkt. No. 35-7] at 48-49.) When the door opened, Louis swung an eleven-inch screwdrive r with an artificially sharpened, seven-inch

blade at the officers and stabbe d Officer Rafeal Sarita in th e right arm, causing a puncture wound. ( Id. at 49-50; FIT Report at 1; Incident-Based Event Report, June 14, 2011 [Dkt. No. 35-1] at 2.) Officer Sarita sprayed a one-second burst of OC (pepper) spray at Louis, who, unfazed, threw water at the officers and slammed s hut the bathroom door. (FIT Report at 1.) The commanding officer on the scene then declar ed a barricade situation and requested the Special Operations Division Emergency Response Team (“ERT”) to respond to the scene. ( Id. ) Upon arriving at Louis’s apartment buildi ng, the ERT members we re briefed on prior events, including Louis’s stabbing of Officer Sarita with the sc rewdriver. (Dep. of Robert Glover, Dec. 10, 2013 [Dkt. No. 35-6; 40-1 Ex. E] at 174-75; Dep. of Paul Riggins, Dec. 17, 2013 [Dkt. No. 35-9; 40-1 Ex. M] at 344.)) ERT me mbers were also informed that in prior instances requiring Louis’s emergency hospitali zation, it had taken seve ral officers to subdue Louis. (Glover Dep. at 175.) The ERT establishe d sniper observation post s with lines of sight

into Louis’s bathroom and formed a tact ical entry team. (FIT Report at 2; see Glover Dep. at 176.) A short time later, the tact ical entry team entered Louis’s apartment with ERT negotiators. (FIT Report at 2.) ERT negotiators unsuccessfully attempted to negotiate with Louis for around an hour and a half. (Glover Dep. at 81.) The negotiators failed to estab lish a meaningful dialogue with3 Louis, who would repeat (in English) 1 what the negotiators said to him, speak unintelligibly, or not respond at all. ( Id. at 121; FIT Report at 2.) During the negotiations, Louis went silent for approximately twenty minutes. (Glover Dep. at 106.) Members of the sniper team inform ed the tactical team that Louis was sitting on the toilet and appeared either asleep or unconscious. ( Id. ) Commanding officer Lieutenant Robert Glover, concerned about Louis’s safety an d also concerned that this “might be the only opportunity to safely take [Louis] into custody,” authorized a tactical plan for a four-man team to safely apprehend Louis. ( Id. at 105-06.) Under the plan, Officer Mark Wascavage was to breach the door, and Officers Paul Riggins, Gregory R obinson, and William Powell were to enter the bathroom, in that order. (Dep. of William Po well, Dec. 10, 2013 [Dkt. No. 35-8; 40-1 Ex. D] at 94.) Although the officers wore protective gear a nd shields, their necks, arms and thighs were exposed, (Defendants’ Statement of Facts (“DSOF”), Feb. 19, 2014 [Dkt. No. 35] ¶ 10), and the shields were not designed to pr otect against sharp objects. (De p. of Mark Wascavage, Dec. 17, 2013 [Dkt. No. 35-11; 40-1 Ex. P] at 88.) Befo re entering, Officer Riggins looked through a hole in the bathroom door and personally observed Louis sitting on the toilet seat with his head dropped, appearing to be eith er asleep or unconscious. (Riggins Dep. at 68-69.) Less than one minute later, Officer Wascav age breached the bathroom door with a oneman battering ram. (DSOF ¶ 1; Riggins Dep. at 69; Powell Dep. at 129.) Upon entering the bathroom, Officer Riggins reali zed that Louis was no longer sitt ing on the toilet, but was now positioned behind the bathroom door with a screwdriver in his right hand. (Riggins Dep. at 346.) Louis then pushed himself against the door to tr y to keep Officer Robinson from entering behind

1 Louis was bilingual. He could speak, understand, read, and write in English, but also spoke Haitian Creole. (Glover Dep. at 71-72.) The ERT re quested a Haitian Creole translator to use during negotiations, but because the officers established that Louis could communicate in English, the translator was not used. ( Id. )4 Officer Riggins. As Officer Robinson pushed back against th e door, Louis swung the screwdriver—which he held pointing downwar d—in a stabbing motion around the door multiple times at Officer Robinson. (Riggins Dep. at31-32, 346; Dep. of Gregory Robinson, Jan. 3, 2014 [Dkt. No. 35-10; 40-1 Ex. N] at 197.) At this point, Officer Riggins —between three and five feet from Louis (Riggins Dep. at 288, 323 (less th an three feet); Dep. of Charles Key, Jan. 31, 2014 [Dkt. No. 38-17] at 163 (up to five feet ))—believed that Louis had stabbed Officer Robinson. (Riggins Dep. at 54, 322, 346.) Officer Riggins threw down his can of OC spray and drew his service pistol, at whic h point Louis slid along the door and raised the screwdriver in a stabbing motion toward Officer Riggins. ( Id. at 42, 189, 317, 322.) Officer Riggins fired two shots at Louis, hitting Louis once in the right side of the head a nd once in the right shoulder. ( Id. at 21, 23, 41-42, 189.) Louis fell unconscious immedi ately. (DSOF ¶ 9.) The confrontation in the bathroom lasted between only seven and ten seconds (Robinson Dep. at 197), during which Officers Robinson and Riggins were unable to see one another. ( Id. at 198.) Although an EMTcertified ERT member attempted first aid on Loui s, Louis was later pronounced dead at Howard University Hospital. (FIT Report at 2.) Approximately four hours passed between the time officers were originally called to Louis’ s apartment and when Louis was shot. ( See id. at 1-2.) Plaintiff, as a representative of Louis’s estate and Louis’s survivor, f iled this suit against

the District of Columbia a nd “John Doe Police Officers” on June 6, 2012. (Compl., June 6, 2012 [Dkt. No. 1].) On October 2, 2012, plaintiff added Officer Riggins as a named defendant. (First Amd. Compl., Oct. 2, 2012 [Dkt. No. 9].) On September 5, 2013, plaintiff filed his second amended complaint, which contained two federal- and four state-law counts: (1) an excessive force claim under 42 U.S.C. § 1983 against Officer Riggins; (2) a municipal liability claim under section 1983 against the Di strict of Columbia; (3) a state-la w assault and battery claim against5 both defendants; (4) a state-law negligent excessi ve force claim against both defendants; (5) a state-law survival act claim against both defenda nts; (6) a state-law wrongf ul death claim against both defendants. (Second Amd. Compl. (“SAC” ), Sept. 5, 2013 [Dkt. No. 31] ¶¶ 28-54.) Discovery has closed and defendant s now move for summary judgment. LEGAL STANDARD Summary judgment is appropria te “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment bear s the “initial responsibility of informing the district court of the basis for its motion, a nd identifying those porti ons of the pleadings, depositions, answers to interrogato ries, and admissions on file, toge ther with the affidavits, if any, which it believes demonstrate the absen ce of a genuine issue of material fact.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (internal quota tion marks omitted). To defeat summary judgment, the non-moving pa rty must then “designate spec ific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual disagreement is insufficient to preclude su mmary judgment: a disput e is “genuine” only if

a reasonable fact-finder could fi nd for the non-moving party; a fact is “material” only if it is capable of affecting the out come of the litigation. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986); accord Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). The court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris , 550 U.S. 372, 378 (2007) (alterations omitted) (quoting United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962)). However, a court should not cons ider a non-moving part y’s “unsubstantiated allegations.” Greene v. Dalton , 164 F.3d 671, 675 (D.C. Cir. 1999). Indeed, “summary6 judgment ‘is most likely when a plaintiff’s claim is supporte d solely by the plaintiff’s own selfserving testimony, unsupported by corroborating ev idence, and undermined either by other credible evidence, physical impo ssibility or other persuasive evidence that the plaintiff has deliberately committed perjury.’” Arrington v. United States , 473 F.3d 329, 343 (D.C. Cir. 2006) (quoting Johnson v. Wash. Metro. Area Transit Auth. , 883 F.2d 125, 128 (D.C. Cir. 1989)). ANALYSIS I. SECTION 1983 CLAIMS

A. Count V – Excessive Force

Plaintiff’s central federal- law claim under section 1983 is that Officer Riggins used excessive force when breaching the bathroom and when he fatally shot Louis. (SAC ¶¶ 42-43; Opp’n at 13-14.) Officer Riggins claims that hi s actions are protected by qualified immunity. (Mot. at 5.) “Qualified immunity gives government officials breathing room to ma ke reasonable but mistaken judgments about open legal questions” by “protect[ing] ‘all but the plainly incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd , -- U.S. ---, 131 S. Ct. 2074, 2085 (2011) (quoting Malley v. Briggs , 475 U.S. 335, 341 (1986)). Unde r this doctrine, government officials are shielded from money damages unless a plaintiff demonstrates “( 1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Id. at 2080. A court has the di scretion to determine which prong of the qualified immunity an alysis to undertake first. Pearson v. Callahan , 555 U.S. 223, 236 (2009).7 “A claim that law-enforcement officers used excessive force to effect a seizure is governed by the Fourth Amendment’ s ‘reasonableness’ standard.” Plumhoff v. Rickard , -- U.S. - --, 134 S. Ct. 2012, 2020 (2014); accord Graham v. Connor , 490 U.S. 386, 395 (1989) (“[ A ] ll

claims that law enforcement officers have used excessive force—deadly ornot—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the

Fourth Amendment and its ‘r easonableness’ standard.”). 2 The “reasonableness” inquiry is an objective one, Graham , 490 U.S. at 397, and is analyzed from the perspective “of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” id. at 396. Stated succinctly, “[a]n officer will only be held liable if the force used was so excessive that no reasonable officer

could have believed in the la wfulness of his actions.” Rogala v. Dist. of Columbia , 161 F.3d 44, 54 (D.C. Cir. 1998).

Courts consider the reasonableness of fo rce based on the “the totality of the circumstances,” Plumhoff , 134 S.Ct. at 2020, including “the seve rity of the crime at issue,” whether the suspect was “actively resisting arrest or attempting to evade arrest by flight,” and whether the suspect “pose[d] an immediate threat to the safety of the officers or others.” Graham, 490 U.S. at 396. This allows “for the fact that police officers are often forced to make split-second judgments—in circumstances that ar e tense, uncertain, a nd rapidly evolving—about

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

2 Plaintiff also purports to bring excessive force cl aims pursuant to the due process clauses of the Fifth and Fourteenth Amendments. (SAC ¶ 42.) Ho wever, because the District of Columbia is not a state, but a “political entity created by the federal govern ment, it is subject to the restrictions of the Fifth Amendment, not the Fourteenth.” Propert v. Dist. of Columbia , 948 F.2d 1327, 1330 n.5 (D.C. Cir. 1991) (citing Bolling v. Sharpe , 347 U.S. 497, 499 (1954)). Moreover, the Fifth Amendment does not apply to claims that law enforcement officers utiliz ed excessive force during the course of an arrest. Graham , 490 U.S. at 395; accord Armbruster v. Frost , 962 F. Supp. 2d 105, 111 (D.D.C. 2013). The Court will therefore grant summary judgment to de fendants as to plaintiff’s excessive force claims brought pursuant to the Fifth and Fourteenth Amendments.8 The Supreme Court has articulated a narrower “reasonableness” standard for the use of deadly force. “[I]t is unreasonable for an offi cer to ‘seize an unarmed, nondangerous suspect by shooting him dead.” Brosseau v. Haugen , 543 U.S. 194, 197 (2004) (quoting Tennessee v.

Garner , 471 U.S. 1, 11 (1985)). “Where the suspect pos es no immediate threat to the officer and no threat to others, the harm resulting from faili ng to apprehend him does not justify the use of deadly force to do so.” Garner , 471 U.S. at 11. “But ‘[w]here the officer has probable cause to believe that the suspect poses a th reat of serious physical harm, eith er to the officer or to others, it is not constitutionally unreasonable to . . . us[e] deadly force.’” Brosseau , 543 U.S. at 197-98 (quoting Garner , 471 U.S. at 11). Thus, “if the suspect threatens the officer with a weapon . . . deadly force may be used.” Garner , 471 U.S. at 11; accord Buruca v. Dist. of Columbia , 902 F. Supp. 2d 75, 86 (D.D.C. 2012) (concluding that office r’s use of deadly force was reasonable when suspect pointed pistol at officer); Wallace v. Dist. of Columbia , 685 F. Supp. 2d 104, 110 (D.D.C. 2010) (concluding that two officers’ use of deadly force was reasonable when the officers faced an armed individual who put his g un to his head, then moved his hand towards one of the officers); White v. United States , 863 F. Supp. 2d 41, 48-49 (D.D.C. 2012) (concluding that officers’ use of deadly force was reasonable when an individual pointedhis gun at one of the officers). “‘[T]he law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect.’” Wallace , 685 F. Supp. 2d at 111 (quoting Garczynski v. Bradshaw , 573 F.3d 1158, 1169 (11th Cir. 2009)). “Although [courts] evaluate the reasonableness of the officers’ actions by viewing the events from their perspective, ” courts must at summary judgment “consider the facts in the

record and all reasonable inferences derived theref rom in the light most favorable to [plaintiff].” Scott v. Dist. of Columbia , 101 F.3d 748, 759 (D.C. Cir. 1996). So viewing the record, “a9 defendant’s motion for summ ary judgment is to be denied only when . . . a reasonable jury could

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

believed in the lawfulness of his actions.” Wardlaw v. Pickett , 1 F.3d 1297, 1303 (D.C. Cir. 1993). 3 1. Shooting of Louis Officer Riggins maintains that he shot L ouis because Louis was “assaulting” him and Officer Robinson “with a deadly weapon.” (Riggins Dep. at 23-24; see also id. at 344.) Plaintiff argues that there are several disputed issues of material fact as to whether Officer Riggins’s decision to shoot Louis was obj ectively reasonable, including (1) whether Louis was wielding the screwdriver when Officer Riggins discharged his firearm; and, if so, (2) whether Louis had attempted to stab Officers Robinson and Riggi ns; and, if so, (3) whether those attempted stabbings could have caused deat h or serious bodily injury. ( See Pl.’s Statement of Material Facts in Disputed (“PSOF”), Ma rch 7, 2014 [Dkt. No. 38] ¶¶ 16, 20, 22; see also Opp’n at 17.) 4

3 Plaintiff asserts that the ex cessive force claims “will rarely be susceptible to summary judgment” because of the necessarily fact-bound nature of the objective reasonableness inquiry. (Opp’n at 9-10.) While the reasonableness inquiry is undeniably fact-bound and case-specific, see Graham , 490 U.S. at 396, this does not preclude summary judgment where there is no disputed fact material to the objective reasonableness of the use of force. See, e.g. , Plumhoff , 134 S.Ct. at 2024 (reversing circuit court’s judgment denying summary judgment); Scott , 550 U.S. at 386 (same); Lash v. Lemke , 971 F. Supp. 2d 85, 93 (D.D.C. 2013) (granting summary judgment); Armbruster , 962 F. Supp. 2d at 115 (same); Garay v. Liriano , 943 F. Supp. 2d 1, 29 (D.D.C. 2013) (same); White v. United States , 863 F. Supp. 2d at 49 (same).

4 Plaintiff “disputes” many other facets of defendants’ statement of facts. ( See Opp’n at 16-22; see generally Pl.’s Resp. to DSOF, March 7, 2014 [Dkt. No . 38].) However, these “disputes” generally consist of plaintiff “den[ying] this statement” without a citation to record evid ence that creates a genuine issue of fact or even supports plaintiff’s theory of the case. ( E.g. , Pl.’s Resp. to DSOF ¶ 8.) Plaintiff’s own “statement of material facts in dispute” is simila rly unhelpful, as it consists of a hodgepodge of legal conclusions ( e.g. , PSOF ¶¶ 2-3, 21), facts that are undisputed ( e.g. , id. ¶¶ 6, 19), and allegedly “disputed” facts with record citations that fa il to establish a genuine “dispute.” ( E.g. , id. ¶¶ 21-22.) As one example, plaintiff states that “Louis did not use a level of force that could have caused death or serious bodily injury when he was confronted by Defendant Ri ggins in his bathroom,” citing Officer Riggins’s deposition testimony. ( Id. ¶ 22.) However, the cited testimony states the exact opposite: “Mr. Louis was using a level of force . . . that he can [sic] cause death or serious injury to me.” (Riggins Dep. at 344.)10 However, plaintiff’s averments that these f acts are genuinely disputed does not make them so. For plaintiff’s alle gations are unsupported by the record and based almost entirely on his theory that Officer Robins on and Riggins’s testimonies are post facto rationalizations meant to insulate defendants from liability. ( See Opp’n at 17 (“The only evidence that [Louis] was holding [the screwdriver] after the entry comes from Defendant Riggins and Officer Robinson, whose testimony the jury could disregard.”); id. at 20 (“The jury could ju st as easily determine that Officer Riggins had i nvented this ‘belief’ to justify his us e of lethal force.”).) The Court is

sensitive to the fact that in cases such as this one, where “the witness most likely to contradict [the officers’] story—the person shot dead—is unable to testify,” it should “not simply accept what may be a self-serving account by the police officer[s].” Scott v. Henrich , 39 F.3d 912, 915 (9th Cir. 1994). However, the fact that an indi vidual died after an enc ounter with police officers does not preclude summary judgment for those officers in a subsequent section 1983 action. See,

e.g. , Buruca , 902 F. Supp. 2d at 86. For a Court cannot se t aside the officers’ testimony absent “circumstantial evidence that, if believed, would tend to discredit the police officer’s story, and

. . . could convince a rationa l factfinder that the officer acted unreasonably.” Scott , 39 F.3d at 915. As described below, plaint iff fails to identify any su ch circumstantial evidence.

Plaintiff cannot render this fact “disputed” by merely labelling it so. Plaintiff must “point[] to ‘affirmative evidence’ showing disputed material facts.” Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner , 101 F.3d 145, 150 (D.C. Cir. 1996) (quoting Anderson , 477 U.S. at 256-57); see also Buruca , 902 F. Supp. 2d at 82 (“The plaintiff can defeat the District’s motion only if it points to ‘particular facts’ supported by ‘materials in the reco rd’ to dispute the District’s version of the story.” (quoting Fed. R. Civ. P. 56(c)(1)(A))). The Court notes that the purpose of Local Civ il Rule 7(h)’s requirement that parties file respective statements of material fact is to “‘isol ate[] the facts that the parties assert are material, distinguish[] disputed from undisputed facts, and identif[y] the pertinent pa rts of the record.’” Burke v. Gould , 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Gardels v. Cent. Intelligence Agency, 637 F.2d 770, 773 (D.C. Cir. 1980)). “[A] district court judge should not be obliged to sift through hundreds of pages of depositions, affidavits, and interrogato ries in order to make [its] own analysis and determination of what may, or may not, be a genuine issue of material disputed fact.” Twist v. Meese , 854 F.2d 1421, 1425 (D.C. Cir. 1988). Unfortunately, this is precisely the burden that plaintiff’s failure to comply with Local Rule 7(h) has placed on the Court.11 First, there is no genuine dispute as to whether Louis wielded the screwdriver and attempted to stab Officer Robinson. Both offi cers recounted that after Louis began to push against the bathroom door to prev ent Officer Robinson from entering, he also began to try to stab

Officer Robinson around the door with the screwd river. (Riggins Dep. at 54, 320, 346; Robinson Dep. at 197.) In addition, the officers recovered the screwdriver from the bathroom after the altercation. (FIT Report at4.) Plaintiff offers no evidence to undermine this consistent testimony of the officers and the phys ical evidence from the scene. 5 Second, there is no genuine dispute as to whether Louis also threatened Officer Riggins with the screwdriver. Officer Riggins testified that after he dropped his OC spray and drew his service pistol, Louis raised the screwdriver in a stabbing motion in his di rection. (Riggins Dep. at 317.) Plaintiff argues that Officer Riggins’s testimony should be disregard as “implausible” because (1) Officer Robinson te stified that Louis did not de crease his resistance on the door before Officer Riggins shot him; (2) Officer Riggins himself testified that Louis remained in

contact with the door at all times; and (3) Officer Riggins shotLouis in the side of the shoulder and head, which is inconsistent with a frontal attack by Louis. (Opp’n at 20-21; Pl.’s Response to DSOF, March 7, 2014 [Dkt. No. 38] ¶ 4.) On this basis, plaintiff contends, a jury could

conclude Louis was not threateni ng Officer Riggins. However, th is purported “implausibility” in Officer Riggins’s testimony is sole ly of plaintiff’s inve ntion. Officer Riggins never testified that Louis turned and approached him head on. Instea d, Officer Riggins testif ied consistently that Louis, who remained in contact with the door throughout the encounter (Riggins Dep. at 48, 194, 317-19), was “never facing” him and kept his bo dy “always towards the side,” even when he

5 Plaintiff argues that “there is no evidence th at [Louis] could have reached a screwdriver around the door to pose any threat to Officer Robinson b ased on how [Louis] was positioned and built.” (Opp’n at 19-20.) However, the officers’ unrebutted testimony provides that evidence. Th at testimony is not so facially implausible as to create a genuine issue of material fact.12 threatened Riggins with the screwdriver. ( Id. at 318, 347.) Thus, the fa ct that Officer Riggins

shot Louis in the side of his shoulder and head is completely consistent with the Riggins’s testimony of Louis’s threatening actions. 6 Finally, there is no genuine dispute as to whether Louis could have caused death or serious bodily injury to Officers Robinson and Riggins. It is undisputed that Louis was attempting to stab the officers with a screwdrive r with an artificially sharpened seven-inch

blade—the same screwdriver with which he had stabbed Officer Sarita hours before. Not only have courts concluded that attacks by a suspectwielding similarly-size d knives are sufficiently dangerous to justify the use of deadly force, e.g. , Samuel v. City of Broken Arrow , 2011 WL 6029677, * 4-6 (N.D. Okla. Dec. 5, 2011) (ten-inch knife with five-inch blade), but several courts specifically have held that screwdrivers, when wielded as weapons, may justify the use of deadly force. See J.P. ex rel. Balderas v. City of Porterville , 801 F. Supp. 2d 965, 981-83 (E.D. Cal. 2011); Nicarry v. Cannaday , 260 F. App’x 166, 170 (11th Cir. 2007). During the encounter,

Louis was at most five feet away from Officer Riggins and was stabbing around the door at Officer Robinson. The protective gear worn by th e officers left their necks, arms, and thighs exposed and the shields were not designed to pr otect officers from sharp objects. Under these undisputed facts, no reasonable jury could conclude that Louis did not pose a threat of serious

harm to the officers.

6 This fact distinguishes the case from Abraham v. Raso , 183 F.3d 279 (3d Cir. 1999), and Fenwick v. United States , 926 F. Supp. 2d 201 (D.D.C. 2013). In Abraham , the Third Circuit considered whether the evidence established that the police officer acted in self-def ense when he shot the decedent as he attempted to escape in a car. 183 F.3d at 293-96. Although all of the witness testimony supported the officer’s claim that he was in front of the car (and thus at risk) when he shot the suspect, the physical evidence that the bullet entered th rough the car’s side window, striking the decedent in the arm before entering his chest, undermined the witness and officer testimony, and precluded summary judgment. Id. at 293-94. Similarly, in Fenwick , video evidence created a triable issue of fact as to whether the defendant police officer was in danger of being hit by the suspect’s car when he fired his service weapon. 926 F. Supp. 2d 227-28. Here, plaintiff fails to identify similar contradictory evidence.13 Thus, the Court is left with a fair ly simple, albeit unfortunate, case. After Officer Riggins entered the bathroom, and before Officer R obinson could do so, Louis resisted by pushing against the bathroom door and attempting to stab the officers—first Offi cer Robinson and then Officer Riggins—with the same artificially shar pened screwdriver with which he had stabbed Officer Sarita. In response to Louis’s attacks, Officer Riggins discharg ed his firearm twice, striking Louis in the side of the shoulder and head , killing him. All of this occurred in fewer than ten seconds. While, with hinds ight, it is easy for plaintiff to say that Officer Riggins should have approached the situation di fferently—by using non-lethal force, or by retreating out of the bathroom, or by trying to verbally reason with L ouis—that is not what the Constitution requires.

Graham , 490 U.S. at 396. The Constitution allows police officers to make split-second decisions regarding the use of force, incl uding the reasonable decision to us e lethal force when a suspect threatens serious physical harm upon another officer. See Garner , 471 U.S. at 11. 7 No reasonable jury could disagree that Louis posed such a threat to Officers Robinson and Riggins. Accordingly, no reasonable jury could conclude that under the totality of the circumstances Officer Riggins’s use of deadly force was so ex cessive that no reasona ble officer could have

believed it was lawful. See J.P. ex rel. Balderas , 801 F. Supp. 2d at 981-83 (police officer acted

7 Plaintiff’s argument that Officer Riggins’s actions were unreasonable under Garner , because there was no risk of Louis escaping and Officer Riggins did not give a verbal warning before firing, is misplaced. (Opp’n at 15.) Garner itself clarified that warning was required only “where feasible.” 471 U.S. at 11-12; accord Thomson v. Salt Lake Cnty. , 584 F.3d 1304, 1321 (10th Cir. 2009) (“A warning is not invariably required even before the use of d eadly force.”). Moreover, as the Supreme Court has clarified, “ Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’” Scott , 550 U.S. at 382. While Garner considered the use of deadly force to prevent the escape of fe lony suspects, 471 U.S. at 11-12, it did not limit the use of deadly force to situations where escape was possible or imminent. Scott , 550 U.S. at 382. “ Garner was simply an application of the Fourth Amendment’s ‘reasonableness’ test to the use of a particular type of force in a particular situation” – namely, where a police o fficer had shot a young, unarmed burglary suspect who posed no threat to anyone merely to prevent his escape. Id. (citations omitted). “Whatever Garner said about the factors that might have justified shooting the suspect in that case, such ‘preconditions’ have scant applicability to this case, wh ich has vastly different facts,” id. , including the suspect’s attack of the police officers with a dangerous weapon.14 reasonably when he fatally shotsuspect who was approaching w ith a screwdriver raised, having earlier stabbed another police officer); Nicarry , 260 F. App’x at 170 (police officers acted reasonably when using deadly force on susp ect who was charging wi th a screwdriver). 2. Breach of the bathroom door In his opposition, plaintiff also argues that the breach of the bathroom door was an independent and unreasonable use of force that violated Louis’s c onstitutional rights. (Opp’n at 25-26.) 8 Officer Riggins responds that because he di d not make the decision to breach the door (Glover Dep. at 105), and did not personally br each the door (DSOF ¶ 1), he cannot be held personally liable for that alleged ex cessive use of force. (Reply at 18.) As an initial matter, although Officer Riggins did not personally breach the bathroom door, he was a member of the four-person team that executed the plan to breach the door and apprehend Louis. Federal common-law tort principles govern the application of section 1983. See Wallace v. Kato , 549 U.S. 384, 387 (2007). And it “‘is axiomatic that where several independent actors concurrently or consecutively produce a single, indivisible inju ry, each actor will be held jointly and severally liable for the entire injury.’” Wesby v. Dist. of Columbia , 841 F. Supp. 2d 20, 41 (D.D.C. 2012) (quoting Watts v. Laurent , 774 F.2d 168, 179 (7th Cir. 1985)). Considering the evidence in the light most favorable to plaint iff, a reasonable jury could fi nd Officer Riggins jointly and severally liable for any unconstitutional ac tions taken by his fellow officers when they collectively implemented the plan to breach the door and enter the bathroom. However, there is no material question of fact as to the objective reasonableness of the breach of the bathroom door. It is undisputed th at after the police officers’ first encounter with Louis—which culminated in Louis stabbing an officer—the specialist ERT was called in to

8 The Court agrees with defendants that it is qu estionable whether plaintiff’s complaint can be fairly read to encompass this claim. ( See SAC ¶¶ 20, 42-43; Reply at 3-4 ns.1-2.) However, the Court does not address this issue, as the claim nonetheless fails on the merits.15 handle the barricade situation. The ERT negotiators unsuccessfu lly attempted to create a dialogue with Louis for around an hour and a half . When Louis went silent for an extended period of time, ERT members confir med that Louis appeared to have either passed out or fallen asleep in the bathroom. Based on this inform ation, Lieutenant Glover decided to breach the

bathroom on his belief that th e situation presented an opportun ity to take Louis into custody without incident. Only then did the four-man team breach th e door and attempt to apprehend

Louis. This case is thus distinguishable from those cases plaintiff cites where a reasonable jury could find that police officers’ decisions to brea ch a house or room in a barricade situation was objectively unreasonable. In Estate of Smith v. Marasco , 430 F.3d 140 (3d Cir. 2005), the Third Circuit concluded that, considering the evidence in the light most favorable to plaintiff, it was objectively unreasonable for police officers to “sto rm [the suspect’s] shed and house using flashbang grenades” considering, inter alia , that the officers knew that the suspect was a mentally unstable Vietnam War veteran suffering from intermittent war flashbacks, post-traumatic stress disorder, and a heart condition. Id. at 151-52. 9 Importantly, however, Smith hinged entirely on the officers’ use of flash-bangs and sa id nothing of the reasonableness of the general decision to

breach the shed or house to confront the menta lly unstable, potentially dangerous suspect. See

id. at 152 (“It is useful to compar e the decision to activate [the tac tical team] with the decision to

enter Smith’s house and shed using the tactics employed here .” (emphasis added)). In this case, the officers’ method of breaching the bathroom dooris simply not comparable to the officers’ use of flash-bang grenades when stor ming the suspect’s shed and house in Smith . Thus, Smith is inapposite.

9 The Smith court also considered the fact that n early six hours had passed between the initial complaint bringing police to the suspect’s house and when the tactical team stormed the house, during which time no officer had made contact with the suspect. 430 F.3d at 151.16 Although more similar to this case, Sheehan v. City & Cnty. of San Francisco , 743 F.3d 1211 (9th Cir. 2014), is also distinguishable. 10 In that case, two officers responded to a call from a social worker seeking to detain Sheehan, a wo man with an established mental illness, for a seventy-two hour psychiatric evaluation and treatment. Id. at 1217. The social worker informed the police that Sheehan was known to make violent threats, had threatened to kill him with a knife, and was currently in her room on the seco nd floor, from which the only exit was a door into the hallway. Id. at 1217-18. When the officers entere d Sheehan’s bedroom (using a key), Sheehan, holding a large knife, slowly approached th em and repeatedly stated that she would kill them if they did not leave her room. Id. at 1218-19. The officers retreated from Sheehan’s bedroom and called for backup. Id. at 1219.

Similarities between Sheehan and this case, however, end th ere. Rather than waiting for backup and providing Sheehan the opportunity to calm down, the officers immediately and forcibly reentered Sheehan’s room with service weapons drawn. Id. As could be expected, Sheehan began attacking the officers with her knif e, at which point they discharged OC spray

without effect and then fired their service w eapons, hitting Sheehan at least five times. Id. at 1219-20. The Ninth Circuit concluded that, although Sheehan’s attack justified the officers’ use of deadly force, id. at 1229-30, a reasonable ju ry could find the officers’ decision to enter the bedroom a second time was objectively unreasonable. Id. at 1225-27. 11 The Ninth Circuit

10 Sheehan was decided after defendants filed their motion for summary judgment, but before plaintiff filed his opposition. A lthough the parties did not address Sheehan in their summary judgment briefs, plaintiff later filed a notice of supplement al authority with the Court, to which defendants responded. ( See Pl.’s Notice of Suppl. Auth., April 9, 2014 [Dkt. No. 44]; Response to Pl.’s Notice of Suppl. Auth., April 25, 2014 [Dkt. No. 45].)

11 The Ninth Circuit also concluded that, taking into account the events leading up to the officers’ use of deadly force, a reasonabl e jury could find that the offi cers recklessly provoked the violent confrontation, exposing them to liability for th e otherwise defensive use of deadly force. Sheehan , 743 F.3d at 1230.17 faulted the officers breaching the door before th eir specialized backup c ould arrive “without a countervailing need” for doing so. Id. at 1226-27. The officers had no reason at that point to enter the bedroom when they knew a deadly c onfrontation was likely: there was no evidence

Sheehan was a threat to hers elf or—without means of escapi ng her bedroom—other people. Id.

at 1226-27. 12

In contrast to the officers in Sheehan , the responding officers in this case, after their initial confrontation with Louis, waited for their specialized backup: the ERT. The ERT attempted to negotiate with Loui s, albeit unsuccessfully, for over an hour and a half. It was only after the ERT had evidence that Louis—silent fo r nearly twenty minutes—had passed out or fallen asleep that Lieutenant Glover ordered th e four-man team to br each the door. Unlike

Sheehan , where the officers had no reason to forcibly enter her room at that time, Lieutenant

Glover’s decision to breach the door was not ma de in total disregard for Louis’s safety. See

Sheehan , 743 F.3d at 1226-27; see also Estate of Smith , 430 F.3d at 151-52. Instead, the officers

here had a reasoned basis for their action: Louis’s apparent unc onsciousness provided an opportunity to apprehend him w ithout incident. Far from di sregarded, Louis’s safety was paramount in Lieutenant Glover’s decision to breach the bathroom door at that time.

12 The Ninth Circuit also relied significantly on expert testimony that the officers had departed from departmental policy. Sheehan , 743 F.3d at 1225-26. Plaintiff’s expert, in a conclusory and inflammatory Rule 26(b)(4) statement, offere d similar proposed testimony for this case. ( See Rule 26(b)(4) Statement of James E. Bradley, Jr., June 10, 2013 [Dkt. No. 20] at 6 (concluding, with little supporting analysis, that Officer Riggins’s actions “v iolated . . . the published general orders of the Metropolitan Police Department”.) However, in this Circuit, whether Officer Riggins violated MPD policy is “irrelevant” to the Fourth Amendment analysis. English v. Dist. of Columbia , 651 F.3d 1, 9 (D.C. Cir. 2011) (citing Whren v. United States , 517 U.S. 806, 815 (1996)).18 Under the totality of the ci rcumstances, no reasonable jury could find that the officers acted in an objectively unreasonable fa shion when breaching the bathroom door. 13 Even considering the evidence in the light most fa vorable to the plaintiff, Lieutenant Glover’s decision, after hours of failed ne gotiation, to take advantage of an apparent opportunity to apprehend Louis without incident, was reasonable. Cf. McCracken v. Freed , 2006 WL 83452, at *10 (E.D. Pa. Jan. 6, 2006) (forcible entry into home using pepper spray was reasonable when hours of attempted negotiations failed and plan to enter home was made in consideration of the safety of all parties involved). That the plan fa iled is ultimately irrele vant to the question of whether the plan, as execute d, was objectively reasonable. In the alternative, it is arguable that Of ficer Riggins would be protected by qualified immunity because he was merely following his supe rior officer’s objectively reasonable order to breach the bathroom door. The Court recognizes that thirty years ago the D.C. Circuit refused to accept a “just following orders” defense from de fendants who had complied with an agency’s approved policy. See Hobson v. Wilson , 737 F.2d 1, 67 (D.C. Cir. 1984) (“In its most extreme form, this argument amounts to the contention th at obedience to higher authority should excuse disobedience to law, no matter how central the law is to the preservation of citizens’ rights. We have no hesitation in rejecting this new ar gument.”). However, the D.C. Circuit did not foreclose the possibility of the defense applying in another case. See Wesby , 841 F. Supp. 2d at 40 (“[O]ur Circuit has specifically rejected the argument that immunity automatically attaches were public officials violate a citizen’s right s at the direction of higher au thority.” (emphasis added)). Indeed, as other Circuits have held in cases more recent than Hobson , a “just following orders” defense may establish qualified immunity when “p lausible instructions fro m a superior or fellow

13 For the same reasons, no reasonable jury could fi nd that the officers recklessly failed to take into account Louis’s mental state when breaching the bathroom, thereby provoking a deadly confrontation that could have been avoided.19 officer . . . viewed objectively in light of the surrounding circumstances . . . could lead a reasonable officer to conclude that the necessary legal justification for his actions exists.” Harvey v. Plains Twp. Police Dep’t , 421 F.3d 185, 199 (3d Cir. 2005) (citing Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir. 2000)); see also Varrone v. Bilotti , 123 F.3d 75, 81-82 (2d Cir. 1997); Villanueva v. George , 659 F.2d 851, 855 (8th Cir. 1981) (en banc). Here, because there is no genuine dispute as to whethe r a reasonable officer in Officer Riggins’s position would have concluded (correctly) that the “necessary legal ju stification” existed for breaching the bathroom door, the Court concludes it is at least arguable that Officer Riggi ns is independently protected by qualified immunity pursuant to th e “just following orders” defense. Accordingly, in light of all of the facts and circumstances, no reasonable jury could find that Officer Riggins’s participati on in the breach of the bathroom door or ultimate use of deadly force against Louis was so excessive that no reasonable officer could have believed it was lawful. Therefore, Officer Riggi ns is entitled to qualified i mmunity on plaintiff’s section 1983 excessive force claim, and the Court will grant hi s motion for summary judgment as to Count V.

See Armbruster v. Frost , 962 F. Supp. 2d 105, 115 (D.D.C. 2013).

B. Count VI – Monnell Claims In Count VI of his second amended compla int, plaintiff brought a separate section 1983 claim against the District of Columbia based on the MPD’s alleged unconstitutional policies and failure to properly train its employees. (SAC ¶¶ 45-54; Opp’n at 31-32.) A municipality’s liability under section 1983 is limited. See Monell v. Dep’t of Soc. Se rvs. of City of N.Y., 436 U.S. 658, 694 (1978) (“[A] local government ma y not be sued under § 1983 for an injury inflicted by its employees or agents. Instead, it is when execution of a government’s policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983.”). For20 a Monellclaim to survive a municipal-defendant’s motion for summary judgment, the Court must conclude that there is evidence both (1) of a “predicate constitutional violation” and (2) “that a custom or policy of the municipality caused the violation.” See Baker v. Dist. of

Columbia , 326 F.3d 1302, 1305 (D.C. Cir. 2003) (citing Collins v. City of Harker Heights, Tex. , 503 U.S. 115, 120 (1992)); accord Brown v. Dist. of Columbia , 514 F.3d 1279, 1283 (D.C. Cir. 2008); Konah v. Dist. of Columbia , 971 F. Supp. 2d 74, 81 (D.D.C. 2013). Because the Court will grant summary judgmen t for Officer Riggins as to plaintiff’s excessive force claims, plaintiff has failed to de monstrate the requisite “predicate constitutional

violation” for Monellliability in this case. 14 Thus, the Court will grant summary judgment for

the District as to Count VI. III. STATE-LAW CLAIMS In Counts I-IV, plaintiff brings state-law ne gligence, assault and ba ttery, survival action, and wrongful death claims against Of ficer Riggins and the District. ( See SAC ¶¶ 28-40.) When, as here, the Court will grant summary judgment for defendants as to the federal-law claims providing the Court with or iginal jurisdiction, the Court “may decline to exercise supplemental jurisdiction” over th e remaining state-law claims . 28 U.S.C. § 1367(c)(3); accord Shekoyan v. Sibley Int’l , 409 F.3d 414, 424 (D.C. Cir. 2005). Supplemen tal jurisdiction “is a doctrine of

14 Even had plaintiff demonstrated that Officer Riggins, or some other officer, used excessive force on Louis, plaintiff (and his expert) failed to iden tify evidence sufficient to demonstrate that District “custom or policy caused the claimed violations of his constitutional rights.” Warren v. Dist. of Columbia , 353 F.3d 36, 39 (D.C. Cir. 2004). There is no evidence that any policy “explicitly adopted” by the District was “‘the moving force of th e [alleged] constituti onal violation.’” Id. at 39 (quoting Monell , 436 U.S. at 694). Nor is there evidence that a policymaker “knowingly ignore[d] a practice that was consistent enough to c onstitute custom.” Id. (citing City of St. Louis v. Praprotnik , 485 U.S. 112, 130 (1988)). Finally, there is no evidence that the Dist rict acted with “deliberate indifference” as to the constitutional violations alleged here— i.e. , “knew or should have known of the risk of [the alleged] constitutional violations,” but di d not act to prevent them. Baker , 326 F.3d at 1307 (citing Farmer v. Brennan , 511 U.S. 825, 840-41 (1994)). Proof of a singl e constitutional violation cannot, alone, establish an actionable policy or custom under Monell

. City of Oklahoma City v. Tuttle , 471 U.S. 808, 823-24 (1985). Plaintiff’s failure to identify a policy or custom actionable under Monell provides an alternative basis for the Court’s determination that summary judgme nt for the District is appropriate as to Count VI.21 discretion, not a plaintiff’s right.” United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). In deciding “whether to exercise [ its] jurisdiction,” the Court “should consider and weigh . . . the values of judicial economy, conve nience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). “[I]n the usual cas e in which all federal-law claims are eliminated before trial, the balance of factor s . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.” Id. at 350 n.7. Although the state- and federa l-law claims in this case share “a common nucleus of operative fact,” see Armbruster , 962 F. Supp. 2d at 116, the Court concludes that convenience, fairness, and comity disfavor this Court’s consid eration of plaintiff’s state-law claims—some of which raise complex state-law issues. The Cour t will therefore dismiss plaintiff’s Counts I-IV without prejudice pursuant to 28 U.S.C. § 1367(c)(3). CONCLUSION For the foregoing reasons, the Court w ill grant defendants’ motion for summary judgment [Dkt. No. 35] as to plaintiff’s federa l-law claims and dismiss plaintiff’s remaining state-law claims without prejudice for lack of jurisdiction.. An Order consistent with this Memorandum Opinion will be issued on this day.

/s/ ELLEN SEGAL HUVELLE United States District Judge DATE: July 23, 2014