The opinion of the court was delivered by: Ellen Segal Huvelle, United States District Judge
On August 12, 2000, plaintiff Jason Liser was arrested for the murder of Vidalina Semino Door after being identified as the man withdrawing money from a Bank of America ATM in a video surveillance photo taken on the night of the murder. The police knew that the victim's ATM card had been used at that same machine shortly after her death, and had released the still picture to the public because its subject matched a eyewitness's description of one of the suspects who had been seen fleeing from the scene of the crime. Less than a week after his arrest, however, plaintiff was released when it became apparent that the time indicated by the bank's camera was significantly inaccurate, and therefore that plaintiff had actually used the ATM before the murder even took place. Ultimately, two other men were arrested and convicted for the killing.
Plaintiff has now brought this action against the District of Columbia and the individual police detective, Jeffrey Smith, responsible for the investigation and mistaken arrest.*fn1 He has asserted the following claims: false arrest and imprisonment (Count I); libel and slander (Count II); negligence (Counts III and IV); violation of 42 U.S.C. § 1983 by Detective Smith for allegedly providing false information to support plaintiff's arrest (Count V); and intentional infliction of emotional distress (Count VI). Defendants have now moved for summary judgment on all of these counts. For the reasons that follow, the Court grants this motion as to all counts save those alleging negligence, as to which the motion is denied.
The facts of this case are largely not in dispute. Vidalina Semino Door left work at the Omni Shoreham Hotel in Northwest Washington, D.C. at approximately 11 p.m. on May 5, 2000. A few hours later, Sgt. José Bimbo of the Metropolitan Police Department heard gunshots and saw four black men running from the area of 22nd Street and T Place, SE, toward Good Hope Road. Soon after, at 1:27 a.m., other MPD officers arrived at the area in response to a telephone call reporting the shots. Sgt. Bimbo and the other officers found Ms. Semino's body in a nearby wooded area; she had suffered multiple gunshot wounds, including two to the upper chest that killed her, and was pronounced dead on the scene. Two homicide detectives, Monica Shields and defendant Jeffery Smith, were called in on the case; by rotation, Smith assumed the role of lead detective in the investigation.
Assistant United States Attorney ("AUSA") James Sweeney was also assigned to the case. On Monday, May 8, he called Detective Smith to inform him that bank records had revealed that Ms. Seminio's ATM card had been used to withdraw $200 from a Bank of America Branch in Anacostia some 20 minutes after her murder. The branch in question is located on Martin Luther King Avenue, less than a mile from where her body was discovered. According to the records, the withdrawal occurred at 1:47 a.m. on May 6; the records also showed that another $81 had been taken out of a 7-11 ATM on Oxon Hill, Maryland at 2:17 a.m. Sweeney asked the detectives to retrieve the surveillance tape from the Bank of America branch, which they did on May 11. (As it turned out, the 7-11 ATM did not have a working video camera.)
Reviewing the videotape, the detectives and AUSA Sweeney discovered that there was no ATM activity recorded at 1:47 a.m. According to the time indicated on the tape, the nearest transaction occurred at 1:52 a.m., when a black male wearing a white t-shirt can be seen standing before the machine. (Ex. 5.) This individual was later identified as Jason Liser. At some point early in the investigation, the bank's branch manager told Detective Smith that there could be a discrepancy of up to fifteen minutes between the time indicated on the surveillance tape and the actual time. (Ex. 12 [Smith Dep.] at 71.) Considering this information of potential importance to the investigation, Detective Smith passed it along to AUSA Sweeney. (Id. at 73-74.) Based on this understanding of the time gap, the investigators centered on Liser as their prime suspect, being the only young black male to use the ATM during that timeframe. (Id. at 193.)*fn2
However, no arrest was made at that time. Instead, the investigation continued, but turned up no further clues and no other suspects. In August 2000, AUSA Sweeney and his supervisor, AUSA Albert Herring, decided to appeal to the public for help in their investigation. Together with Detective Smith, they prepared a press release titled "Suspect(s) Sought in 22nd & T Place, SE, Homicide," which included the following statement:
Minutes after the murder an unidentified black male
utilized Ms. Semino's bank card at an ATM at the Bank
of America located in the 2100 block of Martin Luther
King Avenue, S.E. A photograph of the subject was
taken by the bank camera.
(Ex. 6.) At his deposition, Detective Smith described his role in crafting this press release as "minimal" and suggested that it was the AUSAs' decision to release the picture along with the statement. (Ex. 12 [Smith Dep.] at 196-97.) The release was sent out along with the photograph of plaintiff to a variety of media outlets on August 9. Both the Washington Post and Washington Times published stories based on this information, and the Times printed Liser's picture in its August 10 edition. (Ex. 7.)
This publicity soon bore fruit. Recognizing her nephew in the photograph, Liser's aunt contacted Sweeney a day or two after the news stories ran. She then came to his office for an interview, in which she told the investigators that plaintiff had told her that he was not involved in the murder, but that she did not believe him "because he didn't sound right over the phone" and "was always into something." (Ex. 12 [Smith Dep.] at 199-200.) Based on the identification of Liser as the man on the surveillance tape and the information provided by his aunt, Detective Smith, along with Sweeney and Herring, decided that they now had probable cause to arrest plaintiff. Accordingly, Smith began drafting an affidavit in support of an arrest warrant. (Id. at 115-18.) No further investigation was conducted. (Id.)
On August 12, Liser turned himself in to the MPD's Sixth District, where he was formally arrested. (Ex. 9 [Arrest Report].) He told the police that on the night of the murder he had used his girlfriend's ATM card to withdraw $40, which is how he came to be recorded on the bank camera.
On August 14, Liser was brought before a Hearing Commissioner who ordered him held without bond on a charge of first-degree murder. In support of this detention, Detective Smith prepared an affidavit, which summarized the government's case against Liser and included the following passage: "The bank's security camera at the teller machine photographed a black male subject, later identified as the defendant, JASON LISER, using the ATM card and PIN number to retrieve $200.00 from the decadent's checking account." (Ex. 10.) This information was therefore the key piece of evidence leading to both Liser's arrest and his continued detention.
While plaintiff remained in custody following his arrest, this crucial aspect of the case against him began to unravel. The investigators decided to do an experiment at the Anacostia branch in which Sweeney withdrew money from the ATM and compared the time on his receipt to the time on the corresponding surveillance tapes. (Ex. 13 [Shields Dep.] at 35-36.) The results of their experiment led Sweeney, along with Detectives Smith and Shields, to conclude that the discrepancy was actually greater than the fifteen-minute gap they had previously estimated. (Ex. 12 [Smith Dep.] at 202-03.)
Based on this new information, the investigators, in consultation with another AUSA, Dan Friedman, decided that plaintiff should be released, which he was on August 18. (Id. at 207-08.) Eventually, information about activity on Semino's credit card several days after her death led to the arrest and conviction of her killers. There is thus now no dispute that plaintiff was not involved in the murder and that he did not use Semino's ATM card on the night she was killed or at any other time.
Under Fed.R.Civ.P. 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine, and should preclude summary judgment, if a reasonable jury could return a verdict in favor of the non-moving party. Id. In contrast, the moving party is entitled to summary judgment against "a party who fails 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." Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
In considering a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see also Washington Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir 1989). However, the nonmoving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue of material fact for trial. See FED. R. CIV. P. 56(e); Celotex, 477 U.S. at 324. Therefore, the court "must assume the truth of all statements proffered by the party opposing summary judgment," except for wholly conclusory statements unsupported by any competent evidence. Greene v. Dalton, 164 F.3d 671, 674-75 (D.C. Cir. 1999); Dickerson v. SecTek, Inc., 238 F. Supp.2d 66, 73 (D.D.C. 2002).
II. Count I: False Arrest and Imprisonment
A false arrest or imprisonment claim turns first on whether the plaintiff was unlawfully detained. If the arrest was legally justified — for example, if supported by probable cause or a valid warrant — the conduct of the arresting officer is privileged and a claim will not lie. Tillman v. Washington Metro. Area Transit Auth., 695 A.2d 94, 96 (D.C. 1997); Scott v. District of Columbia, 101 F.3d 748, 754 (D.C. Cir. 1996)) However, even if an objectively unlawful arrest occurs, an officer may justify that arrest and defeat plaintiff's action by recourse to a subjective test, i.e. that the officer had a reasonable good faith belief that his or her conduct was lawful. See Weishapl v. Sowers, 771 A.2d 1014, 1020-21 (D.C. 2001); Taylor v. District of Columbia, 691 A.2d 121, 125-26 (D.C. 1997).
In making this inquiry, good faith is to be evaluated from the perspective of the arresting officer, rather than that of the plaintiff. See District of Columbia v. Murphy, 631 A.2d 34, 36-37 (D.C. 1993). The Court must first address whether defendants had probable cause to arrest plaintiff. This is ordinarily a mixed question of law and fact; however, where the facts are not in dispute, the issue becomes a purely legal one which the Court can answer on its own. See Moorehead v. District of Columbia, 747 A.2d 138, 147 (D.C. 2000); Welsh v. District of Columbia, 578 A.2d 175, 175 (D.C. 1990). The existence of probable cause is based on an objective test: whether a reasonably prudent police officer, considering the totality of the circumstances confronting him, would be warranted in believing that the individual in question committed the offense. Davis v. United States, 781 A.2d 729, 734 (D.C. 2001). Here, there is no dispute between the parties that the circumstances as understood by Detective Smith at the time of plaintiff's arrest were as follows: (1) the victim's ATM card had been used at 1:47 a.m. by someone implicated in her murder; (2) the time encoded on the ATM surveillance tape was off by up to fifteen minutes; (3) the tape showed plaintiff using the ATM card at a time that could have been 1:47 a.m. if the video's timer was in ...