The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
This case stems from the death of Charquisa Johnson, who was shot and killed by Officer John Fitch of the D.C. Metropolitan Police Department ("MPD") on April 26, 2003. Juanita Reed, individually as the aunt of Ms. Johnson and as Ms. Johnson's personal representative and next friend, joined by Sherri R. Hamm, in her individual capacity as grandmother and as personal representative and next friend of Ja'pria Grady and Remy Hamm, Ms. Johnson's children, allege that Officer Fitch wrongfully used deadly force. Defendants are Office Fitch, the District of Columbia, and Charles H. Ramsey, Chief of the MPD. Defendants move for summary judgment on all counts except Count VI, which alleges that Defendants committed an assault and battery upon Ms. Johnson. As explained below, the Court will grant in part and deny in part Defendants' motion for partial summary judgment.
On April 26, 2003, MPD Officers John Fitch, Ryan Roe, Matthew Daily, and Brandon Shafer responded to a radio run for a man with a gun at 14th and V Streets, S.E., in Washington, D.C. Defs.' Statement of Material Facts Not in Dispute ("Defs.' Statement") ¶ 2. An individual matching the description of the person with a gun was seen by the officers in the doorway to the back entrance to 2312 Green Street, S.E. Id. ¶ 3. Officers Fitch and Shafer stopped to question the individual but determined that he was not the person shooting the weapon. Id. ¶¶ 3-4. The officers released the man and entered the back entrance of the building and exited on the front, where Officers Daily and Roe were waiting by the police vehicle.*fn1 Id. ¶ 4. As the officers started to get into their car, they heard a gunshot coming from 2312 Green Street. Id. ¶ 5. They immediately responded, with Officer Fitch entering the building first, followed by Officers Roe, then Shafer, and then Dailey. Id. ¶ 6. While inside the building, Officer Fitch shot and killed Ms. Johnson. These facts are not in material dispute. The circumstances surrounding the shooting are very much in dispute.
According to the officers, the following occurred. Officer Shafer saw someone coming around the corner and up the internal steps. Defs.' Mem. in Supp. of Partial Summ. J. ("Defs.' Mem.") Ex. 3 (Shafer. Dep.) at 41. He heard Officer Fitch say "drop the gun" at least two times. Id. at 42. He then saw a hand with a gun coming up the steps and immediately heard two distinct gunshots. Id. at 43. Officer Fitch fell to the left. Id. at 109. Officer Roe saw a woman coming up the stairs with a gun in her right hand. Defs.' Mem. Ex. 4 (Roe Dep.) at 69. Officer Shafer observed that Officer Fitch and the woman, later identified as the decedent Ms. Johnson, were close enough to touch each other if both had reached out their arms. Shafer Dep. at 44. Officer Shafer heard the gun drop to the floor and then saw it on the stair landing. Id. at 45. He also saw what resembled a bullet hole by the front door inside Apartment 101, which was Ms. Johnson's apartment. Id. at 94.
Defendants state that further investigation revealed a bullet hole in the wall of the apartment from which a bullet was removed. Defs.' Mem. Ex. 5 (McCoy Dep.) at 22-23. Bullet fragments were also found on the scene. Id. at 47; see also Defs.' Mem. Ex. 6 (Hammett Dep.) at 26, 31. A bullet casing that had been ejected from a nine millimeter gun was recovered from the floor of the scene of the shooting. Id. at 24-25. A Jenkins 9 millimeter Glyco 59 firearm that was not issued by the MPD was recovered from the landing. Id. at 10-12.
According to Plaintiffs, who rely the deposition testimony of eyewitnesses Jamiere Thomas and Antoine Wade, a very different sequence of events transpired once the police officers re-entered 2312 Green Street, S.E. Plaintiffs contend that Officer Fitch, with his gun drawn, first paused and yelled "don't move" to Ms. Thomas and Mr. Wade, who were on the landing inside the front door of the building. Pls.' Mem. Ex. 8 (Thomas Dep.) at 14; Pls.' Mem. Ex. 9 (Wade Dep.) at 11. Mr. Wade recounted that "[a]ll of a sudden, Charquisa [Johnson] comes out [sic] of the house with no idea what was going on, and she swings her body around the steps. As she comes up [sic] the steps, John Fitch yell[ed] 'Get down.' And just started firing." Id. According to Mr. Wade, Ms. Johnson's hands were empty and were held up in the air when Officer Fitch shot her. Id. at 12. Ms. Thomas said that Ms. Johnson came out of her apartment door about three seconds after Officer Fitch had told her and Mr. Wade not to move. Thomas Dep. at 14. "She was going to go upstairs. And that's how I know she ain't [sic] have a gun because one door was closing -- one hand was closing the door, the other hand was out like this." Id. Ms. Thomas added, "I knew he was going to fire because he said, 'Get down.' And as soon as he said that he shot her. And after he shot her the first time, she threw her hands up like this." Id. at 15. Ms. Thomas recalls that some kids were playing with firecrackers, which is what caught the attention of the officers, not guns. Id. at 9-10.
As a result of this incident, Plaintiffs brought suit alleging that Officer Fitch unreasonably used deadly force and that he, Chief Ramsey, and the District of Columbia are liable. Plaintiffs filed an eight-count Amended Complaint alleging:
Count I -- Officer Fitch's use of deadly force violated 42 U.S.C. § 1983 based on the Fourth, Fifth, and Fourteenth Amendments;
Count II -- The District of Columbia, through the direction of Chief Ramsey, violated 42 U.S.C. § 1983 based on the Fourth, Fifth, and Fourteenth Amendments, through an unconstitutional custom and practice of illegal use of force;
Count III -- Wrongful Death;
Count IV -- Survival Action;*fn2
Count VI -- Assault and Battery;
Count VII -- The District of Columbia, through the direction of Chief Ramsey, violated 42 U.S.C. § 1983 based on the Fourth, Fifth, and Fourteenth Amendments, by negligently hiring, training, and supervising Officer Fitch; and
Count VIII -- Negligent Infliction of Emotional Distress.
Plaintiffs seek compensatory damages, punitive damages,*fn3 and attorney's fees.
Federal district courts have original jurisdiction over civil actions arising under federal statutes. 28 U.S.C. § 1331. Here, Plaintiffs brought suit under 42 U.S.C. section 1983. As this case presents a question of federal law, this Court has original jurisdiction. The Court has ...