The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff Derrek Arrington has sued the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, claiming that members of the U.S. Park Police assaulted and battered him in the course of his arrest on April 13, 2000.*fn1 Because the Court concludes, based on the facts set forth below, that the plaintiff has not shown by a preponderance of the evidence that the Park Police used excessive force in making the arrest, the Court will render judgment for the United States.
The claims in this case arise from plaintiff's injuries sustained on April 13, 2000. The plaintiff was unable to appear at trial in person, so he appeared through a videotaped de bene esse deposition taken about ten days before the trial began and played at trial. Much of what transpired is undisputed.
The Court has considered the testimony, pleadings, exhibits and entire record in this case, as well as observed the demeanor of the witnesses. The Court makes findings of fact as to that which is relevant to the claim and undisputed and/or uncontroverted by the parties. The Court also makes findings of fact as to that which is relevant and disputed.
A. The Undisputed Relevant Evidence
The Court credits the following findings of fact, which are not disputed or controverted.
Sometime shortly after 2:30 a.m., two officers of the U.S. Park Police, Jonathan Daniels and Martin Yates, stopped plaintiff in his car for not displaying a front license plate.*fn2 Although the police officers did not know it at the time, the plaintiff had a loaded semi-automatic handgun concealed in his jacket pocket.*fn3 During the traffic stop, the officers noticed and then examined a small plastic "zip-lock" bag containing a powder residue which the officers suspected was cocaine.*fn4 When Daniels asked the plaintiff to step out of the car, the plaintiff refused and fled in his car.*fn5 Notifying the police dispatcher, the two officers gave chase in their police cruiser.*fn6 After traveling a few blocks, the plaintiff crashed his car and abandoned it.*fn7 He continued on foot, running down a narrow residential street, the loaded gun still in his jacket pocket.*fn8 An off-duty Metropolitan Police Department ("MPD") Officer, Sgt. Rick Murray, saw the car chase and the wreck, and joined in the pursuit.*fn9 A foot chase ensued, with Daniels, Yates, and Murray all running after the plaintiff.*fn10 In the back yard of a residential dwelling, the plaintiff tried to catapult over a tall wooden fence, but a piece of the fence broke off and he fell back.*fn11 As he tried to leap the fence again, Daniels tackled him, causing the plaintiff's face to smash into the wooden fence.*fn12 Moments later Daniels was shot in the face with plaintiff's gun.*fn13
Daniels believes he was standing when he was shot; Yates and Murray concur.*fn14 The bullet that hit Daniels entered through his cheek, just to the left of his nose and then fragmented; it is still lodged at the back of his head near his spine on his left side.*fn15 After a brief period at the beginning of the altercation when only Daniels, Murray and the plaintiff were together in the back yard (Yates had run into an adjacent yard to confront the plaintiff if he made it over the fence),*fn16 the plaintiff was face-down on the ground for the remainder of the incident.*fn17 Less than nine minutes elapsed from the time Daniels used the police radio to report the fleeing car until the end of the entire incident, and less than seven minutes elapsed from the time Daniels used the police radio to report that he had been shot until the end of the incident.*fn18
An uninvolved eye-witness whose bedroom window overlooked the back yard where the incident occurred was awakened by loud voices from the back yard and "yelling 'Drop the gun. He has a gun. Give me the gun.'"*fn19 Before reaching his bedroom window to look out, he heard a gunshot,*fn20 and then looking out he saw what "looked like an outline of a male lying against the fence."*fn21 He also heard voices repeatedly saying "he's got a gun, drop the gun, get the gun."*fn22 When he saw the blue lights of a police cruiser approaching, concerned for his own safety, he turned away from the window and left the room, making no further observations.*fn23
In the split seconds after the shooting, Murray identified himself to Yates as a police officer, adding that the plaintiff still had the gun.*fn24 In the next few minutes, Murray made several references to the gun, including telling the plaintiff to let go of the gun.*fn25 Yates heard Murray say "I feel the gun," "He has it in his hand," "He has the gun," "He's holding it," "I can't get to it," "He's got a grip on it."*fn26 Yates also repeatedly told the plaintiff to release the gun.*fn27 Minutes later, when the next two Park Police officers, Michael Peer and Russell Kidd, arrived on the scene, they were warned by Murray that the plaintiff had a gun.*fn28 Kidd heard Murray "barking out what he was doing underneath, such as 'I have my hands on the gun, I'm pulling the trigger; the gun is pointing at you,' meaning me [Kidd]."*fn29 Kidd also repeatedly told the plaintiff to let go of the gun.*fn30 Soon after hearing a single gunshot,*fn31 MPD Sgt. Antonio Charland arrived on the scene at the same time Peer arrived with the police dog.*fn32 Upon arriving, Charland heard officers stating "He's got a gun. He's got the gun. I can't get it away."*fn33 He also heard others ordering the plaintiff to give up his gun.*fn34 Park Police District Supervisor Scott Fear also arrived at the scene after Daniels had been wounded, and heard officers yelling to warn him "He's got a gun. He's still got a gun. He's got a gun,"*fn35 and "Stay back, stay back, he's got a gun, he's got a gun."*fn36 The information that the plaintiff had a gun originated with MPD officer Murray and the Park Police officers in turn relied on that information.
The police radio transmissions that night were recorded. That recording establishes that at some point after Daniels had reported that he had been shot in the face, Kidd transmitted his understanding, based on his assessment at the scene, that the plaintiff still "has a gun, he's on the ground, he's not giving it up at this time."*fn37 Still later, Fear*fn38 transmitted a caution to "Be advised we have numerous officers here and the subject still has the gun in his hand," a message repeated by the dispatcher.*fn39 Some time later, Kidd reported to the dispatcher that the weapon was secure and the suspect was in custody.*fn40 Despite the repeated references to the gun and commands to drop the gun, none of the officers heard the plaintiff deny having a gun or otherwise protest the operating premise that he had control of the gun.*fn41 The plaintiff did not dispute hearing references to the gun nor claim to have protested that he had no gun.*fn42
MPD Sgt. Murray, being off-duty and dressed as a civilian, did not have any of his police equipment on his person.*fn43 Daniels had started the evening with two pairs of handcuffs, one of which was attached to the front of his belt and the other, in a case, attached to the back of his belt. Daniels lost the front pair of handcuffs at the scene of the traffic stop, where they were spotted a short time later by Yates*fn44 and subsequently collected from the crime scene by Sgt. John Gott of the Park Police Criminal Investigation Branch.*fn45 The second pair of handcuffs was recovered, still in the case, from the back of Daniels' gun belt as he was placed on the gurney to be taken to the awaiting ambulance.*fn46
After the incident, the plaintiff's gun was recovered from the yard approximately 25 feet from the point at which the plaintiff had attempted to go over the fence.*fn47 Two expert firearms examiners independently subjected the plaintiff's gun to accidental discharge tests and both concluded that the plaintiff's gun could not be accidentally discharged.*fn48 Each also measured the trigger on plaintiff's gun at a ten-pound ...