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Wallace v. District of Columbia

February 22, 2010

KEVIN WALLACE, PLAINTIFF,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Kevin Thomas died after being shot eight times. Seven bullets came from guns fired by two officers of the District of Columbia Metropolitan Police Department ("MPD"). One came from a gun that Mr. Thomas pointed at his own head. The Medical Examiner determined that four of the eight gunshot wounds were potentially fatal and ruled the death a homicide, i.e., "[t]he killing of one person by another." Black's Law Dictionary 751 (8th ed. 2004). Kevin Wallace, Mr. Thomas's father, sues the District of Columbia and the two officers who shot his son seeking to hold them civilly liable for Mr. Thomas's death. Pending before the Court is Defendants' motion for summary judgment. For the reasons stated herein, the motion will be granted.

I. FACTS

On February 10, 2007, MPD Officers Thaddeus Modlin and Alexander Vogel responded to a report of a shooting at 509 K Street in Northeast Washington, D.C.*fn1 The MPD dispatcher issued a "lookout" for a black male wearing a black shirt and blue jeans and armed with a gun. When the officers arrived at the scene, they saw a person matching the description of the lookout, who was walking southbound in the eastside alley of the 900 block of Fifth Street, N.E. This person was later identified as Mr. Thomas.

Upon seeing Mr. Thomas in the alley, Officer Modlin got out of the police cruiser, removed his service weapon from its holster, and ordered Mr. Thomas to stop and show his hands. Mr. Thomas did not stop and show his hands but instead ran southbound through the alley and out into the street, with Officer Modlin following behind him and ordering him to stop. Officer Vogel initially pursued Mr. Thomas in his police cruiser but soon got out and joined Officer Modlin in the foot pursuit of Mr. Thomas. Both officers were in full uniform.

The officers chased Mr. Thomas onto the 600 block of I Street, N.E., at which point Mr. Thomas stopped running and turned around toward the officers with a gun in his hand. Officer Vogel pointed his service weapon at Mr. Thomas and ordered him several times to drop the weapon. Officer Modlin did the same. Mr. Thomas did not comply with the officers' commands and instead pointed the gun at his own head and threatened to shoot himself. While Mr. Thomas held the gun to his own head, he fired the weapon and shot himself. It is undisputed that the officers shot Mr. Thomas after Mr. Thomas had shot himself in the head. See Defs.' Statement of Facts ¶ 19; Pl.'s Statement of Facts ¶ 19.

Officer Vogel testified at deposition that:

A: At that time I noticed that the gun was coming down in my direction. I heard a gunshot and I returned fire.

Q: Did you see the gun? Did you see his hand moving with the gun in it?

A: Yes.

Q: First or did you hear the gunshot first?

A: I saw his hand come down first, the movement first.

Q: Did you see the muzzle flash?

A: Yes.

Q: Where did it flash?

A: Right in front of him.

Q: Was it still at his head when ...


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