The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on a motion for summary judgment filed by defendants Anthony Clay, James Haskel, and the District of Columbia.*fn1 The plaintiff in this case has brought constitutional and common law claims for an incident in which defendant Haskel, an off-duty Metropolitan Police Department officer, accompanied by defendant Clay, another off-duty police officer, shot and killed the plaintiff's fourteen-year old son.
After hearing oral argument on the motion for summary judgment on October 11, 2011, the Court denied the defendants' summary judgment motion with respect to the claim for assault and battery against defendant Haskel (Count IV) and with respect to the claim for deprivation of civil rights under 42 U.S.C. § 1983 against defendants Haskel and Clay (Count V). See Rawlings v. District of Columbia, Civil Action No. 07-1914, Minute Order (Oct. 12, 2011).*fn2
This Opinion addresses the defendants' summary judgment motion with respect to plaintiff's claims for civil conspiracy against Clay and Haskel (Count VI), assault and battery against Clay and the District of Columbia (Count IV), negligence against all three defendants (Count III), and negligent training and supervision against the District of Columbia under common law and Section 1983 (Counts III and VII).
For the reasons stated below, by Order of October 27, 2011, the Court denied the defendants' motion with respect to the claim for conspiracy to commit assault and battery and it granted the motion with respect to the claim for assault and battery against Clay, the claims for negligence against all defendants, and the claims for negligent training and supervision under the common law and Section 1983.
This lawsuit arises from an incident in which James Haskel, an off-duty District of Columbia Metropolitan Police Department ("MPD") officer, shot and killed DeOnte Rawlings, a fourteen-year old, near his home in Southeast Washington, D.C.
On September 17, 2007, at 6:00 p.m., Officer Haskel was driving home from an errand in his Chevrolet Tahoe. He was not on duty that day. MSJ Ex. 1 ("Haskel Dep."), at 27, 29-30. On the way home, Haskel received a call from a neighbor notifying him that his red motorized minibike had been taken from his garage, the door to which had been left open. Id. at 30-31. When Haskel arrived home, he encountered neighbors outside who told him what had happened. These neighbors had called the police to report the incident, and an officer had been dispatched. Id. at 32, 43. Haskel did not wait for the officer to arrive. He testified in his deposition that he had an idea where the bike might be and decided to go looking for it. Id. at 36-37, 39. As he was leaving in his Tahoe, he saw Anthony Clay, a neighbor and fellow MPD officer who was also off duty. Clay said he would accompany Haskel in search of the bike, and before they left Clay went inside his house to retrieve his gun, badge, and police radio. Id. at 49, 50; MSJ Ex. 3 ("Clay Dep."), at 22, 25-27. Haskel also had his gun and badge. Haskel Dep. at 37. The officers did not inform the Metropolitan Police Department that they were going to look for the minibike. Id. at 39.
A few weeks earlier a bike had been stolen from Clay's home. When a child was later seen riding the bike and told to drop it, the child complied and ran off. Clay Dep. at 23-24, 91; Haskel Dep. at 37. According to Clay, he anticipated that something similar might occur in regard to Haskel's minibike or that perhaps they would find the bike lying around somewhere. Clay Dep. at 24. Clay testified that he did not intend to make an arrest and that the two men did not discuss any plan. Id. at 32, 91. Haskel testified that he believed "some kids" had taken the minibike, and that if he confronted them and told them the bike was his, they would drop it and run off. Haskel Dep. at 37.
Clay rode in the passenger seat of Haskel's Tahoe while Haskel drove and tried to spot his minibike. Clay Dep. at 31, 33. After driving around unsuccessfully for some time, the men turned into the alley of Washington Highland Dwellings. The alley, which is paved and has residential dwellings on either side, enters on 8th Street Southeast and exits on Atlantic Street. Haskel Dep. at 32, 51-54. Haskel was driving through the alley and approaching Atlantic Street when he saw a juvenile on a minibike and told Clay that it was his bike. Id. at 54-56; Clay Dep. at 35-36. The juvenile rode by the truck on the passenger side, going in the opposite direction. Haskel put the truck in reverse and backed up, now going in the same direction as the juvenile on the minibike and trying to catch up with him. Driving in this fashion, the truck and bike covered a distance of about two courtyards; at some point the juvenile crossed over to the other side of the alley, putting him on the driver's side of the truck. Haskel Dep. at 57-59; Clay Dep. at 36-39.
The plaintiff and defendants dispute what happened next. Clay and Haskel have testified that Haskel pulled alongside the juvenile, spoke to him through the driver's side window, and told him to drop the bike. As Haskel stopped the truck, the juvenile dropped the bike, got off, and said, "What, what?" Haskel Dep. at 58, 60; Clay Dep. at 39. The juvenile was about nine feet away from the truck. Haskel Dep. at 64-67. Haskel testified that he did not intend to make an arrest, but merely wanted to get his bike back. Id. at 61-62. According to Haskel, he then observed the juvenile draw a gun from his pocket. Although Haskel could not identify the make or model of the weapon, he recognized it as a gun. Upon seeing the juvenile pull out a weapon, Haskel drew his own gun. Id. at 62-63. According to Haskel, the juvenile then fired at Haskel. Id. at 64, 67. Haskel fired back, and then fired a second shot while still inside his vehicle. Id. at 74. The juvenile, after firing his first shot, began running away toward an opening between two buildings, firing across his body while running sideways. Id. at 73-74, 76-79. Haskel exited his truck and fired three more times. He then moved positions and fired three more shots, for a total of eight. Id. at 79-80. After the last shot, the juvenile fell. Id. at 80. During the shooting, Haskel testified, he was not aware where Clay was or what he was doing.
Clay testified that from the passenger seat, he saw the juvenile pull a metal object from his pocket that Clay believed was a gun, and he notified Haskel of this. Clay Dep. at 40-42. Believing that he could not be of assistance from where he was sitting, Clay exited the vehicle through the passenger door to take cover. Id. at 42, 51. As he headed toward the rear of the truck he heard multiple gunshots, but he could not see what was happening on the driver's side of the truck. Id. at 46. By the time Clay reached the back of the truck and could see around it, the juvenile was running away and firing a weapon across his body. Id. at 43, 45-46, 88-89. Clay pulled his weapon out, but the juvenile was already out of sight, obscured by a dumpster or some other object. Id. at 46-48. Clay never fired his weapon. Id. at 51.
According to the officers, after the shooting Haskel told Clay to call for help on the police radio. Haskel Dep. at 82. Clay testified that he knew shots had been fired but did not know that the juvenile had been hit. Clay Dep. at 54-56. Clay attempted to call for assistance on the radio, and was then assisted by Haskel, who told the dispatcher that a suspect was down. Haskel Dep. at 83-84, 113; Clay Dep. at 50-54. While this was happening, people were coming out into the courtyard, and Haskel did not feel it was safe to approach the body. Haskel Dep. at 82-83, 86, 90. Haskel told Clay to drive his truck away from the scene, later testifying that he was motivated by concern for the safety of his family and a desire not to have his vehicle seen and associated with the shooting. Id. at 93, 115. Although the defendants have offered evidence that Haskel's truck was hit with a bullet on the driver's side door, the officers testified that they did not yet know the truck had been hit when Haskel asked Clay to drive it away. Id. at 96; Clay Dep. at 54, 56-57, 61.
Clay complied with Haskel's request to remove the truck and drove it to Haskel's house. Clay Dep. at 64. As Clay was leaving the scene of the shooting he encountered police officers responding to the radio call; he waived them on and told them that the juvenile was in the alley with a weapon. Id. at 64. Meanwhile, Haskel had asked that a unit meet him on a nearby street; a cruiser met him there and drove him away from the scene. Haskel Dep. at 99-100. The cruiser sat nearby for a while, and then the officers in the cruiser drove Haskel to his mother's house where he told her he was involved in a shooting. Id. at 100-02. Subsequently, a sergeant met Haskel there and took away his duty weapon. Haskel then went to the Seventh District police station, where he gave a statement to an investigating officer. Id. at 104, 106-08. Clay testified that when he brought the truck to Haskel's house, he learned that Haskel had shot someone. Clay Dep. at 74. He called Haskel, who told him he was needed at the station. Id. at 68, 72-73. Clay went to the station and also gave a statement to the investigator. Id. at 70-71, 77.
During the course of the incident, neither Haskel nor Clay ever identified themselves as police officers. Haskel Dep. at 63-64; Clay Dep. at 69. Clay testified that the juvenile was wearing tan pants and a "uniform" shirt, Clay Dep. at 82, but Haskel provided no identifying information about the juvenile. He stated that he did not know DeOnte Rawlings and only learned his identity later from the news. Haskel Dep. at 109-10.
The defendants have provided documentary and physical evidence to corroborate their account. See MSJ Ex. 5-9. They have also offered a third eyewitness to the shooting - the only eyewitness besides the two officers. "C.C." is a resident of the neighborhood who knew DeOnte Rawlings and was a few years older than him. MSJ Ex. 4 ("C.C. Dep."), at 17, 19, 23.*fn3
C.C. testified that before the shooting, he was walking from his house through an opening in the buildings into the alley when he saw Rawlings riding a moped through the alley. Id. at 19-20.
C.C.'s account of the ensuing incident largely corroborates the officers' narrative: he testified that he saw the truck chasing Rawlings in reverse, as testified by the officers, and that when Rawlings and the truck stopped C.C. was only a few feet from Rawlings. Like the officers, C.C. testified that Rawlings was the first person to pull out a gun, which C.C. recognized as a .38 caliber weapon, and that Rawlings fired first. Id. at 23, 25-33, 39, 48, 62, 65, 68, 91-93. After Rawlings fired his first shot, according to C.C., he and Rawlings began running away in the same general direction, and C.C. heard many gunshots. Id. at 33-35, 65-68, 40. C.C. eventually heard Rawlings fall. Id. at 35. When the gunshots ceased, C.C. looked back from his new location and observed the shooter standing near the truck for some time watching the spot where Rawlings had fallen, then making a phone call. A police squad car then met the man and drove off. C.C. also saw a second man drive the truck down the alley, and saw people chasing the truck down the alley while yelling at it. Id. at 39-41, 105-07. C.C. walked back toward Rawlings and saw him lying on the ground, as people crowded around the body. Id. at 39, 42.*fn4
In October of 2007, the plaintiff filed this lawsuit against Clay, Haskel, and the District of Columbia, alleging constitutionally excessive use of force and negligent supervision under Section 1983 and the common law torts of assault and battery, conspiracy to commit assault and battery, negligence, and negligent supervision. See Complaint ¶¶ 20-46. The plaintiff does not question the officers' account of their actions before and after the shooting, although he disputes their explanations for their decisions. The plaintiff denies that Rawlings possessed or fired a gun, and has presented evidence to that effect, including the fact that no gun was recovered from the scene and that Rawlings's clothing tested negative for lead residue. See MSJ Opp. at 6. The plaintiff also challenges the credibility of C.C.'s testimony and his motive for offering it. See MSJ Opp. at 5-6.
Based on the evidence submitted, the Court has already determined that a genuine factual dispute exists about whether Rawlings possessed a gun and fired at the officers, facts that are material as to whether Haskel was legally justified in shooting him. The Court therefore has denied summary judgment on the assault and battery claim against Haskel and the Section 1983 claim against Clay and Haskel. See Rawlings v. District of Columbia, Civil Action No. 07-1914, Minute Order (Oct. 12, 2011). This Opinion deals with the plaintiff's remaining claims.
Summary judgment may be granted if "the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895.
When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep't of Health & Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving party is required to provide evidence that would permit a reasonable jury to find in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. at 380 ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'") (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than "a scintilla of evidence to support his claims." Freedman v. MCI Telecomms. Corp., 255 F.3d 840, 845 (D.C. Cir. 2001). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
A. Conspiracy to Commit Assault and Battery (Count VI)
In the District of Columbia, civil conspiracy "is not an independent tort but only a means for establishing vicarious liability for an underlying tort." Nader v. Democratic Nat'l Committee, 567 F.3d 692, 697 (D.C. Cir. 2009) (quoting Hill v. Medlantic Health Care Group, 933 A.2d 314, 334 (D.C. 2007)). It serves as a device "through which vicarious liability for the underlying wrong may be imposed upon all who are a party to it, where the requisite agreement exists among them." Riddell v. Riddell Washington Corp., 866 F.2d 1480, 1493 (D.C. Cir. 1989) (citing Halberstam v. Welch, 705 F.2d 472, 479 (D.C. Cir. 1983)). The elements of civil conspiracy are: "(1) an agreement between two or more persons; (2) to participate in an unlawful act, or in a lawful act in an unlawful manner; and (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement (4) pursuant to, and in furtherance of, the common scheme." Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 738 (D.C. 2000); accord Second Amendment Foundation v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001). "Proof of a tacit, as opposed to explicit, understanding is sufficient to show agreement." Halberstam v. Welch, 705 F.2d at 477.
1. The Intracorporate Conspiracy Doctrine
The plaintiff has brought claims of civil conspiracy against Clay and Haskel, alleging that they "entered into an agreement to commit the illegal act of assault and battery" against Rawlings. Complaint ¶ 37. The defendants argue that Clay and Haskel cannot be found liable for conspiracy because they "are part of a single entity, the District of Columbia Government." MSJ at 39 (citing Gladden v. Barry, 558 F. Supp. 676, 679 (D.D.C. 1983)). The defendants thus invoke the "intracorporate conspiracy" doctrine, under which "there is no conspiracy if the conspiratorial conduct challenged is essentially a single act by a single corporation acting exclusively through its own directors, officers, and employees." Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978).
Many circuits have applied the intracorporate conspiracy doctrine in civil rights cases under 42 U.S.C. § 1985 to preclude conspiracy liability for the employees of a municipal entity, while other circuits have declined to apply the doctrine in that context. See Bowie v. Maddox, 642 F.3d 1122, 1130-31 (D.C. Cir. 2011). Although the D.C. Circuit has not ruled on the issue, id. at 1130 n.4, 1131, district courts within this circuit "consistently have applied the intracorporate conspiracy doctrine to Section 1985." Tabb v. District of Columbia, 477 F. Supp. 2d 185, 190 (D.D.C. 2007) (listing cases). The ...