The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiffs Leroy and Thomasine White bring this action on behalf of their deceased son, Kellen Anthony White, against defendants Richard Greenwell and Matthew Shelfo of the United States Capitol Police. Plaintiffs claim that defendants' actions toward Kellen White, resulting in his unfortunate death, violated his Fourth and Fifth Amendment rights, and they request damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Now before the Court is  defendants' motion for summary judgment. Upon consideration of the record, and for the reasons described below, the Court will grant defendants' motion.
On July 15, 2009, around 5:15 p.m., Kellen Anthony White was driving a white Mercedes in the 400 block of Second Street Northeast in the District of Columbia. Second Am. Compl. [Docket Entry 10] ¶ 22. Capitol Police Officer Michael Doherty observed a fake Virginia temporary tag on the Mercedes and initiated a traffic stop. Defs.' Motion. for Summ. J. [Docket Entry 39] ("Defs.' MSJ"), Ex. 21 at 2228. As Officer Doherty was calling out the traffic stop on the radio, White fled the scene. Id. Doherty radioed for help and pursued the vehicle on his bicycle. Id. Three Capitol Police officers observed a white Mercedes matching Doherty's description entering Columbus Circle in front of Union Station several minutes later, and the officers approached the vehicle from the front. Id. at 2251. Officer Doherty, who could see the Mercedes from his location, radioed "that's the one." Id. at 2248.
As the officers approached the vehicle, it sped off, striking one of the police officers on the wrist. Id. at 2251. Defendant Officer Shelfo, who was also at Union Station inside his marked police cruiser, observed the attempted stop and flight of the Mercedes. Id. at 2263. Officer Shelfo activated his emergency equipment and began to pursue the fleeing car. Id. White drove onto the sidewalk at Union Station and then onto southbound Louisiana Avenue where he struck another vehicle, drove briefly into the northbound lanes, and ignored traffic lights. Id. The chase proceeded several blocks to the intersection of Louisiana Avenue and New Jersey Avenue in Northwest D.C., where White executed a high-speed left turn onto southbound New Jersey Avenue. Id. White collided with a parked vehicle in the 200 block of New Jersey Avenue Northwest and slowed to a stop. Id.
Defendant Officer Greenwell, who was stationed at a guard post near where White's Mercedes stopped, heard radio reports regarding the approaching chase, personally observed White's car collide with a parked vehicle and slow to stop, and saw Officer Shelfo drive his police cruiser into a position blocking the driver's side door of the Mercedes. Id. at 2241. Officers Greenwell and Shelfo approached the driver's side of the Mercedes with their weapons drawn. Id. at 2241. Officer Shelfo claims that he repeatedly ordered White to show his hands and that White did not comply.*fn1 Id. at 2263. Officers Greenwell and Shelfo each claim that they observed White begin to crawl out of his driver's side window brandishing a weapon. Id. at 2241, 2263. The officers ordered White at least twice to drop his weapon, but both defendants claim that White instead pointed the gun at Officer Shelfo. Id. Officers Greenwell and Shelfo then both fired their weapons at White multiple times. Id.
Surveillance video taken from both the roof of the United States Capitol Building and the New Jersey Avenue tunnel entrance to the Capitol complex shows a high speed chase terminating on New Jersey Avenue. Defs.' MSJ, Ex. 1. The video shows a marked police cruiser approaching and blocking the driver's side door of a stopped white Mercedes and two officers, one from the cruiser, approaching the driver's side of the Mercedes. The video then shows White jumping out of his vehicle via the driver's side window while holding an object the plaintiffs concede appears to be a gun, Pls.' Opp'n to Defs.' MSJ, [Docket Entry 48] ("Pls.' Opp'n"), Ex. 2. ¶ 4(c), and it shows the officers assuming defensive positions immediately upon seeing the gun. Id. The video then shows the officers shooting White. Id. A still frame from the video provided by defendants appears to capture, although the photography is extremely grainy, at least one instance where White's gun is pointed at a police officer. Defs.' MSJ, Ex. 23. As discussed at greater length below, plaintiffs offer an affidavit stating that the video shows White attempting to show his hands, lower his weapon, and surrender, and that White never pointed a weapon at the defendant officers. Pls.' Opp'n, Ex. 2.
Following the shooting, the District of Columbia's Office of the Chief Medical Examiner conducted an autopsy on White and concluded that he died from twelve gunshot wounds as a result of the shooting. Defs.' MSJ, Ex. 6. Plaintiffs, on behalf of Kellen White's estate, filed a Bivens claim for civil damages against defendants, claiming that the defendant officers violated the Fourth and Fifth Amendments by unlawfully seizing White and unlawfully using excessive and deadly force against him. Following discovery, defendants moved for summary judgment pursuant to Federal Rule of Civil Procedure 56.
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate "if the pleadings . . . and any affidavits 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." Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party may successfully support its motion by identifying those portions of "the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory answers, or other materials," which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1); see Celotex, 477 U.S. at 323.
In determining whether there exists a genuine dispute of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. A party asserting that a fact is genuinely disputed must support the assertion by citing to particular parts of materials in the record. Fed. R. Civ. P. 56(c)(1)(A). If a party fails to support a factual dispute with evidence in the record, "the court may . . . consider the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. Moreover, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment, then, is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
Defendant Officers Shelfo and Greenwell, who were acting in the course of performing their official duties during the events involving White, argue that they are entitled to qualified immunity on the plaintiffs' Bivens claims. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To defeat a government official's claim of qualified immunity, a plaintiff must show (1) that "the facts that a plaintiff has alleged or shown make out a violation of a constitutional right," and (2) that "the right was clearly established." Saucier v. Katz, 533 U.S. 194, 201-02 (2001). Courts may grant qualified immunity "on the ground that a purported right was not 'clearly-established' by prior case law, without resolving the often more difficult question whether the purported right exists at all."
Reichle v. Howards, No. 11-262, slip op. at 5 (U.S. June 4, 2012) (citing Pearson v. Callahan, 555 ...