United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
Officers of the District of Columbia Metropolitan Police Department (“MPD”) arrested Plaintiff Shawn Westfahl during a protest march against the World Bank and charged him with assaulting a police officer. Westfahl brought suit alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983 and related common law torts. Among his claims were that the officers used excessive force in arresting him in violation of the Fourth Amendment and in so doing, also committed assault and battery. After a three-day trial, a jury found for Westfahl as to the conduct of one of the officers but against him as to the conduct of another officer. The District of Columbia now moves for judgment as a matter of law and to alter or amend the judgment, arguing that the officer whom the jury found liable is entitled to qualified immunity and common law privilege for his actions; that the District of Columbia is therefore not vicariously liable for that officer’s actions; and that the weight of the evidence does not support the jury’s verdicts as to this officer or the District. For the reasons explained below, the Court will deny the District’s motion.
Because this motion requires the Court to consider the sufficiency of the evidence in support of the jury’s verdict and to analyze the extent to which the jury was entitled to credit the differing accounts of the witnesses in reaching its verdicts, the facts below are presented from the varying perspectives of the plaintiff, Mr. Westfahl, and the two defendants, Officers Todd Cory and Robert Robinson.
A. Westfahl’s Testimony
The facts according to Westfahl are as follows. On the evening of October 9, 2010, Westfahl participated in a protest march against the World Bank and the International Monetary Fund (“IMF”) in Washington, D.C. He carried a flag while he and others chanted “From D.C. to Greece, F[uck] the police.” Trial Tr. vol. 1, at 21. At the 2100 block of L Street, Northwest, police stopped the protestors and ordered them to “get on the sidewalk, ” id., and “back up, ” id. at 22. Westfahl complied, continuing to hold the flag upright until, “after being pushed back physically by the police, ” he “lowered the flag to [his] right to hand one end [of the flagpole] to another protestor.” Id. Westfahl testified that he did not lower the pole particularly quickly and that there were no police officers standing in its path as he lowered it.
Westfahl next described relinquishing the flagpole after an officer grabbed it from him. Id. at 24. The officer “[i]mmediately broke it.” Id. At that point, Westfahl “was . . . put in a bear hug and taken down, ” which surprised him because he “hadn’t done anything illegal.” Id. at 25. He testified that he did not try to resist the bear hug, and was “immediately pinned to the ground.” Id. at 26. While on the ground he “felt blows to [his] body, . . . head, . . . back[, and] chest area.” Id. He still did not attempt to resist because he was “pinned to the ground, ” such that “there was nothing that [he] could do, ” and he “didn’t want to seem like [he was resisting] or show any signs of resistance.” Id. at 26-27. He testified that, despite his lack of resistance, he heard the officers say “[s]top resisting, ” id. at 27, and tell him to give them his arm, which he could not do because it was “pinned underneath [his] body, ” id. at 29. He also testified that he wanted to give the police his arm because he knew that if they could handcuff him, “they would stop beating” him. Id. Eventually, the officers “released the pressure of their body weight off of” Westfahl and were able to secure his arm and handcuff him. Id. at 30. They then sat Westfahl on the curb, where his picture was taken. The picture, depicting a “laceration or abrasion” on Westfahl’s head, was entered into evidence. Id. at 32.
Plaintiff also introduced into evidence video footage taken by a documentary film student who had attended the protest in order to film it. See id. at 9. The footage shows, without sound, the officers’ arrival at the protest, their initial interaction with the protestors, including Westfahl, and Westfahl being pulled to the ground and arrested. It is shot from a few feet away, see id. at 11 (testimony by the documentary student, Benjamin Biros, that he shot the footage from “only about ten feet away”), with the officers’ backs to the camera. It shows a flagpole being lowered, but does not clearly depict any officer being struck with the flagpole. When asked about the video on cross-examination, Westfahl agreed that he was arrested only “a few seconds” after he was pulled to the ground. Id. at 54.
B. Officer Cory’s Testimony
Defendant Officer Cory testified that he was one of the officers who arrested Westfahl on October 9, 2010. Cory served as a mountain-bike patrol officer with the MPD’s Civil Disturbance Unit (“CDU”) along with Officer Robinson, the other officer who arrested Westfahl that evening. The unit, responding to a call to disperse a “disorderly” group of protestors, arrived at 21st and L Streets, Northwest, while the protest was ongoing. Officer Cory testified that Officer Robinson arrived ahead of him, and that as Officer Cory approached the protestors and dismounted his bike, he saw “a demonstration sign come down and hit Officer Robinson across the top of his mountain bike helmet.” Trial Tr. vol. 2, at 175. During Officer Cory’s testimony, the defense introduced video footage taken by the MPD, part of which Officer Cory identified as depicting the flagpole being swung.
The next thing Officer Cory saw was “Mr. Westfahl being taken to the ground.” Id. He then “moved in to assist” Officer Robinson “with detaining and attempting to place handcuffs on Mr. Westfahl, . . . engag[ing] Mr. Westfahl . . . on [his] right side” and to the right of Officer Robinson. Id. at 177-78. Officer Cory testified that he “was trying to get [Westfahl’s] right arm from under his body” but “could not” because Westfahl “was tensing up” and “pulled back” whenever Officer Cory almost had the arm hooked. Id. at 178. Officer Cory characterized Westfahl as “[a]ctively resisting” in this manner. Id. In order to induce Westfahl to comply, Officer Cory “deployed a softening blow, otherwise known as a distractionary strike, ” which he described as a “closed fist” strike, or a “very short, low-energy blow, ” that is “designed to distract an individual [by] targeting the muscles or nerves.” Id. at 178-79. By delivering the softening blow, Officer Cory was able to secure Westfahl’s arm and handcuff him, at which point the officers moved Westfahl to a curb away from the crowd. On cross-examination, Officer Cory was asked why he chose to use a softening blow when he had “options other than a pain technique blow, ” such as “standing [Westfahl] up or rolling him . . . toward Officer Robinson to release his right side.” Id. at 195. Officer Cory responded that, in his judgment, the most reasonable and safest option was the softening blow because at that point, Westfahl’s right “hand [wa]s an unknown, ” and could have been holding a weapon. Id.
When asked whether he observed what Officer Robinson was doing during this time, he testified that he “really couldn’t see” because he was “focused on Mr. Westfahl’s right arm.” Id. at 179. After Westfahl was handcuffed, Officer Cory observed that Westfahl “had a sizeable abrasion on the upper right quadrant of his forehead.” Id. at 180. As the arresting officer, Officer Cory placed Westfahl under arrest for felony assault on a police officer and possession of a prohibited weapon, the wooden flagpole. He testified that, while he had not seen who struck Officer Robinson with the flagpole, it “was relayed” to him that Westfahl had committed the assault. Id. at 181.
C. Officer Robinson’s Testimony
Defendant Officer Robinson testified that he and his bike unit were called to the World Bank and IMF protest at around 10:30 pm on the evening of October 9, 2010, and that when he arrived, he observed a “lot of yelling” by the protestors, a “lot of signs, [and] a lot of noise.” Id. at 107. He approached the protestors and told them to back up. Noticing that one protestor, who turned out to be Westfahl, “was not backing up, ” Officer Robinson walked toward him and repeated, “Hey, back up. It’s time to go home.” Id. at 108. When he got within arm’s length of the protestor, Officer Robinson observed that the protestor was holding a sign, and then he felt a “wooden . . . board just come down on [his] head really hard, ” which “stunned” him and caused his helmet to slide down, obscuring his vision for a moment. Id.; see also id. at 129. He testified that he was shocked from the blow and “grabbed ahold of” Westfahl, “struggling for a few seconds and subsequently getting him to ...