United States District Court, District of Columbia
N. MCFADDEN, UNITED STATES DISTRICT JUDGE.
Plaintiff, Andrew Kowalevicz, alleges that he was arrested
and charged for driving under the influence of alcohol with
no legal justification. He asserts five tort claims against
the United States, which employed the officer responsible for
the arrest: negligence, false arrest, malicious prosecution,
intentional infliction of emotional distress (IIED), and
negligent infliction of emotional distress (NIED). Compl.
5-11. The Government has moved for dismissal and for summary
judgment, and both sides have provided affidavits with
sharply differing accounts of what occurred. Even construing
the facts in the light most favorable to the Plaintiff, I
conclude that only his negligence and false arrest claims
parties agree that just before 11 p.m. on Wednesday, November
13, 2013, Andrew Kowalevicz was in the northwest quadrant of
the District of Columbia, driving around Washington Circle.
Officer Coleman of the U.S. Park Police began following him
as he exited the circle onto New Hampshire Avenue, and
initiated a traffic stop shortly thereafter. Compl. 4. In
response to Officer Coleman's questions, Dr. Kowalevicz
said that he had consumed one drink. Officer Coleman then
administered three field sobriety tests, and arrested Dr.
Kowalevicz for driving under the influence of alcohol (DUI).
Compl. 4. But when a breathalyzer test was administered at
the station about an hour after the arrest, Dr.
Kowalevicz's breath alcohol content twice measured 0.000.
Id. After Officer Coleman submitted a report of the
arrest, the District of Columbia Office of the Attorney
General (OAG) brought charges against Dr. Kowalevicz for DUI
and operating a vehicle while impaired-both criminal
misdemeanors-although the charges were eventually dismissed
before trial. See Id. at 4-5. These charges resulted
in the revocation of Dr. Kowalevicz's security clearance
(Dr. Kowalevicz has a Ph.D. in applied physics, and works for
Raytheon Company). Id. at 5; Kowalevicz Decl. ¶
1. Dr. Kowalevicz sued the United States for negligence,
false arrest, malicious prosecution, abuse of process,
intentional infliction of emotional distress, and negligent
infliction of emotional distress. Compl. 5-11.
parties dispute almost all of the remaining details
surrounding the night of the arrest. Supported by an
affidavit from Officer Coleman, the Government has moved for
summary judgment on the false arrest and malicious
prosecution claims, contending that numerous factors provided
probable cause for the arrest and subsequent prosecution,
including Dr. Kowalevicz's erratic driving, the smell of
alcohol on his person, bloodshot eyes, and poor performance
on the sobriety tests. Mem. In Support of Def.'s Mot.
Dismiss and Mot. for Summ. J. (hereinafter Mot. Dismiss or
Mot. Summ. J, as appropriate) at 12-15; Coleman Decl., Mot.
Summ. J. Ex. 2 ¶¶ 5-23. The remaining claims, the
Government argues, should be dismissed for failure to state a
claim pursuant to Fed.R.Civ.P. 12(b)(6). Mot. Dismiss 6-11.
But Dr. Kowalevicz has provided an affidavit of his own,
disputing many of Officer Coleman's factual claims with
his own narrative of error-free driving, a single mixed drink
two hours before the arrest, excellent performance on the
sobriety tests, and zero visual or olfactory indicators of
intoxication, as confirmed by the breathalyzer and the
observations of a second officer at the station. Kowalevicz
Decl. ¶¶ 3-33.
prevail on a motion for summary judgment, a movant must show
that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). A
factual dispute is material if it could alter the outcome of
the suit under the substantive governing law, and genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. “[A] party seeking
summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the [record] which it believes
demonstrate the absence of a genuine issue of material
fact.” Celotex, 477 U.S. at 323. Once this
showing has been made, the non-moving party bears the burden
of setting forth “specific facts showing that there is
a genuine issue for trial.” Anderson, 477 U.S.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
crosses from conceivable to plausible when it contains
factual allegations that, if proved, would ‘allow the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.'” Banneker
Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir.
2015) (alteration omitted) (quoting Iqbal, 556 U.S.
at 678). In this inquiry, a court must “draw all
reasonable inferences from those allegations in the
plaintiff's favor, ” but does not “assume the
truth of legal conclusions.” Id.
the Federal Tort Claims Act, the United States has waived its
sovereign immunity for “certain torts committed by
federal employees in the scope of their employment.”
Sloan v. U.S. Dep't of Hous. & Urban Dev.,
236 F.3d 756, 759 (D.C. Cir. 2001); 28 U.S.C. § 1346(b).
“[T]he FTCA, by its terms, does not create new causes
of action; rather, it makes the United States liable in
accordance with applicable local tort law.” Art
Metal-U.S.A., Inc. v. United States, 753 F.2d 1151, 1157
(D.C. Cir. 1985). Because the arrest and prosecution of Dr.
Kowalevicz occurred in the District of Columbia, I apply the
District's local tort law.
The Motion for Summary Judgment
Government's only argument in support of summary judgment
on this count is the existence of “constitutional
probable cause, ” which is an affirmative defense to a
claim of false arrest. Scales v. District of
Columbia, 973 A.2d 722, 729 (D.C. 2009). “Whether
the police have probable cause for an arrest is determined by
viewing the totality of the circumstances from the
perspective of a prudent police officer and in light of the
police officer's training and experience.”
United States v. Catlett, 97 F.3d 565, 573 (D.C.
Cir. 1996) (citing Illinois v. Gates, 462 U.S. 213,
230-32 (1983)). “Probable cause exists where the
arresting officer possesses information ‘sufficient to
warrant a prudent [person] in believing that the [suspect
has] committed or [is] committing an offense.'”
Catlett, 97 F.3d at 573 (quoting Beck v.
Ohio, 379 U.S. 89, 91 (1964)); see also Hall v.
District of Columbia, 867 F.3d 138, 154 (D.C. Cir.
Coleman arrested the Plaintiff for driving under the
influence, in violation of D.C. Code § 50-226.11, which
states that “No person shall operate . . . any vehicle
in the District: (1) while the person is intoxicated; or (2)
While the person is under the influence of alcohol or any
drug or any combination thereof.” The standard in
either case is whether “a person is
appreciably less able, either mentally or physically
or both, to exercise the clear judgment and steady hand
necessary to handle as powerful and dangerous a mechanism as
a modern automobile with safety to himself and the
public.” Muir v. District of Columbia, 129
A.3d 265, 272 (D.C. 2016) (emphasis original) (citation
omitted). The Government argues that Dr. Kowalevicz was