United States District Court, District of Columbia
A. HOWELL CHIEF JUDGE.
Andre Young, who was injured after being shot in the back
during a confrontation with officers of the District of
Columbia's Metropolitan Police Department
(“MPD”), filed suit against one of those
officers, Thurman Powell, and the District of Columbia,
raising Fourth Amendment Excessive Force and Eighth Amendment
Cruel and Unusual Punishment claims, under 42 U.S.C §
1983, as well as various claims under District of Columbia
law. The Court previously dismissed several of the
plaintiff's claims, including the Fourth Amendment claim
against the District of Columbia, and the Eighth Amendment
and common law excessive force claims against both
defendants. See Young v. District of Columbia, 107
F.Supp.3d 69, 82-83 (D.D.C. 2015) (dismissing Count I against
District of Columbia and Counts II and IV entirely). After
over two years of discovery, the defendants have now filed a
Motion for Summary Judgment (“Defs.' MSJ”),
ECF No. 36, on the plaintiff's remaining claims in Count
I (Fourth Amendment Excessive Force) against defendant
Powell, and, against both defendants, Counts III (assault and
battery), VI (Intentional Infliction of Emotional Distress),
and VII (Negligent Infliction of Emotional Distress). For the
reasons given below, the defendants' motion is denied.
material facts leading up to the moment of the shooting
largely are undisputed. On December 26, 2013, MPD officers
responded to a disturbance at 1728 W. Street SE, Washington,
DC, where the plaintiff had had a verbal altercation with his
friend, Crystal Perry. Incident Report at 1, 3, ECF No. 36-2;
Dep. of Lamont Young (“Young Dep.”) at 9:17-19,
ECF No. 36-2. Ms. Perry informed the officers that the
plaintiff had secured a black semi-automatic handgun in his
waistband prior to leaving Ms. Perry's apartment.
Incident Report at 3. Ms. Perry also informed the officers
that the plaintiff had made threatening remarks toward law
enforcement. Id. One of the responding officers
radioed a lookout for the plaintiff based on the information
Ms. Perry had provided. Dep. of Thurman Powell (“Powell
Dep.”) at 44:4-18, ECF No. 36-2; Dep. of Anthony Allen
(“Allen Dep.”) at 9:10-20, ECF No. 36-2.
was on a routine street patrol when he heard the radio
dispatch. Allen Dep. at 8:12-15, 9:10-14. The dispatch
identified the plaintiff by name, provided a physical
description, and informed dispatch that the plaintiff was
armed, had threatened law enforcement officers, and
frequented the Saddles discount store on the 2200 block of
Alabama Avenue SE. Id. at 9:16- 10:3; Dep. of
Thurman Powell (“Powell Dep.”) at 44:4-18, ECF
No. 36-2. Allen went to a nearby police station and obtained
an old mugshot photo of the plaintiff to help identify the
plaintiff. Allen Dep. at 10:6-8, 12:3-6. Defendant Powell
also heard the dispatch. Powell Dep. at 58:16-17.
next day, the plaintiff visited his barbershop to get a
haircut. Young Dep. at 23:2-5. There was a wait to be served,
so the plaintiff borrowed the keys to his barber's car to
drive to a nearby restaurant for breakfast. Id. at
23:5-9. The plaintiff encountered some acquaintances selling
cigarettes outside before he could reach the car, however,
and stopped to talk to them. Id. at 26:3-19. Allen
observed the plaintiff, who was wearing the same clothing the
radio dispatch had described him to have worn the day before.
Allen Dep. at 14:1-7. Allen requested backup, advising
dispatch that he had located the plaintiff and that the
plaintiff was known to carry a weapon. Id. at
14:7-12, 15:4-5. Defendant Powell responded to Allen's
request for backup and arrived in his cruiser shortly
thereafter. Id. at 14:20-15:1; Powell Dep. at
68:20-69:5. Upon arriving at the scene, defendant Powell
observed the plaintiff leaning up against a wall, wearing the
clothing Meyers's dispatch had described. Powell Dep. at
plaintiff's acquaintances observed Allen approaching them
and dispersed. Young Dep. at 28:19-20. Allen pulled up in his
MPD cruiser behind the plaintiff, then pulled in front of the
plaintiff and exited his cruiser. Id. at 29:7-18,
30:5-7, 20-22. Defendant Powell exited his cruiser as well.
Powell Dep. at 69:21-22. Both officers approached the
plaintiff, whose hands were in his jacket pockets. Allen Dep.
at 16:19-22; Powell Dep. at 45:17-46:13, 49:18-20. Allen
ordered the plaintiff to remove his hands from his pockets.
Allen Dep. at 18:21-22.
point, the parties' narratives diverge. According to
Allen, the plaintiff began “fu[mb]ling inside of . . .
his jacket pocket with both hands as if he was trying to
conceal something.” Allen Dep. at 21:17-19. Allen,
concerned that the plaintiff was armed, again ordered the
plaintiff to remove his hands. Id. at 21:19-21,
22:15-17. The plaintiff did not comply, and instead
“pushed” his hands “down more and started
fu[mbl]ing or fidgeting or . . . grasping something.”
Id. at 29:5-7. Allen heard defendant Powell order
the plaintiff to show his hands, and observed defendant
Powell “reach out” toward the plaintiff.
Id. at 38:6-10. According to Allen, the plaintiff
then “aggressively turned toward Powell.”
Id. at 39:8; 63:2-3. Allen then heard a gunshot.
Id. at 44:9-11.
Powell testified that he and Allen ordered the plaintiff to
remove his hands from his pockets. Powell Dep. at 46:1-8. The
plaintiff initially ignored these orders and walked away from
the officers toward a vehicle parked in the middle of the
street. Id. at 47:18-22; 51:20-22; 76:15. The
plaintiff removed his hands from his pockets as he walked
away. Id. at 77:7-8. Allen and defendant Powell
again ordered the plaintiff to stop, but the plaintiff
disobeyed, putting his hands back into his pockets and
continuing to walk away. Id. at 77:10-17. Both
officers repeatedly commanded the plaintiff to show his
hands. Id. at 77:20-21. The plaintiff “then
snatched his hand out of his pocket and put it inside his
waistband.” Id. at 77:22- 78:1. The plaintiff
suddenly “jerked his arm out, ” “as if he
was pulling something out of his waistband, ”
id. at 78:4-5, and “twisted towards”
defendant Powell, ” id. at 125:4-6, 126:22-
127:2. Defendant Powell fired his gun once at the plaintiff,
id. at 78:5-6, and then radioed for an ambulance and
for his supervisors, id. at 82:9-13. The plaintiff
was unarmed. Id. at 101:7-10.
scene investigators secured evidence from the scene,
recovering a “glass bottle with a strong chemical
odor” as well as a Glock 21 handgun from the right rear
floorboard of a Lexus parked along 22nd Street SE.
See Crime Scene Evid. Rpt. at 2, Items 11 & 13,
ECF No. 36-2. The U.S. Drug Enforcement Administration later
determined the bottled substance to contain phencyclidine
(“PCP”). See DEA Chemical Analysis Rpt.,
ECF No. 36-2. Investigators found no gun on the plaintiff.
See Crime Scene Evid. Rpt. at 2. Defendant Powell
gave a statement to the MPD's Internal Affairs Division
(“IAD”) later that day, asserting that he had
been focusing on the plaintiff's forearm and the back of
the plaintiff's hand before discharging his weapon.
Pl.'s Opp'n Def.'s MSJ, Ex. 4a, Officer Powell
Statement to IAD (“Powell Statement”) at 7, ECF
No. 39-5. Defendant Powell did not say that he had seen
anything in the plaintiff's hands prior to shooting him.
Id. at 3, 5, 7. Defendant Powell told the IAD that
he shot the plaintiff because the plaintiff had made a
“motion” while removing his hands from his
jacket, causing defendant Powell to fear for his life.
Id. at 5, 7.
plaintiff tells a different story. The plaintiff testified
that his hands were in his pockets due to the cold December
weather. Young Dep. at 32:15-22. According to the plaintiff,
he initially complied with the instruction to remove his
hands from his pockets, but then began to walk away because
he believed Allen was harassing him. Id. at
31:4-32:19. The plaintiff reached his hands back into his
pockets. Id. at 34:2-3. Allen commanded the
plaintiff to freeze and remove his hands from his pockets,
but the plaintiff refused and continued to walk away.
Id. at 34:3-5. The plaintiff then removed his hands
from his pocket, heard a “pow” noise, and fell to
the ground from a gunshot wound to his back. Id. at
35:2-5, 36:21-37:2; Assistant Chief Robert Alder Testimony at
Adverse Action Hearing at 114:18-19, ECF No. 40-3. At no
point during this encounter did the plaintiff see defendant
Powell. Young Dep. at 35:6-10.
White, an employee at a store near the location of the
incident, testified that he was standing outside on the
sidewalk, approximately “15, 20 feet” from
“where everything happened at, ” at the time
“when everything went down.” Dep. of DaQuan White
(“White Dep.”) at 125:23-25, ECF No. 40-1. White
observed Young and saw Allen drive up. Id. at
127:22-23, 128:15. According to White, Allen instructed the
plaintiff to remove his hands from his pockets, and the
plaintiff initially complied, but then put his hands back in
his pockets. Id. at 128:18-23. Allen again
instructed the plaintiff to remove his hands from his
pockets, and the plaintiff responded that the temperature was
cold. Id. at 128:23-129:1. Allen repeated his
command. Id. at 129:1-2. As Allen spoke, another
officer pulled up. Id. at 129:2-3. At around this
time, White “walked to the corner where Mr. Young
was.” Id. at 130:5-6. The plaintiff removed
his hands from his pockets, and the officer who just arrived
shot him. Id. at 129:3-5. White testified that the
plaintiff's hands were above his head and shoulders at
the time he was shot. Id. at 129:5-14, 132:23-122:1.
The plaintiff's hands remained above his head as the
plaintiff fell to the ground. Id. at 134:11-12.
23, 2014, a jury convicted the plaintiff of unlawful
possession of a firearm and carrying a pistol without a
license. DC Sup. Ct. Dkt., United States v. Lamont A.
Young, 2013 CF2 0022729. On September 10, 2014, the
plaintiff was sentenced to 42 months' imprisonment on the
unlawful possession count and to 16 months' imprisonment
on the carrying a pistol charge, to be served concurrently.
Id. The plaintiff filed suit against defendant
Thurman and the District of Columbia, under 42 U.S.C. §
1983, raising claims of excessive force, in violation of the
Fourth Amendment, and cruel and unusual punishment, in
violation of the Eighth Amendment Compl. ¶¶ 24-34,
ECF No. 1. The plaintiff also raised claims of common law
assault and battery, excessive force, negligence, intentional
infliction of emotional distress, and negligent infliction of
emotional distress. Id. ¶¶ 35-64. The
defendants filed motions to dismiss, Defs.' Mot. Dismiss
Complaint, ECF No. 5; Def. Powell's Mot. Partial
Dismissal, ECF No. 12, which the Court granted in part and
denied in part, dismissing the plaintiff's Eighth
Amendment claim against both defendants, the plaintiff's
Fourth Amendment claim against the District of Columbia, the
plaintiff's common law excessive force claim against both
defendants, and all claims against defendant Powell “in
his official capacity.” Order Granting in Part &
Denying in Part Def. Powell's Mot. for Partial Dismissal,
ECF No. 16; Mem. Op. at 18, ECF No. 15.
at the plaintiff's request, to which the defendants
consented, the Court repeatedly enlarged discovery in this
case as the MPD's investigative and disciplinary
processes unfolded. See Minute Orders, dated Dec.
21, 2015; Apr. 26, 2016; Aug. 30, 2016; Feb. 1, 2017; June
28, 2017. Specifically, the MPD's Use of Force Review
Board (“UFRB”) investigated the shooting,
reviewing statements and evidence that the MPD had amassed,
and determined that defendant Powell's use of force was
not justified and not within departmental policy. Pl.'s
Mot., Ex. 1, UFRB Report at 1, ECF No. 39-1. In so
concluding, the UFRB disagreed with the IAD
investigator's recommendation that defendant Powell's
use of force was justified and within departmental policy.
Id. The MPD initiated disciplinary proceedings
against defendant Powell, and the MPD's Adverse Action
Panel ultimately found defendant Powell's use of force to
have been objectively reasonable and not in violation of
departmental guidelines, recommending that no action be taken
against defendant Powell. Defs.' Reply Supp. Mot. MSJ
(“Defs.' Reply”), Ex. 8, Adverse Action Panel
Report at 22-27, ECF No. 43-2.
in this case ultimately lasted over two years. See
Minute Orders, dated June 19, 2015 and Sept. 27, 2017. The
defendants filed a motion for summary judgment on the
plaintiff's remaining claims of Fourth Amendment
excessive force, assault and battery, intentional infliction
of emotional distress (“IIED”), and negligent
infliction of emotional distress (“NIED”),
Defs.' MSJ, which is now ripe for review.
judgment is appropriate “if the movant shows 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). “In making that determination, a
court must view the evidence ‘in the light most
favorable to the opposing party.'” Tolan v.
Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). In
other words, “‘the evidence of the nonmovant is
to be believed, and all justifiable inferences are to be
drawn in his favor.'” Id. at 1863 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986) (alterations omitted)). “[A] ‘judge's
function' at summary judgment is not ‘to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for
trial.'” Id. at 1866 (quoting
Anderson, 477 U.S. at 249). The Supreme Court has
stressed, in the qualified immunity context, “the
importance of drawing inferences in favor of the