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Jackson v. District of Columbia

United States District Court, District of Columbia

August 24, 2018

ELIJAH JACKSON, Plaintiff,
v.
DISTRICT OF COLUMBIA et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE

         Early in the morning on May 5, 2015, Plaintiff Elijah Jackson struck a moped while driving, drunk, with two companions. After leaving the scene of the accident, Jackson was pulled over by the police. What happened next is disputed. According to the officers, Jackson resisted arrest and they used reasonable force in restraining him. According to Jackson, the officers maliciously beat him even though he tried to comply with their orders. He subsequently underwent neck surgery, and claims to suffer from post-traumatic stress disorder as a result of the incident.

         Jackson has sued the District of Columbia (the “District”) and seven individual police officers: John Merzig, Matthew Fogle, Kanika Bolton, Carol Smith, Antoine Braithwaite, Lorelei Hillgren, and Michael Harrison. He brings claims for violations of the Fourth and Fifth Amendments to the U.S. Constitution, assault and battery, and intentional infliction of emotional distress. Defendants have moved for partial judgment on the pleadings and partial summary judgment on Jackson's Fifth Amendment claim against all Defendants; on all claims against Defendants Bolton, Smith, Braithwaite, Hillgren and Harrison; and on Jackson's claim against the District for municipal liability under 42 U.S.C. § 1983. ECF No. 35. For the reasons explained below, the motion will be granted in part and denied in part. The Court will dismiss the Fifth Amendment claim in its entirety. It will also grant summary judgment for Harrison on all claims, for Smith and Bolton on the intentional infliction of emotional distress claim, and for the District on the municipal-liability claim. The motion will otherwise be denied.

         I. Factual and Procedural Background

         A. The Night of May 4-5, 2015, and its Aftermath

         On the evening of May 4, 2015, Jackson met up with a friend named Jordathan Jones and Jones's “lady friend.” Pl.'s Ex. 1 (Jackson Dep.) at 20:2-17, 21:13-17.[1] Jones, using a borrowed car, drove the group to a strip club in downtown Washington, D.C. Pl.'s Ex. 1 (Jackson Dep.) at 21:5-12, 22:9-23:22. Jones and his “lady friend” went in, while Jackson waited for them in the car. Id. at 23:9-17. The couple returned after an hour or two, and all three headed to a liquor store in Maryland (the liquor stores in Washington were closed by that hour). Id. at 25:16-21. They purchased tequila. Id. at 26:11-14. At that point, Jackson took over the driving, drinking “more than a pint” of the tequila as he went. Id. at 26:20-28:11, 154:10-17.

         At around 1:30 in the morning, while driving along Florida Avenue in Northeast Washington, near Gallaudet University, Jackson struck a moped. Id. at 28:18-21, 30:17-31:14; Compl. ¶ 11. In Jackson's telling, the crash was a minor one and he exchanged information with the moped driver. Pl.'s Ex. 1 (Jackson Dep.) at 29:2-18. However, the moped driver was irate and insisted on receiving compensation for the accident then and there, prompting Jackson to drive away, ostensibly to seek police protection. Id. at 29:15-30:16. Shortly afterward, he was pulled over by a police car with its lights flashing and exited the vehicle. Id. at 32:8-33:14.

         Jackson and the police officers differ on what happened next. The record before the Court is largely silent regarding the views of Officers Merzig and Fogle, the two officers who initially pulled Jackson over, see Compl. ¶ 13.[2] It does reflect the accounts of the officers who came on the scene shortly afterward: first Officers Smith and Bolton, followed later by Officers Braithwaite and Hillgren. See Pl.'s Ex. 4 (Bolton's written report); Pl.'s Ex. 5 (Braithwaite's and Hillgren's written statements). According to these officers, Jackson was already “combative” and resisting arrest by the time they arrived, requiring the use of force to restrain him. See Pl.'s Ex. 3 (Smith Dep.) at 24:19-25:19, 28:10-29:5, 30:22-31:14; Pl.'s Ex. 4 (Bolton's written report) at 3; Pl.'s Ex. 5 (Braithwaite's and Hillgren's written statements). Smith reports that she was able to handcuff only one of Jackson's wrists at this point. Pl.'s Ex. 3 (Smith Dep.) at 38:21-39:3. One of the officers used pepper spray to subdue Jackson, but according to Smith, it was ineffective. Id. at 31:19-32:4. The officers then employed a “tactical takedown” or “leg sweep, ” a police maneuver in which officers sweep an arrestee's legs out from under him in order to place the arrestee on the ground and restrain him. See Id. at 36:22-38:2, 39:11-13. Once Jackson was on the ground, officers were able to finish handcuffing him. See Id. at 38:7-14. Smith testified that the officers did not use additional force, for example by punching or kicking Jackson, during the takedown. See Id. at 40:7-17.

         In Jackson's account, by contrast, the officers gratuitously beat him notwithstanding his efforts to comply with their instructions. He claims that Fogle instructed him to return to his car, but that before he could do so, Fogle and Merzig “rushed up” and grabbed him. Pl.'s Ex. 1 (Jackson Dep.) at 36:3-37:17, 46:8-11. One of the officers, Jackson testified, slammed his face into the top of the car, and the two officers began “trying to pull” him in “different directions.” Id. at 39:11-41:11. Then Smith and Bolton arrived. See Id. at 43:8-10, 161:1-13. Jackson claims that Smith yelled, “Hey, what are you guys doing to him?” Id. at 43:14-19. In response, Fogle and Merzig stopped struggling with Jackson. Id. at 43:20-22. Smith asked Jackson to let her handcuff him, and Jackson began to comply by holding out his left wrist (another officer still had hold of his right arm). Id. at 44:9-18, 161:1-22. Despite his compliance, Jackson claims, Fogle “maced” him with pepper spray, causing him to clutch instinctively at his face. Id. at 44:18-22, 46:5-7. The pepper spray affected Smith as well. Id. at 46:19-47:2.

         At that point, Jackson testified, Merzig and Fogle began “punching and hitting” him as he stood blinded by the pepper spray. See Id. at 47:3-15. Eventually, “other officers” joined in, id. at 47:19-48:6, apparently including Hillgren and Braithwaite, see Id. at 59:2-7, 162:13-163:2. Jackson heard someone yell, “Take him down.” Id. at 49:18-19. An officer hit his thigh, causing him to lose his balance, and he “was slammed face-forward down towards the ground.” Id. at 49:19-50:15. After he fell, Jackson claims, an officer's knee kept him pinned to the ground, trapping his hands underneath his body. Id. at 50:16-22, 51:22-52:2. The officers “continued punching and hitting” him in his head and body. Id. at 50:21-51:2. Someone doused him with pepper spray a second time. Id. at 51:7-11. Finally, one of the officers instructed Jackson to put his hands behind his back so that he could be handcuffed, and Jackson explained that he could not. Id. at 52:12-53:1. At that point, the officers relented and Jackson was able to reach out his hands to be cuffed. Id. at 53:2-22. The officers sat Jackson upright on the curb. Id. at 54:1-4. After Jackson requested help getting the pepper spray out of his eyes, one of the officers said, “We need to clean him up.” Id. at 55:4-11. They began to wipe his face and had him blow his nose. Id. at 55:21-56:10.

         Sergeant Harrison performed the preliminary investigation into the officers' use of force against Jackson. See Pl.'s Ex. 7 (Harrison Dep.) at 32:10-33:13. He arrived after Jackson was already in handcuffs. Id. at 40:2-6. Even at that point, Harrison testified, Jackson remained “combative” and visibly intoxicated. Id. at 31:6-7, 38:11-39:7. He observed that Jackson was bleeding, and could smell pepper spray in the air. Id. at 29:3-15. He did not consider the incident to have involved a serious use of force, however, because police commonly use pepper spray and minor injuries often cause bleeding. Id. at 30:3-20. Still, because Jackson was bleeding, he was transported by ambulance to the hospital with Braithwaite. See Id. at 32:15-19, 39:21-40:1. Testing at the hospital revealed that Jackson had a blood alcohol level of .201. See Pl.'s Ex. 2 (medical personnel's testimony) at 53:24-54:12.

         Jackson remained at the hospital for several days. See Pl.'s Ex. 1 (Jackson Dep.) at 78:19-20. He was diagnosed with a broken nose and a bulging intervertebral disc in his neck, which required surgery to replace the disc with a metal plate. See Id. at 75:4-76:10; Pl.'s Exs. 8-11 (medical records). He subsequently sought psychiatric treatment and was diagnosed with post-traumatic stress disorder. Pl.'s Ex. 1 (Jackson Dep.) at 96:13-99:21. He reports feeling overwhelming anxiety around police officers, particularly District officers. Id. at 109:13-111:1, 113:18-116:15.

         Jackson was subsequently charged with several misdemeanors in the Superior Court of the District of Columbia. Compl. ¶ 21. He stood trial on three counts of misdemeanor assault on a police officer (specifically, Merzig, Fogle and Braithwaite) and one count of fleeing a law enforcement officer. Id. ¶ 22. After trial, he was convicted of assault on a police officer with respect to Merzig and Fogle, as well as fleeing a law enforcement officer; he was acquitted of assault on a police officer with respect to Braithwaite. Id. ¶ 23.

         B. The District's Policies Regarding Use-of-Force Investigations

         In addition to evidence regarding the particular facts of Jackson's case, the parties have also introduced evidence about how the District handles use-of-force investigations. Jackson engaged an expert witness on police practices, former Charlottesville, Virginia, police chief Timothy J. Longo, Sr., who was asked to provide opinions on two subjects: (1) “whether the District had a custom, practice, or policy, of excessive force that was conscious[ly] and deliberately enforced[, ] and whether such a de facto policy or custom or practice was [the] moving force behind Mr. Jackson's injures;” and (2) “whether the District of Columbia and [its police department] had a custom, practice or policy of deliberately and consciously failing to investigate uses of force[, ] and whether those practices, customs or policies were the moving force behind Mr. Jackson's injuries.” Defs.' SoMF ¶ 15 (quoting Defs.' Ex. 2 (Longo Dep.) at 43:20-44:2, 44:18-45:2); see Pl.'s Resp. SoMF ¶ 15; Longo Supp. Rep. at 2. Longo declined to offer an opinion regarding subject (1). Defs.' SoMF ¶ 16; Pl.'s Resp. SoMF ¶ 16; Longo Supp. Rep. at 17. With respect to subject (2), Longo testified that “the District did in fact have a de facto policy” of “failing to . . . investigate uses of force, particularly the uses of force such as that which was impacted upon Mr. Jackson.” Defs.' SoMF ¶ 17 (quoting Defs.' Ex. 2 (Longo Dep.) at 45:6-10); see Pl.'s Resp. SoMF ¶ 17; Longo Supp. Rep. at 17. This policy, he concluded, “was the moving force behind Mr. Jackson's injuries.” Longo Supp. Rep. at 17.

         The background for Longo's analysis is a 2001 Memorandum of Agreement (“MOA”) that the District entered into with the Department of Justice. See generally Hunter v. District of Columbia, 824 F.Supp.2d 125, 134-35 (D.D.C. 2011) (discussing MOA); Byrd v. District of Columbia, 297 F.Supp.2d 136, 139-42 (D.D.C. 2003) (similar). The MOA required a number of reforms intended to reduce the risk that District police officers would use excessive force. Byrd, 297 F.Supp.3d at 140. Among other things, the MOA imposed standards for investigations into use of force by police officers. See Pl.'s Ex. 13 (2016 Bromwich report) at 42. The MOA also called for an independent monitor to assess the District's compliance with the agreement. Id. at ii-iii. The monitorship ended in 2008. Id. at iii. In 2015, the District hired The Bromwich Group (which included members of the original monitor team) to perform a follow-up investigation into developments since the end of the monitorship. See Id. at iii & n.3; Longo Supp. Rep. at 10. The Bromwich Group issued a report of its findings in 2016. Pl.'s Ex. 13.

         The report, as described by Longo, [3] criticized the District for having relaxed its standards for how to investigate, document and audit officers' use of force after the monitorship ended. See Defs.' Ex. 2 (Longo Dep.) at 53:10-54:7, 58:20-59:11; Longo Supp. Rep. at 10-11. In particular, on the day the monitorship ended in June 2008, the police department issued a policy announcement by means of a “teletype.” Pl.'s Ex. 14 (teletype dated June 13, 2008). The teletype changed the department's policy for investigating officers' use of “hand controls” and “resisted handcuffing” where those practices did not result in injury or a complaint of pain or injury. Id. In those cases, a “Use of Force Incident Report” and follow-up investigative reports would no longer be automatically required. Id. Instead, the relevant watch commander would determine whether to complete a Use of Force Incident Report; if not, the watch commander would simply note the incident in his daily report. See Id. The District justified these changes on the basis that investigations into minor uses of force were not turning up constitutional violations or other misconduct, and that the time spent on these investigations kept supervisors “off the streets, ” where they could be actively supervising their subordinates. See Longo Supp. Rep. at 10-11.

         Jackson also points to two later police-department teletypes, both issued in July 2014. On July 3, 2014, the department issued a teletype listing the use-of-force incidents that the department's internal-affairs division was required to investigate. Pl.'s Ex. 15 (teletype dated July 3, 2014). Under the teletype, internal affairs was not required to investigate all incidents in which officers used force, but only certain categories of incidents, including “serious” uses of force that resulted in “admission to a hospital, ” “broken bones, ” “loss of consciousness, ” or risk of death or serious bodily injury. Id. at 3. Another teletype, dated July 29, 2014, restricted the circumstances requiring completion of a Use of Force Incident Report. Pl.'s Ex. 16 (teletype dated July 29, 2014). It provided that no such reports would be required for “contact controls, ” “unresisted handcuffing, ” “resisted handcuffing, ” or “solo or team takedowns, ” “unless there has been a resulting injury or complaint of pain.” Id. In addition, officers were no longer required to notify their watch commanders of “contact controls or resisted handcuffing in which there was no report of injury or pain.” Id.

         Longo criticized these changes because uses of force like tactical takedowns always involve a “foreseeable risk someone's going to get hurt, ” and opined that it is important to document those incidents so that the District can “go back and make sure that those type of force decisions are being made appropriately.” Defs.' Ex. 2 (Longo Dep.) at 54:13-18. In Longo's opinion, “when you adopt a policy that lessens your ability to adequately investigate things like force, that's a de facto policy that you've adopted that could lead to a foreseeable risk of harm.” Id. at 63:2-7. Longo also opined that “it was generally accepted practice to at least document and do some form of investigation with respect to [tactical takedowns].” Id. at 56:18-20. However, his opinion was not that “every tactical takedown should go to [internal affairs].” Id. at 57:18-20.

         Notwithstanding these criticisms, Longo concluded that the District's written “policies and procedures . . . pertaining to the use of force and how such force is reported and investigated . . . are consistent with generally accepted policing practices.” Longo Supp. Rep. at 9. He further concluded, however, that after the MOA ended the District permitted “a de facto policy, or wide spread custom, or practice that impeded the rigorous, thorough, and timely investigation of use of force incidents.” Id. at 17. He based this conclusion to a significant degree on his review of several administrative case files provided by Jackson's counsel, six of which involved use of force. See Id. at 15. He identified several deficiencies:

• Only one of the case files included audio-recorded statements, which Longo believes are required by best practices in internal police investigations. Id. at 13, 15.
• In each case file “investigated by district personnel, ” the involved officers received “reverse Garrity” warnings. Id. at 15.[4] In Longo's view, the “blanket use . . . of the Garrity admonishment” where it is not required unduly delays internal police investigations. Longo Supp. Rep. at 14.
• In one case in which Sergeant Harrison was accused of kicking a suspect, the case file was “void of any statements from the involved officers or any potential witnesses.” Id. at 15. The matter was referred to the U.S. Attorney's Office, which declined to prosecute. Id.
• Another case involved an accusation of excessive force against Officer Smith and other officers. Id. In that case, the “only real investigation” consisted of phone interviews with two of the involved officers. Id.

         In addition, Longo noted, the 2016 Bromwich report reviewed 32 use-of-force investigations and concluded that four of those cases (12.5%) should have been, but were not, investigated by internal affairs. Id. at 16; Pl.'s Ex. 13 (2016 Bromwich report) at 42. The Bromwich Group also identified other deficiencies, including a general failure to engage in “tactical analysis” or make “recommendations for remediation.” Longo Supp. Rep. at 16.

         Longo also heavily criticized the investigation into the use of force against Jackson, which he described as “woefully deficient.” Id. at 18. In his view, internal affairs should have investigated the matter because Jackson was hospitalized. Defs.' Ex. 2 (Longo Dep.) at 63:17-22; Longo Supp. Rep. at 11. On this point, the District's Rule 30(b)(6) witness seemed to agree with Longo, testifying that any use of force that results in hospitalization or a broken bone “is an obvious [internal affairs] case.” Pl.'s Ex. 17 (Power Dep.) at 73:5-11. Longo also concluded that Harrison failed to properly “canvass” the crime scene for additional witnesses, although police records indicated that a canvass did in fact occur. Longo Supp. Rep. at 12 & n.55. Harrison at least attempted to interview all the non-police witnesses known to have been on the scene of the arrest: he spoke to Jackson, Jones (who claimed to have slept through the encounter), and Jones's female companion (who declined to give a statement). See Id. at 7-8. But Longo faults Harrison for failing to tape-record the statements he received and to create a “step by step” chronology of his investigation. Id. at 12-13. And while a police lieutenant did ultimately write an investigative report on the incident, Longo concluded that this investigation was inadequate because it was completed two months after the incident. See Id. at 7, 12.

         Based on these examples and the post-MOA policy changes, Longo concluded that the District had a de facto policy of tolerating inadequate use-of-force investigations. Id. at 17. He further opined that this de facto policy was the “moving force” behind Jackson's injuries. Id.; Defs.' Ex. 2 (Longo Dep.) at 45:11-20. He acknowledged that this conclusion might seem counterintuitive, given that Jackson's case was in fact investigated. See Longo Supp. Rep. at 11. He nonetheless opined that deficiencies in the District's investigative practices “allow[] for the grave possibility that misconduct will take place with impunity” and “that officers will use force that exceeds policy, knowing that they will have sufficient time in which to formulate an account that will either justify or mitigate their actions, and further knowing that whatever account is offered[, ] they may in all likelihood go unchallenged and not be subject to greater security.” Id. at 18.

         C. Procedural History

         Jackson filed this case on December 23, 2015. His complaint contains five counts: a Fourth Amendment claim under 42 U.S.C. § 1983 against the individual officers (Count I), a Fifth Amendment claim under § 1983 against the individual officers (Count II), a common law assault and battery claim against the individual officers and the District (Count III), a common law intentional infliction of emotional distress claim against the individual officers and the District (Count IV), and a Fourth Amendment claim against the District on a theory of municipal liability under § 1983 (Count V). After discovery closed, Defendants filed the instant motion. ECF No. 35. Discovery was reopened for a short period after briefing on the motion was completed. See Minute Order of October 13, 2017. However, discovery closed definitively in November 2017, and neither party has sought to supplement the record since then.

         II. ...


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