United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
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.
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.
Factual and Procedural Background
The Night of May 4-5, 2015, and its Aftermath
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. 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.
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.
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. ¶
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.
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.
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
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.
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,
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.
The District's Policies Regarding Use-of-Force
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.
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.
report, as described by Longo,  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.
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.”
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.
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
• In each case file “investigated by district
personnel, ” the involved officers received
“reverse Garrity” warnings. Id.
at 15. 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
• 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
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.
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.
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.
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.