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Wolfe v. Department of Homeland Security

United States District Court, District of Columbia

September 27, 2019

NEIL WOLFE, Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY, Defendants.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE

         Neil E. Wolfe (“plaintiff”) has brought this action against the United States (“defendant”) under the Federal Tort Claims Act (“FTCA”), see 28 U.S.C. §§ 2671-80. Defendant has moved for summary judgment [Dkt. 18], and for the reasons discussed below, the Court will grant defendant’s motion. Plaintiff has simply not come forward with facts in response to defendant’s motion that would create a genuine issue to present to a jury, and at this stage it is plaintiff’s responsibility to do that.

         At the beginning of this case, plaintiff was eager to have this set of facts investigated, and his advocacy accomplished that goal. And plaintiff has had the full opportunity he sought to take discovery and pursue his claims. The Court acknowledges that plaintiff sincerely believes that the officer’s use of a Taser and the arrest were unjustified, and that the use of the Taser was painful. But applying the legal principles the Court is required to apply, and a fair consideration of the record in its entirety, leads to the conclusion that the officer’s actions in using force while carrying out his duties were reasonable under the circumstances.

         I. BACKGROUND

         A. The Million Mask March

         On November 5, 2014, a protest called the Million Mask March took place along Constitution Avenue N.W. in Washington, DC. Statement of Material Facts Not In Genuine Dispute (“Def.’s SMF”) ¶ 1; see Resp. to Def. Statement of Material Facts Not In Genuine Dispute (“Pl.’s SMF”) ¶ 2.[1] “The November 2014 Million Mask March was the second large scale event held in Washington, DC during the year, with hundreds of protesters/marchers trying to draw attention to various issues.” Def.’s SMF ¶ 2; see Pl.’s SMF ¶ 2.

         The Federal Protective Service (“FPS”), a component of the U.S. Department of Homeland Security (“DHS”), “is responsible for protecting federally owned and/or leased facilities to provide a secure environment for federal agencies and visitors to those facilities.” Mem. of P. & A. in Support of Def.’s Mot. for Summ. J. (“Def.’s Mem.”), Ex. 4 (Sultan Decl.) ¶ 1. Area Commander Darius Sultan and Inspectors Nathan Tillman (“Tillman”), Jason Patterson and Maurice Madison were among the FPS officers monitoring the protest. Def.’s SMF ¶ 3; Pl.’s SMF ¶ 3.

         B. FPS Policy on Conducted Electrical Weapons

          “FPS policies permit the use of approved Tasers (also known as ‘Conducted Electrical Weapons’ or ‘CEWs’) by authorized FPS personnel ‘if there is an immediate threat to the safety of the officers or others.’” Def.’s SMF ¶ 19; see Pl.’s SMF ¶ 19. Tillman was trained to use a Taser, and his certification to do so remained in effect on November 5, 2014. Def.’s SMF ¶ 20.

         Pursuant to FPS policy, any deployment of a Taser “must be individually justifiable under the ‘Graham Factors, ’” which include:

a. The severity of the crime[, ]
b. Immediate threat to the safety of the officer or others,
c. Actively resisting arrest, and
d. Evading arrest by flight.

See Def.’s Mem., Ex. 14 (“CEW Policy Mem.”) at 2 ¶ A.1. When feasible, a warning to the subject should precede CEW deployment. CEW Policy Mem. at 2 ¶ A.3. The “[s]everity of the crime and the extent that a fleeing subject poses a threat to the public must be considered when applying a CEW.” Id. ¶ A.6.

         C. Plaintiff’s Arrest

         Plaintiff participated in the November 5, 2014 demonstration. Compl., Attach. A ¶ 1; see Pl.’s SMF ¶ 1. Tillman first observed plaintiff “standing on the steps in front of the . . . Internal Revenue Service building at 1111 Constitution Avenue with a large number of demonstrators, ” Pl.’s Mot. to Deny Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”), Ex. 30 (“Tillman Dep.”) at 15:9-13; see Tillman Dep. at 79:21-80:1, 85:3-16, some of whom were “banging on the doors of the building.” Id. at 85:15-16, 118:11-119:3. Tillman did not see plaintiff bang on the door, see id. at 118:22-119:3, 140:20-22, but he did observe plaintiff “yelling and shouting and encouraging the crowd.” Id. at 141:13-14.

         “What made [Tillman] notice [plaintiff] was the fact that [plaintiff wore] a camouflage Kevlar vest.” Id. at 86:20-22; see id. at 10:1-3. The vest “did stand out, ” id. at 79:5, and Tillman thought that “[i]t’s just not typical attire.” Id. at 79:9. Plaintiff carried a “Gadsden Flag, ” Pl.’s Opp’n at 36, on “a 4-6’ long 1/4” by 11/2’ wooden pole, ” Compl., Attach. A ¶ 2, and he wore a Guy Fawkes mask and a battle dress uniform. See Pl.’s Opp’n at 11 (referring to Tillman Dep. at 102:8-103:16). Tillman also observed “a black canister, ” Tillman Dep. at 80:15, which he believed to be a canister of oleoresin capsicum spray (“OC spray”), in the pocket of plaintiff’s vest. Id. at 81: 6-7; see Id . at 14:17-18, 15:7-13, 79:13-14, 87:3-4; Def.’s Mem., Ex. 3 (“First Tillman Decl.”) ¶ 5. Tillman testified that the black canister was “similar to the type [police officers] carry or similar to the type that is issued to [FPS officers].” Tillman Dep. (questions posed by plaintiff) at 80:16-18. Tillman considered both the OC spray, Tillman Dep. at 106:10-12, and the flagpole, id. at 31:7-10, to be potential weapons. Id. at 81:21-82:1 (“It posed to me the fact that you had OC spray that you may very well use against one of us.”). As he explained at his deposition:

Q [by Plaintiff]: Guys wearing a Guy Fawkes mask, let’s throw a can of [OC] spray in there, Kevlar vest, BDUs, flag. Does that maybe – you don’t want me to use the word “prejudice.” Does that maybe give rise to some preconceived notions about what their behavior might be that day?
A [Tillman]: I would anticipate some form of civil disobedience, yes, based on the attire.

         Tillman Dep. at 103:8-16. Further, Tillman testified:

Q: [A] guy that was dressed like I was that day [was] more in your category of you are going to watch that guy closer, you are going to feel like he is a potential threat more so than a guy dressed . . . in a tie and that sort of thing?
A: That’s correct because you have a weapon in your possession and he does not. And you also have what is perceived to be a ballistic vest.

Id. at 104:16-105:5.

         Soon after he was first observed by Tillman, plaintiff saw a vehicle, a white Mercedes Benz, strike a protester on Constitution Avenue, N.W. Compl., Attach. A ¶¶ 1-2; see Tillman Dep. at 12:5-6, 21:9-10. Plaintiff believed this to be “a felony hit and run where [the driver of the Mercedes] . . . had broken through/avoided police barriers and intentionally struck a female demonstrator[.]” Compl., Attach. A ¶ 1. He approached two Metropolitan Police Department (“MPD”) officers standing nearby “and offered his business card, as a witness to the [incident].” Id., Attach. A ¶ 2. The MPD officers directed plaintiff to Tillman, who had “stopped the Mercedes, ” Tillman Dep. at 12:1-2, “midway between 14th Street and 12th Street on Constitution Avenue.” Id. at 13:7-8; see id. at 148:22-149:4.

         A group of demonstrators, including plaintiff, ran towards the stopped Mercedes. See id. at 148:21-152:14. According to plaintiff, his initial contact with Tillman occurred “in the middle of 14th St[reet] which was blocked off to traffic at the time, with his business card in hand offering himself as a witness to [the] hit-and-run[.]” Pl.’s SMF ¶ 6. Tillman does not recall plaintiff’s offering him a business card or throwing it down. Tillman Dep. at 22:9-23:10; see Am. Compl., Attach. A ¶ 2; Pl.’s SMF ¶ 6.

         At the time of the encounter, Tillman thought that possession of OC spray was not legal at all, or at least, not in the quantity plaintiff possessed, under District of Columbia law. First Tillman Decl. ¶ 5; see Tillman Dep. at 24:22-26:22. He “wanted to “clarify whether or not . . . possession of [OC spray] was legal, ” Tillman Dep. at 26:1-3, and he consulted an MPD officer nearby, who informed him (apparently incorrectly) that possession OC spray was illegal. See id. at 38:9-39:3, 32:17-21. Tillman decided to conduct a “field interview” of plaintiff, id. at 32:8, and to take possession of the OC spray until he completed his investigation. Id. at 55:14-17. He was unable to do so because an “altercation” between the two ensued. Id. at 26:21-22.

         The initial physical contact occurred when Tillman approached plaintiff, placed his hand on plaintiff’s chest, held plaintiff at arm’s length against a waist-high concrete planter, and ordered plaintiff to drop the flag and flagpole he was carrying. Def.’s SMF ¶ 6; Pl.’s SMF ¶ 6. The parties dispute whether Tillman actually pushed plaintiff backwards. Def.’s SMF ¶ 7; Pl.’s SMF ¶ 7. At his deposition, Tillman did not recall pushing plaintiff against the planter, Tillman Dep. at 33:19- 20, but he did recall placing his “hand on [plaintiff’s] chest, id. at 30:14, and “trying to keep [plaintiff] there so [he] could come to a determination as to whether or not [plaintiff’s possession of] OC was, in fact, legal[.]” Id. at 33:21-34:1. According to plaintiff, Tillman pushed him “using [a] forearm to [his] chest forc[ing] him out of the street onto the sidewalk and up against the concrete barrier[.]” Pl.’s SMF ¶ 7; see id. ¶ 4. Plaintiff refused to drop his flag, and he placed it atop the planter instead. Compl., Attach. A ¶ 2.

         Tillman said to plaintiff, “give me the spray and you can walk.” Def.’s SMF ¶ 7. Plaintiff refused. He set down the backpack he had been carrying, took papers out of his backpack and showed them to Tillman. Id. ¶ 8; First Tillman Decl. ¶ 5. According to Tillman, the papers were support for plaintiff’s claim that he had “a right to defend himself with the OC spray.” Def.’s SMF ¶ 8; First Tillman Decl. ¶ 5. According to plaintiff, he voluntarily presented the papers as “evidence that his life had been threatened to help Tillman better understand why he wore a defensive vest and carried defense spray[.]” Pl.’s SMF ¶ 8.[2]

         “While Tillman was putting the papers back into plaintiff’s backpack, plaintiff took off down Constitution Avenue, leaving his backpack behind.” Def.’s SMF ¶ 8. Tillman did not follow him, First Tillman Decl. ¶ 5, and did not recall seeing plaintiff leave. See Tillman Dep. at 57:21-58:11, 59:14-18. Tillman “did place the backpack on a[n] FPS law enforcement vehicle for further inspection.” First Tillman Decl. ¶ 5; see Pl.’s SMF ¶ 9. Meanwhile, other demonstrators were gathering around and becoming agitated. See Tillman Dep. at 121:21-123:15.

         Roughly one minute after plaintiff walked away, he returned to the area and approached his backpack, Def.’s SMF ¶ 9, which either remained on the hood of an FPS vehicle, Pl.’s SMF ¶ 9, or had been placed on the ground beside the vehicle. Def.’s SMF ¶ 9. When plaintiff grabbed the backpack, Tillman “pull[ed] back on the other end of the backpack, ” effectively “pull[ing] the plaintiff towards hi[m].” Pl.’s SMF ¶ 10; see Def.’s SMF ¶ 10 (“As he went for the backpack, Plaintiff collided with Tillman[.]”).

         According to Tillman, “[w]hile attempting to get his backpack [plaintiff] struck [him.]” First Tillman Decl. ¶ 6 Tillman testified that plaintiff struck him first on his hand or wrist, see Tillman Dep. at 52:20-53:7, 61:15-18, prompting him to try to grab plaintiffs hand, after which plaintiff intentionally struck Tillman multiple times. See Id . at 61:15-64:2, 64:11-65:19. Tillman decided to arrest plaintiff ...


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