United States District Court, District of Columbia
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
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.
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
The Million Mask March
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. “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.
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.
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.
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. ¶
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
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
A [Tillman]: I would anticipate some form of civil
disobedience, yes, based on the attire.
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.
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.
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.
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.
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.
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.
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.
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[.]”).
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 ...