SUMMARY OPINION; NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

COVYE COUSINS,

Plaintiff,

v. Civil Action No. 12-cv-1058 (RLW)

DAVID HATHAWAY, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Covey Cousins (“Plaintiff”) boarded a bus, allegedly failed to pay his fare, and

was arrested by Officers David Hathaway and Davonne Williams. Officer Hathaway utilized

pepper spray in arresting him, so Plaintiff was taken to a hospital for treatment. Claiming that

they were having difficulty restraining Plaintiff at the hospital, Officer Hathaway pepper-sprayed

Plaintiff again. Following this incident, the officers brought several criminal charges against

Plaintiff.

Plaintiff later filed this lawsuit against Defendants Metro Transit Police Department

(MTPD), the Washington Metropolitan Area Transit Authority (WMATA), and Officers

Hathaway and Williams asserting common law claims of assault (Count I), battery (Count II),

false arrest (Count III), defamation (Count IV), negligent hiring/supervision (Count V), and

malicious prosecution (Count VI). Compl. ¶¶ 16–43.

Presently before the Court are Defendants Hathaway and Williams’ (“Defendants”)

Motion for Summary Judgment, Defs.’ Mot. Summ. J. (Dkt. No. 19), and Defendants’ Motion in

Limine, which requests that this Court exclude findings of facts from a related proceeding in

D.C. Superior Court, Defs.’ Mot. in Limine (Dkt. No. 25). Upon review of the parties’

1 submissions, the relevant legal authorities, and the record, the Court grants in part and denies

in part Defendants’ motion for summary judgment. The Court also denies without prejudice

Defendants’ Motion in Limine.

I. BACKGROUND

On January 15, 2011, at approximately 12:30 a.m., Plaintiff boarded a WMATA bus.

Defendants’ Statement of Material Facts Not in Dispute (“Defs.’ Facts”) ¶ 1; Plaintiff’s

Statement of Material Facts Not in Dispute (“Pl.’s Facts”) ¶ 1. The parties dispute much of what

occurred after Plaintiff boarded the bus. The Court will first summarize Plaintiff’s account of the

incident, followed by Defendants’ account of the incident.1

According to Plaintiff, a male bus operator was at the helm when he initially boarded the

bus, paid his fare, and then fell asleep. Dep. of Covey Cousins (“Cousins Dep.”) 24:4–15, Ex. 7

to Pl.’s Opp’n to Defs.’ Mot. Summ. J. (“Pl.’s Opp’n”). He was awakened by a female bus

operator, Adrienne Howard, telling him that he had not paid his fare. Pl.’s Facts ¶ 3. He offered

his SmarTrip card as proof of payment, but Ms. Howard refused his offer. Id. ¶ 4. Ms. Howard

then flagged down the nearest officers, Defendants Hathaway and Williams. Cousins Dep. 25:8–

12. Officer Hathaway boarded the bus and approached Plaintiff, without first speaking to Ms.

Howard. Pl.’s Facts ¶ 6. Officer Hathaway asked him if had paid his fare, Plaintiff replied

“yes,” and handed Officer Hathaway his SmarTrip card. Cousins Dep. 60:16–17, 72:4–19.

Officer Hathaway then asked him to exit the bus, and Plaintiff walked, voluntarily, to the front of

the bus, as Officer Hathaway trailed behind him. Cousins Dep. 61:9–20. When Plaintiff was at

the door steps of the front of the bus and faced the exit, Officer Hathaway either kicked or kneed

him off the bus, causing Plaintiff to land on his stomach and hands. Cousins Dep. 60:21–22,

1 The Court summarizes both accounts of the incident only to highlight the glaring differences between them. In its analysis, the Court will resolve all ambiguities and draw all factual inferences in favor of Plaintiff. Moore v. Hartman,

(D.C. Cir. 2009).

2 61:19–21, 70:5–8. While Plaintiff was still on the ground, Officer Hathaway kneed him on his

head. Cousins Dep. 61:1–2, 70:11–12. Officer Hathaway proceeded to handcuff Plaintiff, and

pepper-sprayed him in the process without warning him beforehand. Cousins Dep. 73:11–12,

76:4–22, 77:1. The officers then transported Plaintiff to a hospital in their patrol car. Cousins

Dep. 81:17–22. At the hospital, Plaintiff was placed in a gurney and restrained by the gurney’s

accompanying orange straps. Dep. of Davonne Williams (“Williams Dep.”) 9:13–18, Ex. 4 to

Pl.’s Opp’n. In addition to being restrained by the gurney’s straps, the officers also put a second

set of handcuffs on Plaintiff, this time handcuffing him to the gurney. Dep. of David Hathaway

(“Hathaway Dep.”) 30:7–11, Ex. 2 to Pl.’s Opp’n. Plaintiff was pepper-sprayed a second time at

the hospital, Williams Dep. 35:19–21, attached to Defs.’ Mot. Summ. J (Dkt. No. 19-3), the

effects of which caused the hospital staff to clear out an area by the front entrance of the ER

because the pepper spray was affecting other patrons. Dep. of Daniel Gerdy (“Gerdy Dep.”)

31:5–18, Ex. 5 to Pl.’s Opp’n.

Officers Hathaway and Williams (and Ms. Howard) offer a different picture of the

events. According to Ms. Howard, Plaintiff was disrespectful towards her when she told him

that he needed to pay his fare, including telling her, “[b]itch, just drive the bus.” Dep. of

Adrienne Howard (“Howard Dep.”) 16:23–24, attached to Defs.’ Mot. Summ. J (Dkt. No. 19-3).

She then flagged down Officers Hathaway and Williams. Defs.’ Mot. Summ. J at 3; Cousins

Dep. 52:6–8. Upon entering the bus, Officer Hathaway asked Plaintiff “multiple times to get off

the bus.” Williams Dep. 22:2–7. When Plaintiff refused, each officer grabbed one of Plaintiff’s

arms and escorted him off the back of the bus. Williams Dep. 22:11–13. Officer Hathaway

claimed that, after existing the bus, Plaintiff “remained agitated,” “verbally abusive,” and

“noncompliant to any of [his] verbal commands.” Hathaway Dep. 36:10–12. He also asked

3 Plaintiff if he could see his SmarTrip card, but Plaintiff ignored him. Hathaway Dep. 36:13–15.

Then, after Plaintiff refused Officer Hathaway’s repeated requests to stop moving around and to

take his hands out his pockets, he told Plaintiff that he was “under arrest” and ordered Plaintiff to

“give me your hands,” but he remained noncompliant. Hathaway Dep. 36:18–20. “At that

point,” Officer Hathaway performed an “arm bar/leg sweep,” taking Plaintiff to the ground, but

Officer Hathaway was still unable to restrain Plaintiff’s hands. Hathaway Dep. 36:21–23. After

performing other countermeasures, including “some knee strikes,” he was able to restrain one of

Plaintiff’s hands. Hathaway Dep. 36:24–25. Fearing for his safety because he had not yet

conducted a pat-down of Plaintiff, he told Plaintiff that “[i]f you don’t give me your hands, I’m

going to . . . OC2 spray you.” Hathaway Dep. 36:1–5. Plaintiff continued to resist, so Officer

Hathaway sprayed him. Hathaway Dep. 36:5–6. Plaintiff relented, permitting Officer Hathaway

to place him under arrest. Hathaway Dep. 36:6–7.

The officers then radioed for emergency medical services (EMS) personnel to examine

Plaintiff and take him to the hospital because he complained of eye irritation. Hathaway Dep.

37:7–9; D.C. Fire & EMS Incident Report, Ex. B to Defs.’ Mot. Summ. J. Officer Hathaway

explained that at the hospital, Plaintiff was handcuffed to his gurney because he “began shaking

the gurney violently,” and at “one point, [he] thought [Plaintiff] could possibly shake himself off

the gurney or tip the gurney.” Hathaway Dep. 30:12–14. Officer Hathaway also stated that

Plaintiff was kicking Officer Williams. Hathaway Dep. 30:15–16. The officers accompanied

Plaintiff to his hospital room, where he awaited treatment. Williams Dep. 34:3–10. The doctor

entered the room and attempted to talk to Plaintiff and Officer Williams, but Plaintiff kept

“flailing his feet,” “tr[ied] to scoot off the gurney,” “cuss[ed] [the doctor] out,” and “tried to

kick” Officer Williams in the face. Williams Dep. 34:13–24. After Plaintiff was pepper-sprayed 2 Oleoresin Capsicum (OC) spray is informally referred to as pepper spray.

4 a second time, he “immediately stopped cursing, he stopped talking, and he just . . . laid there on

the gurney.” Williams Dep. 35:22–25.

After Plaintiff received treatment, Officer Hathaway took him back to the precinct to

complete the required paperwork. Williams Dep. 37:17–22. Later that same day, Plaintiff was

charged with: (1) Unlawful entry onto property,

; (2) Threats to do bodily

harm,

§ 22-407; (3) Assaulting, resisting or interfering with a police officer, id. § 22-405(b);

and (4) Disorderly conduct, id. § 22-1321. Ex. J to Defs.’ Reply (Dkt. No. 24-1). The criminal

charges led to revocation of Plaintiff’s parole, resulting in him being incarcerated “for over 10

months.” Pl.’s Opp’n at 2. Ultimately, the District of Columbia decided not to prosecute the

disorderly conduct and unlawful entry charges on June 13 and June 17, 2011, respectively, and

the remaining threat and assault charges resulted in a trial and his acquittal. Id.

Plaintiff, in turn, filed the instant suit against MTPD, WMATA, and Officers David

Hathaway and Davonne Williams, asserting common law claims for assault, battery, false arrest,

defamation, negligent hiring/supervision, and malicious prosecution. Compl. ¶¶ 16–43. After

Defendants moved to dismiss Plaintiff’s claims, but before a hearing on the motion to dismiss,

the parties filed a status report informing the Court of their agreement to dismiss with prejudice

Defendants MTPD and WMATA, and also to dismiss with prejudice the negligent

hiring/supervision claim. See Dkt. No. 6. Thereafter, the Court issued an Order consistent with

the parties’ representations, and vacated the hearing on the motion to dismiss. See Dkt. No. 7.

The Court now addresses the remaining common law claims of assault, battery, false arrest,

malicious prosecution and defamation against Officers Hathaway and Williams.

II. STANDARD OF REVIEW

“Summary judgment may be granted only where there is no genuine issue as to any

material fact and the moving party is entitled to a judgment as a matter of law.” Moore,

(citing FED. R. CIV. P. 56(c) and Anderson v. Liberty Lobby, Inc.,

(1986)). “A genuine issue of fact derives from the evidence being such that a reasonable jury

could return a verdict for the nonmoving party . . . resolving all ambiguities and drawing all

factual inferences in favor of the nonmoving party.”

(citing Anderson,

)

(internal quotation marks and citations omitted). “If material facts are at issue, or, though

undisputed, are susceptible to divergent inferences, summary judgment is not available.”

(quoting Kuo-Yun Tao v. Freeh,

(D.C. Cir. 1994)).

III. DISCUSSION

A. Assault & Battery

In the District of Columbia, an assault is “an intentional and unlawful attempt or threat,

either by words or by acts, to do physical harm to the victim.” Fenwick v. United States,

(D.D.C. 2013) (quoting Etheredge v. District of Columbia,

(D.C. 1993)). “A battery is an intentional act that causes a harmful or offensive bodily contact.”

(quoting Etheredge,

). But not every battery or assault is unlawful. “It is

well established that a police officer has a qualified privilege to use reasonable force to effect an

arrest, provided that the means employed are not ‘in excess of those which the actor reasonably

believes to be necessary.’ ”

at 219 (quoting Kotsch v. District of Columbia,

(D.C. 2007)). The court in District of Columbia v. Chinn,

, 706–07 (D.C.

2003), explained:

Strictly speaking, a police officer effecting an arrest commits a battery. If the officer does not use force beyond that which the officer reasonably believes is necessary, given the conditions apparent to the officer at the time of the arrest, he is clothed with privilege. . . . [W]here the excessive force is the product of a battery, an unwanted touching inherent in any arrest, which escalates in an unbroken manner into excessive force, the cause of action is a battery … with the privilege having ended at the point where excessive force began.

6

(emphasis added).

Although the legal principles governing whether an officer has committed an assault or

battery are clear, the parties’ evidentiary obligations governing the same are an unsettled issue

under D.C. law. Specifically, there are two issues that the D.C. Court of Appeals has expressly

declined to address: (1) which party bears the burden of proof as to the reasonableness of an

officer’s force and hence whether the officer’s use of force was privileged; and (2) whether the

plaintiff must introduce expert testimony regarding whether the officer used reasonable force.

Smith v. District of Columbia,

(D.C. 2005); District of Columbia v. Jackson,

, 395 n.15 (D.C. 2000).3 The instant dispute does not require the Court to delve

into those unsettled areas, however.

As to the first issue, the Court concludes, for the reasons discussed below, that it would

reach the same conclusion regardless of whether it initially places the burden on Plaintiff or the

officers. That is, even assuming Plaintiff has the burden, he has presented a “legally sufficient

evidentiary basis for a reasonable jury to have found for him with respect to his battery [and

assault] claim[s].” Smith,

(internal quotation marks omitted).4

With respect to the second issue, which Defendants raise in seeking summary judgment,

the Court concludes, for the reasons discussed below, that the facts at issue here do not require

the presentation of expert testimony by either party.

3 Without resolving the issue, the D.C. Court of Appeals has provided some guidance on whether the plaintiff must present expert testimony issue. It suggested that if the officer asserts as a defense that he or she did not use excessive force and has presented expert testimony in support of this defense, then the plaintiff may also need to present expert testimony in response. See Smith,

(stating that “this is a subtle issue, the answer to which might depend, for example, on whether in asserting the lack of excessive force as a defense to assault and battery . . . the defendant itself has come forward with admissible testimony on the point”) (emphasis in original) (internal quotation marks omitted). 4 The Court is aware that another court in this District dealt with this uncertainty by saddling the District of Columbia with the burden of proof, and granting summary judgment only if it met its burden. Buruca v. District of Columbia,

(D.D.C. 2012). As explained, the Court need not reach the question in this case.

7 Having addressed those unsettled issues, the Court turns first to whether there is a

genuine issue of material fact that Officer Hathaway committed an unlawful assault or battery.

i. Officer Hathaway

Officer Hathaway does not dispute that his conduct towards Plaintiff, including pepper

spraying him twice, constitutes an assault and battery. Rather, he contends that he did not use

excessive force. See Defs.’ Mot. Summ. J. at 5. In particular, Defendants point to the line of

cases from the D.C. Court of Appeals explaining when a plaintiff is required to present testimony

in negligence cases regarding the standard for the duty of care. District of Columbia v. Arnold &

Porter,

(D.C. 2000) (“[P]laintiff must put on expert testimony to establish

what the standard of care is if the subject in question is so distinctly related to some science,

profession or occupation as to be beyond the ken of the average layperson.”) (internal quotation

marks moitted). Defendants argue that they are entitled to summary judgment on the assault and

battery claim because Plaintiff failed to produce expert testimony in support of his assertion that

the use of pepper spray was excessive force. Defs.’ Mot. Summ. J. at 5 (“Plaintiff has not

identified any witness who will testify that Defendant Hathaway’s use of O.C. was unreasonable,

a violation of accepted police procedures or clearly excessive under these circumstances.”).

Also, as further evidence that his use of pepper spray was reasonable, Officer Hathaway relies on

WMATA General Order #130, Ex. H. to Defs.’ Mot. Summ. J., and contends that “O.C. is a

recognized and authorized agent issued to police officers for use in restraining arrestees.” Defs.’

Mot. Summ. J. at 5. The Court finds these arguments unpersuasive.

Expert testimony is not required in all cases. As the D.C. Court of Appeals has

recognized, “no expert testimony is needed if the subject matter is within the realm of common

knowledge and everyday experience[.]” Briggs, 481 F.3d at 845 (quoting Hill, 779 A.2d at

8 908).5 Under the circumstances present here, and drawing all inferences in favor of Plaintiff, the

question whether Officer Hathaway’s use of pepper spray was excessive falls into this realm.

Plaintiff’s evidence supports his claim that he was not resisting arrest when Officer Hathaway

initially pepper-sprayed him outside the bus, see supra Section I.; and that he was fully

restrained when Officer Hathaway pepper-sprayed him a second time, while he was strapped to

the gurney, his hands were in cuffs, and he was also handcuffed to the gurney, see id. An expert

is not necessary to illuminate the obvious: the use of pepper spray—or any force, for that

matter—is not necessary to arrest and restrain an individual that is not resisting arrest, or that has

already been restrained. Cf. Bostic v. Henkels & McCoy, Inc.,

(D.C. 2000)

(“[E]xpert testimony was not needed to permit a jury fairly to decide that leaving such a gap

between boards covering a trench on which pedestrians were expected to walk was negligence,

particularly in the absence of safety cones and signs or other warnings of a hazardous

condition.”); Trust v. Washington Sheraton Corp.,

(D.C. 1969) (expert

testimony not required on whether a slightly raised bathroom step was dangerous). Relying on

common sense alone, any jury could plausibly conclude that Officer Hathaway’s use of pepper

spray was unreasonable and excessive. The Court concludes, therefore, that it was not necessary

for Plaintiff to produce expert testimony to support his claim that both uses of pepper spray were

excessive force.

5 The Court notes that it is appropriate to look to the D.C. Court of Appeals’ jurisprudence on the standard of care in negligence cases, which Defendants have relied upon, to determine whether Plaintiff is required to present expert testimony on the reasonableness of an officer’s force in assault and battery cases. The Court does not see any reason why the relevant inquiry in determining whether a plaintiff must present expert testimony should differ depending on whether the case involves an unintentional tort (negligence) or intentional torts (assault and battery). The Court believes that the D.C. Court of Appeals would reach the same conclusion. See Earle v. District of Columbia,

(D.C. Cir. 2012) (“Because no D.C. Court of Appeals case is directly on point, we ‘reason by analogy from D.C. cases’ to predict how that court would decide the question in a case like this.” (quoting Workman v. United Methodist Comm. on Relief,

(D.C. Cir. 2003))).

9 Nor does Officer Hathaway’s reliance on WMATA General Order #130 (“Use of Force

Order” or “the Order”) alter this conclusion. He misinterprets this Order. The “Use of Force”

Order—as it is styled in the document subject line—is, not surprisingly, a general directive on

the amount of force an officer may use. Use of Force Order at 1. The Use of Force Order begins

by stating that its “purpose” is to “establish[] the parameters of force available to members and

provides a review procedure for use of force incidents.”

The Order then states that the

“policy” is that “[m]embers will use the amount of force necessary to effect an arrest, overcome

resistance, or protect themselves and/or others from harm. Use of force must be justified.

Unnecessary force is prohibited.”

So far, the Order has said nothing about pepper spray.

Only later, when describing the category of “Less-Lethal Force Instruments,” does the Order

discuss pepper spray. In so doing, it states that “OC is an alternative to hands-on

countermeasures,” but it cautions that it “may be used when less severe options would be clearly

ineffective.”

(emphasis added). Thus, contrary to Officer Hathaway’s suggestion, the Use of

Force Order is not an unconditional endorsement of the use of pepper spray; it simply stands for

the unremarkable proposition that officers may use only reasonable force to effect an arrest, and

under certain circumstances, the use of pepper spray may be reasonable (e.g., when less severe

options would be clearly ineffective). Under the facts as presented by Plaintiff, a jury could

certainly find that such circumstances were not present here, during either use of the pepper

spray.

But even assuming the Court was inclined to reach the conclusion that a jury could not

find that either use of pepper spray was excessive, Officer Hathaway still is not entitled to

summary judgment on the assault and battery claim because his use of pepper spray was not

Plaintiff’s only allegation of force. Plaintiff also asserted that Officer Hathaway kicked or kneed

10 him even though he was not resisting arrest. See supra Section I.; Pl.’s Facts ¶ 16. A jury could

also conclude that this was excessive force. Plaintiff is thus entitled to have a jury hear his

assault and battery claim against Officer Hathaway on this basis alone.

ii. Officer Williams

Plaintiff asserts that “[b]oth Defendants’ [sic] used excessive force while removing

Plaintiff from the bus pushing him to the ground, kneeing him in his back and head, using pepper

spray twice including while he was handcuffed and strapped to a gurney around the waist and

legs.” Pl.’s Opp’n at 8–9 (Dkt. No. 20). However, the record supports only Plaintiff’s assertion

that Officer Williams grabbed his arm during the arrest. Pl.’s Facts ¶ 12; Williams Dep. 22:2–7

(“After Officer Hathaway asked him multiple times to get off the bus, that’s when he grabbed his

arm to escort him off the bus. I grabbed the other arm to escort him off the bus . . . .”) (emphasis

added). Plaintiff fails to cite any portion of the record in support of his assertion that Officer

Williams pushed him to the ground, kneed him on his back and head, and used pepper spray

against him.

On this record, no reasonable jury could conclude that Officer William’s grabbing of

Plaintiff’s arm to escort him of the bus was excessive force. Plaintiff does not dispute that he

had been told to leave the bus by both the bus driver and Officer Hathaway and that he refused to

do so. Grabbing his arm, then, was reasonable force under the circumstances and thus

privileged.

B. False Arrest

“In the District of Columbia, false arrest ‘is defined as the unlawful detention of a person

without a warrant or for any length of time whereby he is deprived of his personal liberty or

freedom of locomotion; it may be caused by actual force, or by fear of force, or even by

11 words.’ ” Hunter v. District of Columbia,

(D.D.C. 2011) (quoting

Tocker v. Great Atl. & Pac. Tea Co.,

(D.C. 1963)). Probable cause to arrest

is a defense to false arrest. DeWitt v. District of Columbia,

(D.C. 2012). “For

probable cause to exist, ‘it is sufficient that the arresting officer have a good faith, reasonable

belief in the validity of the arrest and detention.’ ”

(quoting Gabrou v. May Dep’t Stores Co.,

(D.C. 1983)). Furthermore, when “defending against a claim of false

arrest,” an officer can prevail if he or she “can show that probable cause existed to arrest for any

offense, even if it differs from the offense for which the arrest was actually made.” Bradshaw v.

District of Columbia,

(D.C. 2012) (internal quotations omitted).

“ ‘The existence of probable cause is a mixed question of law and fact.’ ” Pitt v. District

of Columbia,

(D.C. Cir. 2007) (quoting Smith v. Tucker,

(D.C. 1973)). “The existence of the facts [is] for the jury, but their effect when found is a

question for the determination of the court.”

(quoting Smith v. Tucker,

(D.C. 1973)).

Defendants contend that their arrest of Plaintiff was justified because they had probable

cause to arrest him for unlawful entry onto property and for disorderly conduct. Defs.’ Mot.

Summ. J. at 4. The Court concludes that the officers had probable cause to arrest Plaintiff for

unlawful entry onto property, and therefore the officers are entitled to summary judgment on the

false arrest claim.6

6 This makes it unnecessary to determine whether the officers also had probable cause to arrest Plaintiff for disorderly conduct. Bradshaw,

(stating that officers can prevail if they show that “probable cause existed to arrest for any offense, even if it differs from the offense for which the arrest was actually made”) (emphasis added) (internal quotation marks omitted). For this reason, the Court also rejects Plaintiff’s argument that the officers should have charged him with unlawful entry of a motor vehicle,

, instead of unlawful entry onto “property.”

. See Pl.’s Mot. at 5–6.

12 It is undisputed, as evidenced by Plaintiff’s own deposition, that: Ms. Howard, the bus

operator, believed that Plaintiff did not pay his fare; she asked him to get off the bus; he refused

to do so; and thereafter she flagged down Officers Hathaway and Williams. Cousins Dep.

50:15–21, 51:7–21, 58:1–4; see also Howard Dep. 16: 18–24, 17:7–14 (stating that she asked

Plaintiff twice to pay his fare). Plaintiff also stated twice in his deposition that he saw Officer

Hathaway speak to Ms. Howard upon boarding the bus. Cousins Dep. 59:18–20, 60:10–12.

Thus, relying on the representations of Ms. Howard—which the officers had no basis to believe

was unreliable—the officers had probable cause to arrest Plaintiff for unlawful entry. See, e.g.,

Saidi v. Washington Metro. Area Transit Auth.,

, 26–27 (D.D.C. 1996) (finding

that the officers had probable cause to arrest because, “[u]pon arriv[ing] at the scene, [they]

interviewed the bus driver” and other witnesses, and were informed that the plaintiff had spat on

the bus driver, so they arrested her based on that information).

Despite his deposition testimony that corroborates the above facts, Plaintiff claims that

Officer Hathaway did not speak to Ms. Howard upon entering the bus. Pl.’s Facts ¶ 6. In

support of his assertion, he points to Officer Hathaway’s testimony from a related proceeding.

See

(citing this testimony). Officer Hathaway’s testimony did include a statement suggesting

that he did not speak directly with Ms. Howard. See Hearing Tr. at p.31, United States v.

Cousins, No. CMD-892-11 (D.C. Sup. Ct. July 21, 2011) (“Hearing Tr.”) (Ex. 3 to Pl.’s Opp’n)

(“I never had a one on one conversation with the bus driver.”). Plaintiff ignores, however,

Officer Hathaway’s statement during that same line of questions that he “overheard . . .

[Plaintiff’s and the bus operator’s] argument.”

(emphasis added). Overhearing their

13 argument would have informed Officer Hathaway that Ms. Howard believed Plaintiff had not

paid his fare, thus providing probable cause to arrest.7

More significantly, it is undisputed that Officer Williams spoke with Ms. Howard before

they arrested him. Hearing Tr. at p.79 (Ex. I to Defs.’ Reply) (stating that she and Officer

Hathaway “ran over [to the bus] to see what the issue was,” the bus operator told them that

“someone didn’t pay their fare and that she wanted them off the bus because she didn’t feel

safe,” so they “got on the bus to talk to the defendant and ask him if he paid his fare”). Officer

Williams’s conversation with Ms. Howard of course provided probable cause to arrest Plaintiff.8

Thus, even if the Court were to draw the inference that Officer Hathaway did not speak with Ms.

Howard before the officers arrested Plaintiff—which Plaintiff’s deposition testimony directly

contradicts9—Plaintiff has not created any genuine issue as to whether Officer Williams spoke to

Ms. Howard.

Plaintiff rejoins that the officers could have verified, before they arrested him, whether he

had paid his fare by taking his SmarTrip card to a SmarTrip reader. Pl.’s Opp’n at 5 (“The

Defendants’ [sic] had the ability to confirm payment the night of the arrest and at the scene of the

arrest but neglected to check.”). Plaintiff raises this point presumably to argue that the officers

7 The Court also notes that, in the same line of questions, there was another statement by Officer Hathaway that suggests that he did in fact speak with Ms. Howard after speaking with Plaintiff.

(answering “correct” to the question “before you engaged the bus driver about what happened, you just immediately went to Mr. Cousins to ask him what happened, is that correct?”). 8 Plaintiff also argues, in a single sentence, that his arrest was unlawful because the officers arrested him “for a misdemeanor they have not witnessed.” Pl.’s Opp’n at 3 (emphasis added) (citing

). The Court is not inclined to address Plaintiff’s cursory, one-sentence argument. See, e.g., United States v. Hughes,

(D.C. Cir. 2008). 9 The Court also notes that a party cannot create a genuine issue of a material fact by contradicting its prior testimony. Pyramid Sec. Ltd. v. IB Resolution, Inc.,

(D.C. Cir. 1991) (“Courts have long held that a party may not create a material issue of fact simply by contradicting its prior sworn testimony.”). Our Court of Appeals has explained “that the prior sworn statement will receive controlling weight unless the shifting party can offer persuasive reasons for believing the supposed correction.”

Although here Plaintiff is using another party’s testimony—as opposed to using his own subsequent testimony—to contradict his own prior testimony, there is not any reason why this rule should not apply with equal force under the circumstances. And Plaintiff has not offered any reason why the Court should disregard his own deposition testimony.

14 failure to do so was unreasonable and thus negated their claim of probable cause. The Court

rejects this argument. Courts have repeatedly held that once an officer reasonably believes there

is probable cause to arrest, the officer is generally not required to investigate claims of

innocence. See, e.g., Amobi v. District of Columbia Dep’t of Corr.,

(D.C. Cir. June 27, 2014) (collecting cases).

There are also significant, practical considerations that weigh heavily in favor of adhering

to this rule here. Contrary to Plaintiff’s unsupported assertion, the metrobus at issue here was

not equipped with a SmarTrip reader, so the officers could not check Plaintiff’s card on the bus.

Williams Dep. 24:19–24.10 The record indicates that the closest SmarTrip reader was located at

nearby L’Enfant Plaza metro station, Williams Dep. 24:19–25, 25:1, although it is unclear

exactly how far the SmarTrip reader was from the scene of the incident. But even if the

SmarTrip reader was close by, requiring the officers to investigate Plaintiff’s claim and thus

detain the metrobus would have caused a significant burden on the officers’ ability to respond

promptly to this situation; and it would have also caused considerable inconvenience to

individuals relying on the metrobus for transportation (both those individuals who were already

passengers on the metrobus and other individuals waiting at bus stops along the route who are

hoping the bus arrives (fairly) close to the expected arrival time to pick them up). If the bus

itself had been equipped with a SmarTrip reader, Plaintiff’s argument would be more

compelling. But that was not the case here.

In conclusion, because there is not any basis to deviate from the general principle that

officers are not required to investigate claims of innocence before making an arrest, Defendants

are entitled to summary judgment on Plaintiff’s false arrest claim.

10 Plaintiff relies on Officer Williams’ deposition in support of his argument on this point, Pl.’s Facts ¶ 10, but the portion of the deposition that he cites says the opposite. Williams Dep. 24:24 (“No, you can’t check [a SmarTrip card] on [that] bus.”).

15 C. Malicious Prosecution

“ ‘[T]o establish a case of malicious prosecution[,] there must be (a) a criminal

proceeding instituted or continued by the defendant against the plaintiff, (b) termination of the

proceeding in favor of the accused, (c) absence of probable cause for the proceeding, and (d)

‘Malice,’ or a primary purpose in instituting the proceeding other than that of bringing an

offender to justice.’ ” DeWitt, 43 A.3d at 296 (quoting Jarett v. Walker,

(D.C. 1964)) (citation and internal quotation marks omitted); Amobi,

.

Further, under District of Columbia law, “[t]he determination of malice on the part of defendant

is exclusively for the factfinder.” Tyler v. Central Charge Serv., Inc.,

(D.C.

1982) (per curiam).

As is the case for claims of false arrest, “[t]he existence of probable cause will likewise

defeat a claim for malicious prosecution. . . .”

at 259–96 (quoting Gabrou,

). In the context of a malicious prosecution claim, “probable cause is defined as the

existence of facts and circumstances as will warrant a cautious man in the belief that his action

and the means taken in prosecuting it are legally just and proper.” Pitt, 491 F.3d at 501–02

(internal quotation marks omitted). Further, although the probable cause determinations for false

arrest and malicious prosecution are substantively the same, the point in time at which an officer

must have probable cause differs: probable cause to arrest focuses on “whether there was

probable cause for the initial arrest,” whereas probable cause to initiate a proceeding against an

individual focuses on “whether there was probable cause for the ‘underlying suit.’ ” Pitt v.

District of Columbia,

(D.C. Cir. 2007) (emphasis added) (quoting Joeckel v.

Disabled Am. Veterans,

(D.C. 2002)).

16 Here, Plaintiff was criminally charged with unlawful entry on property, disorderly

conduct, threats to do bodily harm, and assault on a police officer. Ex. J to Defs.’ Reply (Dkt.

No. 24-1); Ex. G to Defs.’ Mot. Summ. J. Defendants make two points in asserting their defense

to Plaintiff’s malicious prosecution claim: (1) They had probable cause to bring charges against

Plaintiff, Defs.’ Mot. Summ. J. at 4; and (2) even if they lacked probable cause, Officer Williams

argues separately that she is not liable because she was not involved in bringing charges against

Plaintiff, id. at 6. Because Defendants have not challenged whether Plaintiff can satisfy the other

elements of a malicious prosecution claim, see Defs.’ Mot. Summ. J. at 6–7; Defs.’ Reply at 2–4,

the Court will treat the unaddressed elements as conceded. See, e.g., Texas v. United States,

(D.D.C. June 18, 2014).

Before turning to the merits of these arguments, the Court notes that Defendants first

argument misstates the law. Defs.’ Mot. Summ. J. at 4. (“[T]he existence of probable cause [to

arrest Plaintiff] also defeats Plaintiff’s claim of malicious prosecution.”). There must be

probable cause to bring each charge against Plaintiff; probable cause for one charge does not

serve as a valid defense for the other charges. 52 AM. JUR. 2d § 52, at 235 (2011) (“One

reasonable ground for an action will not excuse others that are without probable cause.”). The

Court now turns to whether there is a genuine issue of material fact that there was probable cause

for each charge against Plaintiff.

i. Unlawful Entry onto Property

The probable cause inquiry is context-specific. A particular action (or inaction) may be

reasonable under certain circumstances, but not others. Here, a jury could find that the

applicable standard for probable cause—“the existence of ‘facts and circumstances as will

warrant a cautious man in the belief that his action and the means taken in prosecuting it are

17 legally just and proper,’ ” Pitt, 491 F.3d at 501–02 (quoting Ammerman v. Newman,

, 639–40 (D.C. 1978))—was not met with respect to the unlawful entry charge. Specifically,

under the facts and circumstances present here, a jury could find that the officers should not have

believed that bringing a charge for unlawful entry without ever checking Plaintiff’s SmarTrip

card was legally just and proper.

Drawing all inferences in favor of Plaintiff, the record supports the conclusion that, at

some point during the incident, the officers had Plaintiff’s SmarTrip card in their possession.

Cousins Dep. 60:16–17, 72:4–19; Compiled Statement of Material Undisputed Facts, Responses

and Replies (“Compiled Statement of Facts”) (Dkt. No. 26) (Defendants admitting to Pl.’s fact ¶

7). With Plaintiff’s SmarTrip card in their possession, there was no need for the officers to rely

solely on Ms. Howard’s representations before referring the case to the prosecutor. As Officer

Williams acknowledged, taking Plaintiff’s card to a SmarTrip reader would have eliminated all

the guesswork. Williams Dep. 24:15–18 (“[The SmarTrip reader] can actually tell you the date,

the time, the location, the last time [Plaintiff] used it, and at—to enter or exist a station, to get on

or off a bus; it could tell you a whole lot of different information.”). Indeed, Officer Williams

stated that this was the “first thing” that should be done. Williams Dep. 24:8–12 (“[I]f someone

is accused of not paying their fare, the first thing we need to do is see their fare media, whether it

be a paper card or a SmarTrip card, and that’s what we were asking for.”). And any of D.C.’s

many metro stations—including nearby L’Enfant Plaza—would have sufficed. Williams Dep.

24:19–22 (“Q: And where would a SmarTrip reader be in relation to where you arrested Mr.

Cousins?”; “A: It could—in the station, you could check it at a kiosk, or you can check it at an

actual fare machine.”); Williams Dep. 24:25, 25:1 (“Q: But you could [check his SmarTrip card]

at L’Enfant Plaza?”; “A: Yes.”). Thus, the burden, if any, on the officers in checking Plaintiff’s

18 SmarTrip before charging him with unlawful entry was minimal; the upside, however, was

unquestionable—it would for all intents and purposes conclusively exculpate or inculpate

Plaintiff. Under the circumstances, then, the Court believes checking the SmarTrip card was a

reasonable precaution for the officers to take before charging Plaintiff with unlawful entry onto

property. Having failed to do so, taking the facts in the light most favorable to the plaintiff, as

required, the Court concludes that a jury could find that the officers lacked probable cause to

bring this charge.11

This disposes of Defendants’ lone argument that they are not liable for the malicious

prosecution claim because they had probable cause to arrest. Defs.’ Mot. Summ. J. at 4.

Nevertheless, although this argument was not raised by Defendants, the Court pauses to note that

Defendants could not have found shelter in the line of cases, discussed infra Section III.B,

holding that officers generally do not have to explore an individual’s claim of innocence after

concluding that there’s probable cause to arrest. See, e.g., Amobi,

(collecting cases). These cases are not controlling because they concern probable cause to arrest

an individual,

which requires courts to look at the officer’s knowledge just prior to the arrest.

Probable cause to bring charges, on the other hand, focuses on the information available to the

officers prior to bringing the charge. Pitt,

. This difference in timing is

significant. As discussed above, the exigencies of an arrest often will require officers to respond

11 Even more inexplicable, the record indicates that the officers and prosecuting attorneys pursued the unlawful entry charge for several months without checking his SmarTrip card. It was not until a scheduling conference on June 13, 2011—several months after charges were brought on January 15, 2011—that the officers and prosecuting attorneys promised to produce the SmarTrip card in D.C. Superior Court, and Judge Mize warned them at the scheduling conference to “produce the Metro card or the Court will dismiss” the three remaining charges (unlawful entry onto property, threats against a police officer, and assault against a police officer). Scheduling Conf. Tr. at p.7, United States v. Cousins, No. CMD-892-11 (D.C. Sup. Ct. June 13, 2011) (“Scheduling Conf. Tr.”) (Ex. 1 to Pl.’s Opp’n). Officer Hathaway conceded that they waited until June 13, 2011 to check Plaintiff’s card. Compiled Statement of Facts (Defendants admitting to Pl.’s fact ¶ 11); Hathaway Dep. 34:5–22 (responding to the question “[w]hen did you try to get the information off of the [SmarTrip] card” by stating “[o]n the way over to court, after signing the card out,” and further clarifying that it was “probably” June 13th). This nonchalant disposition towards Plaintiff’s rights is troubling.

19 promptly to potentially volatile situations. Requiring officers to investigate claims of innocence

after developing probable cause may unnecessarily intrude on an officer’s ability to do so. When

an individual has already been arrested and detained, in contrast, the exigencies are often less

weighty. On the other end of the scale, the benefit of taking an additional precaution after the

individual has been arrested but before bringing charges can be consequential. This is especially

the case where the additional precaution can be taken swiftly and with little, if any, burden on the

officers, while at the same time providing compelling evidence of guilt or innocence. The facts

here epitomize this scenario.

In sum, the Court thus denies Defendants’ motion for summary judgment on Plaintiff’s

claim of malicious prosecution based on the unlawful entry charge.

ii. Disorderly Conduct

In asserting that they had probable cause to charge Plaintiff with disorderly conduct,

Defendants relied on the same facts that provided them with probable cause to arrest him for

disorderly conduct. Defs.’ Mot. Summ. J. at 4 (stating that “Plaintiff Cousins admits that he and

the bus operator ‘had words’ over her allegation to him that he had walked to the back of the bus

without paying his fare,” and “that the bus operator told the arresting officer that Mr. Cousins

had not paid and had refused to exit the bus”). Defendants contend that the “record is silent as to

any reason why the arresting officer should disbelieve the bus operator.”

The Court agrees.

As discussed above, supra Section III.B., the information Ms. Howard provided to the officers

was sufficient to form probable cause to arrest Plaintiff for disorderly conduct. This information

also provided the officers with probable cause to charge him with disorderly conduct.

iii. Threats Against a Police Officer

20 Defendants’ motion for summary judgment does not specify which facts support the

threat charge, but the Information filed by the prosecuting attorney and Officer Hathaway’s

police report highlight the underlying facts. The Information states that “Covey Cousins made

threats to do bodily harm to Officer David Hathaway and his family.” Ex. J to Defs.’ Reply

(Dkt. No. 24-1). Similarly, the last sentence of David Hathaway’s police report states: “The

Defendant continued throughout the whole time at the hospital to state if the undersigned officer

was ever in plain clothes with his family around the Smithsonian Metro Station, ‘he would fuck

him up.’ ” Ex. C to Defs.’ Mot. Summ. J. (Dkt. No. 19-1). Plaintiff denies that he made any

threats to the officers at the hospital. Plaintiff also states—and Officer Hathaway concedes—that

Officer Hathaway did not include this final sentence in his original police report, but later added

this sentence allegedly at the request of the prosecuting attorney.12 See Compiled Statement of

Facts ¶ 24; Cousins Dep. 79:10–12 (Ex. 7 to Pl.’s Opp’n).

The Court finds that there is a genuine issue as to whether Plaintiff threatened Officer

Hathaway and his family. The Court reaches this conclusion because the basis for probable

cause to arrest Plaintiff for assault is Officer Hathaway’s own, disputed account of Plaintiff’s

conduct. This is unlike the officers’ basis for probable cause to charge Plaintiff with disorderly

conduct, which was based on Ms. Howard’s (a third party’s) representations, and the officers did

not have any reason to believe Ms. Howard’s representations were untrustworthy.

In sum, it is for a jury to decide whether Officer Hathaway’s or Plaintiff’s conflicting

accounts of the facts is more credible. See, e.g., Dormu,

(D.D.C. 2011)

(recounting the officers’ and plaintiff’s competing version of their encounter, and, viewing the

evidence in the light most favorable to the plaintiff, concluding that “no reasonable officer could

12 The final sentence appears to have been written in pencil, whereas as the rest of the report appears to be in typed font. Ex. C to Defs.’ Mot. Summ. J. (Dkt. No. 19-1).

21 believe that probable cause existed” to arrest); see also Jocks v. Tavernier,

(2d. Cir. 2003) (“On [the plaintiff’s] version of the facts . . . a jury could . . . find that the arrest

lacked probable cause.”); see generally Nichols v. Woodward & Lothrop, Inc.,

,

285 n.1 (D.C. 1974) (“Where the facts are in dispute, the issue of probable cause . . . is for the

jury.”). The Court therefore denies Defendants’ motion for summary judgment as to Plaintiff’s

malicious prosecution claim based on the threat charge.

iv. Assaulting, Resisting or Interfering with a Police Officer

As is the case with the threat charge, the facts providing probable cause to bring a charge

for assaulting, resisting or interfering with a police officer consists solely of Officer Hathaway’s

disputed account of his interactions with Plaintiff. Plaintiff contends that he did not resist arrest

or assault either officer. Cousins Dep. 71:4–22, 77:2–13, 79:13–16. Accordingly, the Court

denies Defendants’ motion for summary judgment as to Plaintiff’s malicious prosecution claim

based on assaulting, resisting or interfering with a police officer charge.

v. Officer Williams — Malicious Prosecution

Finally, Defendants contend that even if the Court concludes that they lacked probable

cause to defeat Plaintiff’s malicious prosecution claim, Officer Williams is entitled to summary

judgment on this claim because she did not have any involvement in bringing charges against

Plaintiff. Defs.’ Mot. Summ. J. at 6 (“Officer Hathaway, along with the US Attorney’s Office

instituted criminal proceedings against Plaintiff and not Defendant Williams.”). Defendants rely

on Pitt,

, in support of their argument. Their argument is unpersuasive.

Officer Williams testified in the July 21, 2011 hearing in D.C. Superior Court on the

charges brought against Plaintiff. See Ex. I to Defs.’ Reply (Dkt. No. 24-1). She was thus

involved and facilitated the prosecution against Plaintiff. Her involvement in the proceedings

22 against Plaintiff exposes her to liability on the malicious prosecution claim to the same extent as

Officer Hathaway. Amobi,

(“ ‘[A]ppearing in court and testifying and

keeping the prosecution alive’ creates a genuine issue of dispute as to whether a defendant

continued a malicious prosecution.” (quoting Viner v. Friedman,

(D.C.

1943))); 52 AM. JUR. 2d § 21, at 208 (“A person who had no part in the commencement of the

action, but who participated in it at a later time, may be held liable for malicious prosecution.”).

D. Defamation

A cause of action for defamation has four elements: “(1) that the defendant made a false

and defamatory statement concerning the plaintiff; (2) that the defendant published the statement

without privilege to a third party; (3) that the defendant’s fault in publishing the statement

amounted to at least negligence; and (4) either that the statement was actionable as a matter of

law irrespective of special harm or that its publication caused the plaintiff special harm.”

Oparaugo v. Watts,

(D.C. 2005) (citation and internal quotation marks omitted).

Defamatory statements made under a qualified privilege are not actionable, however, unless the

plaintiff shows that there was excessive publication or express malice. See Jackson, 541 F. Supp.

2d at 344 (citing Smith v. District of Columbia,

(1979)). To qualify for the

privilege, “the communication must be made in good faith upon a subject matter in which the

party communicating or the party receiving the communication has a legitimate interest.”

(citing Smith,

).

Plaintiff avers generally that the statements “in the warrant instituted by Defendants, and

subsequent false testimony, were defamatory statements.” Pl.’s Compl. ¶ 29. Other than these

general suppositions, however, Plaintiff has not directed the Court’s attention to any specific

statements that Plaintiff contends are defamatory. In opposing summary judgment, Plaintiff has

23 an obligation to come forward with specific evidence establishing a genuine dispute of material

fact, and this sort of conclusory briefing falls short of this obligation. See Ben-Kotel v. Howard

University,

(D.C. Cir. 2003). Nor has the Plaintiff attempted to show that

there was excessive publication or express malice. Accordingly, the Court grants summary

judgment to Defendants on the defamation claim.

E. Defendants’ Motion in Limine

Defendants filed a motion in limine to exclude as hearsay Judge Mize’s findings of facts

from the related proceedings in D.C. Superior Court. Defs.’ Mot. in Limine (Dkt. No. 25). This

motion was premature, and thus the Court denies it without prejudice. The typical course of

action is for parties to file—and the court to rule on—motions in limine after the court rules on

motions for summary judgment, usually for the obvious reason that the resolution of the motion

for summary judgment may dispose of the entire case, thus making trial unnecessary. Although

the Court’s opinion does not dispose of the entire case, dismissing the motion without prejudice

will provide Defendants the opportunity to reformulate their motion in light of this ruling, if they

so choose. To the extent that Defendants sought to exclude Judge Mize’s factual findings from

consideration on the motion for summary judgment, the motion in limine is denied as moot

because the Court had no need to consider those findings in ruling on summary judgment.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED IN

PART and DENIED IN PART. The Court denies summary judgment to Defendant Hathaway

on Plaintiff’s assault and battery claim; it grants summary judgment to Defendant Williams on

Plaintiff’s assault and battery claim; it grants summary judgment to both Defendants on

Plaintiff’s false arrest claim; it denies summary judgment to both Defendants on Plaintiff’s

malicious prosecution claim based on unlawful entry onto property, threats against a police 24 officer, and assaulting, resisting or interfering with a police officer; it grants summary judgment

to both Defendants on the malicious prosecution claim based on disorderly conduct; and it grants

summary judgment to both Defendants on the defamation claim.

SO ORDERED. Digitally signed by Judge Robert L. Wilkins DN: cn=Judge Robert L. Wilkins, o=U.S. District Court, ou=Chambers of Honorable Robert L. Wilkins, [email protected], c=US Date: August 15, 2014 Date: 2014.08.15 15:59:35 -04'00'

ROBERT L. WILKINS United States Circuit Judge (Sitting by designation in the United States District Court for the District of Columbia)

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