UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________ ) DAVID WOOD, ) ) Plaintiff, ) ) v. ) Civil Action No. 14-2066 (EGS) ) DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) ________________________________)

MEMORANDUM OPINION

David Wood brings this action against the District of

Columbia and Metropolitan Police Department officers Charles

Kiel, Charandip Sekhon, Andrew Smith, Michael Rodd, Jonathan

Rosnick, Daniel Chodak, Jason Bagshaw, and Alicia Carter. His

claims arise from an altercation he had with several of the

defendant officers that occurred in the front yard of his home

the evening of October 27, 2013 and from his subsequent

prosecution on charges of assault on a police officer (“APO”).

His complaint alleges various common law tort claims, including

assault, false arrest, abuse of process, malicious prosecution,

and negligent training and supervision, and that the officers

violated federal law under

when they falsely

arrested him, used excessive force against him, maliciously

prosecuted him, and prosecuted him based on false evidence.

Pending before the Court is defendants’ motion for summary

1 judgment. Upon review of defendants’ motion, the response and

reply thereto, the parties’ supplemental filings, the applicable

law, and the entire record, defendants’ motion for summary

judgment is GRANTED IN PART and DENIED IN PART.

I. Background

A. Factual Background

Around 8:00 p.m. on the evening of October 27, 2013,

Officers Charles Kiel, Andrew Smith, Charandip Sekhon, Michael

Rodd, and Jonathan Rosnick were in a 7-Eleven convenience store

on South Dakota Avenue in Northeast Washington, D.C. when a

woman entered the store and alerted them that a taxi cab driver

was being assaulted and robbed on nearby Jamaica Street. Defs.’

Statement of Material Facts (“Defs.’ SMF”), ECF No. 43 ¶ 1;

Deposition of Charles Kiel (“Kiel Dep.”), ECF No. 43-4 at 8:14-

18; Deposition of Charandip Sekhon (“Sekhon Dep.”), ECF No. 43-7

at 10:1-8; Deposition of David Wood (“Wood Dep.”), ECF No. 43-9

at 22:7-9. The officers immediately reported to Jamaica Street,

saw a taxi cab parked in the road with its door open, and then

saw a person——whose face was bloodied——on the street calling for

help. Defs.’ SMF, ECF No. 43 ¶¶ 2, 10. That person was the cab’s

driver, Minwiylte Gebyehu, who had been attacked and robbed by

his passenger and a second assailant who entered the cab on

Jamaica Street after the passenger had instructed Mr. Gebyehu to

2 stop the cab on that street.

; Gebyehu Aff., ECF No. 45-

8 at 1-2.

Mr. Gebyehu communicated to the officers that two persons

had attacked him. Kiel Dep., ECF No. 43-4 at 12:6-8. But the

record is not clear as to what exactly Mr. Gebyehu communicated

to the officers regarding where the two assailants fled.

According to the officers, Mr. Gebyehu, when asked where his

assailants fled, pointed to a specific house located at 1214

Jamaica Street——the house in which Mr. Wood lived with his

mother and from which he was soon to emerge. Kiel Dep., ECF No.

43-4 at 11:1-3, 12:6-8; Deposition of Michael Rodd (“Rodd

Dep.”), ECF No. 43-5 at 11:2-4; Deposition of Jonathan Rosnick

(“Rosnick Dep.”), ECF No. 43-6 at 13:1-3, 15:10-12; Sekhon Dep.,

ECF No. 43-7 at 12:11-17; Deposition of Andrew Smith (“Smith

Dep.”), ECF No. 43-8 at 13:17-22. Additionally, in an affidavit

provided to the Court by Mr. Wood, Mr. Gebyehu affirmed that he

showed the officers who arrived on the scene the house that his

assailant-passenger had indicated was his house on Jamaica

Street. Gebyehu Aff., ECF No. 45-8 at 3. But Mr. Gebyehu’s

testimony from Mr. Wood’s criminal trial is in tension with this

evidence. At one point during his testimony, Mr. Gebyehu said

that he did not see where his assailants fled and that he told

the officers as much when they asked him where his assailants

had gone. Aug. 1, 2014 Criminal Trial Tr., ECF No. 45-3 at 19:2-

3 10. However, at another point during his testimony, Mr. Gebyehu

seems to have said that he did point out a specific house to the

officers: the house in front of which he had parked his cab.

. Mr. Wood contends that if Mr. Gebyehu did identify a

specific house for the officers, the house identified could not

have been his at 1214 Jamaica Street, as the cab was not parked

in front of his house. Pl.’s Opp. to Defs.’ Mot. for Summ. J.

(“Pl.’s Opp.”), ECF No. 45 at 10 n.2. The officers’ testimony as

to the location of the cab in relation to 1214 Jamaica Street is

inconsistent. Compare Kiel Dep., ECF No. 43-4 at 11:12-14 (“Q:

Where was his cab in relation to the [1214 Jamaica Street]

house? A: About two to three doors down, closer to Eastern

Avenue.”), with Rosnick Dep., ECF No. 43-6 at 14:21-15:6 (“Q: So

how did it come about that you were almost in front of the [1214

Jamaica Street] home? A: We were, again, we were walking from

Eastern back towards the scene of the event where the cab was. .

. . And [Mr. Gebyehu] had indicated that the two men that had

assaulted him had ran into that home, and pointed towards it.”).

Whatever directional information Mr. Gebyehu actually

conveyed to the officers, Officers Kiel, Sekhon, and Smith ended

up walking towards Mr. Wood’s house at 1214 Jamaica Street,

while Officers Rodd and Rosnick remained in the street with Mr.

Gebyehu. Defs.’ SMF, ECF No. 43 ¶ 4; Rosnick Dep., ECF No. 43-6

at 19:6-8, 22:16-18. Inside the living room of the house, Mr.

4 Wood, who had “had a few drinks,” Wood Dep., ECF No. 43-9 at

22:2-3, was on the telephone when he saw a red streak reflect on

his television screen. Defs.’ SMF, ECF No. 43 ¶ 33; Wood Dep.,

ECF No. 43-9 at 13:8-10. Thinking that the flashing red light

could have been from an emergency vehicle arriving for a beloved

elderly neighbor, Mr. Wood——after jumping up and unsuccessfully

attempting to reach his neighbor by telephone——exited the house,

heading to his neighbor’s house to check on her. Wood Dep., ECF

No. 43-9 at 17:1-3, 19:8-9, 20:7-22; Pl.’s Answers to Defs.’

Interrogs., ECF No. 45-10 at 9.

When Mr. Wood exited his house he was clad in just his

underwear and a tee shirt and was “worried” and “panicking.”

Defs.’ SMF, ECF No. 43 ¶ 15; Wood Dep., ECF No. 43-9 at 13:18-

14:1, 19:4-6; Sekhon Dep, ECF No. 43-7 at 18:5. Officer Rosnick

observed that Mr. Wood had “an agitated character and

expression,” Rosnick Dep., ECF No. 43-6 at 25:6-7, and Officer

Kiel observed that Mr. Wood “had a very confused something-was-

wrong-with-him look in his eyes” and “appeared to be under the

influence of some kind of substance.” Defs.’ SMF, ECF No. 43 ¶

17; Kiel Dep., ECF No. 43-4 at 15:7-8, 17:18-19. Officer Kiel

identified himself as a police officer and told Mr. Wood that he

needed to stop and speak with the officers in view of the

assault and robbery that had just occurred nearby, Kiel Dep.,

ECF No. 43-4 at 15:16-20, 16:20-17:10; Sekhon Dep., ECF No. 43-7

5 at 18:14-19:8; Smith Dep., ECF No. 43-8 at 19:10-20, but,

according to the officers, Mr. Wood refused to stop and speak

with them. Kiel Dep., ECF No. 43-4 at 17:3-4, 18:15; Sekhon

Dep., ECF No. 43-7 at 25:7-26:18; Smith Dep., ECF No. 43-8 at

19:16-20:4. Mr. Wood maintains that at this point——prior to

Officer Kiel grabbing him and handcuffing one of his arms——he

was unaware of any police presence. Wood Dep., ECF No. 43-9 at

17:10-17, 21:1-22:1.

Officer Kiel told Mr. Wood that he would have to handcuff

him and proceeded to grab and handcuff one of Mr. Wood’s arms.

Kiel Dep., ECF No. 43-4 at 18:15-18, 20:7-8; Rosnick Dep., ECF

No. 43-6 at 26:17-18; Sekhon Dep., ECF No. 43-7 at 27:3-22;

Smith Dep., ECF No. 43-8 at 20:6-7. Now aware of the officers’

presence, Wood Dep., ECF No. 43-9 at 17:10-15, Mr. Wood contends

that, upon being grabbed, he told Officer Kiel to “stop” and

raised his hand to Officer Kiel to indicate that he should stop

grabbing him. Wood Dep., ECF No. 43-9 at 17:1-7, 22:18-24:5.

According to the officers, Mr. Wood did not merely raise his

hand to indicate that they should “stop”; rather, he swung at

Officer Kiel right after Officer Kiel had secured one of his

arms in handcuffs. Kiel Dep., ECF No. 43-4 at 21:7-10; Rosnick

Dep., ECF No. 43-6 at 31:2-5; Sekhon Dep., ECF No. 43-7 at 31:7-

22; Smith Dep., ECF No. 43-8 at 24:19-21.

6 Whether Mr. Wood merely raised his hand at Officer Kiel or

swung at him, at about the same time or immediately after

Officer Sekhon commanded Mr. Wood, “On the ground,

motherfucker,” to which Mr. Wood responded by telling Officer

Sekhon, “Don’t try it, Junior.” Wood Dep., ECF No. 43-9 at

22:21-23:4. Telling Mr. Wood not to call him “Junior,” Officer

Sekhon then “ram[med] himself into [Mr. Wood],” tackling Mr.

Wood with the help of Officers Kiel and Smith.

. A melee ensued during which the officers punched,

pulled, stepped on, and kicked Mr. Wood.

, 23:5-

10, 25:8-26:7; Sekhon Dep., ECF No. 43-7 at 42:1-22; Smith Dep.,

ECF No. 43-8 at 28:15-29:21. Soon after the struggle began,

Officers Rodd and Rosnick ran over to assist the three other

officers. Rosnick Dep., ECF No. 43-6 at 33:11-14. Officer Rodd

was able to grab ahold of Mr. Wood’s free arm and pull it behind

his back so that it could be handcuffed. Defs.’ SMF, ECF No. 43

¶ 9; Rodd Dep., ECF No. 43-5 at 33:14-34:1. Although Mr. Wood

insists that he “[c]ouldn’t struggle” because of the handcuffs,

Wood Dep., ECF No. 43-9 at 27:1-2, he concedes that during the

melee he was hitting the officers while they were hitting him.

Wood Dep., ECF No. 43-9 at 26:10-16 (“Q: And while they were

hitting you, where were your hands? A: Well, I was hitting——they

were hitting me at one point, my hands were in front of me. They

put them behind me. They grabbed them, they’re pulling it, they

7 yanked and pulled and then put them in handcuffs.”). After Mr.

Wood was handcuffed and subdued, he contends that the officers

continued to punch, kick, and step on him.

(“I was

handcuffed and I remember one of the officers just punching me

and punching me.”), 23:13-15 (“[W]hen I was on the ground they

had me in handcuffs and still were still stepping on me,

punching me.”). The officers maintain that any use of force

ceased once Mr. Wood was fully handcuffed. Kiel Dep., ECF No.

43-4 at 35:10-15 (“A: At some point we were able to handcuff

him. Yes. Q: And then what happened? A: We all immediately got

off of him, assessed what the rest of the situation, and carried

on with the investigation.”).

Officer Daniel Chodak arrived on the scene after the melee

was in progress but stayed on the street with Mr. Gebyehu

throughout its duration. Defs.’ SMF, ECF No. 43 ¶¶ 24-26. During

a subsequent show-up procedure that occurred after Sergeants

Jason Bagshaw and Alicia Carter arrived on the scene, Mr.

Gebyehu did not identify Mr. Wood as one of his assailants.

; Deposition of Jason Bagshaw, ECF No. 43-1 at 15:1-3.

Mr. Wood was then transported from the scene to a police station

house and eventually taken to a hospital to receive medical

attention for atrial fibrillation, an accelerated heart rate,

post-concussive syndrome, and injuries to his head and shoulder.

Defs.’ SMF, ECF No. 43 ¶ 39; Pl.’s Opp., ECF No. 45 at 4.

8 B. Procedural Background

Mr. Wood was subsequently charged with misdemeanor APO but,

following a bench trial on July 31 and August 1, 2014 in the

Superior Court of the District of Columbia, was found not

guilty. Defs.’ SMF, ECF No. 43 ¶ 40; Criminal Trial Docket

Sheet, ECF No. 45-9. On October 24, 2014, Mr. Wood commenced

this lawsuit in the Superior Court alleging: (1) common law

assault against all defendants (Counts I and II); (2) common law

false arrest against all defendants (Counts III and IV); (3)

common law abuse of process against all defendants (Counts V and

VI); (4) common law malicious prosecution against all defendants

(Counts VII and VIII); (5) excessive force in violation of the

Fourth Amendment, pursuant to

, against all

individual officers (Count IX); (6) false arrest in violation of

the Fourth Amendment, pursuant to

, against all

individual officers (Count X); (7) prosecution based on false

evidence in violation of unspecified civil rights, pursuant to

, against all individual officers (Count XI);

(8) malicious prosecution in violation of the Fourth and Fifth

Amendments, pursuant to

, against all individual

officers (Count XII); and (9) negligent training and supervision

against the District of Columbia (Count XIII). See Compl., ECF

No. 19-1 ¶¶ 39-87.

9 Defendants removed the case to this Court on December 5,

2014. See Joint Notice of Removal, ECF No. 1. The Court

partially granted Officer Chodak’s motion to dismiss, dismissing

Counts I, V, IX, and XI as to him. Order, ECF No. 27. On

December 23, 2015, defendants filed the motion for summary

judgment that is presently before the Court. See Defs.’ Mot. for

Summ. J., ECF No. 43. In his brief in opposition, Mr. Wood

expressly abandons and requests the Court to dismiss the

following claims: all Counts as to Officers Bagshaw and Carter,

and Counts V, VI, XI, and XIII in full. Pl.’s Opp., ECF No. 45

at 1 n.1. The Court thus grants defendants’ motion as to those

abandoned claims and has considered the parties’ summary

judgment arguments as they pertain to the remaining claims.

II. Legal Standards

A. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

Waterhouse v. District of Columbia,

(D.C. Cir.

2002). The moving party must identify “those portions of the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which

it believes demonstrate the absence of a genuine issue of

10 material fact.” Celotex Corp. v. Catrett,

(1986) (internal quotation marks omitted). To defeat summary

judgment, the nonmoving party must demonstrate that there is a

genuine issue of material fact.

. A material fact is

one that is capable of affecting the outcome of the litigation.

Anderson v. Liberty Lobby, Inc.,

(1986). A

genuine dispute is one where “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Further, in the summary judgment analysis “[t]he evidence of

the non-movant is to be believed, and all justifiable inferences

are to be drawn in his favor.”

.

B. Qualified Immunity

Section 1983 provides a private cause of action against

persons acting under color of District of Columbia law who

deprive another of his or her federal constitutional or

statutory rights.

. However, the doctrine of

qualified immunity “exists to protect officers ‘from undue

interference with their duties and from potentially disabling

threats of liability.’” Lash v. Lemke,

(D.C. Cir.

2015) (quoting Harlow v. Fitzgerald,

(1982)).

“In resolving questions of qualified immunity at summary

judgment, courts engage in a two-pronged inquiry.” Tolan v.

Cotton,

(2014). The first prong asks

“whether the facts, [t]aken in the light most favorable to the

11 party asserting the injury, . . . show the officer’s conduct

violated a [federal] right[.]”

(internal quotation marks

omitted). The second asks “whether the right in question was

‘clearly established’ at the time of the violation.”

at 1866

(citing Hope v. Pelzer,

(2002)). “To be

clearly established, the precedent must give officials clear

warning of unconstitutional conduct.” Doe v. District of

Columbia,

(D.C. Cir. 2015) (internal quotation

marks omitted). “In determining whether officers strayed beyond

clearly established bounds of lawfulness, [this Court] look[s]

to cases from the Supreme Court and [the D.C. Circuit], as well

as to cases from other courts exhibiting a consensus view.”

Johnson v. District of Columbia,

(D.C. Cir.

2008). Although courts have discretion to decide the order in

which to engage the two prongs of the qualified immunity

analysis, Tolan,

(citing Pearson v. Callahan,

(2009)), under either prong “courts may not

resolve genuine disputes of fact in favor of the party seeking

summary judgment.”

III. Analysis

Mr. Wood’s remaining claims arise under § 1983 and several

common law torts. Under § 1983, he claims the officers violated

his constitutional rights by falsely arresting him, maliciously

prosecuting him, and using excessive force against him. See

12 Compl., ECF No. 19-1 ¶¶ 67-76, 80-83. His tort claims are false

arrest, malicious prosecution, and assault. Id. ¶¶ 39-54, 61-66.

The Court will address these claims below.

A. § 1983: False Arrest and Malicious Prosecution

Mr. Wood contends that there was no reasonable, articulable

suspicion to permit the officers to initially stop him, Pl.’s

Opp., ECF No. 45 at 10-11 & n.2, and that the probable cause

required for an arrest never materialized during his interaction

with the officers. Id. at 10-13. Accordingly, he argues that the

officers falsely arrested him in violation of his Fourth

Amendment rights. Id. at 12-13. Defendants counter that the

totality of the circumstances gave rise to the reasonable

suspicion required for an initial investigatory stop, Defs.’

Reply, ECF No. 48 at 2-4, and that, based on Mr. Wood’s

resistant conduct during that lawful stop, they had probable

cause to arrest him for APO or, in the alternative, they are

shielded by qualified immunity because it was not unreasonable

for them to believe that they had probable cause to arrest him

for APO. Defs.’ Mem. in Supp. of Mot. for Summ. J. (“Defs.’ Mem.

Supp.”), ECF No. 43 at 26-28; id. at 4.

As a preliminary matter, the Court concludes that, when

considering only the facts not in dispute and when drawing all

reasonable inferences in Mr. Wood’s favor, the officers had the

reasonable, articulable suspicion required to permissibly

13 effectuate an investigatory stop of Mr. Wood.1 Defendants do not

dispute that Mr. Wood was “seized” for Fourth Amendment purposes

when Officer Kiel grabbed one of his arms and handcuffed it. See

Terry v. Ohio,

, 19 n.16 (1968) (“Only when the

officer, by means of physical force or show of authority, has in

some way restrained the liberty of a citizen may we conclude

that a ‘seizure’ has occurred.”). The inquiry then becomes

whether that initial stop was constitutionally justified.

Officers are permitted to conduct a warrantless investigatory——

or “Terry”——stop “so long as they have ‘reasonable, articulable

suspicion’ of criminal conduct.” United States v. Goddard,

(D.C. Cir. 2007) (citing Illinois v. Wardlow, 528

1 Mr. Wood does not assert a stand-alone § 1983 Fourth Amendment claim of an unlawful seizure arising from the initial stop, see generally Compl., ECF No. 19-1, and instead limits his § 1983 claims to those of false arrest, malicious prosecution, and excessive force. See id. ¶¶ 67-76, 80-83. Even so, “[a] court may deny a motion to dismiss or for summary judgment on the basis of a legal theory never embraced by the plaintiff, as long as that theory is supported by the facts alleged and as long as the defendant is not prejudiced on the merits.” Hanson v. Hoffmann,

, 53 n.11 (D.C. Cir. 1980) (internal citations omitted). Here, denying summary judgment as to an unlawful seizure claim based on the initial investigatory stop would not prejudice the officers because they have not been taken by surprise; in their briefing, they addressed the legality of the initial stop, in addition to addressing the other claims that Mr. Wood has explicitly articulated. See Defs.’ Reply, ECF No. 48 at 2-4 (arguing that the officers had the reasonable, articulable suspicion required for an investigatory stop). For this reason, and because analysis of the false arrest claim benefits from a preliminary analysis of the initial investigatory stop, the Court scrutinizes the propriety of the initial stop.

(2000)). This determination depends on an

assessment of the totality of the circumstances “as viewed

through the eyes of a reasonable and cautious police officer on

the scene, guided by his experience and training.” United States

v. Bailey,

(D.C. Cir. 2010) (internal quotation

marks omitted). In this totality of the circumstances analysis,

“factors individually susceptible to an innocent explanation may

suffice[ ] to form a particularized and objective basis when

taken together.” United States v. Castle,

(D.C. Cir. 2016) (internal quotation marks omitted). Further, a

Terry stop only requires that “officers have a ‘minimal level of

objective justification.’” Goddard,

(quoting INS

v. Delgado,

(1984)).

Here, there is a factual dispute as to whether Mr. Gebyehu

told the officers that his assailants fled to Mr. Wood’s house;

told them that they fled to a different house on Jamaica Street;

or told them nothing regarding the whereabouts of his

assailants. Compare Aug. 1, 2014 Criminal Trial Tr., ECF No. 45-

3 at 19:2-10, with Kiel Dep., ECF No. 43-4 at 11:1-3. Even so,

there is no dispute that a violent crime had occurred on Jamaica

Street in the immediate vicinity of the home from which Mr. Wood

emerged, Defs.’ SMF, ECF No. 43 ¶¶ 1-2; that the crime was

perpetrated by two persons, Kiel Dep., ECF No. 43-4 at 12:6-8;

that the altercation between Mr. Wood and the officers occurred

15 at night, Wood Dep., ECF No. 43-9 at 22:7-9 (“Q: And about what

time did this all occur? A: I would say around, say, 8:00.”);

that Mr. Wood was “panicking” and “worried” when he exited his

house to check on his neighbor after seeing a flashing red light

from his living room, Wood Dep., ECF No. 43-9 at 13:8-14:2; and

that Officer Kiel——the officer who initiated the investigatory

stop——noted that Mr. Wood, clad in only underwear and a tee

shirt, “appeared to be under the influence of some kind of

substance” and “had a very confused something-was-wrong-with-him

look in his eyes.” Kiel Dep., ECF No. 43-4 at 15:7-10, 17:18-19.

The Court concludes that the undisputed facts are

sufficient to sustain a finding of reasonable, articulable

suspicion here because “[a]lthough an officer does not have

articulable suspicion a person is committing a crime merely

because a person is in an area of suspected criminal activity,

‘officers are not required to ignore the relevant

characteristics of a location in determining whether the

circumstances are sufficiently suspicious to warrant further

investigation.’” Bailey,

-6 (quoting Wardlow, 528

U.S. at 124). Thus “[a]n officer may initiate a Terry stop based

not on certainty but on the need ‘to ‘check out’ a reasonable

suspicion.’” Id. at 6 (quoting United States v. Clark,

(D.C. Cir. 1994)). The scenario that confronted Officer

Kiel and his fellow officers is a quintessential example of one

16 where it was necessary to at least “check out” Mr. Wood to

dispel their suspicion that he was connected to the crime that

they were responding to. When Mr. Wood emerged from his house in

the immediate vicinity of the crime that had been committed, the

officers were searching for two suspects, and the officers’

observation of Mr. Wood’s strange conduct and appearance——

consistent with his own description that he was “worried” and

was “panicking” when he emerged from his house, Wood Dep., ECF

No. 43-9 at 13:8-14:2——was enough to permit them to effectuate

an investigatory stop to dispel their suspicion. See United

States v. Brown,

(D.C. Cir. 2003)

(holding that there was reasonable suspicion for an

investigatory stop of persons in a car in a high crime area when

the car was only one of two occupied cars in a parking lot where

gunshots had recently been fired, a person that exited the car

engaged in “peculiar” behavior, and the persons remaining in the

car engaged in “furtive movements”). Although Officer Kiel and

his fellow officers only barely passed the reasonable suspicion

threshold, based on Mr. Wood’s panicked demeanor in the

immediate vicinity of a violent crime they had the “‘minimal

level of objective justification’” needed to effectuate an

investigatory stop. See Goddard,

(quoting

Delgado,

). Certainly Mr. Wood’s conduct was

“‘ambiguous and susceptible of an innocent explanation,’” but

17 “‘Terry recognized that . . . officers could detain [such] [an]

individual[ ] to resolve the ambiguity.’” Brown,

(quoting Wardlow, 528 U.S. at 125-26).2

That the officers had the reasonable suspicion required to

effectuate an initial investigatory stop of course does not end

the Court’s inquiry, as at some point the investigatory stop

morphed into an arrest, and an arrest requires not mere

reasonable suspicion but rather probable cause. Martin v.

Malhoyt,

(D.C. Cir. 1987). “Probable cause

2 Although the Court concludes that there was reasonable suspicion justifying an investigatory stop, to the extent that there was not, defendants are still entitled to summary judgment on any claim of an unlawful seizure arising from the initial stop of Mr. Wood under the second prong of the qualified immunity analysis. That prong entitles defendants to immunity so long as the violation in question was not “clearly established.” Messerschmidt v. Millender,

(2012) (internal quotation marks omitted). “In determining whether officers strayed beyond clearly established bounds of lawfulness, [this Court] look[s] to cases from the Supreme Court and [the D.C. Circuit], as well as to cases from other courts exhibiting a consensus view.” Johnson,

. Mr. Wood fails to cite a single case from the Supreme Court or the D.C. Circuit that clearly establishes the absence of reasonable suspicion under factual circumstances generally similar to those that are undisputed in his case. See generally Pl.’s Opp., ECF No. 45. And though Mr. Wood does not cite to any out-of-Circuit cases relevant to this analysis, the Court’s own research indicates the absence of any consensus view. Compare United States v. Williams,

(9th Cir. 2001) (holding that there was no reasonable suspicion when the person stopped was in the vicinity of a crime scene and “looked nervously back at the crime scene”), with United States v. Broomfield,

(7th Cir. 2005) (explaining that there was reasonable suspicion when the person stopped matched a highly generalized description of the suspect and was less than a mile from the scene of a robbery when the streets were nearly deserted). 18 exists if a reasonable and prudent police officer would conclude

from the totality of the circumstances that a crime has been or

is being committed.” United States v. Holder,

(D.C. Cir. 1993). Like the reasonable suspicion inquiry,

the probable cause inquiry is an objective one that assesses

“the facts and circumstances known to the officers at the time

of the arrest without regard to the ‘actual motivations’ or

‘[s]ubjective intentions’ of the officers involved.” United

States v. Bookhardt,

(D.C. Cir. 2002) (quoting

Whren v. United States,

(1996)).

Mr. Wood maintains that the probable cause required for an

arrest was absent. Pl.’s Opp., ECF No. 45 at 12-13. Defendants

counter, as indicated above, that Mr. Wood’s Fourth Amendment

false arrest claim must fail because there was probable cause to

arrest him for APO or, in the alternative, because they had the

reasonable belief that they had probable cause to arrest him for

APO. Defs.’ Mem. Supp., ECF No. 43 at 26-28. Defendants’

fallback qualified immunity argument thus relies on the well-

settled rule that “law enforcement officials who reasonably but

mistakenly conclude that probable cause is present are entitled

to immunity.” Hunter v. Bryant,

(1991)

(internal quotation marks omitted).

The D.C. APO statute applicable here directs that anyone

who, “without justifiable and excusable cause, assaults,

19 resists, opposes, impedes, intimidates, or interferes with a law

enforcement officer on account of, or while that law enforcement

officer is engaged in the performance of his or her official

duties shall be guilty of a misdemeanor.”

(b).3

And even when an investigatory stop or arrest is unlawful, a

person does not have justifiable and excusable cause to use

force to resist that stop or arrest when he knows it is being

carried out by a law enforcement officer. See

§ 22-405(d).

To “constitute an offense under [the APO statute], a person’s

conduct must go beyond speech and mere passive resistance or

avoidance, and cross the line into active confrontation,

obstruction or other action directed against an officer’s

performance in the line of duty.” Howard v. United States,

(D.C. 2009) (quoting In re C.L.D.,

,

357 (D.C. 1999)). The “key is the active and oppositional nature

of the conduct for the purpose of thwarting a police officer in

his or her duties.” Id. (quoting C.L.D., 739 A.2d at 357).

Defendants argue that there was probable cause for an APO

arrest or that it was at least reasonable to conclude that such

3 The current version of D.C.’s APO statute——which became effective on June 30, 2016, well after the events in question here——reads as follows: “Whoever without justifiable and excusable cause assaults a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her official duties shall be guilty of a misdemeanor . . . .”

(b). 20 probable cause existed because they contend that: Mr. Wood was

walking away from the officers when they were approaching him on

his front lawn; when he was grabbed by Officer Kiel he told the

officers to “stop” and motioned at the officers to stop; he

said, “Don’t try it, Junior” when Officer Sekhon ordered that he

fall to the ground; and, in the ensuing melee, he was hitting

the officers at the same time that they were hitting him. Defs.’

Mem. Supp., ECF No. 43 at 27-28; Defs.’ Reply, ECF No. 48 at 4.

Under those circumstances, the defendants contend that they had

probable cause or a reasonable belief of probable cause for an

APO arrest. Defs.’ Mem. Supp., ECF No. 43 at 28. For his part,

Mr. Wood only contends that because there is a dispute of fact

as to whether Mr. Gebyehu directed the officers on the scene to

Mr. Wood’s house there was no probable cause for an arrest.

Pl.’s Opp., ECF No. 45 at 12-13.

The Court finds that the officers had probable cause for an

APO arrest, and thus they are entitled to summary judgment as to

Mr. Wood’s Fourth Amendment false arrest claim. There is no

dispute that when Officer Kiel initially grabbed Mr. Wood as

part of his investigatory stop Mr. Wood responded by saying

“stop” and by raising his hand to the officers in a motion

intended to emphasize that they should “stop” grabbing and

handcuffing him. Wood Dep., ECF No. 43-9 at 22:18-22 (“One

[officer] grabbed my arm, one tried to come at me. I said, stop,

21 you know.”), 23:16-24:5 (“Q: So you raised your hand at the

officer? A: Yeah. ‘Stop.’ You know. I don’t have——as many

medical injuries as I have, I’m not trying to get hurt

anymore.”). It is also undisputed that Mr. Wood then refused to

go to the ground when Officer Sekhon ordered him to do so.

(“I said, stop, you know. And then the other one .

. . he came up to me and said, ‘On the ground, motherfucker.’ I

then said, ‘Don’t try it, Junior.’ And he said, ‘Don’t call me

Junior.’ And then they all just grabbed me.”). Because probable

cause for an APO arrest requires an arrestee’s conduct to “go

beyond speech and mere passive resistance or avoidance, and

cross the line into active confrontation, obstruction or other

action directed against an officer’s performance in the line of

duty,” Howard,

(quoting C.L.D., 739 A.2d at

357), the Court is uncertain as to whether Mr. Wood’s refusal to

go to the ground during the course of the investigatory stop

when commanded to do so provides probable cause for an APO

arrest. Compare Howard,

(holding that a

defendant engaged in only passive resistance when she refused to

remove her hands from her pockets when an officer ordered her to

do so), and CLD, 739 A.2d at 357-58 (holding that a defendant

engaged in only passive resistance when he refused to provide

his name and walked away when an officer ordered him to state

his name and not walk away), with Cromartie v. District of

22 Columbia,

(D.C. Cir. 2012) (holding that

there was probable cause for an APO arrest when a plaintiff “was

belligerent, refused to obey instructions, and loudly cursed at

the officers”), and Hargraves v. District of Columbia,

(D.D.C. 2015) (holding that a plaintiff engaged

in active confrontation when he “refused to get down on the

ground as the officer commanded” and “refused to provide his

loose arm to be handcuffed” during the course of an

investigatory stop). Even so, when Officer Kiel initially

grabbed Mr. Wood and began to handcuff him, Mr. Wood’s raised

hand motion to emphasize that he wanted the officers to “stop”

was sufficiently “active confrontation” to give rise to probable

cause for an APO arrest. In In re J.S.,

(D.C. 2011),

the D.C. Court of Appeals held that J.S. “actively resisted”

officers’ attempts to handcuff him when, while lying on the

ground, he rolled his body from side to side and broke from an

officer’s grip by “swinging his arm forward.” 19 A.3d at 332.

The Court found that although J.S. did not assault the officers

by swinging at them and his arm movement was motivated by pain

rather than a specific intent to evade being handcuffed, that

conduct still crossed the line from passive resistance into

active confrontation. Id. at 331-33. Relying on its prior

precedent, the Court said that “resisting handcuffing

constitutes the type of active resistance directed against

23 police that is prohibited by the APO statute.” Id. at 331

(citing Coghill v. United States,

(D.C. 2009)). Here, there is a dispute as to whether Mr. Wood

swung at Officer Kiel, but there is no dispute that Mr. Wood at

least raised his hand to Officer Kiel to emphasize that he

should “stop” grabbing and handcuffing him. Mr. Wood’s sudden

hand movement in response to Officer Kiel’s attempt to grab and

handcuff him might be minimal resistance, but it is resistance

sufficiently analogous to J.S.’s “swinging his arm forward” to

sustain the conclusion that “active resistance directed against

police” had materialized, giving the officers probable cause to

arrest Mr. Wood for APO. See id. at 331-32.4 Accordingly, because

the officers had probable cause to arrest Mr. Wood for APO, they

are entitled to summary judgment as to his Fourth Amendment

false arrest claim under the first prong of the qualified

immunity analysis. And because the officers had probable cause

to arrest Mr. Wood for APO, his § 1983 malicious prosecution

claim also fails. See Pitt v. District of Columbia,

Because the Court concludes that probable cause for an APO arrest materialized when Mr. Wood told Officer Kiel to “stop” and raised his hand to Officer Kiel to emphasize his desire that he stop grabbing and handcuffing him, the Court has no need to assess whether there was independently probable cause for an APO arrest when Mr. Wood was exchanging blows with the officers in the ensuing melee. See Wood Dep., ECF No. 43-9 at 26:10-13 (“Q: And while they were hitting you, where were your hands? A: Well, I was hitting——they were hitting me at one point, my hands were in front of me.”). 24 494, 511 (D.C. Cir. 2007) (“We join the large majority of

circuits in holding that malicious prosecution is actionable

under

to the extent that the defendant’s

actions cause the plaintiff to be unreasonably ‘seized’ without

probable cause, in violation of the Fourth Amendment.”).

B. § 1983: Excessive Force

Mr. Wood also claims that excessive force was used against

him in violation of his Fourth Amendment rights during his

altercation with the officers on his front lawn. Pl.’s Opp., ECF

No. 45 at 6-10. Defendants argue that they did not use excessive

force or that they were not clearly on notice that the amount of

force that they used during the altercation was excessive.

Defs.’ Mem. Supp., ECF No. 43 at 21-25.

A claim of “excessive force in the course of making an

arrest, investigatory stop, or other ‘seizure’ of [one’s]

person” is “properly analyzed under the Fourth Amendment’s

‘objective reasonableness’ standard.” Graham v. Connor,

(1989). That reasonableness standard “requires a

careful balancing of the nature and quality of the intrusion on

the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.”

(internal quotation marks omitted). Accordingly, the

reasonableness analysis “requires careful attention to the facts

and circumstances of each particular case, including the

25 severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade

arrest by flight.”

Further, the objective reasonableness of

a particular use of force “must be judged from the perspective

of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.”

Thus, the “calculus of reasonableness

must embody allowance for the fact that police officers are

often forced to make split-second judgments——in circumstances

that are tense, uncertain, and rapidly evolving——about the

amount of force that is necessary in a particular situation.”

. “[A] defendant’s motion for summary judgment is

to be denied only when, viewing the facts in the record and all

reasonable inferences derived therefrom in the light most

favorable to the plaintiff, a reasonable jury could conclude

that the excessiveness of the force is so apparent that no

reasonable officer could have believed in the lawfulness of his

actions.” Wardlaw v. Pickett,

(D.C. Cir.

1993).

In their altercation with Mr. Wood, the officers used force

on four different occasions: first, when Officer Kiel initially

grabbed Mr. Wood and handcuffed one of his arms; second, when

Officers Sekhon, Kiel, and Smith tackled Mr. Wood to the ground;

third, when Officers Sekhon, Kiel, Smith, Rodd, and Rosnick

26 struggled to subdue Mr. Wood with punches and grabs while he was

“hitting” them in return; and fourth, when, according to Mr.

Wood, punches and kicks were leveled against him after he had

been fully handcuffed and subdued. Although the Court concludes

that the first three uses of force here did not involve

excessive force that was so apparent that no reasonable officer

could have believed in the lawfulness of his actions, the last

use of force——the alleged gratuitous, post-submission use of

force——did involve that degree of egregiously excessive force.

Accordingly, defendants are not entitled to summary judgment as

to this version of Mr. Wood’s excessive force claim.

First, it is undisputed that Officer Kiel grabbed and

handcuffed one of Mr. Wood’s arms as part of his investigatory

stop. Kiel Dep., ECF No. 43-4 at 20:5-8; Wood Dep., ECF No. 43-9

at 17:3-5. But the right to make an investigatory stop

“necessarily carries with it the right to use some degree of

physical coercion or threat thereof to effect it.” Graham,

. Officer Kiel’s grabbing and handcuffing of Mr.

Wood’s arm to effectuate the investigatory stop was not

excessive because the stop was justified based on Mr. Wood

appearing in the immediate vicinity of the scene of a violent

crime with a panicked appearance when the officers were

canvassing for the two perpetrators of the crime. See supra Part

III.A. Under those circumstances, it was reasonable for Officer

27 Kiel to restrain Mr. Wood’s arms by means of handcuffs until his

suspicions about him could be dispelled. See Cotton v. District

of Columbia,

(D.D.C. 2008) (holding

that an officer did not use excessive force when he pushed the

plaintiff to the ground and placed her in handcuffs during an

investigatory stop even though bystanders had already informed

the officer that the plaintiff’s knife-wielding assailant had

fled the scene). In any event, even if Officer Kiel’s initial

use of force was excessive, it was certainly not so excessive

that no reasonable officer in his position could have believed

it was lawful. See United States v. Dykes,

(D.C. Cir. 2005) (holding that officers did not use excessive

force when, during the course of an investigatory stop, they

tackled a suspect who was in full flight and then placed him in

handcuffs once they had brought him to the ground); Kyle v.

Bedlion,

(D.D.C. 2016) (holding that

it was not clearly established that an officer used excessive

force against a non-arrestee plaintiff when the officer shoved

the plaintiff into a hot barbeque grill, resulting in burns,

when the plaintiff had inserted herself between the officer and

a person that the officer was attempting to arrest).

Second, it is undisputed that, after Officer Kiel grabbed

and attempted to handcuff Mr. Wood, Mr. Wood raised his hand to

the officers and refused to obey Officer Sekhon’s command to

28 fall to the ground, and Officers Sekhon, Kiel, and Smith

responded by tackling him to the ground. Wood Dep., ECF No. 43-9

at 22:21-24:5. As explained above, when Mr. Wood raised his hand

to the officers when Officer Kiel was trying to handcuff him

pursuant to the investigatory stop, the officers had probable

cause to arrest Mr. Wood for APO. See supra Part III.A. Just as

officers are permitted a reasonable amount of force to carry out

an investigatory stop, they are permitted a reasonable amount of

force to make an arrest. Graham,

. But, in this

Circuit, the amount of force deemed reasonable in the context of

an arrest is markedly greater than the amount of force deemed

reasonable in the investigatory stop context. See, e.g.,

Cromartie,

(holding that “the ordinary

degree of physical coercion used by police officers to

effectuate an arrest” was used when arrestee was “slammed to the

ground, handcuffed, and forcibly kept on the ground by one or

both officers”) (emphasis added) (internal quotation marks

omitted); Oberwetter v. Hilliard,

(D.C.

Cir. 2011) (holding that an officer did not use excessive force

when he arrested a plaintiff who was dancing at the Jefferson

Memorial by “ripping apart her earbud, shoving her against a

pillar, and violently twisting her arm”); Wasserman v. Rodacker,

(D.C. Cir. 2009) (holding that an officer did

not use excessive force when she applied force to the arrestee’s

29 arm to secure compliance during the arrest because the

arrestee’s refusal to obey the officer’s order prior to the

arrest suggested that the arrestee might try to resist or

escape); Scott v. District of Columbia,

(D.C.

Cir. 1996) (holding that the degree of force used to make an

arrest was not so excessive that no reasonable officer could

have believed in the lawfulness of his actions when an officer

struck an arrestee, a second officer joined the first officer in

slamming the arrestee to the ground, and then five officers

dragged the arrestee to a police transport vehicle); Martin,

(holding that an officer did not use excessive force

when he grabbed an arrestee about the waist, threw him into the

driver’s seat of a car, and then slammed the door on his legs).

In view of the substantial amount of force the Circuit Court has

said officers can reasonably use to make an arrest, tackling Mr.

Wood after he raised his hand to the officers and refused to

obey a command to go to the ground is not excessive, let alone

so excessive that no reasonable officer could have believed that

use of force was lawful.

Third, it is undisputed that, after Mr. Wood was brought to

the ground, in an attempt to handcuff Mr. Wood the five officers

involved in the melee punched, grabbed, and pulled Mr. Wood and

he, in turn, was “hitting” them. Sekhon Dep., ECF No. 43-7 at

42:1-22; Smith Dep., ECF No. 43-8 at 28:15-29:21; Rodd Dep., ECF

30 No. 43-5 at 33:14-34:1; Wood Dep., ECF No. 43-9 at 26:10-21.

Drawing all reasonable inferences in Mr. Wood’s favor, the Court

assumes that Mr. Wood did not start “hitting” until after the

officers began to hit him. Even so, the Court concludes that the

officers’ use of force prior to the moment Mr. Wood was secured

in handcuffs was not so excessive that no reasonable officer

could have believed that use of force was lawful. As explained

above, the Circuit Court has repeatedly said that even severe

force is not clearly excessive in the arrest context,

particularly when an arrestee has already refused to obey an

order, as was the case here. See Oberwetter,

(explaining that the plaintiff’s refusal to stop dancing and

leave the Jefferson Memorial when ordered to do so was a primary

factor permitting the arresting officer “to take decisive action

to subdue [the plaintiff] quickly and forcefully, thereby

reducing the risk of interference or escape”); see also

Cromartie,

(holding that it was not

excessive for officers to slam arrestee to the ground, handcuff

him, and forcibly keep him on the ground, “especially in light

of the fact that [the arrestee’s] belligerence and disobedience

suggested he might try to resist or escape”).

Fourth, Mr. Wood alleges that, after he was completely

handcuffed and had submitted to their authority, the officers

continued to punch, kick, and step on him. Wood Dep., ECF No.

31 43-9 at 15:4-6 (“I was handcuffed and I remember one of the

officers just punching me and punching me.”), 23:13-15 (“[W]hen

I was on the ground they had me in handcuffs and still were

stepping on me, punching me.”). The officers, on the other hand,

contend that any use of force ceased once Mr. Wood was

handcuffed. Kiel Dep., ECF No. 43-4 at 35:10-15 (“A: At some

point we were able to handcuff him. Yes. Q: And then what

happened? A: We all immediately got off of him, assessed what

the rest of the situation, and carried on with the

investigation.”). It is clearly established that punching,

kicking, and stepping on a handcuffed and submissive arrestee is

excessive force. See Johnson,

(holding that an

officer who kicked a prone and submissive arrestee in the groin

had used excessive force); Arrington v. United States,

(D.C. Cir. 2006) (holding, in a case where a suspect

was punched, beaten with a baton, pistol-whipped, and attacked

by a police dog, that such violence “was more force than was

reasonably necessary” if the suspect had already been disarmed

and handcuffed). Summary judgment here would be premature

because there exists a genuine issue of material fact, namely,

whether any of the five officers involved in the stop, arrest,

and ensuing melee punched, kicked, or stepped on Mr. Wood after

he had been completely handcuffed and had fully submitted to

their authority by ceasing his own “hitting.” Because resolution

32 of this dispute must be left to a fact-finder at trial,

defendants are not entitled to summary judgment as to this

version of Mr. Wood’s excessive force claim. See Saucier v.

Katz,

, 216 (2001) (Ginsburg, J., concurring in the

judgment) (“Of course, if an excessive force claim turns on

which of two conflicting stories best captures what happened on

the street, Graham will not permit summary judgment in favor of

the defendant official.”).

C. Common Law Claims

“The elements of a constitutional claim for false arrest

are substantially identical to the elements of a common-law

false arrest claim,” Scott,

, and, thus,

“[c]onstitutional and common law claims of false arrest are

generally analyzed as though they comprise a single cause of

action.” Amobi v. District of Columbia Dep’t of Corr.,

(D.C. Cir. 2014). Accordingly, if the probable cause

exists that negates a Fourth Amendment false arrest claim, that

same probable cause negates a common law false arrest claim. See

District of Columbia v. Minor,

(D.C. 1999)

(explaining that insufficiency of the evidence as to a Fourth

Amendment false arrest claim “will effectively negate the

common-laws false arrest claim”); see also Smith v. United

States,

(D.D.C. 2015) (“Under District

of Columbia law, the existence of probable cause is an

33 affirmative defense that can be raised in response to an

accusation of false arrest.”), aff’d,

(D.C. Cir.

2016). As explained above, the officers had probable cause to

arrest Mr. Wood for APO. See supra Part III.A. That probable

cause that entitles defendants to summary judgment as to Mr.

Wood’s constitutional false arrest claim likewise entitles

defendants to summary judgment as to Mr. Wood’s common law false

arrest claim. And because there was probable cause for the

arrest, defendants are also entitled to summary judgment as to

Mr. Wood’s common law malicious prosecution claim. See DeWitt v.

District of Columbia,

(D.C. 2012) (“The

existence of probable cause will likewise defeat a claim for

malicious prosecution . . . .”) (internal quotation marks

omitted); see also Amobi,

(“We think our

discussion of probable cause for the false arrest is

sufficiently analogous so as to be dispositive on the malicious

prosecution claim.”).

Mr. Wood also asserts a common law assault claim against

defendants. 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.” Etheredge v.

District of Columbia,

(D.C. 1993). However, a

“police officer has a qualified privilege to use reasonable

force to effect an arrest, provided that the means employed are

34 not in excess of those which the actor reasonably believes to be

necessary.”

(internal quotation marks omitted). Thus,

“unless the threatened use of force is clearly excessive, an

officer is protected against liability for assault.” Jackson v.

District of Columbia,

(D.C. 1980). “This

standard is similar to the excessive force standard applied in

the Section 1983 context.” Rogala v. District of Columbia,

(D.C. Cir. 1998); see also Harris v. Allison, No.

14-1104,

, at *4 (D.D.C. June 6, 2016) (“[A]n

assault claim against D.C. law enforcement officials should be

held to the same standard as its federal counterpart——an

excessive force claim under

.”). Accordingly,

because there is a genuine dispute as to a material fact

concerning the officers’ use of force after Mr. Wood was

handcuffed and had fully submitted to their authority, as with

the § 1983 excessive force claim, defendants are not entitled to

summary judgment as to the common law assault claim. See Dormu

v. District of Columbia,

(D.D.C. 2011)

(denying a defendant’s motion for summary judgment as to a

District of Columbia assault and battery claim “for the same

reasons [relied upon] in analyzing [plaintiff’s] excessive force

claim under § 1983”).

35 IV. Conclusion

For the reasons stated above, the Court will GRANT IN PART

and DENY IN PART defendants’ motion for summary judgment. A

separate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge May 31, 2017

36