UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LARTASHA KELLY, Plaintiff v. Civil Action No. 19-23 (CKK) ANTHONY GATON, et al., Defendants.

MEMORANDUM OPINION (November 15, 2021)

Plaintiff Lartasha Kelly brings this lawsuit against the District of Columbia and

Metropolitan Police Department (“MPD”) Officer Anthony Gaton based on the events leading to

her arrest on June 29, 2018. After seeing Plaintiff strike another woman in the face twice, Officer

Gaton tackled her to the ground. Plaintiff claims that Officer Gaton used excessive force and

committed a battery in the course of arresting her. Defendants argue that Officer Gaton’s use of

force was reasonable under the circumstances and that he is entitled to qualified immunity.

Pending before the Court is Defendants’ [39] Motion for Summary Judgment as to

Plaintiff’s remaining claims for excessive use of force in violation of the Fourth Amendment under

and battery under District of Columbia common law. Upon consideration of the

pleadings, 1 the relevant legal authorities, and the record as a whole, the Court shall GRANT

Defendants’ Motion for Summary Judgment and dismiss this case.

1 The Court’s consideration has focused on the following documents: x Memorandum of Points & Authorities in Support of Defendants Motion for Summary Judgment (“Defs.’ Mot.”), ECF No. 39; x Memorandum of Points & Authorities in Support of Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Opp’n”), ECF No. 41; and x Defendants’ Reply in Support of Motion for Summary Judgment (“Defs.’ Reply”), ECF No. 42. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

1 I. BACKGROUND

The Court will present the background of this case in two parts. First, the Court will

provide the undisputed factual background for Plaintiff’s claims, which will include those facts

that are undisputed or unrefuted by the parties. After setting forth the undisputed factual

background, the Court will outline those central facts which remain in dispute. Where possible,

the Court notes facts that are clearly established by the body-worn camera (“BWC”) video

evidence in the record. 2 See Scott v. Harris,

(2007) (directing courts to “view

the facts in the light depicted by the videotape”). The Court notes at the outset, however, that the

BWC videos in this case do not provide much clarity to the events described in the Complaint and

the parties’ pleadings; the videos were recorded at night, and either at a distance from the

confrontation at issue or while the police officers were running towards it.

A. Background Supported by Undisputed or Uncontroverted Facts in the Record

On June 29, 2018, at approximately 12:07 a.m., MPD Officers Anthony Gaton and Stephen

Naticchione responded to a domestic disturbance in the 3900 block of R Street SE in Washington,

D.C. Defs.’ Stmt. of Material Facts as to Which There is No Genuine Dispute (“Defs.’ Stmt.”)

¶¶ 1, 2, ECF No. 39-1. 3 Upon arriving, the officers observed a fire truck parked in the street and

a group of approximately six people on the stoop in front of a two-story apartment building located

2 The parties provided the pertinent BWC videos to the Court by email on December 4, 2020. See Defs.’ Mot. Ex. 3, Notice Regarding Submission of BWC Footage to Chambers, ECF No. 39-4. 3 In its Scheduling and Procedures Order, ECF No. [38], the Court directed that a “party responding to a statement of material facts must respond to each paragraph with a correspondingly numbered paragraph, indicating whether that paragraph is admitted or denied.” Plaintiff did not do so, but instead copied certain (but not all) paragraphs from Defendants’ Statement of Undisputed Facts and responded to them. In so doing, Plaintiff misnumbered the paragraphs copied from Defendants’ Statement of Undisputed Material Facts. To the extent Plaintiff did not respond to certain paragraphs provided by Defendants, the Court treats those facts as admitted, in accordance with LCvR 7(h). To the extent Plaintiff has responded to facts provided by Defendants, but misnumbered the paragraphs, the Court has considered the content of those responses compared to the correct paragraphs of Defendants’ Statement of Undisputed Material Facts. 2 at 3915 R Street SE. Id. ¶ 2; Pl.’s Opp’n Ex. 4, Deposition of Stephen Naticchione (“Naticchione

Dep.”) 10:2–11, ECF No. 41-4. The MPD officers parked their vehicle in front of an apartment

building approximately two buildings away from the building in front of which the group was

gathered. See Gaton BWC 04:25:27–37. 4 As the MPD officers walked towards the group of

people, they heard Plaintiff scream, “Wait ‘til the fire department leave,” “I’m gonna smack the

fucking shit out of you, bitch” and “I promise you I am, I promise you I am.” Defs.’ Stmt. ¶¶ 4–

6; Naticchione BWC 04:25:31–42; Gaton BWC 04:25:31–43. Plaintiff’s threats can be clearly

heard on the audio of the BWC video, even though the officers were walking from the street in

front of a neighboring property. Naticchione BWC 04:25:31–42; Gaton BWC 04:25:31–43.

As the officers approached the group of people, they observed Plaintiff strike another

woman, Kionna Sims, in the face twice in rapid succession. Defs.’ Stmt. ¶ 6; Pl.’s Stmt. of Material

Facts Proffered by Def. Which Are in Dispute (“Pl’s Resp. Stmt.”) ¶ 2, ECF No. 41. 5 Plaintiff

then shouted, “Now what?! Now what?! I’m gonna beat the shit out of you, bitch!” Defs.’ Stmt.

¶ 12; Pl.’s Resp. Stmt. ¶ 8. As described in the next section, the nature and force of the strikes is

disputed.

Upon seeing Plaintiff strike Ms. Sims, both officers ran towards the two women.

Naticchione BWC 04:25:45–49; Gaton BWC 04:25:43–47. Simultaneously, a man wearing a

white tank top (later identified as Mr. Sims’ boyfriend, Mr. Davis, see Pl.’s Ex. 6, Declaration of

Latarsha Kelly (“Pl.’s Decl.”) ¶ 2, ECF No. 41-6) stepped between the two women to block Ms.

Sims from Plaintiff. See Naticchione BWC 04:25:45; Pl.’s Stmt. of Material Facts Not in Dispute

4 The BWC timestamps cited in this Memorandum Opinion refer to the times indicated in the upper right- hand corner of the BWC videos. 5 Plaintiff’s Statement of Material Facts Proffered by Defendants Which are in Dispute begins on page 12 of the combined PDF filed at ECF No. 41. 3 (“Pl.’s Stmt.”) ¶ 29, ECF No. 41 6; Defs.’ Resp. to Pl.’s Stmt. of Material Facts Not in Dispute

(“Defs.’ Resp. Stmt.”) ¶ 29 (not disputing that “[i]mmediately before the takedown, an African

American male in a white tank top . . . is seen standing between [Plaintiff] and Ms. Sims.”).

Without issuing any verbal command or warning, Defs.’ Stmt. ¶ 16, Officer Gaton ran

towards Plaintiff and “took [Plaintiff] to the ground and fell on top of her.” Pl.’s Stmt. ¶ 20; Defs.’

Resp. Stmt. ¶ 20; Naticchione BWC 04:25:47–50. Both officers could see that Plaintiff did not

have any weapon. Pl.’s Stmt. ¶ 12 (citing Pl.’s Ex. 3, Deposition of Anthony Gaton (“Gaton Dep.”)

18:9–12, ECF No. 41-3); id. ¶ 15 (citing Naticchione Dep. 19:7–9); Defs.’ Resp. Stmt. ¶¶ 12, 15.

Plaintiff did not attempt to hit Officer Gaton. Pl.’s Stmt. ¶ 24; Gaton Dep. 44:14–16.

Officer Gaton’s “takedown” can be clearly seen in Officer Naticchione’s BWC video:

Officer Gaton wrapped his arms around Plaintiff and tackled her to the grass, in a “football-style”

tackle. See Naticchione BWC 04:25:47–50; Gaton Dep. 27:1–15 (describing contact as “solo

tackle takedown”); Naticchione Dep. 11:19–12:16 (testifying that Officer Gaton “tackled” Plaintiff

“while he was running”). Approximately three seconds separate the time at which the officers saw

Plaintiff strike Ms. Sims in the face and the time at which Officer Gaton tackled Plaintiff.

Nattichone BWC 04:25:45–48; Gaton BWC 04:25:44–47. Officer Gaton stayed on top of Plaintiff

and directed her to put her hands behind her back. Naticchione BWC 04:25:56–57. Plaintiff was

taken to a hospital by ambulance, and diagnosed with a fractured hip. Defs.’ Resp. Stmt. ¶ 36.

At the time of this incident, Plaintiff weighed approximately 115 to 120 pounds. See Pl.’s

Stmt. ¶ 9; Defs.’ Resp. Stmt. ¶ 9. Officer Gaton weighed approximately 265 pounds. Pl.’s Stmt.

¶ 10; Defs.’ Resp. ¶ 10. Officer Gaton had been serving as an MPD officer for approximately

three months. Gaton Dep. 46:13–19.

6 Although Plaintiff did not file a cross-motion for summary judgment, she submitted a Statement of Material Facts Not in Dispute, which begins on page 3 of the PDF filed at ECF No. 41. 4 B. Facts Remaining in Dispute

The parties dispute a number of facts pertaining to Plaintiff’s actions and the MPD officers’

observations. The Court recounts the facts remaining in dispute here.

First, the parties dispute the nature and force of Plaintiff’s strikes on Ms. Sims’ face.

Defendants indicate that Officer Gaton observed Plaintiff “punch” Ms. Sims in the face twice. See

Defs.’ Stmt. ¶¶ 6, 8; see also Defs.’ Ex. 1, Report of Investigation (Jan. 10, 2019) (“IAD Report”), 7

ECF No. 39-2. During his deposition Officer Gaton agreed that he saw two “blows” in “rapid

succession to one another.” Gaton Dep. 18:17–22. Officer Naticchione also testified that he saw

Plaintiff “strike another individual in the face, twice.” Naticchione Dep. 14:20–15:2. Both officers

testified that Plaintiff’s fist was clenched as her blows landed on Ms. Sims’ face. See Naticchione

Dep. 16:14–17:3; Gaton Dep. 14:22–15:2.

Plaintiff disputes that she “punched” Ms. Sims, and testified that she “smack[ed] and then

“tap[ped]” her face. Pl.’s Resp. Stmt. ¶ 1; Pl.’s Ex. 1, Deposition of Latarsha Kelly (“Pl.’s Dep.”)

55:9–16, ECF No. 41-1. She also stated that she had recently injured her right hand, preventing

her from making a fist at the time of her confrontation with Ms. Sims. Pl.’s Stmt. ¶ 3. 8 The BWC

videos do not provides a clear view of the confrontation between Plaintiff and Ms. Sims. But

7 The IAD Report indicates that Officer Gaton “provided an audio recorded statement” to MPD’s Internal Affairs Division on January 10, 2019. See IAD Report. The IAD report appears to summarize the statement. It is unclear from the report when the “audio recorded statement” was taken. Officer Gaton testified during his deposition that he made the statement described in the IAD report on the night of his encounter with Plaintiff. See Gaton Dep. 43:10–44:3. 8 Defendants attempt to refute this point by providing a video of Plaintiff taken from the hospital where she was brought after the incident, in which she makes a fist with her left hand. See Defs.’ Resp. Stmt. ¶ 3; 20180629-313-GW_HOSPITAL 3.00 to 3.13. There is contradictory testimony on the record about which hand Plaintiff used to strike Ms. Sims. See, e.g., IAD Report (“Officer Gaton advised that Ms. Kelly became extremely enraged and then punched Ms. Sims on the right side of her face two times with her left fist.”); see also Gaton Dep. at 14:18–15:9 (describing Plaintiff using her “right hand” to strike Ms. Sims on the “left side” of her face). 5 regardless of whether Plaintiff “punched” or “smacked” Ms. Sims, it is clear from the record that

Plaintiff assaulted her by striking her on the face twice.

Next, the parties dispute Plaintiff’s conduct immediately after she struck Ms. Sims, but

before she was tackled by Officer Gaton. Officer Gaton testified that Plaintiff appeared to be

“combative” and “still had her hands up like she was still ready to fight.” Gaton Dep. 33:21–22.

Officer Naticchone agreed that after Plaintiff struck Ms. Sims’ face, she “still had her hands up in

a fighting pose.” Naticchione Dep. 21:14–16. Moreover, in a video of Plaintiff taken from the

hospital after the incident, Plaintiff stated that she “wasn’t running” from the police before Officer

Gaton tackled her, but that she “still had my guards up.” 20180629-313-GW_HOSPITAL 3.00 to

3.13. 9 Despite this statement on the same night as the incident, Plaintiff now indicates that “prior

to the takedown,” her right hand was lowered. Pl.’s Stmt. ¶ 26. Although it is not possible to

verify either party’s account from the BWC video, it is clear that Plaintiff had not disengaged from

her encounter with Ms. Sims; she continued to yell (which she does not dispute) and the two

women remained in close proximity to each other as Officer Gaton ran towards them and tackled

Plaintiff. Naticchione BWC 04:25:46.

The parties also dispute Plaintiff’s reaction to seeing the police officers approaching, and

whether her actions conveyed any intent to run away from the scene. Plaintiff testified that she

did not know that the police were present until after she was tackled by Officer Gaton. Pl.’s Dep.

55:9–16. Officer Gaton testified that he saw Plaintiff “turn[ ]” towards him and Officer

Naticchione as they were approaching, and “kind of turned her body back this way” which made

him “assume[ ] she was trying to run away” from the officers. Gaton Dep. 37:15–38:1. Defendants

indicate that Plaintiff “took one to two steps backwards,” Defs.’ Stmt. ¶ 9; see IAD Report

9 This video was submitted by Defendants with the BWC videos. See supra note 2. 6 (“Officer Gaton stated that Ms. Kelly then turned her body towards the approaching offices and

took a step backwards away from him.”). However, Officer Gaton testified in his deposition that

he did not see Plaintiff take any steps away from him, but that she “just turned her head, basically”

and from that, he inferred she was trying to run “because of her body movement.” Gaton Dep.

38:1–4; 45:13-15 (confirming that “all [Plaintiff] did, with respect to you, is to turn her head”);

see also Pl.’s Stmt. ¶ 27; Defs.’ Resp. Stmt. ¶ 27. Again, the BWC provides little clarity to either

party’s account. It is not possible to see how, if at all, Plaintiff’s body turned away from the

officers. However, it is clear Plaintiff did not leave the scene, or take more than, at most, a few

steps away from Ms. Sims or the MPD officers.

Finally, Plaintiff claims that at the time Officer Gaton tackled her, Ms. Sims was “being

held back from retaliating.” Pl.’s Stmt. ¶ 5. Plaintiff indicates that she and Ms. Sims had “already

been separated by a man wearing a white tank top,” citing to the BWC in support of this assertion.

Although Defendants do not appear to dispute that Mr. Davis has stepped between the two women,

and may have restrained Ms. Sims, they do not concede that this terminated the confrontation. See,

e.g., Defs.’ Stmt. ¶¶ 12–14; Defs.’ Resp. Stmt. ¶ 17 (Plaintiff was “taking a fighting stance and

threatening [Ms.] Sims when Officers Gaton used a tactical takedown of Plaintiff to end the

conflict.”).

II. LEGAL STANDARDS

A. Summary Judgment

Summary judgment is appropriate where “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). The mere existence of some factual dispute is insufficient on its own to bar summary

judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over

7 facts that might affect the outcome of the suit under the governing law will properly preclude the

entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,

(1986). Nor

may summary judgment be avoided based on just any disagreement as to the relevant facts; the

dispute must be “genuine,” meaning that there must be sufficient admissible evidence for a

reasonable trier of fact to find for the non-movant.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence—in support of his or her position, or (b) demonstrate

that the materials relied upon by the opposing party do not actually establish the absence or

presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any

factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment.

Ass’n of Flight Attendants–CWA, AFL–CIO v. U.S. Dep’t of Transp.,

, 465–66 (D.C.

Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to

properly address another party's assertion of fact,” the district court may “consider the fact

undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e).

When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with “all justifiable inferences drawn in [her]

favor.” Liberty Lobby,

. If material facts are genuinely in dispute, or undisputed

facts are susceptible to divergent yet justifiable inferences, summary judgment is

inappropriate. Moore v. Hartman,

(D.C. Cir. 2009). In the end, the district court's

task is to determine “whether the evidence presents a sufficient disagreement to require submission

to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty

8 Lobby, 477 U.S. at 251–52. In this regard, the non-movant must “do more than simply show that

there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp.,

(1986); “[i]f the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249–50

(internal citations omitted).

B. Qualified Immunity

Where, as here, a plaintiff brings a claim under

, the defendant may raise

a defense of qualified immunity. See Harlow v. Fitzgerald,

(1982).

“[G]overnment officials performing discretionary functions generally are shielded from liability

for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”

. “Qualified

immunity balances two important interests—the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson v. Callahan,

(2009).

The Supreme Court has established a two-prong analysis for resolving qualified immunity

claims. See Saucier v. Katz,

, 200 (2001). The first prong requires the Court to decide

whether the facts the plaintiff has shown make out a violation of a constitutional right. See id. at

201. The second prong requires the Court to consider whether the right at issue was “clearly

established” at the time of the defendant’s alleged misconduct. Id. “Whether a § 1983 defendant’s

conduct violates the ‘clearly established’ constitutional rights of the plaintiff is a pure question of

law that must be resolved by the [C]ourt.” Pitt v. Dist. of Columbia,

(D.C. Cir.

2007). “Clearly established means that, at the time of the officer’s conduct, the law was sufficiently

9 clear that every reasonable official would understand that what he is doing is unlawful.” Dist. of

Columbia v. Wesby,

(2018) (internal citation and quotation marks omitted).

“In other words, existing law must have placed the constitutionality of the officer’s conduct beyond

debate.”

(internal citation and quotation marks omitted). The Court may “exercise [its] sound

discretion in deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.” Pearson,

.

“A defendant must first raise the defense of qualified immunity when facing a § 1983 claim,

but once asserted, the burden of proof falls to the plaintiff to show that the official is not entitled

to qualified immunity.” Campbell v. Dist. of Columbia,

(D.D.C. 2017)

(internal citation and quotation marks omitted). At the summary judgment phase, the plaintiff

must offer sufficient evidence to create a “genuine issue of fact,” that is, “evidence on which [a]

jury could reasonably find for the plaintiff.” Liberty Lobby, Inc.,

. Where, as here,

“the question of qualified immunity is presented on summary judgment and where the parties’

versions of events differ, the Court must ‘view the facts and draw reasonable inferences in the light

most favorable to the party opposing’ the motion.” Cutchin v. Dist. of Columbia,

(D.D.C. 2019) (quoting Scott,

).

III. DISCUSSION

A. Excessive Use of Force

Defendants first argue that they are entitled to summary judgment on Plaintiff’s claim

under

that Officer Gaton used excessive force in arresting her, violating her

rights under the Fourth Amendment. See Defs.’ Mot. at 4. Defendants argue that this claim fails

10 as a matter of law because (1) Officer Gaton’s conduct was objectively reasonable; and (2) even

if it was not, he is entitled to qualified immunity.

at 4–10.

As set forth below, applying the two-prong test for qualified immunity articulated by the

Supreme Court, the Court concludes that Officer Gaton is entitled to qualified immunity, and so

shall grant summary judgment to Defendants as to Plaintiff’s § 1983 claim.

1. Constitutional Violation

Consistent with the Fourth Amendment, a police officer may use a “reasonable” amount of

force to effect an arrest. Graham v. Connor,

(1989); see also Cooper v. Dist.

of Columbia, --- F. Supp. 3d ---,

, at *6 (D.D.C. July 9, 2021) (“The reality of

placing someone under arrest . . . often necessitates the use of force.”). However, “[l]aw-

enforcement officers run afoul of the Fourth Amendment when they use more force than is

objectively reasonable to arrest a suspect.” Cooper,

, at *4 (citing Tennessee v.

Garner,

, 7–8 (1985); Robinson v. Dist. of Columbia,

(D.D.C.

2015)).

To evaluate claims of excessive force, courts consider whether the officer’s use of force

was objectively reasonable under the circumstances. See Cnty. of Los Angeles v. Mendez,

, 1546–47 (2017). “[T]he 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.” Graham, 490 U.S. at 396–97. Accordingly, the Court judges the reasonableness of the

force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” Id. at 396. Although the Court “evaluate[s] the reasonableness of the officers’

actions by viewing the events from their perspective,” it “consider[s] the facts in the record and all

11 reasonable inferences derived therefrom in the light most favorable to [the plaintiff].” Scott v.

Dist. of Columbia,

(D.C. Cir. 1996). The Supreme Court has laid out three

factors to consider in assessing the reasonableness of an officer’s use of force: “the severity of the

crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others,

and whether [s]he is actively resisting arrest or attempting to evade arrest by flight.” Graham,

. The Court may also consider the severity of the plaintiff’s injury. See Wardlaw v.

Pickett,

, 1304 n.7 (D.C. Cir. 1993)

The first Graham factor, the severity of the suspected crime, weighs in favor of

Defendants. It is undisputed that Plaintiff had committed an assault and battery against Ms.

Sims—regardless of whether she “punched,” “smacked” or “tapped” her. Plaintiff does not dispute

that she yelled threats at Ms. Sims, nor does she dispute that she struck her in the face twice.

Although the BWC footage does not provide a clear view of the nature of Plaintiff’s strikes on Ms.

Sims, it is apparent from the video that the strikes required another person to step in between the

two women to separate them, and prompted the MPD officers to start running towards the

gathering of people. Plaintiff, however, argues that her actions did not amount to a “severe” crime

because she did not have any weapon and because Ms. Sims was “not seriously hurt”—both MPD

officers testified that they did not see any blood on Ms. Sims’ face, and that they did not hear her

scream in pain in reaction to being hit. Pl.’s Mem. at 21, 23 (characterizing Plaintiff’s actions as

a “very minor assault”). Even if Ms. Sims did not suffer serious injuries, Officer Gaton clearly

saw Plaintiff commit an assault against her, and reacted quickly (within seconds) to prevent any

further acts of aggression.

The second Graham factor—whether the suspect poses an immediate threat to the safety

of the officers or others—is a closer call, but tips in Defendants’ favor. The MPD officers did not

12 appear to view Plaintiff as an immediate threat to their own safety; Officer Gaton testified, for

example, that Plaintiff did not try to hit him. Gaton Dep. 32:1–2. Defendants present stronger

evidence that Plaintiff posed an ongoing threat to Ms. Sims, offering testimony that Plaintiff

remained “combative” after striking Ms. Sims in the face twice. Plaintiff admitted in a video taken

on the same night of the incident, that she “had her guards up.” See supra Section I(B). Moreover,

Plaintiff does not dispute that even after she hit Ms. Sims, she yelled at her “Now what?! I’m going

to beat the shit out of you, bitch!” Defs.’ Stmt. ¶ 12; Pl.’s Resp. Stmt. ¶ 8 (denying only that she

“maintained a fighting stance,” but not that she yelled this threat to Ms. Sims). Plaintiff, however

claims that by the time Officer Gaton was close enough to tackle her, she had already stepped back

from Ms. Sims, had dropped her hands, and was already being separated from Ms. Sims by Mr.

Davis. See Pl.’s Opp’n at 22; Pl.’s Resp. Stmt. ¶ 8; Pl.’s Ex. 13, Expert Report of Michael D.

Lyman, PH.D (Jan. 20, 2020) at 12, ECF No. 41-13. Although Mr. Davis had stepped between

the two women, Plaintiff had plainly not terminated the confrontation in the seconds following her

strikes against Ms. Sims. She continued to yell, and admitted that she kept her “guards up.”

As to the third Graham factor, the Court considers whether Plaintiff was actively resisting

arrest or attempting to evade arrest by flight. This factor favors Plaintiff. There is no evidence on

the record that Plaintiff resisted arrest. To the contrary, she testified that she did not even know

that the officers had arrived until after she was tackled. Moreover, there is no evidence that

Plaintiff attempted to evade arrest by flight. At most, according to Defendants, Plaintiff turned

her head in a way that led Officer Gaton to assume that she might attempt to flee, and possibly

took one or two steps back, away from the officers’ direction.

As a final point, Plaintiff indicates that she suffered a serious injury from being tackled by

Officer Gaton, whereas Ms. Sims was not seriously injured by Plaintiff’s strikes. Pl.’s Opp’n at

13 21. “Although the severity of [the plaintiff’s] injuries is not by itself the basis for deciding whether

the force used was excessive, it does provide some indication of the degree of force [the officer]

used.” See Wardlaw,

n.7.

Based on its review of the Graham factors, whether Officer Gaton’s tackle was objectively

reasonable is a close call. But even considering Plaintiff’s version of events, it is undisputed that

Plaintiff struck Ms. Sims in the face twice and remained combative, even after the initial blows.

Although someone had stepped between her and Ms. Sims as Officer Gaton ran towards them,

Plaintiff had not terminated the encounter, and remained aggressive—yelling at Ms. Sims and, in

her own words, Plaintiff kept her “guards up.” Officer Gaton reacted quickly, within seconds, to

subdue Plaintiff in response to what he witnessed. In light of these facts, the Court finds that

Officer Gaton’s actions did not amount to a constitutional violation based on an unreasonable use

of force.

Even if the Court concluded that Officer Gaton’s use of force was not objectively

reasonable, he is entitled to qualified immunity so long as the use force did not violate “clearly

established” law. Pearson,

. For the reasons set forth in the next section, the Court

concludes that Plaintiff has failed to satisfy her burden as to the second prong of the qualified

immunity test articulated by the Supreme Court, and therefore summary judgment in Defendants’

favor is warranted.

2. Clearly Established Law

Even adopting Plaintiff’s version of events, the Court concludes that Officer Gaton is

entitled to qualified immunity because Plaintiff has not demonstrated that his use of force violated

a “clearly established” right. Campbell,

(“[T]he burden of proof falls to the

plaintiff to show that the official is not entitled to qualified immunity.”). A right is “clearly

14 established” when it is “sufficiently clear that every reasonable official would have understood

that what he is doing violates that right.” Mullenix v. Luna,

(2015) (per curiam)

(internal citation and quotation marks omitted); see also Wesby,

(“[E]xisting law

must have placed the constitutionality of the officer’s conduct ‘beyond debate.’” (internal citation

omitted)). “[T]he clearly established law must be ‘particularized’ to the facts of the case.” White

v. Pauly,

(2017). In other words, the Court must consider whether it would be

clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier,

533 U.S. at 202 (emphasis added). Although the plaintiff need not identify “a case directly on

point for a right to be clearly established, existing precedent must have placed the statutory or

constitutional question beyond debate.” White, at 137 S. Ct. at 551 (alterations and internal

quotation marks omitted). This inquiry “must be undertaken in light of the specific context of the

case, not as a broad general proposition.” Brosseau v. Haugen,

(2004) (per

curiam) (internal quotation marks omitted).

None of the cases relied upon by Plaintiff support her position that Officer Gaton violated

a clearly established right by tackling Plaintiff after witnessing her yell threats, strike another

woman in the face twice, and maintain an aggressive posture. Plaintiff offers several examples of

“cases involving police takedowns where suspects claimed not to have resisted arrest,” in which

courts have denied summary judgment to the officer-defendants. See Pl.’s Opp’n at 22–23, 25.

Plaintiff contends that these cases show that it is “clearly established” that a police officer may not

execute a “takedown” when “there is no or minimal resistance or an attempt to flee.” Id. at 25.

But Plaintiff ignores key factual distinctions between this case and those upon which she relies.

Plaintiff first cites Smith v. City of Troy,

(6th Cir. 2017) and Montoya v. City of

Flaundreau,

(8th Cir. 2012), in which the courts concluded that summary judgment

15 in the officers’ favor was inappropriate. In Smith, the court reasoned that it could not conclude

that the officer’s “takedown” was reasonable because, in part, there was a factual dispute about

whether the plaintiff resisted arrest. Smith, 874 F.3d at 944–45. In Montoya, the court concluded

that summary judgment was inappropriate because the plaintiff had not resisted arrest. Pl.’s Mem.

at 23; Montoya,

. But both cases involved plaintiffs who had committed, at most,

minor, non-violent crimes. Smith,

(observing there “is little in the record to suggest

that [plaintiff] committed any crime, even a minor one”); Montoya,

(noting that

the plaintiff had committed a “non-violent” misdemeanor offense (disorderly conduct), and “was

not threatening anyone”). In contrast, Plaintiff here assaulted her neighbor, a point she does not

dispute, and did not disengage from the confrontation after striking Ms. Sims. 10 Plaintiff also cites

Morris v. Noe,

(10th Cir. 2012). The facts from that case again differ in at least

one substantial way—the court in Morris noted that the plaintiff plainly presented no threat to the

officers or to other people. See Morris,

. Here, Officer Gaton reacted quickly

after seeing Plaintiff strike another woman on the face twice and remain aggressive after doing so.

In sum, Plaintiff has failed to point to any cases which would have put a reasonable officer

on notice that it was objectively unreasonable to tackle someone who had struck another person in

the face twice while screaming threats and obscenities and maintaining an aggressive posture. See

Kisela v. Hughes,

(2018) (“[P]olice officers are entitled to qualified

immunity unless existing precedent squarely governs the specific facts at issue.”) (quotation

10 Plaintiff also cites Shafer v. County of Santa Barbara,

(9th Cir. 2017) for the proposition that the court should “allow[ ]” a claim of excessive force to “go to a jury” where the plaintiff “put up only minimal resistance” to arrest. Pl.’s Opp’n at 23. Although the Ninth Circuit in Shafer noted that a reasonable juror could conclude that the officer’s “leg-sweep” maneuver was “excessive,” it nonetheless concluded that the officer was entitled to qualified immunity because the plaintiff failed to identify any “sufficiently specific constitutional precedents to alert [the officer] that his particular conduct was unlawful.” Shafer,

. Accordingly, Plaintiff’s reliance on this case is also unavailing. 16 omitted). Accordingly, Officer Gaton retains his qualified immunity for tackling Plaintiff to the

ground, and summary judgment shall be granted in Defendants’ favor as to Plaintiff’s excessive

force claim.

B. Battery

Defendants also seek summary judgment as to Plaintiff’s battery claim under District of

Columbia common law. 11 Defs.’ Mot. at 10. Defendants again argue that Officer Gaton is shielded

from liability based on a qualified privileged recognized under District of Columbia common law.

See id. at 11. Defendants also contend that Plaintiff’s claim against the District of Columbia under

the theory of respondeat superior fails. Defs.’ Reply at 9,

Under District of Columbia law, battery is “an intentional act that causes a harmful or

offensive bodily contact.” Evans-Reid v. Dist. of Columbia,

(D.C. 2007)

(internal citations omitted). A “police officer effecting an arrest commits a battery.” Jackson v.

Dist. of Columbia,

(D.D.C. 2018) (quoting Dist. of Columbia v. Chinn,

(D.C. 2003)). However, if the arresting officer “does not use force beyond that

which the officer reasonably believes is necessary, he is clothed with privileged.”

In other

words, “[l]argely analogous to the qualified-immunity defense above, officers may invoke a

‘qualified privilege’ to tort liability.” Cooper,

, at *7 (citing Williams v. Dist.

of Columbia,

(D.D.C. 2007); Chinn, 839 A.2d at 705–06). “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.” Scales

11 The Court retains supplemental jurisdiction over Plaintiff’s common law battery claim because it arises from a “common nucleus of operative fact” as her claim for excessive force under § 1983—specifically Officer Gaton’s execution of a tackle in effecting her arrest. Konah v. Dist. of Columbia,

(D.D.C. 2011) (citing Women Prisoners of the D.C. Dep’t of Corr. v. Dist. of Columbia,

(D.C. Cir. 1996)). 17 v. Dist. of Columbia,

(D.C. 2009) (quoting Evans-Reid.

). “The

officer’s judgment is to be reviewed ‘from the perspective of a reasonable officer on the scene,’

with allowance for the officer’s need to make quick decisions under potentially dangerous

circumstances.”

(quoting Rogala v. Dist. of Columbia,

(D.C. Cir. 1998)

(additional citation omitted)). “Moreover, any person, including an officer, is justified in using

reasonable force to repel an actual assault, or if he reasonably believes he is in danger of bodily

harm.” Evans-Reid,

(internal citation omitted); see also Jenkins v. Dist. of

Columbia,

, 900 (D.C. 2020) (“We have also said that [f]or assault and battery the

inquiry is whether the officer’s conduct was reasonably necessary and thereby privileged.”

(internal quotation marks and citations omitted)). “[T]he test for qualified privilege in [a] . . .

battery suit is both subjective and objective: the officer must subjectively believe that he or she

used no more force than necessary, but the officer’s judgment is compared to that of a hypothetical

reasonable police officer placed in the same situation.” Scales,

. “The objective

piece of the qualified privilege analysis is similar to the excessive force standard applied in the

Section 1983 context.” Williams,

(internal citation and quotation marks

omitted).

Within this framework, the Court finds that Officer Gaton is entitled to a qualified privilege

for tackling Plaintiff to the ground in the course of arresting her. See Jenkins, 223 A.3d at 900

(“[W]e can decide this case on the basis of privilege and therefore need not definitively decide

whether the [officer’s conduct] was lawful.”). As to the subjective component of the qualified

privilege analysis, Officer Gaton testified during his deposition that no other tactics would have

been reasonable to subdue Plaintiff in light of the need for a quick decision and the presence of

other people in close proximity. See, e.g., Gaton Dep. 28:22–30:1; 31:9–34:7. Plaintiff does not

18 dispute that Officer Gaton subjectively believed that his use of force was reasonable. See Pl.’s

Opp’n at 28–29. Nor has she offered any evidence suggesting that he acted in bad faith. See

Jenkins, 223 A.3d at 903.

With respect to the objective component of the qualified privilege assessment, Plaintiff

argues that Officer Gaton’s tackle was not objectively reasonable. As with her § 1983 claim,

Plaintiff contends that her assault of Ms. Sims was “not that serious” because Ms. Sims “did not

scream” after being hit, there was no visible blood, and Plaintiff did not have a weapon. Pl.’s

Opp’n at 28–29. She also argues that Officer Gaton’s tackle was unreasonable because the two

women had already been separated by Mr. Davis. Id. at 29. In Plaintiff’s view, Officer Gaton

“could have employed less violent means to arrest her,” which would not have resulted in an injury.

Id. at 29. Defendants respond that Officer Gaton’s “takedown” of Plaintiff was reasonable because

he had witnessed Plaintiff strike Ms. Sims twice, continued to verbally threaten her, and

maintained an “aggressive fighting stance.” Defs.’ Reply at 9. These circumstances led Officer

Gaton to conclude that Plaintiff “was continuing to attack” Ms. Sims. Id.; see also Evans-Reid,

(“[A]n officer[] is justified in using reasonable force to repel an actual assault, or

if he reasonably believes he is in danger of bodily harm.”).

The Court’s analysis of the objective reasonableness of Officer Gaton’s actions in the

context of Plaintiff’s § 1983 claims applies with equal force to her battery claim. See supra Section

III(A)(1); see Williams,

; Rogala,

. Upon review of the record

evidence in this case, the Court concludes that Officer Gaton’s conduct was “reasonably

necessary” in light of the circumstances he confronted, namely Plaintiff’s ongoing aggression

towards Ms. Sims after striking her in the face twice. Jenkins, 223 A.3d at 900. Accordingly,

Officer Gaton is entitled to a qualified privilege for the takedown maneuver he performed on

19 Plaintiff, defeating Plaintiff’s battery claim. Because “the defendant officer[ ] did not commit

battery against the plaintiff, the District of Columbia cannot be liable under the doctrine of

respondeat superior.” Hargraves v. Dist. of Columbia,

(D.D.C. 2014).

Defendants, therefore, are entitled to summary judgment on Plaintiff’s common law battery claim.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ [39] Motion for Summary

Judgement as to Plaintiff’s remaining claims for excessive use of force in violation of the Fourth

Amendment under

and battery under District of Columbia common law. An

appropriate Order accompanies this Memorandum Opinion.

/S/ COLLEEN KOLLAR-KOTELLY United States District Judge

Date: November 15, 2021

20