UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BENJAMIN JOHNSON,

Plaintiff,

v. Civil Action No. 22-cv-3764 (TSC)

DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Benjamin Johnson sued several Metropolitan Police Department (“MPD”)

officers and the District of Columbia under

and District law following a violent

altercation with the police. Defendants moved for judgment on the pleadings, which the court

granted in part and denied in part, holding that MPD Officer Dorghoud was not entitled to

qualified immunity or qualified privilege because he used excessive force against Plaintiff and

Officer Wilson was not entitled to qualified immunity as a bystander. Mem. Op., ECF No. 16;

Order, ECF No. 17. Defendants moved for reconsideration. Having considered the record and

the briefs, the court will DENY Defendants’ motion.

I. BACKGROUND

Plaintiff alleges that he was approached by two MPD officers in northwest D.C. on June

29, 2022. Compl., ECF No. 1 ¶ 1. One officer asked Plaintiff to turn around, and the other

reached for his firearm.

Frightened, Plaintiff fled, and the officers gave chase.

.

Plaintiff then noticed a third officer approaching from the opposite direction with a hand on his

firearm, and he “immediately stopped running and raised both of his arms above his head.”

Page 1 of 6 An officer then “threw him to the ground and jumped on his back,” and “at least one”

officer “placed his knee and elbow across [Plaintiff’s] neck,” causing injury, “excruciating pain,”

and shortness of breath.

¶¶ 3–4. The other officers present chose “to stand around and

watch” rather than intervene.

. Plaintiff was ultimately arrested, and once a higher-

ranking officer arrived on the scene, they ordered Plaintiff be taken to the hospital.

.

After leaving the hospital, Plaintiff was taken to the jail and then released without being charged

the next day.

. In response to this incident, Plaintiff sought mental health treatment.

.

Plaintiff subsequently filed this suit against the District and the officers involved in the

altercation. See

¶¶ 14–19. His Complaint enumerates six claims, including excessive force,

¶¶ 40–64 (Count I); bystander liability,

¶¶ 65–70 (Count II); and common law assault and

battery,

¶¶ 71–81 (Counts III and IV). Plaintiff seeks compensatory and punitive damages

totaling $40 million.

Prayer for Relief. Defendants attached body-worn camera footage as

exhibits to their Answer. See Notice of Filing, ECF No. 9 at 1. The court assumed without

deciding that it could consider this footage in resolving Defendants’ motion for judgment on the

pleadings, Mem. Op. at 5, and will do so here as well.

The camera footage shows the altercation from the perspective of three of the officers on

the scene: Exhibit A is Officer Dorghoud’s footage, Exhibit B is Officer Wilson’s footage, and

Exhibit C is an unnamed officer’s footage. See Defs.’ Mot. for J. on the Pleadings, ECF No. 10

at 10–11 & n.1. The footage shows the police cruiser stopping in the middle of the road where

Plaintiff was on his phone, Plaintiff fleeing as officers approached him, and the officers chasing

him through the streets. Ex. A at 01:56–02:48; Ex. B. at 01:56–02:55. An unnamed officer was

the first to reach Plaintiff, and already had him pinned to the ground when Officers Dorghoud

Page 2 of 6 and Wilson arrived. See id.; Ex. C at 01:59–02:17 (unnamed officer approaches Plaintiff, who

holds his hands up before diving to the ground). Officer Dorghoud and another officer then

handcuffed Plaintiff while he was pinned face-down on the ground. Ex. A at 02:49–03:15; Ex. C

at 02:23–02:31. Officer Wilson’s footage clearly shows Officer Dorghoud’s knee and elbow on

Plaintiff’s neck after he was handcuffed, Ex. B at 02:59–03:03, 03:12–03:21, and later shows

Officer Dorghoud place his knee on Plaintiff’s upper back,

at 03:55–04:06. Throughout the

interaction, officers told Plaintiff to “spit it out” and not “eat that.” Ex. A at 02:49–03:52; Ex. B

at 02:52–04:15; Ex. C at 02:33–02:35. At one point, Officer Wilson grabbed and held Plaintiff’s

hair while trying to convince him to “spit it out.” Ex. B. at 03:37–03:59. Plaintiff eventually

informed the officers that he swallowed “weed.” Ex. A at 04:04–05:02. He told Officer

Dorghoud, “you just fucking hit me in the fucking back for some weed,” and Officer Dorghoud

responded, “why the fuck did you run then?”

at 05:03–05:09. Plaintiff also exclaimed, “you

punched me in the stomach—that’s why I was out of breath,” to which an officer responded,

“maybe you shouldn’t have fucking run then.”

at 05:13–05:20. Finally, an officer told

Plaintiff to stand up, and grabbed his arm to drag him to his feet.

at 05:35–05:45.

The court granted Defendants’ motion for judgment on the pleadings as to the claims it

conceded, Mem. Op. at 4, but denied the motion as to all other claims. The court first held that

Officer Dorghoud was not entitled to qualified immunity on the excessive force claim or

qualified privilege on the assault or battery claims because he used force against Plaintiff once he

was already subdued and presented no danger to the public or the officers.

at 9–12. It then

concluded that Officer Wilson was not entitled to qualified immunity on the bystander liability

claim because he could see Officer Dorghoud using force against the subdued Plaintiff and had a

Page 3 of 6 reasonable opportunity to prevent the harm, yet chose not to act.

at 13–15. Defendants

moved for reconsideration.

II. LEGAL STANDARD

An order denying a motion for judgment on the pleadings is an interlocutory order. Div.

689 v. Cap. Transit Co.,

(D.C. Cir. 1955). Under the Federal Rules of Civil

Procedure, a court may reconsider interlocutory orders “at any time before the entry of a

judgment adjudicating all the claims and all the parties’ rights and liabilities,” Fed. R. Civ. P.

54(b), “as justice requires,” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc.,

(D.C. Cir. 2011) (citation omitted). “In general,” justice requires granting reconsideration

“only when the movant demonstrates: (1) an intervening change in the law; (2) the discovery of

new evidence not previously available; or (3) a clear error in the first order.” Murphy v. Exec.

Off. for U.S. Att’ys,

(D.D.C. 2014) (formatting modified; citations omitted).

“Ultimately, the moving party has the burden to demonstrate that reconsideration is appropriate

and that harm or injustice would result if reconsideration were denied.” United States v. All

Assets Held at Bank Julius, Baer & Co., Ltd.,

(D.D.C. 2018) (quotation

omitted).

III. ANALYSIS

Defendants contend that the force Officer Dorghoud used against Plaintiff was not

excessive because the officers were attempting to recover evidence of a crime—the marijuana

Plaintiff was attempting to swallow—and therefore both officers are entitled to qualified

immunity and qualified privilege. Mot. for Reconsideration, ECF No. 18 at 4–9 (“Motion”).

The court disagrees.

First, Defendants’ motion rests on a faulty premise—that the marijuana Plaintiff was

attempting to swallow was evidence of a crime. D.C. law provides that it “shall not be offense” Page 4 of 6 for any adult to “[p]ossess, use, purchase, or transport marijuana weighing 2 ounces or less.”

(a)(1)(A); accord Kornegay v. United States,

(D.C. 2020).

Plaintiff’s Complaint alleges that he is “an adult” and was released from custody “without

charges.” Compl. ¶¶ 7, 14, 28. Nothing in the record indicates that he attempted to swallow

more than 2 ounces of marijuana. Indeed, the Answer provides that “Defendants lack sufficient

information to knowledge to admit or deny” both of the Complaint’s allegations. Answer, ECF

No. 7 ¶¶ 7, 14, 28.

Second, the cases Defendants cite do not hold that attempting to destroy evidence of a

crime justifies the use of force against a subdued suspect who presents no immediate danger to

the officers or the public. Mot. at 6–7. Rather, those cases indicate only that swallowing

evidence of a crime supports a conviction for tampering with evidence. Timberlake v. United

States,

, 979–83 (D.C. 2000); accord Commonwealth v. Morales,

,

1005–06 (Pa. 1996); People v. Brake,

, 1086–87 (Ill. App. Ct. 2003); State v.

Jennings,

(Fla. 1995); State v. Forchin,

, 820–21 (Fla. 1996).

Finally, even if the court’s decision could have come out the other way, Defendants have

not explained why reconsideration is warranted. For one thing, Defendants raised the argument

that Plaintiff was attempting to destroy evidence of a crime for the first time in their motion for

reconsideration, and failure to raise an available argument earlier is generally not grounds for

reconsideration, even under Rule 54(b). See, e.g., Shapiro v. Dep’t of Just., No. 12-cv-313,

, at *5 n.2 (D.D.C. Oct. 8, 2020). For another, Defendants fail to explain how the

court’s decision amounted to “clear error.” See Murphy,

.

Page 5 of 6 IV. CONCLUSION

For the foregoing reasons, the court will DENY Defendants’ Motion for Reconsideration,

ECF No. 18. An Order will accompany this Memorandum Opinion.

Date: October 10, 2024

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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