UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DOUGLAS JONES, : : Plaintiff, : Civil Action No.: 21-836 (RC) : v. : Re Document No.: 41 : DISTRICT OF COLUMBIA, et al. : : Defendants. :

MEMORANDUM OPINION

GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND REMANDING CASE

I. INTRODUCTION

In December 2017, Plaintiff Douglas Jones had a contentious encounter with officers of

the District of Columbia’s Metropolitan Police Department (“MPD”), including Officer Lloyd

Coward and Defendant Sergeant Timothy Evans. During the encounter, Mr. Jones vocally

criticized Officer Coward; shortly after, Sergeant Evans threatened to arrest Mr. Jones, chased

and pushed him, and repeatedly swapped insults with him. Based on these events, Mr. Jones

brought several claims against the District, Officer Coward, and Sergeant Evans, but after prior

motions were resolved in this case, only his claim brought under

for an alleged

violation of his rights under the First Amendment and a common law tort claim for intentional

infliction of emotional distress (abbreviated as “IIED”) remain, both brought against Sergeant

Evans. Now, Sergeant Evans moves for summary judgment. For the reasons explained below,

the Court grants the motion in part and remands the remainder of the case to the Superior Court

for the District of Columbia. II. BACKGROUND

This case is about an incident between Mr. Jones and Sergeant Evans that lasted

“approximately four and a half minutes.” See Defendant’s Statement of Material Facts as to

Which There is No Genuine Dispute (“DSMF”) ¶ 42, ECF No. 41; see also Defendant’s Motion

for Summary Judgment (“Mot. Summ. J.”), ECF No. 41. Almost the entire duration of this

encounter was captured on video, at times from multiple angles. See Officer Coward Body-

Worn Camera Video (“Coward BWC”), Def. Ex. 2, ECF No. 41-2; Sergeant Evans Body-Worn

Camera Video (“Evans BWC”), Def. Ex. 5, ECF No. 41-5; Officer Thermidor Body-Worn

Camera Video (“Thermidor BWC”), Def. Ex. 7, ECF No. 41-7. 1 The parties disagree at times

about how to characterize the behavior and intent of Mr. Jones and Sergeant Evans. Still, the

general course of events is beyond any reasonable dispute.

1. The December 5, 2017 Incident

On December 5, 2017, at approximately 12:45pm, both Mr. Jones and Sergeant Evans

were outside the King-Greenleaf Recreation Center in Southwest D.C. DSMF ¶ 1; Pl.’s

Statement of Material Facts as to Which a Genuine Dispute Exists (“PSMF”) ¶ 1, ECF No. 42.

While Mr. Jones was walking through the Recreation Center’s courtyard on his way to use a

restroom inside the building, see DSMF ¶ 1, Sergeant Evans was helping Officer Ivens

Thermidor with an investigatory stop near the building’s entrance,

. Sergeant Evans ran

the government-issued identification card of a second individual who had been near the first

1 Sergeant Evans also introduces a video that was recorded by a civilian eyewitness, but the Court does not rely on this video because it is very low resolution, only 35 seconds long, and covers events captured on other videos. See Eyewitness Camera Phone Video, Def. Ex. 6, ECF No. 41-6. 2 individual before Sergeant Evans and Officer Thermidor initiated the stop, and Sergeant Evans

relayed the first individual’s name to dispatch.

¶¶ 3–5.

As Mr. Jones walked down the pathway to the Recreation Center, he spoke out on his

belief that law enforcement did not contribute to justice but instead was part of white supremacy.

PSMF ¶ 2; Coward BWC 0:05–0:34. According to Mr. Jones, he was unaware that MPD

officers were conducting an investigatory stop near the Recreation Center’s entrance, PSMF ¶ 7,

although Officer Coward was directly in his field of view and appears to have at least partially

inspired Mr. Jones’s comments, Coward BWC 0:02–0:34. Video footage shows other civilians

were near the entrance, including one riding a bike on the same path in the area where Mr. Jones

was heading. See, e.g., Coward BWC 0:02–0:34.

As Mr. Jones walked on, Officer Coward intercepted Mr. Jones and blocked him from

proceeding.

0:30–0:34. Officer Coward also pressed his arm against Mr. Jones, although this

movement was relatively light and did not involve much pressure.

In response, Mr. Jones

told Officer Coward that he was “minding my business.”

Officer Coward continued to hold

his arm up against Mr. Jones to block him, telling Mr. Jones that “we busy down here.”

Mr.

Jones immediately raised both of his hands above his shoulders in a surrender position and asked

Officer Coward to “get your hands off me.”

0:34–0:37. Officer Coward told Mr. Jones to

“mind [his] business” and “don’t come down here bro.”

0:34–0:40. Mr. Jones responded

“don’t put your hands on me, don’t touch me, don’t none of y’all touch me” as he pointed his

finger at Officer Coward, who by then was no longer touching Mr. Jones.

0:38–0:44. Mr.

Jones continued to yell that Officer Coward had “put his hands” on him.

Sergeant Evans saw Mr. Jones pointing his finger at Officer Coward and shouting at him;

he approached the situation as he called for “more units down here” on his radio. Evans BWC,

3 3:00–3:10. Sergeant Evans asked Mr. Jones “what’s going on with you man? Hey, just relax.

Just relax. Sir. Sir.” without seemingly attracting his attention.

3:05–3:15. Mr. Jones, still

upset that Officer Coward had touched him, persisted in shouting at Officer Coward: “What’s

wrong with you? You can’t put your hands on me. Don’t put your hands on me. Don’t touch me.

You are trained . . . Don’t touch me . . . Man, you don’t intimidate me. You a coward. You a

fucking coward.”

3:05–3:20. Officer Coward then shoved Mr. Jones with enough force to

make Mr. Jones take several steps backward.

3:20–3:25. Sergeant Evans moved closer to

Mr. Jones, who again put his hands up, yelling “You see that?”

Mr. Jones demanded that

Sergeant Evans arrest Officer Coward, saying that “[h]e assaulted me in front of you, you arrest

him.”

3:20–3:30.

At this point, Mr. Jones and Sergeant Evans were in close physical proximity. Sergeant

Evans became agitated that Mr. Jones was so close to him, yelling “Why are you getting in my

face?”

Mr. Jones answered “Get in your face? You come up on me!”

Sergeant Evans

then shouted “Do you want to go to jail?” three times at Mr. Jones.

3:30–3:35. Mr. Jones

began backing up, while Sergeant Evans said “[y]ou ain’t scaring nobody big man. Go on down

the road. Go on down the road now. Now!”

3:30–3:40. Mr. Jones started to walk away but

commented that Sergeant Evans “stinks” and his “breath stinks.”

3:35–3:40. Sergeant Evans

shouted back that “[y]our breath stinks too, ass!” and “[y]ou smell like ass!”

3:40–3:45.

Another officer put his hand on Mr. Jones’s arm, who yelled “don’t touch me” and ran

away toward nearby picnic tables. Coward BWC 1:27–1:35. Sergeant Evans ran after Mr.

Jones, screaming “Hey! Hey! Hey!”

At this point, Officer Coward remained at a distance for

the rest of the encounter, although still close enough to observe and record the interaction

between Mr. Jones and Sergeant Evans. See generally Coward BWC. By the picnic tables, two

4 other officers also approached Mr. Jones, who said “don’t touch me” and “get the fuck away

from me.”

1:27–1:38. Sergeant Evans also yelled back “don’t touch me” repeatedly—Mr.

Jones was not touching him—and told Mr. Jones “you’re on camera.”

1:27–1:40; Evans

BWC 3:55–4:00.

Mr. Jones again turned away and was met by Sergeant Evans blocking his path.

Thermidor BWC 5:55–6:00. There was brief physical contact between Mr. Jones’s stomach and

Sergeant Evans’s chest.

The parties continued yelling, with Sergeant Evans asking “why are

you pushing me man” although Mr. Jones did not push Sergeant Evans.

5:50–6:00.

An already heated situation then turned vulgar. Although the Court will spare the reader

from the precise language, Mr. Jones began shouting homophobic slurs at Sergeant Evans.

Sergeant Evans pushed his chest against Mr. Jones and replied with the same slur.

Mr. Jones

referenced his genitalia, yelling at Sergeant Evans that he had “a black dick to annihilate you in

the birth canal,” which Sergeant Evans responded to with a mocking “ooooo” sound.

6:00–

6:05. Mr. Jones also made a comment about Sergeant Evans’s gun, saying “you need a gun” to

apparently imply that Sergeant Evans was cowardly and needed a gun to be brave enough for

confrontation. 2 Id.; Evans BWC 4:08–4:09. Mr. Jones again repeated slurs to Sergeant Evans;

Sergeant Evans made further insinuations about Mr. Jones’s sexual conduct and sexual

orientation, calling him an “undercover brother.” Thermidor BWC 6:05–6:14. Both individuals

continued to insult one another with vulgar remarks about the other’s sexual orientation.

Mr. Jones yelled “hey, look at this dick” to nearby officers—referring to Sergeant Evans

2 Sergeant Evans initially contended that “[a]t one point during this exchange, Plaintiff asked Sergeant Evans to give him his gun.” See Mot. Summ. J. at 4. The video does not support this description, and on reply, Sergeant Evans conceded that “Plaintiff said ‘you need a gun’ and did not ask for Sergeant Evans’s gun.” Defendant’s Response to Plaintiff’s Statement of Material Facts in Genuine Dispute, at 5 n.1, ECF No. 44. 5 as a “dick”—and Sergeant Evans told Mr. Jones that if he “come[s] up talking to us we’re gonna

talk back to you,” and again shoved Mr. Jones with his chest.

6:15–6:30. Sergeant Evans

was irritated that Mr. Jones spoke to a different officer, screaming “you talk to me.”

Sergeant Evans then spit on Mr. Jones, who grabbed his face and said “[h]e just spit in my face.”

6:30–6:35.

The parties strongly dispute whether the spitting was intentional. According to Sergeant

Evans, “any spit expelled from Sergeant Evans’s mouth was unintentional and incidental to his

speech.” See Mot. Summ. J. at 5, ECF No. 41. Mr. Jones argues that Sergeant Evans’s head

“rears back and comes forward in a spitting motion.” Pl. Opp’n to Mot. Summ. J (“Pl. Opp’n”)

at 4, ECF No. 42. The video evidence is not entirely conclusive on this issue, but it seems that

Sergeant Evans spit accidentally while loudly yelling into Mr. Jones’s face.

After the spitting, Mr. Jones again tried to distance himself from the situation, with

Sergeant Evans chasing him out of the courtyard and asking him “[w]here you going man?”

Thermidor BWC 6:29–6:45. Sergeant Evans apparently again forced his body onto Mr. Jones

and his body worn camera fell to the ground. Id.; Evans BWC 4:40–4:45. Mr. Jones put his

hands up in a surrender motion while Sergeant Evans and Officer Thermidor approached him,

and then Mr. Jones retreated into the parking lot. Thermidor BWC 6:29–6:45. Another civilian

stood in between Mr. Jones and Sergeant Evans; an MPD officer grabbed Sergeant Evans to keep

him from pursuing Mr. Jones.

7:03–7:11. Mr. Jones left the Recreation Center Courtyard

while Sergeant Evans yelled more taunts at him, telling him to “[g]o on down the road . . . with

your big mouth, with your sorry ass!”

6:44–7:12.

As Mr. Jones—by then a fair distance away—told other nearby individuals that Sergeant

Evans had spit on him, Sergeant Evans shouted from across the courtyard “[y]ou want to get

6 loud, go down the street, ass! You don’t get loud over here!”

7:30–7:45. Sergeant Evans

retrieved his MPD bicycle and chased toward Mr. Jones, calling after him.

9:01–9:06. Mr.

Jones continued to leave the King-Greenleaf Recreation Center, and Sergeant Evans gave up his

pursuit.

2. Mr. Jones’s Emotional Distress

Mr. Jones alleges that he was negatively impacted by the incident, and played

“basketball, exercised, and meditated” as self-treatment for his distress. Jones Deposition 38:14–

39:08, Pl. Ex. 2, ECF No. 42-2. Years later, Mr. Jones still allegedly experienced extreme

impairment to his daily functioning based on his encounter with Sergeant Evans. Nadia

Tourinho Deposition, 37:13–38:22, 49:1–50:01; 55:01–56:22, Pl. Ex. 9, ECF No. 42-9. That

impairment included a fear of law enforcement, desire to stay at home, poor sleep, difficulty

interacting with others, and loss of appetite, as well as feelings of hopelessness and anxiety.

37:13–38:22, 49:1–50:01; 55:01–56:22. In 2021, over three years after the incident, Mr. Jones

began visiting a therapist to address his encounter with Sergeant Evans.

69:5–6. His

therapist concluded that Mr. Jones had not gotten over the incident and suffered severe emotional

distress from it.

52:16–56:05; 106:13–106:21. Mr. Jones attended a total of five sessions,

where he was diagnosed with “unspecified adjustment disorder.”

48:6–12. He is still able to

work despite his emotional distress. Jones Deposition 25:10–20. Mr. Jones says that he

benefitted from therapy, and that he believed more sessions were needed, but he could not afford

them.

39:09–20.

3. Procedural History

On December 2, 2020, Mr. Jones filed a seven-count complaint in the Superior Court for

the District of Columbia, seeking damages from Officer Coward, Sergeant Evans, and the

7 District of Columbia. See Compl., ECF No. 1-2. First, Mr. Jones brought three counts under

, which affords a cause of action for individuals alleging that persons acting under

color of District of Columbia law have violated their constitutional rights. Count I alleged

Officer Coward and Sergeant Evans unlawfully arrested him and used excessive force against

him in violation of the Fourth Amendment.

¶¶ 43–60. Count II alleged that Sergeant Evans

violated the First Amendment by threatening to arrest Mr. Jones in retaliation against his

protected speech about Officer Coward.

¶¶ 61–67. Count III alleged that Officer Coward

was liable for failing to intervene and stop Sergeant Evans’s alleged unlawful detention of, and

use of, unnecessary force against Jones.

¶¶ 68–74.

The other four counts were District of Columbia common law tort claims. Mr. Jones

brought a claim for intentional infliction of emotional distress against Sergeant Evans (Count IV)

alleging that Sergeant Evans pursued, insulted, made physical contact with, and generally

harassed Mr. Jones.

¶¶ 75–81. He also brought claims for negligent infliction of emotional

distress against both Officer Coward and Sergeant Evans (Count V), for negligence against both

Officer Coward and Sergeant Evans (Count VI), and for vicarious liability for all tort claims

under the doctrine of respondeat superior against the District of Columbia (Count VII).

¶¶ 75–104.

Sergeant Evans removed the action to this Court. Notice of Removal, ECF No. 1.

Officer Coward, Sergeant Evans, and the District of Columbia moved to dismiss Counts I, III,

IV, V, VI, and VII—although not Count II, the First Amendment retaliation claim—for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6). See Defs.’ Mot. Dismiss, ECF No.

6. To properly consider an affidavit exhibit attached to the motion, the Court converted the

motion into a partial motion for summary judgment under Federal Rule of Civil Procedure 56,

8 insofar as the motion related to Count VII. See Order Partially Converting Mot. Dismiss, ECF

No. 11.

The Court granted the motion for Counts I, III, V, VI, and VII, which included all counts

against Officer Coward and the District. Mr. Jones’s unlawful seizure claim failed because

Sergeant Evans and Officer Coward’s actions did not constitute a seizure, and to the extent that

any doubt remained about Officer Coward’s conduct, he was protected by qualified immunity.

Jones v. District of Columbia, No. 21-cv-836,

, at *3 (D.D.C. Nov. 9, 2021).

Similarly, Mr. Jones’s excessive force claim against Sergeant Evans and Officer Coward—based

on Officer Coward shoving him and Sergeant Evans bumping him and allegedly spitting on

him—failed because Mr. Jones had not sufficiently alleged a seizure, which is a necessary

element of a Fourth Amendment excessive force claim. See

. Because the Court

dismissed the Fourth Amendment charges against Sergeant Evans, it also dismissed the Fourth

Amendment-based bystander liability claim against Officer Coward. See

. The Court

also dismissed Mr. Jones’s negligent infliction of emotional distress and negligence claims

because he failed to plead crucial aspects of those claims. See

at *12–13. And his attempt to

hold the District liable for any of these common law torts under respondeat superior failed

because Mr. Jones had not provided pre-suit notice of his damages.

.

Two claims that were only asserted against Sergeant Evans, Count II (First Amendment

Retaliation) and Count IV (Intentional Infliction of Emotional Distress), survived the motion. As

explained, Sergeant Evans had not moved to dismiss Count II. And as for Count IV, the Court

determined that after taking Mr. Jones’s allegations as true and construing them “liberally in his

favor,” he had sufficiently pleaded that Sergeant Evans’s conduct was “extreme and outrageous

in context.”

. The case proceeded on to discovery for both remaining counts.

9 Now, Sergeant Evans moves for summary judgment, arguing that Mr. Jones has failed to

establish a prima facie First Amendment retaliation claim, or alternatively that Sergeant Evans’s

actions fall under the protection of qualified immunity. See Mot. Summ. J. at 7; Reply Sup. Mot.

Summ. J. at 5 (“Reply”), ECF No. 44. He also argues that Mr. Jones cannot establish a prima

facie case for IIED. See Mot. Summ. J at 12; Reply at 11. Mr. Jones has filed an opposition to

the motion. See Pl. Opp’n.

III. LEGAL STANDARD

A. Qualified Immunity

Section 1983 of Title 42 of the United States Code affords a plaintiff with a cause of

action against a state actor who allegedly violated his constitutional rights. See Butera v. District

of Columbia,

(D.C. Cir. 2001). The doctrine of qualified immunity shields

state actors from “liability for civil damages if their actions did not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Tolan v.

Cotton,

(2014) (per curiam) (internal quotation marks and citation omitted).

In application, state actors are entitled to qualified immunity under

“unless (1)

they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct

was ‘clearly established at the time.’” District of Columbia v. Wesby,

, 62–63 (2018)

(quoting Reichle v. Howards,

(2012)). “‘Clearly established’ means that, at

the time of the officer's conduct, the law was sufficiently clear that every reasonable official

would understand that what he is doing is unlawful.”

(internal quotation marks and citation

omitted). “In other words, existing law must have placed the constitutionality of the officer's

conduct beyond debate.”

(quotation omitted).

10 To assess existing law, the Court refers “to cases from the Supreme Court and [the D.C.

Circuit], as well as to cases from other courts exhibiting a consensus view.” Bame v. Dillard,

(D.C. Cir. 2011) (citation omitted). The existing law analysis is stringent but

“there is no need that ‘the very action in question [have] previously been held unlawful.’”

Navab-Safavi v. Glassman,

(D.C. Cir. 2011) (quoting Wilson v. Layne,

(1999)); see also Kisela v. Hughes,

(2018) (“Although this

Court's caselaw does not require a case directly on point for a right to be clearly established,

existing precedent must have placed the statutory or constitutional question beyond debate.”)

(internal quotation marks and citation omitted).

While “[a] defendant must first raise the defense of qualified immunity . . . once asserted,

the burden of proof falls to the plaintiff to show that the official is not entitled to qualified

immunity.” Campbell v. District of Columbia,

(D.D.C. 2017) (cleaned

up); see also Dukore v. District of Columbia,

(D.C. Cir. 2015). When

qualified immunity is raised at the summary judgment stage, it leads to a “two-pronged inquiry.”

Tolan,

. The first prong looks to “whether the facts, [t]aken in the light most

favorable to the party asserting the injury, . . . show the officer’s conduct violated a [federal]

right[.]”

at 655–56 (alterations in original) (internal quotation marks and citation omitted).

The second prong assesses the legal rules that were clearly established to determine whether

those rules gave the officer “fair notice” that his conduct was contrary to law. City & Cnty. of

San Francisco v. Sheehan,

(2015) (internal quotation marks and citation

omitted). A court may consider the prongs in any order. Pearson v. Callahan,

(2009). To defeat a claim of qualified immunity, both prongs must yield an affirmative

answer.

11 B. Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, a court must grant summary

judgment 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). A fact is “material” if

it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby,

Inc.,

(1986). And a dispute is “genuine” if there is enough evidence for a

reasonable jury to return a verdict for the non-movant. See Scott v. Harris,

(2007). Accordingly, the Rule 56 inquiry addresses “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.” Anderson, 477 U.S. at 251–52.

A principal purpose of summary judgment is to determine whether there is a genuine

need for trial by “dispos[ing] of factually unsupported claims or defenses.” See Celotex Corp. v.

Catrett,

, 323–24 (1986). The movant bears the initial burden of identifying

portions of the record that demonstrate the absence of any genuine issue of material fact. See

Fed. R. Civ. P. 56(c)(1); Celotex,

. In response, the non-movant must point to

specific facts in the record that reveal a genuine issue that is suitable for trial. See Fed. R. Civ. P.

56(c)(1); Celotex,

. “[T]he non-movant ‘may not rest upon mere allegation or

denials . . .’ but must [instead] present ‘affirmative evidence’ showing a genuine issue for trial.”

Laningham v. U.S. Navy,

(D.C. Cir. 1987) (quoting Anderson,

).

A court considering a summary judgment motion must “eschew making credibility

determinations or weighing the evidence.” Czekalski v. Peters,

(D.C. Cir.

2007). Inferences must be analyzed in the light most favorable to the non-movant. See

12 Anderson, 477 U.S. at 255. But conclusory assertions offered without any evidentiary support do

not establish a genuine issue for trial. See Greene v. Dalton,

, 675 (D.C. Cir. 1999).

As is true here, “in a case where the court has the benefit of video evidence, the Supreme Court

has stated that courts deciding summary judgment motions should ‘view[] the facts in the light

depicted by the videotape[.]’” Armbruster v. Frost,

(D.D.C. 2013)

(quoting Scott,

). “[E]ven where a summary judgment motion is unopposed, it is

only properly granted when the movant has met its burden.” Cromartie v. District of Columbia,

(D.C. Cir. 2012) (quoting Alexander v. FBI,

(D.D.C. 2010)).

In the context of qualified immunity, “the court must ‘first identify[ ] the version of

events that best comports with the summary judgment standard and then ask[ ] whether, given

that set of facts, a reasonable officer should have known that his actions were unlawful.’” Kyle

v. Bedlion,

(D.D.C. 2016) (Jackson, K.B., J.) (quoting Morelli v.

Webster,

(1st Cir. 2009)). Once the Court has “‘determined the relevant set of

facts and drawn all inferences in favor of the nonmoving party to the extent supportable by the

record,’ the ‘reasonableness of [the officer's] actions . . . is a pure question of law.’”

(quoting

Scott,

n.8).

IV. ANALYSIS

The Court considers Mr. Jones’s § 1983 claim first because subject matter jurisdiction in

this case derives from that federal cause of action. Wilkins v. District of Columbia, No. 17-cv-

884,

, at *5 (D.D.C. Sept. 30, 2020) (turning to federal cause of action first).

Afterward, the Court will address Mr. Jones’s IIED claim.

13 A. Mr. Jones’s First Amendment Claim Fails

1. Nature of the Claim

To start, the Court must address Sergeant Evans’s attempts to limit Mr. Jones’s § 1983

claim. At a high level, Mr. Jones alleges that he suffered retaliation, including a threat of arrest,

because of his protected speech. “[A]s a general matter the First Amendment prohibits

government officials from subjecting an individual to retaliatory actions for engaging in

protected speech.” Nieves v. Bartlett,

, 1722 (2019) (internal quotation marks

and citation omitted).

Still, the Court is mindful of the well-worn principle that a plaintiff cannot amend his

complaint through opposition to a defendant’s summary judgment motion. Petrucelli v. Dep’t of

Just.,

, 135 (D.D.C. 2020) (“‘[I]t is well-established in this district that a

plaintiff cannot amend his Complaint in an opposition to a defendant’s motion for summary

judgment.’” (citations omitted)); see also Jordan v. District of Columbia,

(D.D.C. 2016) (“[I]t is well settled that ‘a plaintiff is not permitted to raise new claims at the

summary judgment stage, where those claims were not pleaded in the complaint.’” (citation

omitted)).

Citing that rule, Sergeant Evans argues that the only alleged retaliatory actions supporting

Mr. Jones’s First Amendment claim are Sergeant Evans’s threats of arrest. See Reply at 3

(“Although Plaintiff now claims otherwise, in his complaint, Plaintiff clearly limited the alleged

retaliatory conduct to Sergeant Evans’s threat of arrest.”). Not so. The complaint quite clearly

alleges that “Defendant Evans’ threats and subsequent harassment [were] motivated by Mr.

Jones exercising his First Amendment rights.” Compl. ¶ 64 (emphasis added); see also

¶¶ 25–33 (alleging continued harassment by Sergeant Evans after the threat of arrest). The Court

14 has little difficulty finding that the retaliation claim is based on Sergeant Evans’s threats of arrest

as well as his subsequent actions, such as following, pushing, and shouting at Mr. Jones.

However, the Court agrees with Sergeant Evans’s assertion that Mr. Jones did not plead

that he was retaliated against for speaking out about law enforcement, the justice system, or

white supremacy. Reply at 2. A glance at the complaint shows that Mr. Jones’s First

Amendment claim is exclusively based on him expressing his “opinion of Defendant Coward’s

actions in the course of his duties as a police officer.” Compl. ¶ 62. Nowhere does the

complaint reference Mr. Jones making comments about law enforcement and white supremacy.

And while Mr. Jones made those comments within eyesight and earshot of Officer Coward, it

appears he was speaking to the open air rather than anyone specific. See Coward BWC, 0:02–

0:34. Mr. Jones was also far away from Sergeant Evans, and the video evidence indicates that

Sergeant Evans could not have heard these remarks. See Evans BWC, 2:45–3:00.

Most importantly, as Sergeant Evans also notes, Mr. Jones’s claim is solely based on his

statements about Officer Coward. Reply at 3 n.1; Compl. ¶ 62. The complaint does not attribute

Sergeant Evans’s alleged retaliation to anything that Mr. Jones said about law enforcement

generally or to anything he said about Sergeant Evans. So while Officer Coward had ceased

interacting with Mr. Jones by the time Sergeant Evans made his threat of arrest, Mr. Jones’s

claim relies on the idea that the additional alleged retaliation by Sergeant Evans was an exclusive

response to Mr. Jones’s comments about Officer Coward. As will be discussed below in greater

detail, that is a challenging argument in the context of Mr. Jones’s aggressive and vulgar remarks

directed at Sergeant Evans.

15 2. Framework for First Amendment Retaliation

With the relatively narrow contours of Mr. Jones’s First Amendment claim clarified, the

Court sets forth the applicable framework for resolving that claim.

To establish a claim for retaliation under the First Amendment, an individual must prove (1) that he engaged in protected conduct, (2) that the government “took some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position from speaking again;” and (3) that there exists “a causal link between the exercise of a constitutional right and the adverse action taken against him.”

Doe v. District of Columbia,

(D.C. Cir. 2015) (quoting Aref v. Holder,

(D.D.C. 2011)).

“To satisfy the causation link, a plaintiff must [show] that his or her constitutional speech

was the ‘but for’ cause of the defendants’ retaliatory action.”

(citation omitted); see also

Nieves, 139 S. Ct. at 1722 (stating that a plaintiff must show “the adverse action against the

plaintiff would not have been taken absent the retaliatory motive.”). Generally, this analysis is

subjective: “a plaintiff must demonstrate that the defendant[] w[as] ‘subjectively motivated’ to

take [the] retaliation action because of the plaintiff’s protected activity.” BEG Investments, LLC

v. Alberti,

(D.D.C. 2015) (quoting Smith v. Mosley,

(11th Cir. 2008)). The Court may infer causation when a retaliatory act occurs soon after

protected activity; “the D.C. Circuit ‘has held that a close temporal relationship may alone

establish the required causal connection.’”

(quoting Singletary v. District of Columbia,

(D.C. Cir. 2005)). Nevertheless, if a defendant offers undisputed evidence that he

believed in the lawfulness of his conduct, it will defeat a plaintiff’s prima facie retaliation claim

regardless of the temporal proximity between the protected conduct and the retaliatory action.

See Doe,

(citing Singletary,

).

16 Not all First Amendment retaliation claims are alike, however. Nieves, which was

decided two years after the events of this case, held that a plaintiff “pressing a retaliatory arrest

claim must plead and prove the absence of probable cause for the arrest.” Nieves, 139 S. Ct. at

1724. The Supreme Court emphasized the longstanding practice that “when [courts are]

reviewing an arrest, we ask ‘whether the circumstances, viewed objectively, justify [the

challenged] action,’ and if so, conclude ‘that action was reasonable whatever the subjective

intent motivating the relevant officials.’” Id. (quoting Ashcroft v. al-Kidd,

, 736

(2011)). Accordingly, in a retaliatory arrest case, “[a] particular officer’s state of

mind . . . provides ‘no basis for invalidating an arrest.’” 3 Id. at 1725 (quoting Devenpeck v.

Alford,

(2004)).

Of course, this case is—in part—about retaliatory threat of arrest, rather than actual

retaliatory arrest. But the best reading of Nieves is that this objective standard extends to

retaliatory threats of arrest. Any other conclusion would lead to bizarre outcomes. Consider two

similarly situated officers who both have a subjective intent to retaliate as well as objective

probable cause to arrest; one completes the arrest and the other does not. There is no coherent

reason why a plaintiff should be able to bring a claim against only one of those officers. Such a

result would run against the Supreme Court’s warning that a “subjective approach” would allow

“even doubtful retaliatory arrest suits to proceed based solely on allegations about an arresting

officer’s mental state.”

Indeed, if the Nieves framework did not apply to threats of arrest,

3 Nieves provides for a “narrow qualification” to the probable cause rule in situations where officers have probable cause to make arrests, “but typically exercise their discretion not to do so.” Nieves, 139 S. Ct. at 1727. Specifically, “the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Id.; see Goodwin v. District of Columbia,

, 172 (D.D.C. 2022). 17 “[a]s a result, policing certain events like an unruly protest would pose overwhelming litigation

risks.”

It is easy to imagine why an officer might threaten a lawful arrest—for example, as a

warning to bring a belligerent individual into compliance—but then not carry out that arrest. It is

equally easy to imagine that without Nieves’s rule, such a threat may be accompanied by an

“inartful turn of phrase or perceived slight” that could then “land an officer in years of

litigation.”

Thus, the Court finds that a plaintiff alleging a retaliatory threat of arrest must show that,

at the time of the threat, an officer would have lacked objective probable cause for an actual

arrest. See

. And it is unpersuaded by Sergeant Evans’s argument that the proper

inquiry looks at good faith subjective intent rather than objective probable cause. See Reply at 5.

Sergeant Evans principally relies on BEG Investments,

& n.6, which

rejected the idea that probable cause was relevant to a First Amendment retaliation claim. See

Reply at 5. BEG Investments, however, did not involve an actual or threatened arrest, and as

explained above, there is strong reason to believe the rule is different when an officer’s arresting

authority is concerned, as it is here. See 144 F. Supp. 3d at 18–19.

As an aside, Sergeant Evans’s proposed inquiry appears to generally be less protective of

him—or other law enforcement officers—than the probable cause rule he disclaims, and that the

Court endorses. A requirement that a plaintiff show that an officer making a threat of arrest

lacked probable cause is a floor, not a ceiling. That plaintiff must still show that the threat was

made with a retaliatory motive, which is where an officer’s subjective intent kicks in. See

Nieves, 139 S. Ct. at 1722. With that legal issue sorted out, the Court may move on to probable

cause and Sergeant Evans’s threat of arrest, while deferring its consideration of Sergeant Evans’s

other actions until later in this opinion.

18 3. Probable Cause and the APO Statute

According to Sergeant Evans, at the point that he threatened Mr. Jones with arrest, he had

probable cause to arrest Mr. Jones under the District of Columbia’s Assault on a Police Officer

(“APO”) statute. See Reply at 7 (citing Evans Deposition 73:18–76:13, Def. Ex. 4, ECF No. 41-

4); Evans Deposition 73:22–74:2 (Q. “What has he done that’s illegal?” A. “The correct charge

would be assault on a police officer.”). That statute provides that anyone who “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[.]” See D.C. Code § 22–405(b) (2016); see also McGovern v. George

Washington Univ.,

(D.D.C. 2017) (“To determine whether [an officer]

had probable cause to believe that [a plaintiff was] violating District of Columbia law, we look to

District law to identify the elements of [the offense].” (citation and internal quotation marks

omitted)).

About 18 months before the events of this case, in June 2016, the Council of the District

of Columbia “amended the statute prohibiting APO due to a concern that the statute was over

inclusive.” Coleman v. United States,

, 917 (D.C. 2018); Bushrod v. District of

Columbia,

, 17 (D.D.C. 2021) (same). Previously, the APO statute provided

that anyone who “without justifiable and excusable cause assaults, 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[.]” See D.C. Code § 22–405(b) (2013). 4 Thus, the newer 2016 version of the

4 Unhelpfully, Mr. Jones’s opposition only cites to this version of the statute, and cases interpreting it, rather than explaining that the statute was modified in 2016. See Pl. Opp’n at 9. 19 APO statute no longer covers conduct that merely “resists, opposes, impedes, intimidates, or

interferes with” a law enforcement officer. In addition, a new separate offense addresses

resisting arrest, specifying that “whoever without justifiable and excusable cause intentionally

resists an arrest by an individual who he or she has reason to believe is a law enforcement officer

or prevents that individual from making or attempting to make an arrest of or detain another

person shall be guilty of a misdemeanor[.]” See D.C. Code § 22–405.01 (2016).

The change in the statute has significant implications for the present motion. The

previous APO provision contained “broad wording,” Lin v. District of Columbia,

(D.C. Cir. 2022), that meant an APO violation occurred when an individual’s actions “cross

the line into active confrontation, obstruction or other action directed against an officer’s

performance in the line of duty.” Kyle,

(quoting Howard v. United States,

(D.C. 2009)). The pre-2016 APO law did “not criminalize every refusal to

submit to a police officer or every prevention or hindrance of an officer in his duties.” Lin,

(quoting Ruffin v. United States,

(D.C. 2013)). Instead, “the key

to establishing any violation of the [pre-2016] APO statute is the active and oppositional nature

of the conduct for the purpose of thwarting a police officer in his or her duties.” Ruffin,

(quotation marks omitted) (quoting Coghill v. United States,

(D.C.

2009)).

When confronted with the question of whether a police officer had probable cause to

arrest under the pre-2016 statute, a court observed that the relevant case law “demonstrate[d] the

fuzzy parameters of D.C.’s APO crime.” Kyle,

. That is because “each

APO case involves ‘balancing [that] must be conducted, on a case-by-case basis, in an intensely

20 factual analysis.’” 5 Johnson v. District of Columbia,

, 158 n.4 (D.D.C.

2020) (quoting In re C.L.D.,

, 357 (D.C. 1999)). Accordingly, amid that haze,

courts often found that qualified immunity protected officers when the question was whether the

officer had probable cause to arrest for APO. Id. (“Such ambiguity [regarding the APO statute]

hardly evinces a clearly established standard that would have placed [the arresting officer] on

notice of the absence of probable cause for Plaintiff's arrest.”); Kyle,

n.8

(finding that plaintiff’s “effort falls far short of demonstrating the ‘controlling authority’ or

‘robust consensus of cases of persuasive authority’ that is necessary to deprive the officers here

of the cloak of qualified immunity.”) (quoting al-Kidd, 563 U.S. at 741–42).

But this line of cases is no longer directly on point after the District of Columbia decided

to change the APO statute in 2016. The Court has not identified any cases that interpret the

scope of the now-applicable APO statute, but the statute’s reference to “assault[],” D.C. Code

§ 22–405 (2016), indicates that the Court should look to the District of Columbia’s general

definition of an assault. There, the law provides that “[w]hoever unlawfully assaults, or

threatens another in a menacing manner, shall be fined not more than the amount set forth in

§ 22-3571.01 or be imprisoned not more than 180 days, or both.” D.C. Code § 22–404(a)(1)

(2013).

The D.C. Court of Appeals has observed that criminal assaults “fall into ‘two distinct’

categories: attempted battery assaults and intent-to-frighten assaults.” Perez Hernandez v.

United States,

, 998 (D.C. 2022) (quoting Robinson v. United States,

(D.C. 1986)). Attempted battery assaults are more common and involve offensive physical

F. Supp. 3d at 149, was decided in 2020 but concerned an arrest that occurred in 2016. 21 contact. 6

Here, Mr. Jones had not made physical contact with Sergeant Evans or Officer

Coward when Sergeant Evans threatened “do you want to go to jail?” 7 Coward BWC 3:30–3:35.

Thus, the Court turns to intent-to-frighten assault, where

In order to prove intent-to-frighten assault, the government must show “(1) that the defendant committed a threatening act that reasonably would create in another person a fear of immediate injury; (2) that, when he/she committed the act, the defendant had the apparent present ability to injure that person; and (3) that the defendant committed the act voluntarily, on purpose, and not by accident or mistake.”

Powell v. United States,

, 957 (D.C. 2020) (quoting Joiner-Die v. United States,

(D.C. 2006)). “A conviction of intent-to-frighten assault also ‘requires proof

that the defendant intended either to cause injury or to create apprehension in the victim by

engaging in some threatening conduct[.]’”

(quoting Parks v. United States,

(D.C. 1993)). However, “[a] victim of intent-to-frighten assault ‘need not be shown factually to

have experienced apprehension or fear in order to establish the offense[,]’ because ‘the crucial

inquiry is whether the assailant acted in such a manner as would under the circumstances portend

an immediate threat of danger to a person of reasonable sensibility.’”

at 957–58 (quoting

Robinson,

). Finally, “mere words are not sufficient” to constitute a “threatening

act.” Cousart v. United States,

, 32 n.11 (D.C. 2016).

Consequently, even though the APO statute no longer specifies an offense when someone

“resists, opposes, impedes, intimidates, or interferes” an officer, D.C. Code § 22–404(a)(1)

(2013), a threatening act would still violate the statute if it qualifies as an assault. The Court thus

6 This somewhat clumsy phrasing is because the “District of Columbia does not have a separate statute criminalizing the common law offense of battery. This omission apparently has had little or no practical effect, but it undoubtedly has led to difficulty in defining the offense of assault.” Perez Hernandez, 286 A.3d at 999. 7 Other than being pushed by Officer Coward. 22 could proceed by resolving whether Sergeant Evans had probable cause to arrest Mr. Jones,

where an affirmative answer could immediately defeat Mr. Jones’s prima facie retaliation claim

based on the threat of arrest. But that path forward would force the Court to answer thorny

questions about when an assault has occurred as well as the scope of the narrower APO statute.

The Court is reluctant to unnecessarily wade into those waters, especially when Sergeant Evans

has also made a claim of qualified immunity. Qualified immunity resolves this argument.

4. Qualified Immunity and Mr. Jones’s Clearly Established Rights

At the outset, the Court rejects Sergeant Evans’s attempts to distinguish between a threat

of arrest and an actual arrest for the purposes of whether the law “clearly established” Mr.

Jones’s right to speak without retaliation. Reply at 10. True, Mr. Jones does not identify any

case on this exact topic. But qualified immunity does “not require a case directly on point” so

long as “existing precedent . . . placed the statutory or constitutional question beyond debate.”

Ashcroft, 563 U.S. at 741.

“The First Amendment right to free speech is a bedrock constitutional freedom.”

Patterson v. United States,

(D.D.C. 2013). Therefore, “it is well

established that where . . . there is an allegation of retaliatory arrest in the absence of probable

cause, the plaintiff has a viable First Amendment claim.”

. And as a prior court in this

district recognized in an opinion denying qualified immunity, “there is substantial caselaw in

which the threat of an arrest—even in the absence of an actual arrest—is sufficient to chill

speech, in violation of the First Amendment.” Hartley v. Wilfert,

(D.D.C.

2013) (collecting cases from across circuits). After all, “[t]he freedom of individuals verbally to

oppose or challenge [ ] action without thereby risking arrest is one of the principal characteristics

23 by which we distinguish a free nation from a police state.” City of Houston v. Hill,

,

462–63 (1987).

Sergeant Evans cites Jiron v. Roth,

, 1004 (D.N.M. 2021) for the

proposition that there is “no controlling precedent . . . that a single threat to arrest someone is

retaliatory conduct sufficient to violate a person’s First Amendment rights.” Reply at 10–11.

The Court disagrees that this out-of-circuit case is persuasive. Even the Jiron court

acknowledged during step-one of its qualified immunity analysis that “[n]umerous courts of

appeal have found that a mere threat of official or legal action qualifies as constitutionally

actionable harm.” 519 F. Supp. 3d at 999. And it found qualified immunity in step-two because

the case involved only “a single” threat of arrest and the court did not identify any controlling

precedent on analogous facts. Id. at 1003–04. To endorse Jiron’s reasoning here would say that

Sergeant Evans, or any other officer in his position, could not have known it would be

unconstitutional to threaten arrest purely because of a person’s speech. That view is untenable.

But the crucial question is whether Mr. Jones did not just speak, but also violated the

APO statute. 8 In 2012, the Supreme Court held that it had “never recognized a First Amendment

right to be free from a retaliatory arrest that is supported by probable cause.” Reichle, 566 U.S.

at 664–65. The Supreme Court would not clarify the law until 2019, when it held that no such

right exists except in limited circumstances of selective arrest. See Nieves, 139 S. Ct. at 1724–

25. It is surely true that if in 2017 there was no clearly established right to be free from a

8 The D.C. Circuit has observed that “in the First Amendment context, ‘the general right to be free from retaliation for one’s speech’ may be too broad a proposition, not sufficiently ‘particularized’ to make out clearly established law.” Daugherty v. Sheer,

(D.C. Cir. 2018) (quoting Reichle,

). 24 retaliatory arrest that is supported by probable cause, there was also no clearly established right

to be free from a retaliatory threat of arrest that is supported by probable cause.

And so the Court sees the issue as follows. If Mr. Jones did nothing more than engage in

protected speech and Sergeant Evans responded by making a retaliatory threat of arrest, Sergeant

Evans violated his clearly established First Amendment rights. 9 See, e.g., Patterson,

(“[T]he D.C. Circuit has expressly recognized that there is a First Amendment

right not to be arrested in retaliation for one’s speech.”) (citing Dellums v. Powell,

,

195–96 (D.C. Cir. 1977)). If Mr. Jones did more than engage in protected speech by also taking

actions that would give probable cause for an arrest for assault, and therefore arrest under the

APO statute, Sergeant Evans did not violate his clearly established First Amendment rights.

With that formulation in mind, the Court may begin its qualified immunity analysis as to

Sergeant Evans’s threat of arrest. 10

5. Mr. Jones’s Speech and Conduct and Sergeant Evans’s Threat of Arrest

As Mr. Jones approached the Recreation Center, Officer Coward placed his arm up

against Mr. Jones and informed him that the police were holding a line in front of the Recreation

9 This formulation includes the subjective test that Sergeant Evans repeatedly references in his briefing, including when he discusses the nature of Mr. Jones’s clearly established rights as of 2017. See Reply at 8 (“[I]t was not clearly established that Plaintiff had a right to be free from a threat of arrest that was supported by a subjective good faith belief in its lawfulness.”). While Sergeant Evans is surely correct that his purported good faith belief that he had probable cause to arrest Mr. Jones would be helpful to his motion for summary judgment, the Court believes that his briefing misidentifies how that fact plays into the legal analysis. It goes to the prima facie case: evidently Sergeant Evans’s threat of arrest would not have been in retaliation for Mr. Jones’s expression if he had a subjective good faith belief that arrest was warranted. 10 Another complication is that Sergeant Evans did more than threaten arrest: as discussed above, he also ran after Mr. Jones, pushed against him, and participated in a highly offensive verbal exchange with him. The Court addresses Sergeant Evans’s other conduct in a different section, see infra at 30. 25 Center and that he could not proceed forward. Coward BWC 0:02–0:45. Mr. Jones became

upset.

He did not head in the other direction.

Instead, Mr. Jones began yelling at Officer

Coward and criticizing him for touching him.

The Court has little difficulty finding that Mr.

Jones was engaged in protected expression when he spoke against Officer Coward and accused

him of assault. 11

But Mr. Jones also placed himself only inches away from Officer Coward, shouting and

jabbing his finger toward his face. Coward BWC 0:02–0:45; Evans BWC 3:00–3:20. The fact

that this conduct occurred at the same time as his speech does not necessarily insulate him from

arrest. See Reichle,

(finding that protected speech can be a “wholly legitimate

consideration” for officers when they decide whether to arrest someone). As Mr. Jones

continued to yell and dominate Officer Coward’s attention and personal space, Officer Coward

reacted to Mr. Jones by shoving him. Evans BWC 3:20–3:30. Sergeant Evans inserted himself

into this encounter, and Mr. Jones shouted at Sergeant Evans that Officer Coward had assaulted

him.

Sergeant Evans turned aggressive toward Mr. Jones and asked him three times if he

wanted to go to jail.

3:30–3:35. Sergeant Evans acknowledges that this statement threatened

Mr. Jones with arrest. See, e.g., Reply at 7 (referring to “when he made the threat of arrest”).

11 Sergeant Evans does not appear to contest that Mr. Jones was engaged in protected speech. Mr. Jones’s comments, especially his later insults against Sergeant Evans, were at times offensive and likely to provoke a strongly negative reaction. Nevertheless, the “fighting words” doctrine, which holds that speakers are not entitled to First Amendment protection for words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace,” see Chaplinksy v. New Hampshire,

, 572–73 (1942), has become “very limited” in the decades since it was first introduced, Wood v. Eubanks,

(6th Cir. 2022) (quotation omitted). That doctrine is especially limited when citizens are speaking to police officers, who “are expected to exercise greater restraint in their response than the average citizen.”

(internal quotation marks and citation omitted). Regardless, Mr. Jones’s First Amendment claim does not rely on anything he said about Sergeant Evans. 26 Thus, the Court will turn to probable cause for this threat of arrest, emulating the

approach in Kyle,

, another § 1983 arrest case. As mentioned above, Kyle

is not a perfect match because it addressed an older version of the APO statute, but its framework

is still useful here. Generally, the video footage renders the pertinent facts related to this incident

virtually indisputable, and “[w]here the facts are not in dispute the question of probable cause is

one of law to be decided by the court.” Jackson v. District of Columbia,

(D.D.C. 2008) (quoting Dent v. May Dep’t Stores Co.,

(D.C. 1982)).

Yet because Sergeant Evans raises qualified immunity, “for the purpose of the instant qualified-

immunity determination, this Court is disclaiming any duty to begin its analysis by answering the

question of whether or not there was actually probable cause to arrest [Mr. Jones] under these

circumstances.” Kyle,

. Whether Sergeant Evans had probable cause to

reasonably believe that Mr. Jones committed APO “is prong one of the qualified-immunity test”

but “[t]he Court here aims its focus on prong two[.]”

(reiterating that courts may

tackle the two prongs of qualified immunity in either order). So instead of affirmatively deciding

whether Sergeant Evans had probable cause, the Court considers “whether, even assuming that

there was not probable cause to arrest [Mr. Jones], the lack of probable cause under the

circumstances presented here was so clearly established that [Sergeant Evans] would have had

fair notice of its absence.”

Considering the lack of applicable caselaw for the current APO statute, the Court finds

Powell, 238 A.3d at 957, to be illuminating. There, the D.C. Court of Appeals reviewed whether

there was sufficient evidence to support a conviction for a defendant who was charged with

intent-to-frighten assault against a police officer under D.C. Code § 22–404(a)(1) (2013). See

generally, Powell, 238 A.3d. Although Powell involved an assault on a police officer in 2018,

27 the defendant was not charged with a violation of the updated APO statute. In fact, the case does

not mention that statute at all. See generally, id. But because the APO statute is written to

include an assault that would violate the provision under which the Powell defendant was

charged, this case is applicable.

In Powell, 238 A.3d at 958, as captured on body-worn camera, the defendant kicked

officers’ vehicles, setting off a confrontation with the officers, who exited their vehicles. Id.

The defendant “turn[ed] to walk fast toward a police officer who had already deployed her ASP

baton, while asking ‘what are you going to do that for[?]’” Id. at 960. The defendant ignored the

officers’ shouts to “move back” and “continued to approach in an aggressive posture, getting to

within arm's reach of the officers.” Id. at 956. She “‘was angry[,]’ and ‘was expressing [her]

anger.’” Id. at 958. Looking at the “totality of the circumstances” the D.C. Court of Appeals

emphasized that it was a “a very close question whether appellant's conduct in the street was

assaultive.” Id. Ultimately, it found that the evidence was insufficient for conviction because

the evidence did not show the defendant “had the mens rea required for intent-to-frighten assault:

a ‘purposeful design . . . to engender fear’ or ‘create apprehension.’” Id. at 959 (quoting Parks,

).

Here, like Powell, Mr. Jones aggressively and angrily approached the officers. Mr. Jones

reacted to Officer Coward’s command to avoid the police line by moving forward until he was

inches away from Officer Coward, expressly violating instructions. Coward BWC 0:30–0:44.

Mr. Jones was loudly yelling and jabbing his finger at Officer Coward.

0:34–0:44. Mr. Jones

was disruptive enough to pull Officer Coward—as well as Sergeant Evans—away from their

duties related to an investigative stop. As Mr. Jones continued shouting, Sergeant Evans had to

quickly enter a chaotic interaction that would have made it difficult to immediately discern

28 whether Mr. Jones was merely venting his anger as opposed to making threats. After Officer

Coward shoved Mr. Jones backward, Mr. Jones again came in close proximity with the officers,

yelling into Sergeant Evans’s face and refusing to back away or calm down. Evans BWC 3:20–

3:40. All in all, events resemble the kind of “very close” call seen in Powell. 238 A.3d at 958.

Even though the statute is different now, it continues to be true that “each APO case

involves ‘balancing [that] must be conducted, on a case-by-case basis, in an intensely factual

analysis.’” Johnson, 490 F. Supp. 3d at 158 n.4 (quoting In re C.L.D., 739 A.2d at 357). To be

sure, Mr. Jones’s conduct had a defensive tenor at times. He repeatedly emphasized his view

that Officer Coward had just assaulted him by pushing him, and he also put his hands up more

than once. Evans BWC 3:20–3:30; Coward BWC 0:34–0:37. But given the overall context of

Mr. Jones’s conduct, the Court finds that he was aggressive and threatening enough that Sergeant

Evans could have reasonably believed that he had probable cause to arrest him for intent-to-

frighten assault, and thus for APO. At the least, the Court has not identified “‘controlling

authority’ or [a] ‘robust consensus of cases of persuasive authority’ that . . . deprive[s] [Sergeant

Evans] here of the cloak of qualified immunity.” Kyle,

, n.8 (quoting al-

Kidd, 563 U.S. at 741–42). And moreover, while the Court has made its best attempt to construe

the differences, it is not even entirely clear how the APO statute differs from the older more

expansive statute. 12 As a result, Mr. Jones’s First Amendment claim based on threats of

retaliatory arrest fails at prong two of qualified immunity because it was not clearly established

that Sergeant Evans was without probable cause to arrest Mr. Jones. 13

12 The APO statute was amended only a year and a half before the events in this case; nearly seven years after it was amended, the caselaw is still uncertain. 13 Mr. Jones says, see Pl. Opp’n at 10, that even if there was probable cause to arrest him, he falls within the exception of being threatened with arrest when “otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Goodwin,

6. Sergeant Evans’s Other Conduct

The Court also finds that Mr. Jones cannot go forward with his First Amendment claim to

the extent that it is based on Sergeant Evans’s conduct that came after his threat of arrest. In this

regard, the issue is not qualified immunity, but the basic elements of the claim. 14 Mr. Jones fails

the third element of a prima facie First Amendment retaliation claim because he is unable to

establish that his speech about Officer Coward was the “but for” cause of Sergeant Evans’s

actions. Doe, 796 F.3d at 106–07.

The videos are helpful on this point. While Sergeant Evans threatened Mr. Jones with an

arrest relatively early in their interaction, the remainder of Sergeant Evans’s alleged retaliatory

conduct came only after Mr. Jones shouted in his face and told him his breath stunk. See Evans

BWC 3:30–3:45. So while the spat between Sergeant Evans and Mr. Jones stemmed from the

altercation between Officer Coward and Mr. Jones, it quickly took on a life of its own. To

satisfy but-for causation and sustain Mr. Jones’s claim, one would have to believe Sergeant

Evans remained focused on Mr. Jones’s statements about Officer Coward rather than being upset

by Mr. Jones belligerently yelling at and insulting him. 15 This implausible theory runs against

human nature. More importantly, it also runs against the evidence, which shows that Sergeant

Supp. 3d at 172 (citation omitted); see supra n.3. This argument is incorrect, as any “similarly situated individual” would have to be another person possibly committing APO, and no such person existed at the scene. Moreover, that exception could not have been clearly established at the time because it comes from Nieves, 139 S. Ct. at 1727, which was decided after the events in this case. 14 The Court does not address whether qualified immunity could also protect Sergeant Evans for this part of the retaliation claim. 15 One would also have to believe Sergeant Evans was reacting solely to Mr. Jones’s speech—that Officer Coward supposedly assaulted him, was a coward, and should be arrested— rather than Mr. Jones’s conduct in disobeying and physically confronting Officer Coward. This issue again touches on the APO statute. 30 Evans paid close enough attention to Mr. Jones’s insults to return those same insults back at him,

whether by using swear words to say that Mr. Jones’s breath also stunk or by mirroring Mr.

Jones’s homophobic slurs. 16 Id.; Thermidor BWC 5:55–6:00.

Because much of Sergeant Evans’s alleged retaliation was evidently more than just a

response to what Mr. Jones said about Officer Coward, the Court does not need to repeat the full

chain of events between Mr. Jones and Sergeant Evans, including the extended exchange of

insults, the physical contact, and Sergeant Evans’s repeated attempts to chase Mr. Jones. True,

Sergeant Evans yelled at Mr. Jones that if he “come[s] up talking to us we’re gonna talk back to

you.” Id. 6:15–6:30. But Sergeant Evans did so only after he himself was insulted by Mr. Jones,

defeating the idea that those remarks were about Mr. Jones “talking back” to Officer Coward and

not a reference to the minute-long barrage of insults he had experienced from Mr. Jones.

To be clear, the Court is not defending the propriety of Sergeant Evans’s conduct, which

he admitted at his own deposition was “outrageous.” See Evans Deposition 81:10–82:18, Pl. Ex.

3, ECF No. 42-3. Even in the context of Mr. Jones’s offensive remarks, “[p]olice officers are

held to a higher standard than average citizens, because the First Amendment requires that they

tolerate coarse criticism.” D.D. v. Scheeler,

(6th Cir. 2016) (internal

quotation marks and citation omitted). The Court is merely assessing Mr. Jones’s pleaded

claim—of First Amendment retaliation because of his speech about Officer Coward—in the

context of but-for causation. That assessment finds the claim lacking in a situation where there

is no plausible argument that, after the point of threatening arrest, Sergeant Evans’s conduct was

16 Again, Mr. Jones did not plead that Sergeant Evans retaliated against him based on any of his remarks to Sergeant Evans, which also means that the parties do not discuss, and the Court need not consider, whether Mr. Jones’s insults qualify as protected expression under the First Amendment. 31 motivated by Mr. Jones’s speech about Officer Coward rather than by Mr. Jones’s speech

addressed to and about Sergeant Evans. Because but-for causation is absent, the Court goes no

further in analyzing this remaining aspect of Mr. Jones’s claim. It will therefore grant summary

judgment for Sergeant Evans on the entirety of Mr. Jones’s First Amendment retaliation claim.

B. Intentional Infliction of Emotional Distress

Sergeant Evans also moves for summary judgment on Mr. Jones’s IIED claim, which is

now the only remaining claim in this litigation. Before moving on to the merits of this claim, the

Court must address whether it is appropriate to exercise supplemental jurisdiction over it. The

Court determines that it should not exercise jurisdiction.

Neither party has raised the issue, but the Court “has an ‘independent obligation’ at all

stages of litigation to evaluate the contours of its own subject matter jurisdiction.” Buie v.

District of Columbia, No. 16-cv-1920,

at *21 (D.D.C. Sept. 7, 2021) (quoting

Hertz Corp. v. Friend,

(2010)). This Court’s jurisdiction over Mr. Jones’s

common law IIED claim is “supplemental.” See

(a). Even now that the Court

has granted summary judgment for the defendant on Mr. Jones’s federal claim, it may continue

to exercise supplemental jurisdiction over Mr. Jones’s pendent IIED claim under

(a). 17 But this jurisdiction is discretionary, and

“[t]he district courts may decline to exercise supplemental jurisdiction over a claim . . . if — (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.”

at § 1367(c)(1)–(4).

17 Mr. Jones and Sergeant Evans were both residents of the District of Columbia when this lawsuit was initiated, so the Court does not have diversity jurisdiction over this claim. See Compl. ¶ 6. 32 “[I]n the usual case in which all federal-law claims are dismissed before trial, the balance

of factors to be considered under the pendent jurisdiction doctrine—judicial economy,

convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the

remaining state-law claims.” Shekoyan v. Sibley Int'l,

(D.C. Cir. 2005)

(quoting Carnegie–Mellon Univ. v. Cohill,

, 350 n.7 (1988)). Furthermore, “courts

in this jurisdiction routinely decline to exercise supplemental jurisdiction over pendent common

law claims after dismissing the § 1983 claims over which they possess original jurisdiction.”

Buie,

, at *21; see Byrd v. District of Columbia,

(D.D.C. 2003), aff'd sub nom. Byrd v. Gainer, No. 03-7196,

(D.C. Cir. Apr.

26, 2004) (“[T]he Court declines to exercise its supplemental jurisdiction over the remaining

common law claims, but instead will dismiss them without prejudice pursuant to

(c)(3). Plaintiff may file the remaining non-federal claims in Superior Court.”).

This case falls in line with that general practice. Importantly, the elements of an IIED

claim are different than the elements of a First Amendment retaliation claim. “Under District of

Columbia law, a plaintiff seeking relief for IIED must show: (1) extreme or outrageous conduct

on the part of the defendant that (2) either intentionally or recklessly (3) caused plaintiff severe

emotional distress.” Daniels v. District of Columbia,

(D.D.C. 2012).

Whether Sergeant Evans’s conduct was “extreme or outrageous” may in some regards touch on

now-familiar issues of probable cause, but unlike the First Amendment retaliation inquiry, the

IIED inquiry does not require Mr. Jones to show that his speech was the but-for cause of

Sergeant Evans’s actions. Relatedly, while Mr. Jones’s retaliation claim narrowly focuses on

Sergeant Evans’s response to Mr. Jones’s speech about Officer Coward, his IIED claim looks at

the entirety of Sergeant Evans’s conduct. Compl. ¶¶ 75-81. This is not a situation where 33 “Plaintiff's common law claim[] . . . mirror[s] his § 1983 claim.” Wilkins,

, at

*16 (sustaining supplemental jurisdiction over common-law false arrest claim because “the

elements of a constitutional claim for false arrest are substantially identical to the elements of a

common-law false arrest claim.”) (quoting Reiver v. District of Columbia,

(D.D.C. 2013)).

Additionally, the Court sees “compelling reasons for not exercising jurisdiction over

these claims and allowing the local court system to decide what are ultimately local issues.”

Jackson v. District of Columbia,

(D.D.C. 2015). IIED’s “outrageous”

standard is highly context dependent. See Ortberg v. Goldman Sachs Grp.,

(D.C. 2013). And the determination of whether conduct is “extreme and outrageous” is in the

first instance a question of law. Drejza v. Vaccaro,

(D.C. 1994). This case

touches on important and potentially unresolved questions about when an interaction between a

police officer and a resident of the District can rise to IIED, and “the D.C. Superior Court is

eminently more qualified than a federal court to navigate” those questions. Araya v. JPMorgan

Chase Bank, N.A.,

(D.C. Cir. 2014). “This is particularly true during a period

when local policing practices have moved to the forefront of the District’s collective

conscience.” Wilkins,

, at *17 (declining to exercise supplemental jurisdiction

over common law assault claim against police officer).

With these considerations in mind, “the Court concludes that it is most appropriate not to

[exercise] supplemental jurisdiction over” Mr. Jones’s IIED claim. Id.; see

(c).

The Court will remand that sole remaining count to the D.C. Superior Court.

34 V. CONCLUSION

For the foregoing reasons, Defendant Timothy Evans’s Motion for Summary Judgment,

ECF No. 41, is GRANTED IN PART, and the remaining count is REMANDED to Superior

Court. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: March 28, 2024 RUDOLPH CONTRERAS United States District Judge

35