UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) MICHAEL LEACH, ) ) Plaintiff, ) ) v. ) Case No. 19-cv-00947 (APM) ) DISTRICT OF COLUMBIA et al., ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION

I. INTRODUCTION

Following the court’s decision to permit additional discovery, Defendants Officer David

Whitehead and the District of Columbia now renew their Motion for Summary Judgment,

ECF No. 154 [hereinafter Defs.’ Mot.]. Defendants argue that Officer Whitehead is entitled to

qualified immunity on Plaintiff Michael Leach’s excessive-force claim and qualified privilege on

his assault-and-battery claim. And, Defendants reason, if Officer Whitehead is immune from the

underlying claims, Plaintiff cannot maintain a vicarious liability claim against the District of

Columbia. For the reasons that follow, the court agrees and therefore grants Defendants’ motion.

II. BACKGROUND

The court has already found some of the relevant facts undisputed and, having detailed

much of the case’s background in that decision, provides only the facts and procedural history

necessary to resolve the present motion. See Leach v. District of Columbia (Leach I), No. 19-cv-

947 (APM),

, at *1–2 (D.D.C. May 3, 2022). A. Factual Background

On March 22, 2017, Plaintiff went to visit an acquaintance at his apartment. Id. at *1.

At some point, Plaintiff went to use the bathroom. Id. Later, when he had not returned, Plaintiff’s

acquaintance tried to get him to open the door. Id. The acquaintance was unsuccessful, so he

forced the door open. Id. He found Plaintiff lying in the bathtub and smelled PCP. Id. Plaintiff

drew a gun, pointed it at the acquaintance, and fired, but thankfully he missed. Id.

District of Columbia Metropolitan Police Department (MPD) officers arrived shortly

thereafter in response to a call that shots were fired. Pl.’s Opp’n to Defs.’ Mot., ECF No. 157

[hereinafter Pl.’s Opp’n], Pl.’s Counter-Stmt. of Material Facts, ECF No. 157-4 [hereinafter Pl.’s

Stmt.], ¶ 1. When the officers approached the apartment, they saw Plaintiff standing in the

doorway. Leach I,

, at *2. Plaintiff stood with his left side toward the officers,

so they could not see his right hand.

The officer closest to Plaintiff, Officer John Bewley,

asked Plaintiff what was going on and to show him his right hand.

Plaintiff did not respond.

Plaintiff then moved toward Officer Bewley, at which point Officer Bewley noticed Plaintiff

was holding a gun in his previously concealed hand.

Officer Bewley shouted repeatedly for

Plaintiff to drop the gun and tried to reach for it.

Officer Bewley then fired five shots in quick

succession, striking Plaintiff in the stomach, groin, buttocks, and legs.

Plaintiff fell to the

floor.

Several officers—who, at that point, did not know who had fired the shots—rushed forward

to subdue Plaintiff and retrieve his gun. Defs.’ Mot., Defs.’ Stmt. of Material Facts, ECF No. 154-

2 [hereinafter Defs.’ Stmt.], ¶¶ 14, 17, 19; Defs.’ Mot., Ex. 6, Dep. of Artavius Williams, ECF No.

154-8 [hereinafter Williams Dep.], at 6:11–7:5.1 Officer Whitehead positioned himself near

1 All exhibit page numbers refer to CM/ECF pagination.

2 Plaintiff’s head and was leaning over his face. Pl.’s Stmt. ¶ 18. Officer Whitehead tried to grab

Plaintiff’s left arm but felt it tense, as if Plaintiff was trying to grab or hold on to something. Defs.’

Stmt. ¶ 22; Defs.’ Mot., Ex. 5, Dep. of David Whitehead, ECF No. 154-7 [hereinafter Whitehead

Dep.], at 14:20–15:5. The officers commanded Plaintiff to drop the gun several times but still

could not wrestle it free. Defs.’ Stmt. ¶¶ 20–21.

Officer Whitehead then began striking Plaintiff in the face. Pl.’s Stmt. ¶ 23. Seconds later,

Officer Bewley shouted, “I got it!” Defs.’ Stmt. ¶ 24; Pl.’s Opp’n, Ex. C., Zaw BWC Footage

[hereinafter Zaw BWC], at 0:45–0:49. Just afterward, Officer Whitehead stopped striking

Plaintiff. Zaw BWC at 0:49-55.

The officers then tried to place Plaintiffs in handcuffs but had difficulty doing so.

Pl.’s Stmt. ¶¶ 26–27. Although they had confiscated the gun, they were concerned that he might

have another weapon. Whitehead Dep. at 15:6-10, 20:3-17, 24:10–25:3; Williams Dep. at 8:6-11,

9:4-20; Zaw BWC at 1:25-28 (one officer yelling, “I don’t know what he has under there!”).

Officer Whitehead resumed striking Plaintiff, striking him ten more times in total. Pl.’s Stmt.

¶¶ 25, 28. As Officer Whitehead did so, he repeatedly told Plaintiff to “stop resisting.”

Eighty-one seconds after retrieving the gun, the officers placed Plaintiff in handcuffs.

Defs.’ Stmt. ¶ 37. Right up until then, officers shouted to each other to grab Plaintiff’s arms or to

grab his hands. See generally Zaw BWC.

Plaintiff was hospitalized for his injuries. Leach I,

, at *2.

B. Procedural Background

Plaintiff initially filed suit against MPD and an “Officer Clay,” whom he believed to be the

officer that shot him.

After denying MPD’s motion for summary judgment, the court

substituted the District of Columbia as the proper defendant.

Plaintiff then filed an amended

3 complaint, proceeding against the District of Columbia, the Chief of MPD, and sixteen MPD

Officers, including Officer Bewley and two unnamed officers. Am. Compl., ECF No. 70

[hereinafter Am. Compl.]. Defendants moved to dismiss or, in the alternative, for summary

judgment. Leach I,

, at *2. The court granted the motion as to almost all claims

and Defendants, except for Plaintiff’s excessive-force and assault-and-battery claims against one

of the unnamed officers—later identified as Officer Whitehead—and accompanying vicarious

liability claims against the District of Columbia. See id. at *13; Am. Compl. at 16–28.

Plaintiff moved for reconsideration, but the court denied the motion. Leach v. District of

Columbia (Leach II), No. 19-cv-947 (APM),

, at *7 (D.D.C. Mar. 27, 2023).

At the same time, the two remaining Defendants moved for summary judgment.

Officer Whitehead argued that he is “entitled to qualified immunity for Plaintiff’s Fourth

Amendment excessive force claim (Count I) and qualified privilege on Plaintiff’s assault and

battery claim (Count VI).”

(internal quotation marks omitted). The District of Columbia

maintained that, because Officer Whitehead is entitled to immunity on the underlying claims, “the

District is entitled to an order granting summary judgment in its favor to the extent that it is liable

for Whitehead’s actions under a respondeat superior theory.”

(internal quotation marks

omitted). In response, Plaintiff filed an affidavit stating he needed access to additional discovery

to adequately oppose the motion.

The court denied Defendants’ motion without prejudice to allow for limited additional

discovery. Id. at *8. Specifically, the court ordered Defendants to produce more body-worn

camera (BWC) footage to Plaintiff. Id. As time went on, the scope of additional discovery

expanded to include records of MPD’s investigation into the incident and depositions, among other

4 evidence. See, e.g., Minute Order, May 21, 2024; Minute Order, Oct. 17, 2024. After discovery

concluded, Defendants renewed their Motion for Summary Judgment. See ECF No. 154.

III. LEGAL STANDARD

A court “shall 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 genuine dispute is one in which, viewing the evidence in the light most favorable

to the nonmoving party, a reasonable jury could return a verdict in its favor. Talavera v. Shah,

(D.C. Cir. 2011). And a fact is material if it “might affect the outcome of the

suit under the governing law.”

(quoting Anderson v. Liberty Lobby, Inc.,

(1986)).

IV. DISCUSSION

The court first clarifies material facts that Plaintiff argues are disputed. The court then

analyzes whether Officer Whitehead is entitled to qualified immunity on Plaintiff’s excessive-

force claim, before turning to Plaintiff’s remaining claims for assault and battery and vicarious

liability.

A. Factual Disputes

As previously mentioned, at summary judgment, the court views the evidence in the light

most favorable to the nonmoving party—here, Plaintiff. Talavera,

. But to

preclude summary judgment, Plaintiff must demonstrate a genuine dispute. Richardson v.

Am. Sec. Programs, Inc.,

(D.D.C. 2014). Plaintiff has not done so with

respect to two key facts.

First, Plaintiff disputes whether he was tensing his arm as officers tried to retrieve the gun.

Pl.’s Stmt. ¶ 22. He argues that, in a recorded statement shortly after the incident, Officer

5 Whitehead stated that “the only area of Plaintiff that he had ‘available to [him] was really

[Plaintiff’s] face,’” rendering his later testimony about grabbing Plaintiff’s arm less reliable.

(alterations in original) (emphasis added). Plaintiff continues that, even if Officer Whitehead did

have access to Plaintiff’s arm, “there is no corroborating evidence that Plaintiff’s arm was tensing

up.”

The first of these arguments omits key context. When Officer Whitehead said that only

Plaintiff’s face was available to him, he was responding to a question about where on Plaintiff’s

body he delivered strikes. Pl.’s Opp’n, Ex. I, Audio Interview of David Whitehead, at 4:38-45.

As Defendants point out, “[t]his exchange is silent on whether Officer Whitehead attempted to

grab Leach’s arm” before then. Defs.’ Reply in Supp. of Defs.’ Mot., ECF No. 158, at 5. It thus

creates no genuine dispute as to Officer Whitehead’s later testimony that he first attempted to “gain

control of [Plaintiff’s] arm.” Whitehead Dep. at 12:6-10.

Plaintiff’s contention about the lack of corroborating evidence is also insufficient to create

a genuine dispute. Sworn deposition testimony is a “cognizable form[] of evidence at summary

judgment.” Harris v. Chao,

, 110 n.2 (D.D.C. 2007) (citing Anderson,

); see also Fed. R. Civ P. 56(c)(1)(A). Therefore, “Defendants are entitled to rely

on [Officer Whitehead’s] deposition testimony at the summary judgment stage,” and “[i]f Plaintiff

did not agree with what [he] said at that deposition, it was incumbent on Plaintiff to present

competent evidence to rebut” it. Wood v. Am. Fed’n of Gov’t Emps.,

, 485 n.6

(D.D.C. 2018). Plaintiff presents no such evidence. Instead, Plaintiff’s assertion about the lack of

corroborating evidence amounts to “simply [] claiming that [Defendants’] factual assertions are

false or incorrect,” which is not enough to demonstrate a genuine dispute as to whether Plaintiff

6 tensed his arm while Officer Whitehead tried to restrain him. Conant v. Wells Fargo Bank, N.A.,

(D.D.C. 2014).

Second, Plaintiff disputes that Officer Whitehead temporarily stopped striking him after

officers retrieved the firearm. Pl.’s Stmt. ¶¶ 25, 28. According to Plaintiff, the “strikes continued

without a break.” Id. ¶ 28. Not so. Although the pause was brief, the BWC footage shows Officer

Whitehead ceasing to administer strikes just after Officer Bewley shouted that he had the gun.

Zaw BWC at 0:48-55. Where, as here, objective video evidence establishes a fact, the court

“view[s] [it] in the light depicted by the videotape.” Scott v. Harris,

, 380–81 (2007).

B. Excessive Force

Having clarified the record, the court now proceeds to the merits of Defendants’ argument

that Officer Whitehead is entitled to qualified immunity on Plaintiff’s Fourth Amendment

excessive-force claim. An officer is entitled to qualified immunity “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)). The unlawfulness of Officer Whitehead’s conduct

was not clearly established as of March 22, 2017, so the court begins and ends its analysis there.

See Pearson v. Callahan,

(2009) (granting courts “discretion in deciding which

of the two prongs of the qualified immunity analysis should be addressed first”).

The unlawfulness of an officer’s conduct is “clearly established” if “then-existing

precedent” made it “sufficiently clear that every reasonable official would understand what he is

doing is unlawful.” Wesby,

(internal quotation marks omitted). “The rule must be

settled law, which means it is dictated by controlling authority or a robust consensus of cases of

persuasive authority.”

(cleaned up). That authority “must have placed the constitutionality of

7 the officer’s conduct ‘beyond debate.’”

(quoting Ashcroft v. al-Kidd,

, 741

(2011)).

Moreover, the “rule’s contours” must not be defined “at a high level of generality, since

doing so avoids the crucial question whether the official acted reasonably in the particular

circumstances that he or she faced.” Id. (quoting Plumhoff v. Rickard,

(2014)).

This is particularly true in the excessive-force context, given the uniqueness of the factual

circumstances officers confront in each case. See Kisela v. Hughes,

(2018)

(per curiam). Accordingly, “officers are entitled to qualified immunity unless existing precedent

‘squarely governs’ the specific facts at issue.”

(quoting Mullenix v. Luna,

(2015)). So here, the court asks whether precedent clearly established that, following an armed

confrontation during which Plaintiff did not respond to commands to drop his weapon and shots

were fired, Officer Whitehead could not have lawfully struck Plaintiff several times in the face as

officers struggled first to retrieve his weapon and then to handcuff him. While Plaintiff need not

identify precedent with the exact same facts, see Richardson v. District of Columbia,

(D.D.C. 2018), the facts must be similar enough to give an officer “fair warning that

their alleged treatment of [Plaintiff] was unconstitutional,” Hope v. Pelzer,

(2002).

Binding authority did not clearly establish the unlawfulness of Officer Whitehead’s

conduct. Plaintiff has not identified any Supreme Court or D.C. Circuit precedent that “squarely

governs” the facts of this case. Kisela,

; see also Dukore v. District of Columbia,

(D.C. Cir. 2015) (“It is [the plaintiffs’] burden to show that the particular

right in question—narrowly described to fit the factual pattern confronting the officers—was

clearly established.” (internal citation omitted)). Plaintiff points only to Johnson v. District of

8 Columbia,

, 974–75 (D.C. Cir. 2008), in which the D.C. Circuit found that an officer

violated the Fourth Amendment when he repeatedly kicked a suspect in the groin who had “raised

his hands, turned toward the open door of his apartment, fell face-first to the floor, and spread his

arms and legs in a manner announcing submission.” But Johnson is distinguishable. Here,

Plaintiff did not act in a manner “announcing submission.”

. Officers yelled repeatedly

for Plaintiff to drop his weapon while they struggled to retrieve it; Officer Whitehead felt Plaintiff

tense his arm when he tried to move it; and, up until the moment Plaintiff was handcuffed, officers

were yelling at each other to grab control of his arms and hands as they tried to subdue him. Given

this critical factual difference, Johnson does not place the unlawfulness of Officer Whitehead’s

striking a suspect over whom the officers lacked control “beyond debate.” Wesby,

.

Meanwhile, the D.C. Circuit has recognized that, “in a quickly developing situation” like

the one at issue here, officers may sometimes use substantial force to secure a suspect and place

them in handcuffs. See Scott v. District of Columbia,

, 759–60 (D.C. Cir. 1996) (first

quoting Martin v. Malhoyt,

(D.C. Cir. 1987); then citing cases). The court thus

cannot say that binding precedent at the time clearly established that Officer Whitehead acted

unlawfully.

Plaintiff also cites cases he argues demonstrate a “robust consensus” of persuasive

authority dictating the unlawfulness of Officer Whitehead’s conduct, Wesby,

, but

they do not change the court’s conclusion. For starters, the three cases on which Plaintiff primarily

relies were all decided after the events at issue in this litigation occurred. See Pl.’s Opp’n, Pl.’s

Mem. of P. & A. in Opp’n to Defs.’ Mot., ECF No. 157-3 [hereinafter Pl.’s Mem.], at 20–22 (first

discussing Cooper v. District of Columbia,

(D.D.C. 2021); then Johnson v.

District of Columbia,

(D.D.C. 2020); and then Williams v. District of

9 Columbia,

(D.D.C. 2017)). They accordingly have no bearing on the court’s

analysis. See Brosseau v. Haugen,

, 200 n.4 (2004) (per curiam).

Plaintiff does, however, cite several other cases decided before March 22, 2017, which he

contends clearly established that “striking a subdued or restrained suspect constitutes excessive

force in violation of the victim’s constitutional rights.” Pl.’s Mem. at 18. The court agrees that

the cited cases stand for this general principle. But neither the cases nor the general principle

“squarely govern” the specific facts at issue here. Kisela,

. Some of the cases are

distinguishable for the same reason Johnson is—Plaintiff was not “subdued or restrained” like the

suspects in the cited cases. See Ingram v. Shipman-Meyer,

, 141–42 (D.D.C.

2017) (noting that the officers had “gained control of [the suspect’s] arms”); Abbott v. Sangamon

County,

, 732–33 (7th Cir. 2013) (reasoning that “no reasonable officer could have

understood” the plaintiff’s conduct “to be active physical resistance” because she “made no

movement”). Others are distinguishable by differences in the magnitude of the force employed or

the threat potentially posed by the suspect. See Estate of Jones ex rel. Jones v. City of Martinsburg,

, 665, 668–69 (4th Cir. 2020) (describing how all officers had retreated from the

suspect, who lay motionless, when they collectively fired 22 rounds at him); Shreve v. Jessamine

Cnty. Fiscal Ct.,

, 687 (6th Cir. 2007) (explaining that the officers repeatedly struck

the suspect in the eye with a stick after pepper spraying her and then struck her on her back, neck,

and shoulders for around fifteen minutes); Dixon v. Richer,

(10th Cir. 1991)

(describing how, after frisking the suspect but apparently finding no weapon, the officers then

struck the suspect with a flashlight, choked him, and beat him). These cases thus do not provide a

“robust consensus” of persuasive, on-point authority as to the unlawfulness of Officer Whitehead’s

actions. Wesby, 586 U.S. at 63.

10 Plaintiff responds with a different articulation of the clearly-established inquiry for this

case. As he sees it, “[t]he relevant inquiry is whether, accepting Plaintiff’s version of the facts, a

reasonable officer should have known that it was unlawful to repeatedly strike with a closed fist a

subdued suspect in the face and head when the suspect was on his back, neither actively resisting

nor posing an imminent threat to the officers or a risk of flight.” Pl.’s Mem. at 17. As discussed

above, however, the first premise of this framing is flawed: on this record, there is no genuine

dispute that Plaintiff was not “subdued.” The court acknowledges that a suspect need not be

handcuffed to be considered subdued. See Pl.’s Mem. at 18–19 (citing cases). But here, Plaintiff

was not subdued until the officers handcuffed him. See Whitehead Dep. at 20:3-17; Defs.’ Mot.,

Ex. 8, Dep. of Angel Roman, ECF No. 154-10, at 7:9-14; see generally Zaw BWC.

Plaintiff’s argument that he did not pose an imminent threat to the officers is also

unpersuasive. He bases his argument on the fact that some officers were “just standing around and

not responding in a manner that would indicate they thought Plaintiff was a threat,” as well as

testimony from those officers that they did not feel threatened by Plaintiff. Pl.’s Stmt. ¶¶ 32, 35.

But Plaintiff’s evidence does not create a genuine dispute as to whether the relevant officer—

Officer Whitehead, who was actively trying to subdue Plaintiff instead of standing at a distance—

could perceive Plaintiff as a threat. Officer Whitehead and another officer who also was actively

trying to restrain Plaintiff, Officer Williams, both testified they were concerned Plaintiff might

have another weapon and that he posed a threat until he was handcuffed. See Whitehead Dep. at

15:6-10, 20:3-17, 24:10–25:3; Williams Dep. at 8:6-11, 9:4-20.

Admittedly, the officers’ subjective perceptions are beside the point. The qualified-

immunity inquiry is an objective one. It asks whether, in the specific situation at issue, a reasonable

officer would have known the unlawfulness of his actions. See Lash v. Lemke,

, 7

11 (D.C. Cir 2015). “It is that objective test, not [the plaintiff’s] knowledge or [the officer’s] thoughts,

that determines the scope of qualified immunity.”

Plaintiff has not provided any then-existing

precedent that would have put a reasonable officer in Officer Whitehead’s position on notice that

his conduct was unlawful. Officer Whitehead is therefore entitled to qualified immunity on

Plaintiff’s excessive-force claim.

C. Remaining Claims

The parties appear to agree that Plaintiff’s remaining two claims rise and fall with the

court’s conclusion on qualified immunity. See Defs.’ Mot., Defs.’ Mem. of P. & A. in Supp. of

Defs.’ Mot., ECF No. 154-1, at 14; Pl.’s Mem. at 23–24. Because the court finds that Officer

Whitehead is entitled to qualified immunity on Plaintiff’s excessive-force claim, it grants

Defendants summary judgment on his assault-and-battery and vicarious liability claims, as well.

See Leach I,

, at *8 (“[C]ourts’ analysis of the qualified privilege mirrors the

qualified-immunity inquiry.” (citing Rogala v. District of Columbia,

(D.C. Cir.

1998))); Arrington v. District of Columbia,

, 59 n.13 (D.D.C. 2009) (“[T]he

City is not liable for any actions of defendant [] from which he is shielded from liability by

qualified immunity.”).

V. CONCLUSION

For the foregoing reasons, the court grants Defendants’ Motion for Summary Judgment,

ECF No. 154. A final, appealable order accompanies this memorandum opinion.2

Dated: December 23, 2025 Amit P. Mehta United States District Judge

2 The court once more expresses its gratitude for court-appointed counsel’s zealous advocacy of Plaintiff.

12