*30Ferris Ridgely Bond, Sr., Jane Carol Norman, Bond & Norman Law P.C.,
Miguel Angel Serrano, Law Office of Miguel Serrano, Washington, DC, for Plaintiff.,
James Anthony Towns, Sr., Robert A. DeBerardinis, Jr., William J. Chang, Office
of the Attorney General for the District of Columbia, Washington, DC, for Defendants.,
BERYL A. HOWELL, Chief Judge *31Lamont Andre Young, who was injured after being
shot in the back during a confrontation with officers of the District of Columbia's
Metropolitan Police Department ("MPD"), filed suit against one of those officers,
Thurman Powell, and the District of Columbia, raising Fourth Amendment Excessive
Force and Eighth Amendment Cruel and Unusual Punishment claims, under 42 U.S.C §
1983, as well as various claims under District of Columbia law. The Court previously
dismissed several of the plaintiff's claims, including the Fourth Amendment claim
against the District of Columbia, and the Eighth Amendment and common law excessive
force claims against both defendants. See Young v. District of Columbia , 107 F.Supp.3d
69, 82-83 (D.D.C. 2015) (dismissing Count I against District of Columbia and Counts
II and IV entirely). After over two years of discovery, the defendants have now
filed a Motion for Summary Judgment ("Defs.' MSJ"), ECF No. 36, on the plaintiff's
remaining claims in Count I (Fourth Amendment Excessive Force) against defendant
Powell, and, against both defendants, Counts III (assault and battery), VI (Intentional
Infliction of Emotional Distress), and VII (Negligent Infliction of Emotional Distress).
For the reasons given below, the defendants' motion is denied., The material facts
leading up to the moment of the shooting largely are undisputed. On December 26,
2013, MPD officers responded to a disturbance at 1728 W. Street SE, Washington,
DC, where the plaintiff had had a verbal altercation with his friend, Crystal Perry.
Incident Report at 1, 3, ECF No. 36-2; Dep. of Lamont Young ("Young Dep.") at 9:17-19,
ECF No. 36-2. Ms. Perry informed the officers that the plaintiff had secured a black
semi-automatic handgun in his waistband prior to leaving Ms. Perry's apartment.
Incident Report at 3. Ms. Perry also informed the officers that the plaintiff had
made threatening remarks toward law enforcement. Id. One of the responding officers
radioed a lookout for the plaintiff based on the information Ms. Perry had provided.
Dep. of Thurman Powell ("Powell Dep.") at 44:4-18, ECF No. 36-2; Dep. of Anthony
Allen ("Allen Dep.") at 9:10-20, ECF No. 36-2., The next day, the plaintiff visited
his barbershop to get a haircut. Young Dep. at 23:2-5. There was a wait to be served,
so the plaintiff borrowed the keys to his barber's car to drive to a nearby restaurant
for breakfast. Id. at 23:5-9. The plaintiff encountered some acquaintances selling
cigarettes outside before he could reach the car, however, and stopped to talk to
them. Id. at 26:3-19. Allen observed the plaintiff, who was wearing the same clothing
the radio dispatch had described him to have worn the day before. Allen Dep. at
14:1-7. Allen requested backup, advising dispatch that he had located the plaintiff
and that the plaintiff was known to carry a *32weapon. Id. at 14:7-12, 15:4-5. Defendant
Powell responded to Allen's request for backup and arrived in his cruiser shortly
thereafter. Id. at 14:20-15:1; Powell Dep. at 68:20-69:5. Upon arriving at the scene,
defendant Powell observed the plaintiff leaning up against a wall, wearing the clothing
Meyers's dispatch had described. Powell Dep. at 59:1-22, 76:6-7., Defendant Powell
testified that he and Allen ordered the plaintiff to remove his hands from his pockets.
Powell Dep. at 46:1-8. The plaintiff initially ignored these orders and walked away
from the officers toward a vehicle parked in the middle of the street. Id. at 47:18-22;
51:20-22; 76:15. The plaintiff removed his hands from his pockets as he walked away.
Id. at 77:7-8. Allen and defendant Powell again ordered the plaintiff to stop, but
the plaintiff disobeyed, putting his hands back into his pockets and continuing
to walk away. Id. at 77:10-17. Both officers repeatedly commanded the plaintiff
to show his hands. Id. at 77:20-21. The plaintiff "then snatched his hand out of
his pocket and put it inside his waistband." Id. at 77:22-78:1. The plaintiff suddenly
"jerked his arm out," "as if he was pulling something out of his waistband," id.
at 78:4-5, and "twisted towards" defendant Powell," id. at 125:4-6, 126:22-127:2.
Defendant Powell fired his gun once at the plaintiff, id. at 78:5-6, and then radioed
for an ambulance and for his supervisors, id. at 82:9-13. The plaintiff was unarmed.
Id. at 101:7-10., Crime scene investigators secured evidence from the scene, recovering
a "glass bottle with a strong chemical odor" as well as a Glock 21 handgun from
the right rear floorboard of a Lexus parked along 22nd Street SE. See Crime Scene
Evid. Rpt. at 2, Items 11 & 13, ECF No. 36-2. The U.S. Drug Enforcement Administration
later determined the bottled substance to contain phencyclidine ("PCP"). See DEA
Chemical Analysis Rpt., ECF No. 36-2. Investigators found no gun on the plaintiff.
See Crime Scene Evid. Rpt. at 2. Defendant Powell gave a statement to the MPD's
Internal Affairs Division ("IAD") later that day, asserting that he had been focusing
on the plaintiff's forearm and the back of the plaintiff's hand before discharging
his weapon. Pl.'s Opp'n Def.'s MSJ, Ex. 4a, Officer Powell Statement to IAD ("Powell
Statement") at 7, ECF No. 39-5. Defendant Powell did not say that he had seen anything
in the plaintiff's hands prior to shooting him. Id. at 3, 5, 7. Defendant Powell
told the IAD that he shot the *33plaintiff because the plaintiff had made a "motion"
while removing his hands from his jacket, causing defendant Powell to fear for his
life. Id. at 5, 7.1, On June 23, 2014, a jury convicted the plaintiff of unlawful
possession of a firearm and carrying a pistol without a license. DC Sup. Ct. Dkt.,
United States v. Lamont A. Young , 2013 CF2 0022729. On September 10, 2014, the
plaintiff was sentenced to 42 months' imprisonment on the unlawful possession count
and to 16 months' imprisonment on the carrying a pistol charge, to be served concurrently.
Id. The plaintiff filed suit against defendant Thurman and the District of Columbia,
under 42 U.S.C. § 1983, raising claims of excessive force, in violation of the Fourth
Amendment, and cruel and unusual punishment, in violation of the Eighth Amendment
Compl. ¶¶ 24-34, ECF No. 1. The plaintiff also raised claims of common law assault
and battery, excessive force, negligence, intentional infliction of emotional distress,
and negligent infliction of emotional distress. Id. ¶¶ 35-64. The defendants filed
motions to dismiss, Defs.' Mot. Dismiss Complaint, ECF No. 5; Def. Powell's Mot.
Partial Dismissal, ECF No. 12, which the Court granted in part and denied in part,
dismissing the plaintiff's Eighth Amendment claim *34against both defendants, the
plaintiff's Fourth Amendment claim against the District of Columbia, the plaintiff's
common law excessive force claim against both defendants, and all claims against
defendant Powell "in his official capacity." Order Granting in Part & Denying in
Part Def. Powell's Mot. for Partial Dismissal, ECF No. 16; Mem. Op. at 18, ECF
No. 15., Discovery in this case ultimately lasted over two years. See Minute Orders,
dated June 19, 2015 and Sept. 27, 2017. The defendants filed a motion for summary
judgment on the plaintiff's remaining claims of Fourth Amendment excessive force,
assault and battery, intentional infliction of emotional distress ("IIED"), and
negligent infliction of emotional distress ("NIED"), Defs.' MSJ, which is now ripe
for review.2, Summary judgment is appropriate "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). "In making that determination, a court
must view the evidence 'in the light most favorable to the opposing party.' "
Tolan v. Cotton , 572 U.S. 650, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (quoting
Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)
). In other words, " 'the evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor.' " Id. at 1863 (quoting Anderson
v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)
(alterations omitted) ). "[A] 'judge's function' at summary judgment is not 'to
weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.' " Id. at 1866 (quoting Anderson , 477 U.S.
at 249, 106 S.Ct. 2505 ). The Supreme Court has stressed, in the qualified immunity
context, "the importance of drawing inferences in favor of the nonmovant." Id.,
The defendants argue that defendant Powell is entitled to summary judgment on the
plaintiff's Fourth Amendment Excessive Force claim because defendant Powell did
not violate the plaintiff's Fourth Amendment rights and, in the alternative, any
rights violated were not clearly established at the time of the shooting. The defendants
also argue that they are entitled to summary judgment on the plaintiff's District
of Columbia assault and battery and intentional infliction of emotional distress
("IIED") claims, in Counts III and VI, respectively, for essentially identical reasons.
Finally, the defendants argue that the plaintiff has failed to state a claim for
negligent infliction of emotional distress ("NIED") in Count VII, and that this
claim therefore must be dismissed. Each of these arguments is addressed in turn.,
The defendants contend that defendant Powell's conduct was objectively reasonable
and did not violate the plaintiff's clearly established Fourth Amendment rights,
entitling defendant Powell to qualified immunity from the plaintiff's damages claim
for use of excessive force in Count I. Defs.' MSJ at 1. Following a summary of
the applicable legal framework, the factual record, viewed in the light most favorable
to the plaintiff, is analyzed to determine whether qualified immunity bars this
claim. The Court concludes that the plaintiff's Fourth Amendment Excessive Force
claim may proceed to trial., Section 1983 of Title 42, U.S. Code, creates a cause
of action against "[e]very person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws." 42 U.S.C. § 1983. The defense of qualified
immunity may be asserted by "government officials performing discretionary functions"
to shield them from civil damages liability in such a suit "as long as their actions
could reasonably have been thought consistent with the rights they are alleged to
have violated." Anderson v. Creighton , 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d
523 (1987). "Qualified immunity attaches when an official's conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known." Kisela v. Hughes , --- U.S. ----, 138 S.Ct. 1148, 1152, 200 L.Ed.2d
449 (2018) (per curiam) (quoting White v. Pauly, --- U.S. ----, 137 S.Ct. 548, 551,
196 L.Ed.2d 463 (2017) (per curiam) ); see also Pearson v. Callahan , 555 U.S. 223,
231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ("The doctrine of qualified immunity
protects government officials 'from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.' " (quoting Harlow v. Fitzgerald
, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ) ). " 'Because the
focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness
is judged against the backdrop of the law at the time of the conduct.' " Kisela
, 138 S.Ct. at 1152 (quoting Brosseau v. Haugen , 543 U.S. 194, 198, 125 S.Ct. 596,
160 L.Ed.2d 583 (2004) (per curiam) )., *36Courts use "a two-step sequence for resolving
government officials' qualified immunity claims." Pearson , 555 U.S. at 232, 129
S.Ct. 808. "First, a court must decide whether the facts ... shown make out a violation
of a constitutional right." Id. (internal citation omitted). "Second, if the plaintiff
has satisfied this first step, the court must decide whether the right at issue
was 'clearly established' at the time of defendant's alleged misconduct." Id.
Courts may "exercise their sound discretion in deciding which of the two prongs
of the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand." Id. at 236, 129 S.Ct. 808., Although a case need
not be "directly on point for a right to be clearly established, existing precedent
must have placed the statutory or constitutional question beyond debate." Kisela
, 138 S.Ct. at 1152 (quoting White , 137 S.Ct. at 551 ). "Specificity is especially
important in the Fourth Amendment context, where ... it is sometimes difficult for
an officer to determine how the relevant legal doctrine, here excessive force, will
apply to the factual situation the officer confronts." Id. (quoting Mullenix v.
Luna , --- U.S. ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (alterations
omitted) ). "Use of excessive force is an area of the law 'in which the result
depends very much on the facts of each case,' and thus police officers are entitled
to qualified immunity unless existing precedent 'squarely governs' the specific
facts at issue." Id. at 1153 (quoting Mullenix , 136 S.Ct. at 309 ). "Precedent
involving similar facts can help move a case beyond the otherwise 'hazy border
between excessive and acceptable force' and thereby provide an officer notice that
a specific use of force is unlawful." Id. (quoting Mullenix , 136 S.Ct. at 312 ).
"An officer 'cannot be said to have violated a clearly established right unless
the right's contours were sufficiently definite that any reasonable official in
the defendant's shoes would have understood that he was violating it.' " Id. at
1153 (quoting Plumhoff v. Rickard , 572 U.S. 765, 134 S.Ct. 2012, 2023, 188 L.Ed.2d
1056 (2014) ). At the same time, a court "need not identify cases with 'materially
similar' facts, but have only to show that 'the state of the law at the time of
the incident gave the officer fair warning that his alleged misconduct was unconstitutional.'
" Johnson v. District of Columbia , 528 F.3d 969, 976 (D.C. Cir. 2008) (quoting
Hope v. Pelzer , 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (alterations
omitted) )., "The 'reasonableness' of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight." Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865,
104 L.Ed.2d 443 (1989)"The calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make split-second judgments-in
circumstances that are tense, uncertain, and rapidly evolving-about the amount of
force that is necessary in a particular situation." Id. at 396-97, 109 S.Ct. 1865.
Moreover, "the 'reasonableness' inquiry in an excessive force case is an objective
one: the question is whether the officers' actions are 'objectively reasonable'
in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation." Id. at 397, 109 S.Ct. 1865. An officer's use
of force is unreasonable where the facts, viewed in the light most favorable to
the plaintiff, offer "no indication that [the plaintiff] posed any threat to" anyone
or "had committed a serious crime." Hall , 867 F.3d at 157. "[I]f an excessive force
claim turns on which of two conflicting stories best captures what happened on the
street, Graham will not permit summary judgment in favor of the defendant official."
Saucier v. Katz , 533 U.S. 194, 216, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (Ginsburg,
J., concurring in the judgment (quoted with approval in Johnson , 528 F.3d at 977
) )., Nor does "the severity of the crime at issue," Hall , 867 F.3d at 157, make
defendant Powell's use of force reasonable. The defendants argue that "[g]iven
the information contained in the dispatches, Officer Powell reasonably believed
that Plaintiff was potentially armed and dangerous." Defs.' Reply at 5. This is
true, but only up to a point. The officers were entitled to rely on the dispatches
throughout their interactions with the plaintiff, see United States v. Hensley ,
469 U.S. 221, 231, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) ("[E]ffective law enforcement
cannot be conducted unless police officers can act on directions and information
transmitted by one officer to another." (quoting *38United States v. Robinson ,
536 F.2d 1298, 1299 (9th Cir. 1976) ) ), but only until the time that the plaintiff
clearly manifested, by raising his hands in the air above his head where the officers
could see them, that he was not holding a weapon, and that he posed no threat. At
that point, any information communicated over the dispatch could not give the officers
probable cause to believe a clearly unarmed, surrendering man posed a danger to
them or others. See Flythe v. District of Columbia , 791 F.3d 13, 22 (D.C. Cir.
2015) ("That an individual at one point posed a threat does not grant officers an
irrevocable license to kill. Justification for deadly force exists only for the
life of the threat."); see also Hall , 867 F.3d at 157 (holding that force is excessive
when "no indication" exists that a plaintiff "posed any threat to" anyone or "had
committed a serious crime"); Johnson , 528 F.3d at 975 (holding that "repeatedly
kicking a surrendering suspect in the groin [ ] produces [no] law enforcement benefit
that might outweigh the serious harm it causes").3 As such, no "importan[t] [ ]
governmental interests" existed "to justify the intrusion" upon the plaintiff's
"Fourth Amendment interests." Hall , 867 F.3d at 157 (quoting Tolan , 134 S.Ct.
at 1865 )., The defendants rely on Sigman v. Town of Chapel Hill , 161 F.3d 782,
786, 788 (4th Cir. 1998), for the proposition that "White's testimony does not
create a triable issue of fact as to the threat that a reasonable officer in Officer
Powell's position faced." Defs.' Reply at 10. Sigman , however, does not support
the defendants' position. Sigman concluded that a police officer "reasonably perceived
a threat to his safety and the safety of others and that his response [shooting
the decedent] therefore was objectively justified and reasonable" despite affidavits
from three witnesses declaring that the decedent was not holding a knife when he
was shot. 161 F.3d at 786-88. Sigman reasoned that these affidavits "cannot effectively
impact the credibility of [the officer's] testimony (or that of all five other
officers on the scene) as to his perceptions of what he saw from an entirely different-and
closer-vantage point," given that "[t]he three witnesses in this case were located
across the street amidst a crowd cheering Sigman on, as if the confrontation were
a game or contest." Id. at 787-88. Here, in contrast, White observed the incident
from a vantage point sufficiently similar to that of defendant Powell to enable
a jury reasonable to conclude that White's perception of the plaintiff is probative
of how a reasonable officer in defendant Powell's position would have perceived
the plaintiff at the moment defendant Powell fired his weapon. White testified that
he was approximately "15, 20 feet" from "where everything happened at" "when everything
went down," and had "walked to the corner where Mr. Young was" shortly before the
shooting occurred. White Dep. at 125:24-25, 130:5-6. Defendant Powell, meanwhile,
testified that he was approximately "20 feet, if that," away from the plaintiff
in at the time he fired his weapon. Powell Dep. at 78:19-20. The defendants offer
nothing but conclusory assertions to explain how White perceived the incident from
a vantage point too different from that of defendant Powell to testify reliably
as to what a reasonable officer in defendant Powell's position would have perceived.
That the officer in Sigman "had special knowledge of Sigman's dangerousness and
of the threats that Sigman had made on his life," 161 F.3d at 788, does not change
this analysis. Nothing in Sigman suggests that such "special knowledge," id. , by
itself could allow an officer reasonably to believe a person whom the officer perceived
to be holding no weapon posed a danger to the officer or others. To the contrary,
Sigman discussed the significance of the officer's "special knowledge" only after
discounting the testimony of the three witnesses who testified that the decedent
was unarmed. Here, as explained above, White's testimony cannot be discounted.,
Johnson provided defendant Powell "fair warning that his alleged misconduct was
unconstitutional." Id. (alterations and internal quotation marks omitted). There,
police mistook the plaintiff for a drug dealer's armed accomplice, aimed guns at
the plaintiff, and commanded the plaintiff "to put up [his] hands." Id. at 972.
The plaintiff "immediately complied," and then, "[w]ith his hands still raised,
... turned away from the [lead officer's] gun and fell through the open doorway
of his apartment, landing face-down on the floor." Id. "While [the plaintiff] was
prone on the floor with his arms and legs spread, [the officer] repeatedly kicked
and stomped his groin and buttocks." Id. Johnson determined "that a reasonable officer
would not have repeatedly kicked the surrendering suspect in the groin." Id. at
974. While recognizing that the officer "ha[d] a legitimate and substantial interest
in apprehending an armed suspect and protecting himself and the public from possible
harm," Johnson reasoned that "it is not clear how kicking [the plaintiff] in the
groin furthered either of the[se]" interests." Id. at 975. Johnson concluded that
"[s]ummary judgment was premature because there exists a genuine issue of material
fact, namely, whether [the plaintiff's] prone position was threatening or suggested
escape." Id. at 977. "That dispute," Johnson explained, "can only be resolved by
evaluating the conflicting testimony of [the plaintiff] and [the officer]." Id.