Robinson v. District of Columbia , 130 F. Supp. 3d 180 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAROLINE ROBINSON,
Plaintiff,
v. Civil Action No. 09-2294 (JEB)
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
On March 6, 2009, an unmarked police car collided with a motorized dirt bike in the
Shaw neighborhood of Northwest Washington, D.C. A Metropolitan Police Department Officer,
Michael Pepperman, drove the police car; 20-year-old Arnell Robinson (Arnell) rode the dirt
bike. As a result of the crash, Arnell suffered a transected aorta and died later that evening at a
nearby hospital. His mother, Caroline Robinson (Robinson), brought suit on behalf of herself
and her deceased son. She claims Pepperman and the District are responsible for Arnell’s
death – the former because he caused the collision on purpose, the latter because the city
encouraged its police force to tamp down on illegal dirt-bike riding with dangerous tactics like
those allegedly employed by Pepperman. Robinson seeks damages under D.C.’s wrongful-death
and survival statutes for both constitutional and state-law violations. With discovery complete,
both sides now move for summary judgment. The Court will grant Defendants’ Motion in part,
concluding that Counts X and XII are duplicative of Plaintiff’s other claims, and that the
evidence does not support the Fourth Amendment violation alleged in Counts I and XIII. But
because the testimony remains at odds over how the crash unfolded, the Court concludes that
summary judgment is otherwise inappropriate for either side at this stage.
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I. Background
The parties vigorously dispute the fine-grained details of how the crash that sits at the
heart of this case actually came about. Making matters more difficult for the Court, Plaintiff
neglected to file with her consolidated Opposition and Cross-Motion for Summary Judgment
either a statement of material facts or a concise statement of genuine issues, as required by this
district’s Local Rules for civil cases. See LCvR 7(h). More on that later. In any event, as both
sides move for summary judgment on certain issues, it would be inappropriate for the Court to
view the facts in the light most favorable to one or the other. Instead, the Court will recount the
evidence, noting agreements and disputes.
The parties seem to concur that the crash took place before 3:00 p.m. on March 6, 2009,
on a section of O Street N.W. between 5th Street (to the West) and New Jersey Avenue (to the
East). See Pl. Opp./Mot., ECF No. 94 (Add’l Exhibits), Attach. 20 (Injured Property Report) at
1; Def. Mot., Exh. 1 (MPD Interview of Michael Pepperman) at 7:3-4; id., Exh. 19 (Use of Force
Report) at 5. Although no document explicitly says so, the various descriptions of that section of
O Street indicate that it is an east-west, two-way street, made somewhat narrow by the presence
of parked cars on either or both the north and south sides of the street. See Pepperman Interv. at
14:22-15:2. Three speed bumps also cut across the roadway at various points. See Use of Force
Rep’t at 5.
Pepperman was behind the wheel of an unmarked Ford Taurus, driving eastbound on O
Street with his partner, Officer Gina Leveque. See Defendants’ Statement of Facts (DSOF), ¶ 2;
Pepperman Interv. at 6:3, 7:7–22. The two police officers were conducting unrelated business,
traveling to an address elsewhere in the District for purposes of preparing a search warrant. See
DSOF, ¶¶ 3–4. Somewhere along the 400 block of O Street – after crossing 5th Street but before
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reaching New Jersey Avenue – Pepperman saw three dirt bikes driving westbound in his
direction. See id., ¶ 7. Arnell rode one of the bikes, Kelvin Hoffman a second, and Lamont Hall
the third. See Pl. Opp./Mot., ECF No. 92 (Mot. for Leave to File Out of Time), Attach. 3
(Declaration of Kelvin Hoffman); id., Attach. 5 (Declaration of Lamont Hall).
At this point, the narratives diverge. According to Pepperman, he initially saw the dirt-
bike riders after driving over the first of three speed bumps east of 5th Street. See Def. Mot.,
Exh. 3 (Declaration of Michael Pepperman), ¶ 5. They were headed towards the car three
abreast, with some or all of them occupying Pepperman’s (eastbound) lane of traffic. See id.;
Def. Exh. 2 (Deposition of Michael Pepperman) at 127:2-3, 147:7. Ostensibly to make “room on
both sides of [the] vehicle for the . . . motor bikes to pass” between the Taurus and the cars
parked on both sides of the street, Pepperman “stopped [his] vehicle in the middle of the
roadway.” Pepperman Depo. at 144:1-3; see id. at 144:9-12; Pepperman Decl., ¶ 5. Although it
is illegal to operate dirt bikes on city streets, see D.C. Code § 50-2201.04b(a) (“No person shall
operate at any time . . . [a] dirt bike on public property . . . in the District.”), Pepperman “was not
contemplating taking any police action against [Arnell] or the other individuals riding dirt
bikes . . . at the time of th[e] incident.” DSOF, ¶ 10.
As the three dirt bikes approached Pepperman’s car, Arnell “sped up and rode ahead of
the other two dirt bikes,” “turn[ing] his head and . . . looking over his left shoulder for several
seconds.” Pepperman Decl. ¶ 7. When Arnell eventually straightened his head to look forward,
he was “approximately four to five car lengths” from the Taurus. See id., ¶ 8. It was only then,
Pepperman claims, that Arnell first saw the Taurus, at which point he “turned the handle bars of
his dirt bike to the left,” “plant[ing] his right foot on the ground” as the dirt bike “started to go to
the ground.” Id., ¶¶ 8–9. The “dirt bike slid under [the] police car,” but Arnell’s “momentum
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caused him to be propelled into a parked car,” not the Taurus. Id., ¶¶ 9–11. Pepperman insists
that he had no intention of causing a crash or otherwise colliding with the dirt-bike riders, and
that, at the moment of impact, the Taurus was completely stationary. See id., ¶ 11; DSOF, ¶ 8.
In Plaintiff’s telling, as Arnell and his fellow riders drove westbound on O Street, they
remained within their dedicated (westbound) lane of travel. See Hoffman Decl. at 2 (“[A]ll three
bikes remained in the Westbound lane of traffic north of the middle of O Street the entire length
of 400 block of O Street.”). Without warning, according to the other two riders and bystander
Adam Wilson, the unmarked Taurus swerved from the eastbound lane, crossing over the
centerline of O Street into the westbound lane, where it partially blocked the bike riders’ path.
See, e.g., id. at 2; Hall Decl. at 1; ECF No. 92, Attach. 9 (Declaration of Adam Wilson) at 2-3.
Arnell collided with the Taurus, which was still moving forward at the moment of impact,
landing on the pavement somewhere between the driver’s side of the Taurus and a car parked on
the north side of O Street. See Wilson Decl. at 3; ECF No. 92, Attach. 7 (Deposition of Kenneth
Lindsay) at 37:13–38:14; ECF No. 92, Attach. 8 (Deposition of Gina Leveque) at 112:8–20.
The parties once again agree on the tragic aftermath of the collision: Arnell died later that
evening from injuries he suffered in the crash. See DSOF, ¶ 13. Robinson filed this suit on
December 3, 2009. After Judge Emmet G. Sullivan, to whom this case was previously assigned,
dismissed Plaintiff’s Fourteenth Amendment counts and denied Pepperman’s claim of qualified
immunity, see Robinson v. District of Columbia, 736 F. Supp. 2d 254, 260, 263 (D.D.C. 2010),
the case proceeded through a lengthy and contentious period of discovery. With discovery
finally complete, the parties have now filed competing Motions for Summary Judgment.
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II. Legal Standard
Summary judgment is appropriate when “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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “A fact
is material if it ‘might affect the outcome of the suit under the governing law,’ and a dispute
about a material fact is genuine ‘if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008)
(quoting Anderson, 477 U.S. at 248). In assessing cross-motions for summary judgment, as here,
each motion must be considered individually, and the facts relevant to each must be viewed in
the light most favorable to the non-movant. See Quigley v. Giblin, 569 F.3d 449, 453 (D.C. Cir.
2009); see Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003).
The non-moving party’s opposition must consist of more than mere unsupported
allegations or denials, and it must be supported by affidavits, declarations, or other competent
evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R.
Civ. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving
party is required to provide evidence that would permit a reasonable factfinder to find in her
favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). A “mere . . .
scintilla of evidence” in support of the non-movant’s position is insufficient to defeat a motion
for summary judgment. Anderson, 477 U.S. at 252. And if the non-movant’s evidence is
“merely colorable” or “not significantly probative,” summary judgment may be granted. Liberty
Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. 372, 380 (2007) (“[W]here the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party,
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there is ‘no genuine issue for trial.’”) (quoting Matsushita Electric Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)).
III. Analysis
Robinson presents no fewer than 24 separate counts in her Complaint, the first 12 brought
by her personally under D.C.’s Wrongful Death Statute, and the remaining 12 of identical
substance brought on behalf of Arnell’s estate under the Survival Statute. For ease of reference,
the Court will refer to both the decedent and his estate as “Arnell.” The following table sets out
the specifics of the Complaint:
Wrongful Death Survival Act
Act Counts Counts
Constitutional Claims
Fourth Amendment – Unreasonable Seizure/False Arrest I XIII
Fourth Amendment – Excessive Force II XIV
Fifth Amendment – Due Process III XV
Municipal Liability under 42 U.S.C. § 1983 IV XVI
State-Law Claims
Negligence V XVII
Assault VI XVIII
Battery VII XIX
Intentional Infliction of Emotional Distress VIII XX
Negligent Infliction of Emotional Distress IX XXI
Recklessness / Gross Negligence X XXII
Negligence in Hiring, Retention, Training & Supervision XI XXIII
Vicarious Negligence Liability, D.C. Code § 50-1301.01 XII XXIV
The Court notes that Plaintiff alleges Counts V-X and XVII-XXII against both Defendants,
Counts I-III and XIII-XV against Pepperman only, and Counts IV, XI-XII, XVI, and XXIII-
XXIV against the District only. The Court will follow this labeling, even though certain counts –
e.g., IV and XII – do not constitute separate torts, but are rather theories of vicarious liability.
Defendants now seek summary judgment on all of the wrongful-death counts (I-XII) and
the constitutional claims based on the Survival Act (XIII-XVI). Plaintiff simultaneously cross-
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moves for summary judgment as to liability on all counts. Before turning to the merits, the Court
must address the preliminary issue of Plaintiff’s failure to comply with this district’s Local
Rules.
A. Plaintiff’s Violation of Local Rule 7(h)
Litigants before this Court are not only expected to follow its Local Rules, they are “duty
bound” to do so. Texas v. United States, --- F.3d ----, 2015 WL 4910078, at *5 (D.C. Cir. Aug.
18, 2015) (citation and quotation marks omitted). Here, Defendants charge Robinson with
failing to comply with Local Rule 7(h), which governs litigants’ conduct in summary-judgment
pleadings. The rule has two components. A party that moves for summary judgment must,
along with its motion, submit a “statement of material facts” in a manner specified by the rule.
See LCvR 7(h)(1). In similar fashion, when opposing an adversary’s motion for summary
judgment, a party must submit a “separate concise statement of genuine issues” that sets forth
“all material facts” that it believes remain in dispute. Id.
Defendants assert Robinson has violated both obligations, and they ask this Court to (a)
deny Plaintiff’s Motion for Summary Judgment, and (b) treat their own statement of facts as
conceded – a sanction contemplated by the rule itself. See id. (“[T]he court may assume that
facts identified by the moving party in its statement of material facts are admitted, unless such a
fact is controverted in the statement of genuine issues filed in opposition to the motion.”). While
penalizing litigants for violating local rules may seem unduly formalistic, the purposes here are
sound and sensible. Rule 7(h) provides for the efficient filtering of information essential to the
dispositive motion at issue:
The moving party’s statement specifies the material facts and directs
the district judge and the opponent of summary judgment to the parts
of the record which the movant believes support his statement. The
opponent then has the opportunity to respond by filing a
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counterstatement and affidavits showing genuine factual issues. The
procedure contemplated by the rule thus isolates the facts that the
parties assert are material, distinguishes disputed from undisputed
facts, and identifies the pertinent parts of the record.
Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150-51 (D.C. Cir.
1996) (quoting Gardels v. CIA, 637 F.2d 770, 773 (D.C. Cir. 1980) and discussing Rule 7(h)’s
predecessor, Rule 108(h)). In this way, the parties, “who are most familiar with the litigation and
the record,” are able to “crystallize for the district court the material facts and relevant portions
of the record,” rather than forcing the Court to waste efforts “sift[ing] and sort[ing] through the
record” itself. Id. at 151, 153.
Rule 7(h)’s incentive structure is particularly apt here, where Plaintiff’s counsel has
seemingly gone out of his way to confound the Court. The list of undesirables includes, among
other things: appending over 40 exhibits without including any labels or identifying information;
including as “one” exhibit the entire 4,000-page volume of documents produced by the District
during discovery, most of which are not cited by Plaintiff; quoting exhibits without providing
citations; filing a digressive and prolix 50-page brief – with expanded margins, no less – with a
fit and finish more akin to a law student’s hastily drafted exam response than a professional,
well-groomed submission; and, in like fashion, saving space by abbreviating Plaintiff and
Defendant as “P” and “D.” Although counsel, who has been warned before about his
submissions, had time to file this plethora of material, he could not be bothered to comply with
an important rule.
Despite these shortcomings, granting all of Defendants’ requested sanctions would be
particularly draconian here, where their statement of facts would, if conceded by Plaintiff, almost
assuredly require judgment as a matter of law against her. Such a result would be particularly
unfair since Plaintiff has included statements of fact within her briefs and clearly notes conflicts
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in the record that do create a material dispute of fact. Fortunately for Robinson, the sanction
expressed in Rule 7(h) is permissive, and thus the Court “may,” but is not required to, “assume
that facts identified by the moving party in its statement of material facts are admitted.” LCvR
7(h)(1); see also Arrington v. United States, 473 F.3d 329, 335 (D.C. Cir. 2006). It will decline
to do so here, instead considering facts in the record in requiring Defendants to prove that they
are entitled to summary judgment. On the other hand, because Plaintiff failed to file a statement
of material facts along with her own Motion, the Court will deny that Motion in full as a sanction
for non-compliance. As the facts are generally disputed, moreover, Robinson is not prejudiced
since she would not have been successful anyway.
B. Defendants’ Motion for Summary Judgment
Defendants raise four challenges to Plaintiff’s case. They argue first that Robinson’s
twelve wrongful-death counts (I-XII) should be dismissed because she claims only “personal”
damages from harms inflicted directly upon her. According to Defendants, because she suffered
no direct harm (unlike Arnell), and because the wrongful-death statute does not provide for
emotional-distress damages, all 12 counts must be dismissed. Second, they argue that, even if
Robinson may bring those claims, at least two counts – Count X (recklessness/gross negligence)
and Count XII (vicarious liability under D.C. Code § 50-1301.01) – must be dismissed because
neither serves as a stand-alone cause of action. Third, Defendants maintain that Plaintiff has
failed to adduce sufficient facts to support Arnell’s constitutional counts against Pepperman (I-III
and XIII-XV). And finally, the District argues that Plaintiff’s facts are too meager to hold the
city liable for Pepperman’s conduct. After explaining the differences between D.C.’s wrongful-
death and survival statutes – which has caused some confusion for Defendants – the Court will
address each of their arguments in turn.
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1. Overview of Statutes
“Under District of Columbia law, negligent conduct resulting in death gives rise to two
independent rights of action, one under the Wrongful Death Act and one under the Survival
Act . . . .” Semler v. Psychiatric Inst. of Washington, D. C., Inc., 575 F.2d 922, 924 (D.C. Cir.
1978); see D.C. Code § 16-2701 (codification of Wrongful Death Act); § 12-101 (codification of
Survival Act). Both give rise to damages, see Semler, 575 F.3d at 924, but the statutes serve
distinct purposes, and the damages allowed under each are tailored accordingly.
The Wrongful Death Act is designed to benefit the decedent’s close relatives. See id. at
924-25. Its purpose is to allow those relatives, like Robinson, “who might naturally have
expected maintenance or assistance from the deceased had he lived, [to] recover compensation
from the wrongdoer commensurate with the loss sustained.” Id. at 925; see § 16-2701(b)
(designating as beneficiaries only decedent’s “spouse,” “domestic partner,” and “next of kin”).
A plaintiff’s recovery under the Act comprises three amounts: (1) her expected annual share “in
the deceased’s earnings multiplied by the decedent’s work life expectancy and discounted to
present worth,” Graves v. United States, 517 F. Supp. 95, 99 (D.D.C. 1981); (2) “the value of
services the decedent would have provided” plaintiff such as “care, education, training, guidance
and personal advice,” District of Columbia v. Hawkins, 782 A.2d 293, 303 (D.C. 2001); and (3)
the costs of “reasonable” burial expenses. See § 16-2701(b). The Act makes no provision,
however, for a relative to seek damages for grief or emotional distress. See Runyon v. District of
Columbia, 463 F.2d 1319, 1322 (D.C. Cir. 1972) (parties recovering under the Act “may not be
compensated for their grief”).
A Survival Act action, in comparison, inures to the benefit of the decedent’s estate by
“preserv[ing] and carr[ying] forward . . . the right of action which the deceased would have had,
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had he not died.” Semler, 575 F.2d at 925; see § 12-101. Its purpose here, therefore, is to restore
Arnell’s estate to “the position it would have been in had [Arnell’s] life not been cut short.”
Semler, 575, F3d at 925. Under that rubric, Arnell’s estate is entitled to recover (1) his
“probable net future earnings,” less what he “would have used to maintain himself and those
entitled to recover under the Wrongful Death Act,” id., as well as (2) damages for his pain and
suffering – i.e., the “bodily injury, mental anguish, and discomfort he experienced” from the
moment of injury “until his death.” Burton v. United States, 668 F. Supp. 2d 86, 110 (D.D.C.
2009). With those distinctions in mind, the Court will proceed to address Defendants’ challenges
to Robinson’s case.
2. Wrongful-Death Claims
Defendants seek complete judgment in their favor on all of Plaintiff’s wrongful-death
counts (I-XII) because “Robinson seeks to recover . . . damages on her own behalf,” which, they
claim, “she cannot do” under the Wrongful Death Act. See Def. Mot. at 9. Simply stated,
Defendants argue that, because tortious acts were not committed against her, she cannot recover
under the Act. In that vein, Defendants proceed down a lengthy and discursive non sequitur,
taking pains to make clear that Robinson herself was not at the scene of the accident and thus
suffered no harm. See, e.g., id. at 11 (“no evidence that Defendant Pepperman . . . attempted or
threatened to do physical harm to Robinson”); id. at 12 (no evidence that Pepperman engaged in
“extreme and outrageous conduct . . . personally directed towards Robinson”); id. at 14 (MPD
did not owe Robinson any duty of care because she “was not present at the scene of the
accident”).
True enough, perhaps. But these observations miss the point entirely. Robinson has not
claimed damages for personal injuries inflicted upon her by Pepperman or other MPD
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employees. And her Complaint seeks no compensation for her own emotional distress. See
Compl., ¶¶ 38, 125, 127. Rather, she requests damages that are clearly contemplated by the
statute – viz., “the financial benefits, gifts and other contributions that [she] would have expected
to receive from [Arnell,] . . . including but not limited to pecuniary financial loss and loss of
service.” Id., ¶ 38. Robinson will thus be permitted to seek wrongful-death damages for any
actionable tort resulting in Arnell’s death. As will be discussed in the following two sections,
however, not all 12 wrongful-death counts survive, either because the claims are redundant
(Counts X and XII), or because the facts require judgment in Defendants’ favor (Count I).
Defendants also halfheartedly question Robinson’s standing to bring both her wrongful-
death and Arnell’s Survival Act claims, arguing that “it is unclear whether Robinson is the
proper party contemplated by the [statutes] since there is no proof that she was ever appointed
personal representative of [Arnell’s] estate.” Def. Mot. at 8 n.3. Perhaps realizing belatedly that
Plaintiff included as an exhibit proof of her appointment as personal representative, see Pl.
Opp./Mot., ECF No. 93 (Add’l Exhibits), Attach. 2 (Order for Supervision), Defendants have
dropped this argument in their Reply. The Court thus will not address the issue. See Hopkins v.
Women’s Div., General Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“[A]
court may treat those arguments that the plaintiff failed to address [in its reply] as conceded.”).
3. Duplicative State-Law Wrongful-Death Counts
Defendants next argue that even if Robinson is not barred from bringing all of her
wrongful-death claims, at least Counts X and XII should dismissed because they are duplicative
of other counts she has asserted against Defendants. The Court agrees. 1
1
The two parallel counts brought under the Survival Act (Counts XXII and XXIV) follow the same logic. But
because Defendants have not moved for summary judgment on any of Arnell’s non-constitutional Survival Act
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Count X – Recklessness/Gross Negligence
Plaintiff pleads two counts of state-law torts that differ only in their severity: negligence
(Count V) and recklessness/gross negligence (Count X). Defendants urge judgment in their
favor because, generally speaking, the “‘District of Columbia does not recognize degrees of
negligence.’” Def. Mot. at 13 (quoting Hernandez v. District of Columbia, 845 F. Supp. 2d 112,
115 (D.D.C. 2012) (citation and quotation marks omitted)). They are correct. In the District of
Columbia, “courts have traditionally analyzed whether a defendant acted with gross negligence
only in limited circumstances where gross negligence is a specific element of a claim or defense,
or for equitable reasons.” Hernandez, 845 F. Supp. 2d at 116 (internal citations omitted); see
District of Columbia v. Walker, 689 A.2d 40, 44-45 (D.C. 1997) (interpreting D.C. statute with
separate definitions for gross and ordinary negligence). Generally, where a plaintiff “has already
alleged a negligence claim, . . . the Court defers to the general rule in the District of Columbia
against recognizing degrees of negligence and will dismiss as duplicative plaintiff’s claim for
gross negligence . . . as a separate basis of liability.” Hernandez, 845 F. Supp. 2d at 116.
Because Robinson “has already alleged a negligence claim,” and since “gross negligence is
neither a specific element to any claim or defense at issue in this litigation,” id., the Court will
grant judgment in Defendants’ favor on Count X, finding it duplicative of her negligence claim
(Count V).
Count XII – District’s Liability Under D.C. Code § 50-1301.01
For similar reasons, this Court will grant the District’s Motion as to Count XII, which
seeks to hold it vicariously liable for any of Pepperman’s violations of D.C.’s Motor Vehicle
claims, those counts will, at present, survive. The Court will subsequently inquire of the parties how they wish to
proceed on these two – e.g., voluntary dismissal or a renewed motion for summary judgment.
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Safety Responsibility Act. See D.C. Code § 50-1301.01 et seq. The Act places various
obligations on motorists, motor-vehicle owners, and the District government, in an effort “to
promote safe driving, to eliminate the reckless and financially irresponsible driver from the
highways, and to provide for the giving of security and proof of financial responsibility by
persons driving or owning [D.C.-registered] vehicles . . .” Pub. L. No. 365, 68 Stat. 120, 120
(1954). What the statute does not do, however, is provide a stand-alone cause of action for
violations of its provisions. And although it does “create[] a system of vicarious liability” that
permits a plaintiff to recover against both the vehicle’s immediate operator and its owner,
Agomo v. Fenty, 916 A.2d 181, 192 (D.C. 2007) (citing § 50-1301.08), Robinson has, in Count
V, already sought to hold the District vicariously liable for Pepperman’s negligence based on its
status as his employer. Because the District does not dispute its liability on that basis, Robinson
has no need to seek recourse under § 50-1301.08. The Court will thus grant judgment in the
District’s favor on Count XII.
4. Constitutional Counts against Pepperman
As permitted by D.C.’s wrongful-death and survival statutes, Robinson also seeks to
recover damages for constitutional violations committed against Arnell by Pepperman and the
District under 42 U.S.C. § 1983. That statute provides:
Every 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, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress . . . .
Robinson claims that Pepperman violated the Fourth and Fifth Amendments of the United States
Constitution, and that the District may be held liable for those violations because it had a policy
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or custom of encouraging tactics like those employed by Pepperman against other dirt-bike
riders. Plaintiff lists three constitutional violations by Pepperman and one theory of vicarious
liability against the District, each of which is pled under both the Wrongful Death Act and the
Survival Act. The Court treats each pair of counts separately.
Counts I and XIII – Fourth Amendment: Unreasonable
Seizure/False Arrest
Robinson claims that her son’s Fourth Amendment right to be free from both unlawful
arrests and unlawful seizures was violated when Pepperman swerved in front of him. The false-
arrest claim, predicated as it is on the occurrence of an actual arrest, Dellums v. Powell, 566 F.2d
167, 175 (D.C. Cir. 1977) (false- or unlawful-arrest claim requires plaintiff to show that an arrest
was made and that it was contrary to law), demands little attention. Although Robinson uses
hyperbolic language to claim that the “tak[ing of Arnell’s] life by excessive force” is,
figuratively (and conclusorily) speaking, the “ultimate arrest,” Pl. Opp./Mot. at 15, she does not
seriously contend that Pepperman ever arrested Arnell, provide any evidence in support of that
allegation, or otherwise argue that the officer’s actions constitute an arrest in this jurisdiction.
See Pierson v. Ray, 386 U.S. 547, 550 (1967) (looking to state common law to define the
contours of constitutional torts under § 1983).
Robinson’s unreasonable-seizure claim is similarly infirm because Pepperman had good
cause to seize Arnell on account of his illegal dirt-bike riding. To make out a claim of
unreasonable seizure, Robinson must show that (1) the challenged actions constitute a seizure,
and (2) the seizure was unreasonable. See Soldal v. Cook County, Ill., 506 U.S. 56, 61-71
(1992).
On the first element, “‘a Fourth Amendment seizure does not occur whenever there is a
governmentally caused termination of an individual’s freedom of movement (the innocent
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passerby), nor even whenever there is a governmentally caused and governmentally desired
termination of an individual’s freedom of movement (the fleeing felon)’” – as when a “‘pursuing
police car [seeks] to stop the suspect only by the show of authority represented by flashing lights
and continuing pursuit,’ but accidentally stop[s] the suspect by crashing into him” – “‘but only
when there is a governmental termination of freedom of movement through means intentionally
applied.’” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 844 (1998) (quoting Brower v. Cnty. of
Inyo, 489 U.S. 593, 596-97 (1989) (emphasis in original)). The latter requirement often proves
decisive – and thus “material” for purposes of a summary-judgment motion – in circumstances
involving a police officer’s using his vehicle to terminate another’s freedom of movement. See
Lewis, 523 U.S. at 842-44 (death of motorcyclist resulting from collision with police car during
high-speed chase is not Fourth Amendment seizure without showing that police officer
deliberately acted to cause crash); Brower 489 U.S. at 597 (arguing in dicta that, in hypothetical
circumstance where “police cruiser . . . pull[s] alongside [a] fleeing car and sideswipe[s] it,
producing [a] crash, then the termination of the suspect’s freedom of movement would [be] a
seizure”).
Here, the evidence is sufficient, when viewed in the light most favorable to Robinson, for
a jury to infer that Pepperman intended to terminate Arnell’s freedom of movement by causing
the collision. For instance, Gina Leveque, the passenger in Pepperman’s car and his partner,
concededly told a fellow MPD officer after the collision that her version of events differed from
Pepperman’s, stating that “[m]y statement” regarding what transpired “is not going to be the
same as his. He did that on purpose.” ECF No. 94, Attach. 22 (Defendants’ Production of
Documents, numbered with “DCCR __” and submitted on compact disc) at DCCR 233 (Final
Investigative Report of Dec. 7, 2009, MPD Internal Affairs Division); see also id. at DCCR 315-
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16 (March 10, 2009, Supplemental Statement of Officer Leveque) (confirming that she stated,
“He did that on purpose.”); Leveque Depo., 25:19-20 (“During that conversation, I blamed
Officer Pepperman for the accident.”). She also stated at one point that he was “laughing” and
“giggling” upon seeing the dirt bikes approaching him. See id. at DCCR 301 (March 7, 2009,
Statement of Officer Leveque); id. DCCR 325 (March 8, 2009, Statement of Sergeant Beslow).
Additionally, witnesses recounted that the police car “abrupt[ly]” or “suddenly swerve[d]” into
the westbound lane of traffic, see Hall Decl., ¶ 6; Hoffman Decl. at 2; Wilson Decl. at 2 – an
account that stands in marked contrast to the presentation by Pepperman, who insists that he
merely stopped in the middle of the street to allow the motor bikes to pass him on either side.
See Pepperman Decl., ¶ 5.
These competing narratives leave a dispute of material fact about whether Pepperman
intended to terminate Arnell’s movement and, consequently, whether his actions amounted to a
Fourth Amendment seizure. Cf. Johnson v. District of Columbia, 528 F.3d 969, 977 (D.C. Cir.
2008) (“[I]f an excessive force claim turns on which of two conflicting stories best captures what
happened on the street,” summary judgment “in favor of the defendant official” is inappropriate)
(citation and quotation marks omitted). Although a plaintiff cannot defeat a motion for summary
judgment even on “elusive concepts such as motive or intent” with “conclusory allegations,
improbable inferences, and unsupported speculation,” Sage v. Broad. Publications, Inc., 997 F.
Supp. 49, 54 (D.D.C. 1998) (citation and internal quotation marks omitted), that is not the case
here. Robinson has provided clear and concrete evidence from which a reasonable juror could
conclude that Pepperman intended to crash into Arnell.
This conclusion does not end the inquiry, however, as Robinson must also show that the
seizure was unreasonable. It is on this point that her “unreasonable seizure” claim – which is
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distinct from her “excessive force” claim, discussed infra – falters. The Fourth Amendment
“proscribes only ‘unreasonable’ . . . seizures.” Scott v. United States, 436 U.S. 128, 137 (1978).
A seizure may be unreasonable both because it was unjustified by the circumstances – i.e., the
police lacked probable cause to arrest or reasonable suspicion to seize the suspect – or because
the force used to effectuate it was excessive. See Graham v. Connor, 490 U.S. 386, 395 (1989)
(“[T]he ‘reasonableness’ of a particular seizure depends not only on when it is made, but also on
how it is carried out.”). It is the former concern that motivates Robinson’s unreasonable-seizure
claim, and the latter that guides her excessive-force claim.
As to the former, Pepperman would have been justified in seizing Arnell under the
circumstances. The reasonableness of a seizure “is not in doubt where [it] is based upon
probable cause.” Whren v. United States, 517 U.S. 806, 817 (1996). Robinson does not dispute
that Arnell was breaking the law at the time of the crash, see D.C. Code § 50-2201.04b(a) (“No
person shall operate at any time . . . [a] dirt bike on public property . . . in the District.”), and she
has not argued that Pepperman had insufficient reason to seize (or even arrest) Arnell – a
difficult argument to make given that Pepperman saw the violation occur. See Atwater v. City of
Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an
individual has committed even a very minor criminal offense in his presence, he may, without
violating the Fourth Amendment, arrest the offender.”). It is also irrelevant that Pepperman
claims he had no subjective intent to “pursue, apprehend, or facilitate an arrest of any of the dirt
bike riders,” DSOF, ¶ 11, as an officer’s “[s]ubjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis.” Whren, 517 U.S. at 813. Even if Robinson could
show that a seizure occurred, therefore, she cannot show that it was unreasonable under the
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Fourth Amendment. The Court will, consequently, grant Defendants’ Motion as to Counts I and
XIII.
Counts II and XIV – Fourth Amendment: Excessive Force
The Fourth Amendment’s prohibition on unreasonable searches and seizures also
“encompasses the right to be free from the use of excessive force during an arrest, investigatory
stop, or any other seizure.” Armbruster v. Frost, 962 F. Supp. 2d 105, 111 (D.D.C. 2013) (citing
Graham, 490 U.S. at 395). An excessive-force claim shares with an unreasonable-seizure claim
the requirement that a Fourth Amendment seizure occurred. But unlike the former count, in
which Plaintiff must show that the seizure was itself unjustified, here she must prove that the
force used to carry out that seizure was objectively unreasonable. See Graham, 490 U.S. at 395
(“[A]ll claims that law enforcement officers have used excessive force – deadly or not – in the
course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed
under the Fourth Amendment and its ‘reasonableness’ standard . . . .”); see also Scott v. Harris,
550 U.S. 372, 381 (2007) (In deciding whether force used to carry out a seizure was excessive,
the Court must determine “whether [the defendant’s] actions were objectively reasonable.”).
Answering the latter question requires the Court to “balanc[e] the intrusion on [Arnell]’s
Fourth Amendment interests against the governmental interests served by [Pepperman]’s use of
force.” Johnson, 528 F.3d at 974. But if Robinson’s account of events are credited, as they must
be at this stage, it would be hard to imagine how Pepperman’s use of his police car to effectuate
a seizure could be anything but excessive. See Tennessee v. Garner, 471 U.S. 1, 7-12 (1985)
(concluding that it was unreasonable to use deadly force as means of seizing fleeing, non-
dangerous felon). What is more, Pepperman insists that he was not “contemplating taking any
police action against” Arnell at all. See DSOF, ¶ 10. As a consequence, he has mustered no
justification to explain how crashing into Arnell would be an objectively reasonable way to
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respond to the circumstances, nor has he argued that there was no other alternative to the actions
he took. See Brower, 489 U.S. at 599 (remanding to determine whether it was unreasonable to
set up vehicular roadblock “in such manner as to be likely to kill” fleeing suspect); Brower v.
Cnty. of Inyo, 884 F.2d 1316, 1318 (9th Cir. 1989) (on remand) (noting that reasonableness
inquiry is answered by determining whether “a reasonable non-deadly alternative exist[ed] for
apprehending the suspect”). The Court thus denies Defendants’ Motion as to these two counts.
Counts III and XV – Fifth Amendment: Due Process
Plaintiff’s last constitutional claim is anchored in the Fifth Amendment’s guarantee of
due process of law, the “‘touchstone’” of which “‘is protection of the individual against arbitrary
action of government’” that interferes with a citizen’s life, liberty, or property. Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558
(1974)); see Daniels v. Williams, 474 U.S. 327, 331 (1986) (Due Process clause protects
individuals from “deliberate decisions of government officials to deprive a person of life, liberty,
or property”). In assessing whether government conduct violates the Fifth Amendment – as a
substantive, rather than procedural, matter – the Court must ask whether it was “so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.” Lewis, 523 U.S. at
847 n.8. “[C]onduct intended to injure in some way unjustifiable by any government interest is
the sort of official action most likely to rise to the conscience-shocking level.” Id. at 849. As
with Robinson’s other constitutional claims, a clear factual dispute remains about whether
Pepperman intended to cause the crash – a theory that Robinson will have the opportunity to
explore at trial. And, if she succeeds, a jury could certainly conclude that Pepperman’s conduct
“shock[s] the conscience” under this Circuit’s guidance. See, e.g., Hunter v. District of
Columbia, 943 F.2d 69, 78 (D.C. Cir. 1991) (“Where gratuitous brutalization is involved, less
force oriented towards that end is needed to shock the judicial conscience. Where some force is
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justified, the Constitution may be offended if the force used grossly exceeds that warranted by
the circumstances.”) (citations and quotation marks omitted). These counts will, therefore,
survive Defendants’ Motion.
Counts IV and XVI – The District’s Liability
Aiming perhaps at both deeper pockets and a wider societal impact, Plaintiff also alleges
that Pepperman’s employer, the District of Columbia, should be held liable for all of his
allegedly unconstitutional actions because they resulted from the city’s wrongful policies or
customs. Robinson contends that MPD either tacitly condoned or had an established practice of
encouraging police officers to “intimidate, threaten and bully motorcycle riders in D.C.”
Compl., ¶ 75; see id., ¶¶ 76-86. The means for doing so, according to Robinson, included
“swerving into motorcyclists’ lane of traffic[, thereby] causing the rider to swerve, fall or lose
control of the motorcycle.” Id., ¶ 75.
In addition to providing individuals a civil right of action against “person[s]” acting
“under color of” state law or custom, § 1983 also allows plaintiffs to recover against municipal
employers – which are considered to be “persons” under that statute, see Monell v. New York
City Dep’t of Soc. Servs., 436 U.S. 658, 701 (1978) – when “there is a direct causal link between
a municipal policy or custom and the alleged constitutional deprivation.” City of Canton v.
Harris, 489 U.S. 378, 385 (1989); see Warren v. District of Columbia, 353 F.3d 36, 38 (D.C. Cir.
2004). Monell’s requirement of a causal link distinguishes municipal liability under § 1983 from
general tort-law principles of respondeat superior, which impose liability “solely on the basis of
the existence of an employer-employee relationship with a tortfeasor.” Monell, 436 U.S. at 692.
The D.C. Circuit has identified a number of ways by which “policy” may be set by a
municipality. First, “the explicit setting of a policy by the government that violates the
Constitution.” Baker v. District of Columbia, 326 F.3d 1302, 1306-7 (D.C. Cir. 2003). Second,
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“the adoption through a knowing failure to act by a policy maker of actions by his subordinates
that are so consistent that they have become ‘custom,’” id., carrying “force of law.” City of St.
Louis v. Praprotnik, 485 U.S. 112, 127 (1988). And third, “the failure of the government to
respond to a need (for example, training of employees) in such a manner as to show ‘deliberate
indifference’ to the risk that not addressing the need will result in constitutional violations.”
Baker, 326 F.3d at 1306 (citing Canton, 489 U.S. at 390).
Although Robinson advances all three theories, the Court need discuss only the last, as
Plaintiff has marshalled sufficient evidence from which a jury could reasonably conclude that
District policymakers were deliberately indifferent to a clear risk of constitutional violations.
“‘Deliberate indifference . . . is determined by analyzing whether the municipality knew
or should have known of the risk of constitutional violations,’ but did not act.” Warren, 353 F.3d
at 39 (quoting Baker, 326 F.3d at 1307). “Although [it] is an objective standard, it involves more
than mere negligence. It does not require the city to take reasonable care to discover and prevent
constitutional violations. It simply means that, faced with actual or constructive knowledge that
its agents will probably violate constitutional rights, the city may not adopt a policy of inaction.”
Id. Constructive knowledge may be established inferentially by showing “the widespread extent
of the practices, general knowledge of their existence, manifest opportunities and official duty of
responsible policymakers to be informed, or combinations of these.” Cox v. District of
Columbia, 821 F. Supp. 1, 18 (D.D.C. 1993), as amended (May 21, 1993) (quoting Spell v.
McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987)); see also McConney v. City of Houston, 863
F.2d 1180, 1184 (5th Cir. 1989) (“Sufficiently numerous prior incidents of police misconduct,
for example, may tend to prove a custom and accession to that custom by the municipality’s
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policymakers. Isolated instances, on the other hand, are inadequate to prove knowledge and
acquiescence by policymakers.”).
To support her deliberate-indifference theory, Robinson gathered approximately 200
first-hand accounts from dirt-bike riders or bystanders who claim that, like the incident in
question here, police officers used their vehicles to chase and then hit dirt-bike riders throughout
the District. See generally Pl. Opp./Mot., ECF No. 92, Attach. 18 (Motor Bike Declarations &
Affidavits) (submitted on compact disc). The District, in response, seeks to whittle down the 200
or so to a more digestible (and perhaps less-likely-to-be-liability-inducing) sum by pointing out
that only 22 of the statements speak to incidents taking place before the collision at issue – a
descriptive observation that Plaintiff does not dispute. See Pl. Opp./Mot. at 39-41; Def. Mot. at
24-25. 2
The first question, then, becomes whether Plaintiff may rely on post-collision events to
demonstrate the District’s “deliberate indifference” to the practice that Robinson believes caused
her son’s death. The Court agrees with Defendants that she cannot. Because Monell requires the
municipality’s practice to have caused the violation at issue, incidents occurring after the March
6, 2009, collision cannot be used to demonstrate that such a practice was in place on that date.
See Qutb v. Ramsey, 285 F. Supp. 2d 33, 45-46 (D.D.C. 2003) (events occurring or known to the
District “only after the incident at issue . . . occurred . . . cannot be used to suggest that the
District took no action to curb a problem about which it had been put on notice, or that such
2
Citing Motor Bike Decls. No.: 15 (Anthony Canard Brown), 16 (Timothy Harris), 17 (Andre Cole), 18 (Devrin
Johnson), 19 (Aarion Johnson), 21 (Roscoe Jones), 22 (David Raines), 23 (Charkia Price), 24 (David Green), 44
(Karon Faizon-Hawk), 71 (Deandre Johnson), 77 (John Simmons), 78 (Erick Thomas Washington), 81 (Tiffany
Mace), 90 (Jonathan Marcus Smith), 118 (Mike Wilson), 124 (Jamal Wilson), 138 (Donnell Sims), 143 (Jerome
Devante Wilson), 144 (Chris Jones), 145 (Tywan Cummings), and 147 (Michael Lewis).
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inaction was the ‘moving force’ behind plaintiff’s injuries”); see also Cox, 821 F. Supp. at 10
n.10 (same).
Not content to rest there, the District seeks to pare back Plaintiff’s declarations even
further, arguing that only 8 out of the 22 pre-incident declarations “specify that a MPD vehicle
was involved.” See Def. Reply at 5 n.3 (citing declarations of Tywan Cummings, Karon Faizon-
Hawk, Chris Jones, Michael Lewis, David Raines, Donnell Sims, Jerome Devante Wilson, and
Mike Wilson). From this observation, the District argues that only that smaller subset can be
used as proof of a “pattern or practice by MPD” because it is equally plausible that the declarants
were targeted not by MPD officers, but by officers who work for one of the other law-
enforcement agencies that operates within District borders. See id.
While the Court agrees that Plaintiff may rely on only the pre-collision incidents to defeat
the District’s Motion, it is unwilling to further restrict that pool to only those incidents in which
declarants or affiants explicitly identify MPD vehicles – even though eight incidents might
conceivably suffice to get to a jury. Cf. Griego v. City of Albuquerque, No. 13-0929, 2015 WL
1906087, at *16 (D.N.M. Apr. 11, 2015) (“[N]o set number [of incidents] is required, and the
more unique the misconduct is, and the more similar the incidents are to one another, the smaller
the required number will be to render the alleged policy plausible . . . .”). On summary
judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. Although the
District’s argument may well prove persuasive at trial, the fact that Plaintiff’s declarants have
failed to specify that the aggressor worked for MPD does not mean that a jury could not
reasonably conclude, based on facts presented to it, that some or all of the other incidents
recounted in the 22 declarations – almost all of which occurred in the two years preceding this
24
incident – involved MPD employees. This is particularly so given that there is no evidence in
these other 14 declarations that the incidents occurred in national parks (the bailiwick of the U.S.
Park Police), near the Capitol (where U.S. Capitol Police is based), or close to the White House
(home of the U.S. Secret Service Uniformed Division).
If the jury decides that some or all of those incidents involved MPD, it could also
reasonably conclude that the practice was sufficiently widespread to place District policymakers
on notice of the risk of constitutional violations. See Carter v. District of Columbia, 795 F.2d
116, 124 (D.C. Cir. 1986) (There are no “numerical standard[s] control[ling] the determination
whether incidents of wrongful behavior cumulatively show a pattern amounting to a custom or
policy.”); Oporto v. City of El Paso, No. EP–10–110, 2010 WL 3503457, at *5–6 (W.D. Tex.
Sept. 2, 2010) (concluding, on motion to dismiss, that thirty-two incidents of deadly force
spanning fifteen years were sufficient to allege pattern); cf. Blakemore v. Coleman, 701 F.2d
967, 970 (D.C. Cir. 1983) (“[A] finding of constructive knowledge is a mixed question of law
and fact”). Should Plaintiff fail to provide sufficient proof to establish her claim at trial, the
District may certainly move for judgment as a matter of law under Federal Rule of Civil
Procedure 50(a). At this stage, however, with the exception of Robinson’s false-arrest and
unreasonable-seizure claim, the Court will deny the District’s Motion as to her constitutional
claims.
IV. Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order granting
Defendants’ Motion for Summary Judgment as to Counts I, X, XII, and XIII, denying
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Defendants’ Motion as to all other counts, and denying Plaintiff’s Motion for Summary
Judgment in full.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: September 15, 2015
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