Lash v. Lemke , 971 F. Supp. 2d 85 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RYAN BARTON LASH,
Plaintiff,
v. Civil Action No. 12-0822 (JDB)
OFFICER JENNIFER LEMKE, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Ryan Barton Lash brings this action against defendants Officer Jennifer Lemke
and Sergeant Todd Reid of the United States Park Police. Lash claims that defendants' actions
violated his Fourth and First Amendment rights, and requests damages under Bivens v. Six
Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Now before the
Court is [12] defendants' motion to dismiss or, in the alternative, for summary judgment. Upon
consideration of the motion, the opposition and reply thereto, and the entire record, and for the
reasons described below, the Court will grant defendants' motion for summary judgment.
I. Background
On January 29, 2012, Lash was participating in the "Occupy DC" movement in
McPherson Square, where protesters had set up tents and makeshift shelters. Defs.' Stmt. of
Mat'l Facts [ECF 12] ("Defs.' Stmt.") ¶¶ 1, 2. 1 On that date, United States Park Police ("USPP")
officers began posting notices on the tents and shelters to convey the government's intent to
enforce no-camping regulations. Id. ¶ 2. In response, "some of the individuals in McPherson
1
Pursuant to Local Rule 7(h)(1), "in determining a motion for summary judgment, the 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." Accordingly, the Court will deem
the paragraphs in defendants' statement of facts that were not disputed by plaintiff to be admitted. See Pl.'s Stmt. of
Mat'l Facts as to which there exists a Genuine Dispute [ECF 15-2] ("Pl.'s Stmt.").
1
Square became agitated, verbally harassed the officers, and interfered" with the officers'
distribution efforts. Id. ¶ 3. Lash swore at the officers, removed some of the notices from the
tents, and put the notices in the trash. Id. ¶ 4. At this point, the parties' accounts of the facts
diverge.
According to Lash, Officer Jennifer Lemke informed him that if he took down another
notice, he would be arrested for disorderly conduct. Pl.'s Mem. in Opp'n. to Defs.' Mot. Dismiss
or Summ. J. [ECF 15] ("Pl.'s Opp'n.") at 6. Lash then ceased taking down notices and walked
away. Id. As he walked away, he said to a group of USPP officers, "You want us to clean up the
trash in the park, right? Well[,] here's your fucking trash[,] you fucking pigs." Id. He then
crumpled up the notices he had removed and put them in the trash. Id. Officers Lemke, Frank
Hilsher, and Tiffany Reed, with Sergeant Todd Reid present, approached Lash, who said, "Why
are you coming at me?" Id. Lash states that he "began walking around the park," but "did not
attempt to run away or escape." Id. When the officers approached him, Lash claims that he did
not see Officer Reed behind him and was "[s]tartled" when she tried to "grab[] his arms and
pull[] them behind his back." Id. at 6-7. "Because he was being grabbed from behind, [Lash]
did not know who was touching him." Id. Officer Hilsher then stepped in to help restrain Lash.
Id. At that point, according to Lash, "[he] noticed it was Park Police Officers grabbing him [and]
he allowed the officers to place his arms behind his back." Id. Lash alleges that Officer Lemke
then tased him. Id.
In contrast, defendants contend that when the officers approached Lash after seeing him
remove the notices, Lash "tried to get away from them." Defs.' Stmt. ¶ 5. When the officers
attempted to arrest Lash, he refused to cooperate and physically resisted. Id. ¶ 6. The officers
then "tried to wrestle him to the ground," but Lash continued to actively resist. Id. ¶ 7. Officer
2
Lemke removed her taser from its holster, but did not use it immediately. Id. ¶ 8. Lash refused
to cease his active resistance, so Officer Lemke tased him. Id.
In addition to their written accounts of the facts, the parties also submitted video
exhibits—one submitted by Lash and two submitted by defendants—that depict the events
leading up to and during the arrest and taser deployment. See Exs. A, B to Defs.' Mot. Dismiss
or Summ. J. [ECF 13]; Ex. 17 to Pl.'s Opp'n [ECF 16]. Lash's video exhibit begins with six
USPP officers and several protesters standing next to tents in what appears to be McPherson
Square. Ex. 17 to Pl.'s Opp'n at 0:00-0:12. 2 The protesters use profanity and yell at the officers.
Id. Lash, wearing a red shirt and patterned pajama pants, bursts out of one of the tents. Id. at
00:15-00:17. He approaches the officers and yells, "You guys want to come at us tomorrow . . .
I'm going to be one of the sleep strikers." Id. at 00:20-00:33. He then continues to yell about
how he plans not to sleep for days and proclaims, "this is our park," while another protester yells,
"bring it on, bitch," to the officers. Id. at 00:33-00:42.
Lash then tries to pull a wooden stake out of the ground. Id. at 00:48-00:50. When two
of the officers see Lash's activity, they make downward motions with their hands—apparently
indicating that he should stop trying to pull out the stake. It is not clear if the officers say
anything to Lash or touch him, but Lash repeatedly yells, "Get your hands off me." Id. at 00:50-
00:56. The officers then walk away and Lash yells at them to "get away from my tent." Id. at
00:56-1:06.
Lash follows the officers, yelling that they should come back tomorrow morning and that
he is not going to sleep for days. Id. at 1:06-1:17. The officers stop to turn around and face him,
and Lash continues to yell, but it is difficult to hear what he is saying. It is not clear whether the
2
The numbers in the Court's citations to video evidence represent the time displayed when viewing the
video. For example, an event that occurred between minute two and minute three of a video would be cited as
02:00-03:00.
3
officers have said anything to Lash at this point. The officers walk away for the second time, but
Lash follows them and yells, and the officers turn around to face him again. Id. at 1:17-1:48.
The officers walk away a third time, and Lash continues to follow them. Id. at 1:48-2:07. The
officers and Lash then walk out of view of the camera, but Lash can be heard yelling, "We all
know you are coming tomorrow. You're coming tomorrow, big fucking deal. We're aware.
What difference does this make"—apparently in reference to the notices. Id. at 2:07-2:26. The
video then shows Lash standing in front of several officers yelling, "Tell me what difference
does it make," while he loudly claps his hands to punctuate his words. Id. at 2:26-2:30. Lash
continues to yell at the officers and makes hand gestures toward them. Id. at 2:30-2:39.
The camera focuses elsewhere for a few moments, and when it refocuses on Lash and the
officers, Lash is repeatedly yelling, "fuck your notices," and taking notices off the tents. Id. at
2:39-2:53. Lash quickly walks away from where the officers are standing and continues to tear
down notices and yell. Id. at 2:53-3:16. The video then shows Lash walking by some tents with
a handful of what appear to be crumpled notices as five USPP officers follow behind him in a
single line, maneuvering between tents. Id. at 3:07-3:21. Lash yells, "What's a disorderly
conduct on that," and quickly walks away in the background. Id. at 3:21-3:29. The officers
appear to briefly talk to each other in the foreground, but their voices are inaudible. Id. Lash
then yells, ". . . fucking notices, watch how many I ripped down." Id. at 3:29-3:35. The video
then shows the officers walking in Lash's direction. Id. at 3:35-4:03. Lash yells something about
"trash," which may be when he throws the notices in the trash, as described in Lash's account of
the events. Id.; see also Pl.'s Opp'n at 6; Compl. [ECF 1] ¶ 13. Throughout the video, there are
many protesters standing around or following the officers, and sometimes yelling at the officers.
It is not clear whether the officers ever say anything to Lash because their voices are inaudible
4
throughout. The video concludes with the police attempting to restrain Lash and, eventually,
tasing him, but it is difficult to see any detail because the camera is positioned fairly far away
from the arrest.
Defendants' two videos were filmed closer to the arrest. Defendants' Video Exhibit B
begins with a view of the USSP officers in what appears to be the McPherson Square tent camp. 3
Ex. B. to Defs.' Mot. Dismiss or Summ. J. at 00:00-00:02. The person filming says: "Now
someone is ripping down the notices that the police gave us." Id. at 00:02-00:06. A voice that
appears to be Lash's can be heard in the background yelling "tell them to clean up the trash in the
fucking park" and, comporting with Lash's account of events, "here's your fucking trash, you
fucking pigs." Id. at 00:07-00:13; Pl.'s Opp'n at 6. Several officers walk toward Lash, who
eventually enters the view of the camera in his red shirt and pajama pants. Id. at 00:13-00:59.
Lash yells "officers coming at me" several times, and then quickly walks away from the officers
and between various tents. Id. at 00:59-1:12. Lash yells "Why are you coming at me," and
continues to walk away from the officers. Id. at 1:18-1:25. Officer Lemke and Officer Reed,
two female officers, try to approach Lash. Id. at 1:25-1:27. Lash yells "I've done nothing
wrong" several times while walking away from Officers Lemke and Reed, then turns around to
see the two officers following him and resumes walking away from them. Id. at 1:27-1:31.
At that point, Officer Reed tries to grab Lash's arms from behind him. Id. at 1:32-1:33.
Lash pulls his arms from Officer Reed's grasp and continues to yell that he has "done nothing
wrong." Id. Other protesters have gathered in the area and are yelling at the officers. Officer
Reed tries to grab Lash's arms again, and Lash again pulls his arms out of her grasp. Id. at 1:34-
1:35. Officer Hilsher, a male officer, then approaches Lash from Lash's front, right side and
3
Video Exhibits A and B show the same sequence of events. The Court elects to use Video Exhibit B to
recount the facts because it is filmed from a location closer to the events at issue.
5
grabs Lash's right arm while Officer Reed grabs Lash's left arm. Id. at 1:35-1:37. Lemke
unholsters her taser while Lash continues to resist the other officers and to yell that he has "done
nothing wrong." Id. at 1:37-1:40. While the officers continue to try to control Lash, Officer
Lemke deploys the taser on Lash's lower back. Id. at 1:38-1:41. Lash falls to his knees and then
rolls over onto his back. Id. at 1:41-1:43. He then rolls over onto his stomach. Id. at 1:44-1:46.
At this point, Officers Reed and Hilsher are able to handcuff him. Id. at 1:47-1:58. The officers
pull Lash to his feet and escort him out of the park. Id. at 1:58-2:12.
After the arrest, Lash filed a Bivens claim for civil damages against the defendant
officers, claiming that they violated the Fourth Amendment by unlawfully using excessive force
against him, and violated the First Amendment both by arresting him and by using excessive
force in retaliation for Lash calling the officers "fucking pigs." Compl. ¶¶ 50-51, 53-55.
Defendants moved to dismiss, or in the alternative, for summary judgment.
II. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain "'a short and
plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). "[I]n passing on a
motion to dismiss . . . the allegations of the complaint should be construed favorably to the
pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Leatherman v. Tarrant Cnty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). Therefore, the factual
allegations must be presumed true, and plaintiffs must be given every favorable inference that
may be drawn from the allegations of fact. See Scheuer, 416 U.S. at 236; Sparrow v. United Air
6
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the Court need not accept as true
"a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the
facts set out in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Summary judgment, in turn, is appropriate when the pleadings and the evidence
demonstrate 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). The party seeking summary judgment bears
the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support
its motion by identifying those portions of the record, "including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of motion only), admissions, interrogatory answers, or other materials," which it
believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1);
see also Celotex, 477 U.S. at 323.
In determining whether there exists a genuine dispute of material fact sufficient to
preclude summary judgment, the Court must regard the non-movant's statements as true and
accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, must establish more
than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. "When
opposing parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380
(2007). Moreover, "[i]f the evidence is merely colorable, or is not significantly probative,
7
summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
Summary judgment, then, is appropriate if the non-movant fails to offer "evidence on which the
jury could reasonably find for the [non-movant]." Id. at 252.
A motion to dismiss must be treated as a motion for summary judgment if "matters
outside the pleadings are presented to and not excluded by the court." Fed. R. Civ. P. 12(d); see
also Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003) (holding that district
court's consideration of matters outside the pleadings converted the defendant's Rule 12 motion
into one for summary judgment). Here, because the parties have submitted matters outside of the
pleadings that the Court has considered in resolving defendants' motion, the Court will treat
defendants' motion as one for summary judgment.
III. Discussion
"Qualified immunity shields government officials from civil damages liability." Reichle
v. Howards, --- U.S. ---, 132 S. Ct. 2088, 2093 (2013) (citing Ashcroft v. al-Kidd, 563 U.S. ---,
131 S. Ct. 2074, 2080 (2011)). The doctrine of qualified immunity "gives government officials
breathing room to make reasonable but mistaken judgments," and "protects 'all but the plainly
incompetent or those who knowingly violate the law.'" Ashcroft, 131 S. Ct. at 2085 (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)). Officer Lemke and Sergeant Reid, who were
acting in the course of performing their official duties during the events involving Lash, argue
that they are entitled to qualified immunity on Lash's Bivens claims. Defs.' Mot. Dismiss or
Summ. J. [ECF 12] ("Defs.' Mot.") at 8. Those entitled to qualified immunity have "immunity
from suit rather than a mere defense to liability." Hunter v. Bryant, 502 U.S. 224, 227 (1991)
(internal quotation omitted). Thus, immunity should be granted or denied at the earliest possible
stage in the litigation because its purpose is to shield from suit those government officials who
8
act properly, and that purpose "is effectively lost if a case is erroneously permitted to go to trial."
Scott, 550 U.S. at 376 n.2 (internal quotation omitted); accord Hunter 502 U.S. at 227.
Accordingly, it is appropriate for this Court to rule on the issue of immunity on a properly
supported motion for summary judgment.
The qualified immunity doctrine is governed by the Supreme Court's analysis set forth in
Saucier v. Katz, 533 U.S. 194 (2001), as modified by the Court's later decision in Pearson v.
Callahan, 555 U.S. 223 (2009). Saucier outlined a two-step approach, in which a court first
decides whether the facts alleged demonstrate that the officer's actions violated a constitutional
right. Saucier, 533 U.S. at 201. "If the facts alleged do not establish a constitutional violation, [a
court] end[s] the inquiry and rule[s] for the officer." Johnson v. District of Columbia, 528 F.3d
969, 973 (D.C. Cir. 2008). But if the facts demonstrate a constitutional violation, a court then
determines whether the right at issue was "clearly established" at the time of the officer's
conduct. Id. Accordingly, to defeat a government official's claim of qualified immunity, a
plaintiff must show both (1) that the facts alleged or shown make out a violation of a
constitutional right, and (2) that the right was clearly established. See Saucier, 533 U.S. at 201.
Pearson modified the Saucier approach such that lower courts may use their discretion to decide
which of the two prongs to address first. See Pearson, 555 U.S. at 236; accord Reichle, 132 S.
Ct. at 2093. Here, the Court will first examine whether Lash has demonstrated that Officer
Lemke and Sergeant Reid violated his constitutional rights. And finding that Lash has failed to
meet his burden, the Court need not reach the second prong and will grant summary judgment in
favor of defendants. 4
4
Defendants also argue that Lash's claims are subject to dismissal because defendants were not properly
served. Defs.' Mot. at 20-22. Because the Court is granting the motion for summary judgment, the Court need not
reach this issue.
9
A. Fourth Amendment Claims
Lash claims that Officer Lemke used excessive force when she tased Lash during his
arrest and that "Sergeant Reid[] fail[ed] to supervise the situation or intervene in Officer Lemke's
use of excessive force." Compl. ¶¶ 54-55. A claim of excessive force is "'properly analyzed
under the Fourth Amendment's objective reasonableness standard,' which tracks the
constitutional text by asking 'whether the force applied was reasonable.'" Johnson, 528 F.3d at
973 (quoting Graham v. Connor, 490 U.S. 386, 388 (1989), and Wardlaw v. Pickett, 1 F.3d 1297,
1303 (D.C. Cir. 1993) (internal quotations omitted)). Thus, the relevant inquiry 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." Scott v. District of Columbia, 101
F.3d 748, 758 (D.C. Cir. 1996) (quoting Graham, 490 U.S. at 397). Because the inquiry is
objective, the subjective good or bad faith of the officers is irrelevant. Wasserman v. Rodacker,
557 F.3d 635, 641 (D.C. Cir. 2009) (citing Whren v. United States, 517 U.S. 806, 812-13
(1996)). Stated differently, then, "[a]n officer will only be held liable if the force used was so
excessive that no reasonable officer could have believed in the lawfulness of his actions."
Rogala v. District of Columbia, 161 F.3d 44, 54 (D.C. Cir. 1998) (citing Wardlaw, 1 F.3d at
1303); accord Scott, 101 F.3d at 759.
Courts determine the reasonableness of force based on the facts and circumstances of the
case, including "the severity of the crime at issue," whether the suspect was "actively resisting
arrest or attempting to evade arrest by flight," and whether the suspect "pose[d] an immediate
threat to the safety of the officers or others." Graham, 490 U.S. at 396. "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
10
the amount of force that is necessary in a particular situation." Id. at 396-97. Nonetheless,
"[a]lthough we evaluate the reasonableness of the officers' actions by viewing the events from
their perspective, we consider the facts in the record and all reasonable inferences derived
therefrom in the light most favorable to [the plaintiff]." Scott, 101 F.3d at 759 (citing Wardlaw,
1 F.3d at 1303). A defendant's "motion for summary judgment is to be denied only when,
viewing the facts in the record and all reasonable inferences derived therefrom in the light most
favorable to the plaintiff, a reasonable jury could conclude that the excessiveness of the force is
so apparent that no reasonable officer could have believed in the lawfulness of his actions."
Wardlaw, 1 F.3d at 1303 (internal citation omitted).
In Arrington v. United States, the court held that where a plaintiff was punched, beaten
with a baton and a pistol grip, and attacked by a police dog, such force by the police was
unreasonable if the suspect had already been disarmed and handcuffed. 473 F.3d 329, 331-33
(D.C. Cir. 2006); see also Casey v. City of Federal Heights, 509 F.3d 1278, 1280, 1282-83 (10th
Cir. 2007) (finding that officers used excessive force when seizing a nonviolent misdemeanant
who was neither dangerous nor fleeing by putting him into an arm lock, jumping on his back,
tasing him, handcuffing him, and then repeatedly banging his head into the concrete and tasing
him again). In contrast, the court in Wardlaw concluded that no reasonable jury could find
excessive force was used where the plaintiff rushed down a courthouse stairway toward two
United States Deputy Marshals who were forcibly removing his friend from a courtroom, and
one of the deputies punched the plaintiff in the jaw and several times in the chest. Wardlaw, 1
F.3d at 1300, 1303-04. In evaluating the reasonableness of the use of force, the Wardlaw court
noted the vulnerability of the marshals in the stairwell, the fact that the plaintiff had shouted at
the deputies as he approached them, and that the Marshals Service reasonably could have
11
anticipated a confrontation when removing a spectator from a courtroom where protester
demonstrations were expected. Id. at 1303-04.
Here, defendants argue that Officer Lemke acted reasonably when she tased Lash
because the USSP officers faced a "volatile situation" where "demonstrators or on-lookers in the
park [crowded] near the officers and repeatedly yell[ed] and sw[ore] at them" while the officers
attempted to arrest Lash, who had "aggressively attempted to evade arrest." Defs.' Mot. at 16,
18. The officers attempted to gain control over Lash, including by "wrestl[ing]" him to the
ground, but Lash "vigorously" resisted and the officers were unable to handcuff him until the
taser was used. Id. at 16.
Defendants also argue that Officer Lemke's actions were reasonable because USPP
policies authorize the use of tasers "to gain control of an individual" or "to effect an arrest to
ensure the protection of the public, the officer, and any arrestees." Ex. 2 to Defs.' Mot. (General
Order No. 3605) [ECF 12-1] §§ 3605.01, 3605.02. Defendants contend that, during the arrest,
Lash was "physically defying the officers to the point that a reasonable officer could have
believed that plaintiff might inflict bodily harm on them." Id. at 17. Furthermore, the "arrest
clearly needed to be effectuated quickly as the situation grew more volatile and the on-lookers
grew more numerous and hostile to the officers." Id. at 18. In support of their stance, defendants
cite an Eleventh Circuit case in which the court held that an officer's use of a taser was
reasonable against a "hostile, belligerent, and uncooperative" individual who, despite being
suspected of only having an improperly illuminated taillight, "used profanity, moved around and
paced in agitation, and repeatedly yelled" at the officer. Id. at 19 (citing Draper v. Reynolds, 369
F.3d 1270, 1278 (11th Cir. 2004)). Here, the officers were engaged in a physical struggle with a
hostile, belligerent, and uncooperative individual—Lash—who had tried to evade them, had
12
yelled at them, and was physically resisting arrest. See id. at 20. Defendants argue that, similar
to Draper, the use of the taser here was reasonable because it "may well have prevented 'serious
harm' to Lash or the officers, given plaintiff's clear indication that he was not prepared to cease
his active, physical resistance to arrest." Id.
Lash, on the other hand, argues that Officer Lemke's use of a taser during his arrest was
unreasonable because the crime of which he was accused—disorderly conduct—was "relatively
minor." Pl.'s Opp'n at 15. Moreover, he contends that he did not resist arrest—rather, he was
surprised when Officer Reed grabbed his arms and his "instinct" to pull away was not indicative
of resistance. Id. 16-17. Instead, he was acting reflexively and the "officers would not have had
any reason to think that [his] response was voluntary." Id. at 17. Lash argues that he was
unarmed and did not pose a threat. Id. at 16. In particular, he states that, because he was
wearing pajamas, it should have been apparent to the officers that he was not armed. Id. Lash
also contends that he never threatened the officers or took a "fighting stance." Id.
After careful consideration of the facts and circumstances, the Court concludes that no
reasonable jury could find that Officer Lemke's use of force was so excessive that no reasonable
officer could have believed in the lawfulness of her actions. Viewing the situation from the
perspective of an officer at the scene, as the court must, Officer Lemke's use of the taser gun to
effectuate the arrest of Lash was reasonably proportionate to the difficult and uncertain situation
that the USSP officers faced.
First, although Lash's crime was nonviolent, the officers were in a hostile environment
where protesters were yelling at and following the officers while the officers attempted to arrest
Lash. Lash does not dispute that the police were in a protest area with a large number of
13
protesters present. 5 And the many tents in the area made it more difficult for the police to know
exactly how many individuals were present and where they were located. Officer Lemke, aware
of the ongoing protest and the presence of a large number of protesters, "reasonably could have
anticipated a confrontation" while removing an uncooperative protester from the tent camp. See
Wardlaw, 1 F.3d at 1303-04; see also Oberwetter v. Hilliard, 639 F.3d 545, 555 (D.C. Cir. 2011)
(finding it reasonable for officer "quickly and forcefully" to arrest plaintiff engaged in a silent
dance demonstration to reduce "the risk of interference or escape" when plaintiff was part of a
group of 18 people, whose presence could have caused the officer "to be reasonably worried that
events might get out of hand").
Furthermore, Lash actively resisted arrest. Although he argues that he tried to "defuse"
the situation, that he pulled his arms away from the officers when they tried to handcuff him only
because he was "startled," and that he "did not actively resist arrest," Pl.'s Opp'n at 7; Pl.'s Stmt.
¶¶ 1-2, that account does not comport with the parties' video exhibits, which show that Lash was
belligerent, aware of the officers' approach, and physically resistant to the officers' attempts to
handcuff him, see Ex. 17 to Pl.'s Opp'n; Exs. A, B to Defs.' Mot. It is appropriate to rely on that
clear evidence of the events at issue here. Where the nonmoving party's evidence at summary
judgment is "blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of summary judgment." Scott, 550
U.S. at 380; see also White v. United States, 863 F. Supp. 2d 41, 49 (D.D.C. 2012) (granting
defendant's motion for summary judgment where video evidence contradicted assertion that
5
Lash states that there were approximately 80-90 protesters in McPherson Square on January 29, 2012.
Lash Decl. [ECF 15-1] ¶ 37(a). Sergeant Reid states that there were "hundreds of individuals filling McPherson
Square, as well as temporary structures, tents, and shelters which concealed a large portion of the individuals." Reid
Decl. [ECF 12-1] ¶ 4. Regardless of the exact total count, the parties agree that there were a large number of
protesters present in the park.
14
decedent "had both hands raised in a gesture of surrender"). Lash does not challenge the video
evidence and, in fact, submits his own video, which documents the same series of events.
The Court has carefully reviewed these video exhibits. As previously described, Lash's
Video Exhibit 17 shows that, from the time the USSP officers encountered Lash, he was hostile
and belligerent. Initially, Lash follows and yells at the officers as they repeatedly try to walk
away from him. After Lash removes some notices, the officers turn their attention to him, and
Lash then tries to evade them by quickly walking away. The officers pursue Lash through the
park while he continues to walk away from them. Defendants' Video Exhibit B shows Lash
yelling, "officers coming at me"—indicating that he is aware that the officers are approaching
him—and yelling "I've done nothing wrong" as he moves away from Officers Lemke and
Reed—also indicating that Lash is aware the officers are pursuing him. Lash continues to evade
and yell at the officers when they try to approach him. And despite being aware of the officers'
approach, Lash twice pulls his arms away from Officer Reed, and then continues to resist by
physically struggling with Officers Reed and Hilsher as they try to constrain him from either
side.
The unbiased video evidence thus "blatantly contradict[s]" Lash's assertion that he did not
actively resist arrest. See Scott, 550 U.S. at 380. Based on this evidence, no reasonable jury
could believe Lash's version of these events, and hence, the Court will not adopt Lash's version
for the purpose of summary judgment. See id.; see also Johnson v. Washington Metro. Area
Transit Auth., 883 F.2d 125, 128-29 (D.C. Cir. 1989) (finding that summary judgment is
appropriate "when a plaintiff's claim is supported solely by plaintiff's own self-serving
testimony, and undermined by other credible evidence"), abrogated on other grounds by Belton
15
v. Washington Metro. Area Transit Auth., 20 F.3d 1197 (D.C. Cir. 1994). The Court concludes
that a reasonable officer on the scene would have believed that Lash was actively resisting arrest.
Moreover, a reasonable officer could have believed that Lash posed an immediate threat
to the safety of the officers or others. Lash's contention that the officers should have known that
he "never posed a risk of harm to anyone" and was unarmed and not a threat because he was in
pajamas ignores that he was in close physical proximity to the officers and their weapons, and
that he physically resisted their attempts to handcuff him. See Pl.'s Stmt. ¶ 8; Pl.'s Opp'n at 16.
As noted by defendants, "[t]here is always a potential threat to officers when they are that close
to an individual who they are trying to arrest, because the individual may try to grab one of the
officer's weapons or actually hit an officer trying to arrest him." Defs.' Reply at 7. In this
situation, Officer Lemke was "forced to make [a] split-second judgment[]—in circumstances that
[we]re tense, uncertain, and rapidly evolving—about the amount of force that [wa]s necessary."
Graham, 490 U.S. at 396-97. Additional attempts at physically handcuffing Lash "may well
have, or would likely have, escalated a tense and difficult situation into a serious physical
struggle in which the arresting officers" could be injured by Lash or other protesters. See
Draper, 369 F.3d at 1278. Hence, viewing the situation from the standpoint of an objectively
reasonable officer, the single, five-second taser deployment 6 was reasonably proportionate to the
need to subdue Lash and thereby to reduce the risk of further physical confrontation.
6
Defendants submit that Lash was tased only once, while Lash claims that he was tased a second time
when he was on the ground and handcuffed. Compare Defs.' Mot. at 4 with Pl.'s Stmt. ¶ 3; Pl.'s Opp'n at 15, n.1. In
support of his claim, Lash states that he could hear "the clicking of the TASER and could feel its effects." Lash
Decl. ¶ 20. Lash directs the Court to his video exhibit at "approximately 5:40" when, he argues, the second
deployment "can be heard." Id. After numerous viewings of Lash's video, the Court cannot agree that the clicking
of the taser can be heard—instead an extremely loud police whistle and the yells of numerous protesters overwhelm
the audio. Lash stated that "[a] copy of the TASER's datapoint readout would likely be able to settle this dispute"
over how many times the taser was deployed. Pl.'s Opp'n at 15 n.1. In response, defendants submitted Officer
Lemke's declaration, stating that she tased Lash only once, as well as the taser data report, which confirms that the
taser was deployed only once for five seconds on January 29, 2012 at around the time of Lash's arrest. Defs.' Reply
at 11-12; Ex. A to Defs.' Reply (Decl. of Officer Jennifer Lemke ¶ 14; Taser Data Report at 2). Lash has not
disputed the taser data report, and "[a]t the summary judgment stage, facts must be viewed in the light most
16
Lash asserts that the lack of police warnings during his arrest should support a finding
that the taser deployment was unreasonable. Specifically, he argues that, after he "pulled away"
from Officer Reed, "he was not told to stop resisting or that he was going to be TASERed if he
continued resisting." Pl.'s Opp'n at 17. Defendants contend that they did provide warnings to
Lash. See Defs.' Mot. at 4; Defs.' Reply at 9. It is not clear whose account is correct because the
audio on the video exhibits does not clearly pick up the officers' voices. Drawing all inferences
in favor of Lash, as the Court must, the officers' lack of warning nonetheless does not raise
Officer Lemke's use of the taser to the level of excessive force. 7 Although whether a warning is
given is considered by some courts in determining if excessive force was used, it is not a
dispositive factor. See Deorle v. Rutherford, 272 F.3d 1272, 1284 (9th Cir. 2001) ("[T]he giving
of a warning or the failure to do so is a factor to be considered in applying the Graham balancing
test."). Plaintiff cites the Fourth Circuit's finding of excessive force where an officer failed to
give a verbal warning, in violation of police department's policies, before releasing a police dog
trained to bite anyone it found into a home where the officer did not know who was present. Pl.'s
Opp'n at 17 (citing Vathekan v. Prince George's County, 134 F.3d 173, 179-80 (4th Cir. 1998)).
Although the facts in Vathekan and the facts in this case are not analogous—unlike the officer
who released a dog to bite whomever the dog found, Officer Lemke knew who she was tasing—
favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott, 550 U.S. at 380 (citing
Fed. R. Civ. P. 56(c)). "A dispute over a material fact is 'genuine' if 'the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.'" Arrington, 473 F.3d at 333 (quoting Anderson, 477 U.S. at 247).
Therefore, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). And "[i]f the evidence is
merely colorable, or is not sufficiently probative, summary judgment may be granted." Anderson, 477 U.S. at 249-
50. Here, Lash provides no other evidence in support of his claim, and the undisputed taser readout objectively
demonstrates that the taser was used only once around the time of Lash's arrest. Accordingly, no reasonable jury
could find in favor of Lash on this issue and, therefore, there is no genuine dispute.
7
Similarly, Lash's arguments regarding the alleged lack of other warnings or communications do not
transform Officer Lemke's actions into the use of excessive force. See Pl.'s Stmt. ¶¶ 4 (Officer Lemke only warned
Lash once to cease removing notices), 5 (Lash stopped removing notices after he was warned), 6 (the officers did
not tell Lash to put his hands behind his back), 7 (Lash was not told he was under arrest until he was in the police
cruiser). Even assuming Lash's allegations to be true, these facts do not outweigh the factors supporting the
reasonableness of Lemke's use of force.
17
Lash argues that, similar to the officer in Vathekan, Officer Lemke was required by department
policy to give a verbal warning prior to deploying a taser. See Pl.'s Stmt. ¶ 9; Lash Decl. ¶ 37(g).
In response, defendants point out that the USPP general order authorizing the use of tasers to
effectuate arrests states only that a verbal warning should be given prior to deploying a taser "if
practicable." Defs.' Reply at 10; Ex. 2 to Defs.' Mot. § 3605.06(D)(5) ("When the decision to use
[a taser] is made, the officer using it shall give an audible verbal warning to the intended
recipient and other persons nearby immediately prior to its use, if practicable."). An order
stating that a warning shall be given "if practicable" cannot be construed to require a warning in
all situations. And even if it was practicable 8 for Officer Lemke to provide a warning prior using
a taser to subdue Lash, the lack of a warning does not overcome the other facts and
circumstances of the arrest, which support the reasonableness of Officer Lemke's use of the taser.
Accordingly, in light of all the facts and circumstances, no reasonable jury could find that
Officer Lemke's use of force was so excessive that no reasonable officer could have believed it
was lawful. Therefore, Officer Lemke did not violate Lash's constitutional rights during the
arrest. Sergeant Reid, then, is also not liable for excessive force for his alleged failure to
"adequately plan and direct the execution of the arrest of Mr. Lash," and did not violate Lash's
constitutional rights. See Pl.'s Opp'n at 18, n.2. Because Lash was not deprived of his
constitutional rights, the Court need not proceed to the second prong of the analysis, and
defendants are entitled to qualified immunity on Lash's Fourth Amendment claims.
B. First Amendment Claims
Lash initially alleged violations of his First Amendment rights under two theories:
retaliatory arrest and retaliatory use of excessive force. Compl. ¶¶ 50, 51. However, Lash has
conceded that his First Amendment claim for retaliatory arrest cannot proceed because of the
8
The order does not provide guidance on what is "practicable."
18
Supreme Court's recent decision in Reichle, which held that it was not clearly established that a
retaliatory arrest supported by probable cause would violate the First Amendment. Pl.'s Opp'n at
19.
Lash maintains his other First Amendment claim, and argues that his "right to be free
from the chilling effect of excessive force by police officers at a protest was well-established" at
the time of the incident in question. Pl.'s Opp'n at 19. However, as discussed in the previous
section, Lash was not subjected to excessive force in the course of his arrest. Hence, his
allegation that he was subjected to excessive force as retaliation for his exercise of his First
Amendment rights also fails, and defendants are entitled to qualified immunity on Lash's First
Amendment claims.
CONCLUSION
For the reasons explained above, the Court will grant defendants' motion for summary
judgment, dismiss Lash's claims against defendants with prejudice, and enter judgment in favor
of defendants on all of the claims against them. A separate order will be entered with this
memorandum opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: September 20, 2013
19