FENWICK v. UNITED STATES OF AMERICA et al

Filing 55

OPINION granting in part and denying in part defendants' motion to dismiss or, in the alternative, for summary judgment. An order consistent with this opinion will issue this same day. Signed by Judge Paul L. Friedman on March 1, 2013. (MA)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
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MICHAEL FENWICK,
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Plaintiff,
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)
v.
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UNITED STATES OF AMERICA, et al.
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)
Defendants.
)
_________________________________________ )

Civil Action No. 07-2330 (PLF)

OPINION
Before the Court is the defendants’ motion to dismiss or, in the alternative, for
summary judgment. In an earlier Opinion and Order, the Court granted in part the defendants’
motion to dismiss. The Court deferred ruling on the motion for summary judgment, ordering
supplemental briefs and exhibits regarding the potentially preclusive effect on this action of the
plaintiff’s juvenile delinquency adjudication in the Superior Court of the District of Columbia.
See Fenwick v. United States, 691 F. Supp. 2d 108 (D.D.C. 2010). Having carefully considered
the parties’ original and supplemental briefing, their exhibits, and the applicable law, the Court
will grant in part and deny in part the defendants’ motion. The bulk of the plaintiff’s claims
remain intact.1

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The papers considered in connection with this matter include the following:
plaintiff’s complaint (“Compl.”); defendants’ motion to dismiss or, in the alternative, for
summary judgment (“Mot.”) and supporting memorandum (“Mem.”); plaintiff’s opposition
(“Opp.”); defendants’ reply (“Reply”); plaintiff’s supplemental memorandum (“Pl.’s Suppl.
Mem.”); and defendants’ supplemental memorandum (“Defs.’ Suppl. Mem.”). In support of
their memoranda of law, both the plaintiff and the defendants have submitted certain exhibits
under seal, at Docket No. 31 (“Pl.’s Sealed Exhibits”); and Docket Nos. 32 & 47 (“Defs.’ Sealed
Exhibits”).

I. BACKGROUND
This action arises from an incident in which two Deputy United States Marshals
shot and seriously injured the plaintiff, Michael Fenwick — then sixteen years old — as he drove
out of a parking lot and failed to heed their orders to stop and speak with them about their
suspicions that the vehicle he was driving was stolen.
On January 3, 2007, Mr. Fenwick drove a green Lincoln into the parking lot of an
apartment complex in Washington, D.C., parked, and got out of the car. Opp. at 3-4. He walked
to the door of his girlfriend’s apartment and then, finding that she was not at home, returned to
the car. Id. at 4. In the meantime, defendants Deputy Marshals Andrew Pudimott, Jeremy
Fischer, and John Mickle (“the deputies”) were standing nearby in the parking lot, waiting to
enforce an eviction order issued for one of the units in the complex. Id. at 4. The parties’
accounts of what happened next diverge widely.
According to the defendants, based on Mr. Fenwick’s youthful appearance, his
behavior, and the appearance of his car, the deputies developed a reasonable suspicion that Mr.
Fenwick was driving a stolen automobile and that he was too young to drive. Mem. at 4. As Mr.
Fenwick was standing beside the Lincoln after returning from his girlfriend’s apartment, they
asked him to stop and speak with them. Id. Although Mr. Fenwick heard their request and
pointed to his chest while saying, “Who, me?”, he did not stop, but instead got into the car and
put it in reverse. Id. He then drove the car forward toward “one or more [of the] deputies” who
by then had surrounded the vehicle, placing their lives in danger. Id. at 25. Responding to the
“apparent threat to the safety of themselves, fellow officers, and/or possibly other bystanders,”
Deputies Pudimott and Fischer fired several shots at Mr. Fenwick, id. at 26, before he drove off,
leaving the parking lot. Compl. ¶ 38.

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Mr. Fenwick, in contrast, claims that after he pointed to himself and said “Who,
me?”, he did not observe any response on the deputies’ part or hear their request to stop and talk
with them. Opp. at 5. Not understanding that they wished him to stay in the parking lot, he
climbed into his car and began to back out of his parking space. Id. at 6. After pulling out of the
space, Mr. Fenwick stopped while he changed gears. Id., Ex. 3 at 3 (Declaration of Michael
Fenwick) (“Fenwick Decl.”). At that point Deputy Pudimott began shooting at Mr. Fenwick.
Deputy Fischer also “fired before [Mr. Fenwick] heard any orders to stop,” and “while the car
was stopped.” Opp. at 12. Once Mr. Fenwick began to drive the car forward, Deputy Fischer
fired “at least” one other shot at him “as [Mr. Fenwick] was driving away.” Id. at 12. Mr.
Fenwick maintains that at no time did the deputies “fear[ ] for their lives,” id., and that the
deputies “kept shooting at [him] as [he] was driving out of the parking lot.” Fenwick Decl. at 3.
Unlike the shooting itself, the events that followed are, for the most part, not in
dispute. Although he had been struck by several bullets during the shooting, Mr. Fenwick
managed to drive out of the parking lot. Fenwick Decl. at 3. He soon passed his stepfather
driving on the same road, flagged him down, and was driven to a hospital for treatment of his
injuries. Id. Officers from the Metropolitan Police Department found Mr. Fenwick at the
hospital, and the deputies identified him as the person they encountered. Pl.’s Sealed Ex. 6 at 2.
Mr. Fenwick was transported by helicopter to Washington Hospital Center, where he underwent
emergency surgery and for a time was in critical condition. Id.; Fenwick Decl. at 3.
In February 2007, Mr. Fenwick was charged as a juvenile with, among other
things, aggravated assault on a police officer and receipt and conversion of stolen property.
Defs.’ Sealed Ex. 7 at 2-3. His case was tried before Judge Patricia Broderick in the Family
Division of the Superior Court of the District of Columbia. Id. During the trial, Mr. Fenwick’s

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counsel moved for the exclusion of tangible evidence — photographs of the allegedly stolen car
driven by Mr. Fenwick — on the ground that the evidence had been recovered as a direct result
of the illegal seizure of Mr. Fenwick in violation of the Fourth Amendment. Defs.’ Sealed Ex. 3
at 6. That seizure, according to counsel, occurred when “the deputies ran over to [the car Mr.
Fenwick was driving] with guns drawn and then shot the driver.” Id. at 5. Judge Broderick
rejected Mr. Fenwick’s motion to suppress, Defs.’ Sealed Ex. 1 at 3-6, and in a separate ruling,
she found Mr. Fenwick “guilty/involved” as to one count each of felony assault on a police
officer, receipt of stolen property, and unauthorized use of a vehicle. The assault count was
based on Mr. Fenwick’s having accelerated forward in the vehicle he was driving with Deputy
Pudimott clearly visible near the front of the car, placing the deputy in danger of injury. Pl.’s
Sealed Ex. 15 at 3-6; Defs.’ Sealed Ex. 6 at 5. The verdict was upheld by the District of
Columbia Court of Appeals, against Mr. Fenwick’s challenge that government had not proven
that he created “a grave risk of causing significant bodily injury” to an officer, as required for a
felony conviction under the assault statute. See Memorandum Opinion and Judgment, In re
M.T.F., No. 07-FS-1150 (D.C. Dec. 2, 2010).
This action was filed by Mr. Fenwick’s mother, Cheryl Fenwick, who served as
the plaintiff in this case until Mr. Fenwick reached the age of majority. The complaint alleges
that Deputies Fischer, Mickle, and Pudimott violated Mr. Fenwick’s rights under the Fourth
Amendment to the Constitution, and that the United States is liable to Mr. Fenwick under the
Federal Tort Claims Act (“FTCA”) for acts of assault, battery, and false imprisonment
committed by the deputies in the course of their employment. Mr. Fenwick seeks $10 million in
compensatory damages and $100 million in punitive damages.

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Surveillance video footage taken by security cameras positioned in the vicinity of
the incident captured most of the encounter between Mr. Fenwick and the deputies. This video
was relied upon by the Superior Court and the District of Columbia Court of Appeals in Mr.
Fenwick’s juvenile delinquency adjudication, and the parties have provided the video footage to
the Court as evidence in this action.
The Court’s earlier Opinion addressed issues arising from the plaintiff’s failure to
properly serve the individual defendants, and it clarified that Mr. Fenwick could not maintain
common law claims against those individual defendants but could only pursue recovery from the
United States for their conduct under the FTCA. In addition, the Opinion denied the plaintiff’s
motion to strike the defendants’ exhibits that consisted of records from Mr. Fenwick’s Superior
Court proceedings. Fenwick v. United States, 691 F. Supp. 2d at 112-16. The Court did not rule
on the defendants’ contention that Mr. Fenwick’s claims are barred by res judicata, collateral
estoppel, and the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), because the parties had
not adequately briefed the preclusion question or provided the Court with all of the records from
Superior Court that it needed to answer that question. Id. at 116-17. The parties have since filed
supplemental briefs and exhibits as directed by the Court.

II. STANDARD OF REVIEW
Summary judgment may be granted 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A fact is ‘material’ if a dispute over it might affect
the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or
unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d
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at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue is “genuine” if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott
v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb
v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, “the
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; see also Mastro v. Potomac Electric
Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156
F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep’t of Health and
Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989).
The non-moving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving party
is required to provide evidence that would permit a reasonable jury to find in his favor.
Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant’s
evidence is “merely colorable” or “not significantly probative,” summary judgment may be
granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. at
380 (“[W]here the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is ‘no genuine issue for trial.’”) (quoting Matsushita Electric Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To defeat a properly supported motion
for summary judgment, then, the non-moving party must have more than “a scintilla of evidence
to support his claims.” Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C.
Cir. 2001).

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III. DISCUSSION
A. Collateral Estoppel (Issue Preclusion)
The defendants maintain that during Mr. Fenwick’s juvenile delinquency
adjudication in Superior Court he unsuccessfully litigated the same issues that he raises here, and
that as a result his claims against the defendants are barred by the related doctrines of res judicata
(claim preclusion) and collateral estoppel (issue preclusion).
Res judicata, or claim preclusion, clearly does not apply. That doctrine bars
lawsuits “involving the same claims or cause of action” as an earlier suit. Porter v. Shah, 606
F.3d 809, 813 (D.C. Cir. 2010). Mr. Fenwick did not, and could not, bring Bivens or FTCA
claims against any defendant during his juvenile delinquency adjudication. Furthermore, res
judicata applies only “between the same parties or their privies.” Id. Neither the deputies nor
the United States were parties to the juvenile proceeding. Mr. Fenwick’s claims therefore are not
barred by res judicata, so the only question is whether collateral estoppel, i.e., issue preclusion,
limits the matters that he may contest in this action.
“Under collateral estoppel, once a court has decided an issue of fact or law
necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a
different cause of action involving a party to the first case.” U.S. Postal Serv. v. Am. Postal
Workers Union, 553 F.3d 686, 696 (D.C. Cir. 2009) (quoting Novak v. World Bank, 703 F.2d
1305, 1309 (D.C. Cir. 1983)). The purpose of the doctrine is to “conserve judicial resources,
avoid inconsistent results, engender respect for judgments of predictable and certain effect, and
. . . prevent serial forum-shopping and piecemeal litigation.” McGee v. District of Columbia,
646 F. Supp. 2d 115, 123 (D.D.C. 2009) (citation and internal quotation marks omitted). The
Supreme Court has held that “issues actually litigated in a state-court proceeding” — including

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criminal prosecutions — “are entitled to the same preclusive effect in a subsequent federal
§ 1983 suit as they enjoy in the courts of the State where the judgment was rendered.” Migra v.
Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 83 (1984) (citing Allen v. McCurry, 449 U.S.
90, 97-99 (1980)). The only exception is if the party against whom the earlier decision is
asserted did not have a “full and fair opportunity” to litigate the issue in the earlier case. Allen v.
McCurry, 449 U.S. at 95. “Congress has specifically required all federal courts to give
preclusive effect to state-court judgments whenever the courts of the State from which the
judgments emerged would do so.” Id. at 96 (citing 28 U.S.C. § 1738). Allen’s holding applies to
Bivens actions as well as to Section 1983 actions. McClam v. Barry, 697 F.2d 366, 371 n.3
(D.C. Cir. 1983), overruled on other grounds by Brown v. United States, 742 F.2d 1498 (D.C.
Cir. 1984); Weakes v. FBI-MPD Safe Streets Task Force, Civil Action No. 05-0595, 2006 WL
212141, at *4 (D.D.C. Jan. 27, 2006) (citing McClam v. Barry, 697 F.2d at 371 n.3).
To determine whether a plaintiff’s factual or legal contentions are precluded by
the results of an earlier state-court proceeding, a federal court must apply the preclusion law of
that state. See Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 525 (1986); Migra v.
Warren City Sch. Dist. Bd. of Educ., 465 U.S. at 87. In the District of Columbia, “an issue of
fact or law” is rendered conclusive in a subsequent action under collateral estoppel when “(1) the
issue is actually litigated and (2) determined by a valid, final judgment on the merits; (3) after a
full and fair opportunity for litigation by the parties or their privies; (4) under circumstances
where the determination was essential to the judgment, and not merely dictum.” Modiri v. 1342
Rest. Group, Inc., 904 A.2d 391, 394 (D.C. 2006) (quoting Davis v. Davis, 663 A.2d 499, 501
(D.C. 1995)). In other words, collateral estoppel “precludes the relitigation of issues actually
litigated and necessary to the outcome of a prior case involving the party against whom estoppel

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is asserted[.]” Carr v. Rose, 701 A.2d 1065, 1076 (D.C. 1997). “A party raising a claim of
collateral estoppel bears the burden of showing that the present issues are identical to those
adjudicated in a prior proceeding[.]” Merle v. United States, 683 A.2d 755, 762 (D.C. 1996).
Because “[c]ollateral estoppel may be used defensively to prevent a plaintiff from
relitigating issues which the plaintiff lost previously against another [party] . . . a stranger to the
first action may invoke issue preclusion against a party to that action.” Patton v. Klein, 746 A.2d
866, 871 (D.C. 1999) (quoting Carr v. Rose, 701 A.2d at 1076). Questions of law or fact
established in a juvenile delinquency proceeding can have preclusive effect in a subsequent civil
action brought against defendants who were not parties to the delinquency proceeding. Lassiter
v. Dist. of Columbia, 447 A.2d 456, 458-61 (D.C. 1982).
In the defendants’ view, all of the issues raised by Mr. Fenwick in this action
were adjudicated in his juvenile delinquency proceeding, and the judgment against him in that
proceeding acts as a complete bar to his claims here. Mem. at 17-19. While the Court disagrees
with that assessment, as explained below, it does conclude that certain factual and legal
contentions advanced by Mr. Fenwick in this action were resolved against him in the Superior
Court, creating preclusive effect here. Although Mr. Fenwick may not relitigate those particular
issues in this Court, that hindrance does not extinguish the viability of his claims against the
defendants. The Court will take each of Mr. Fenwick’s claims in turn.

1. Bivens Claim for Excessive Force
“To establish a Fourth Amendment violation for excessive use of force by a
police officer, a plaintiff must demonstrate that first, he was seized, and second, that the use of
force applied in the seizure was unreasonable.” Robinson v. Dist. of Columbia, 736 F. Supp. 2d
254, 259 (D.D.C. 2010) (citing Graham v. Connor, 490 U.S. 386, 397 (1989), and Johnson v.
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Dist. of Columbia, 528 F.3d 969, 973 (D.C. Cir. 2008)). A constitutional 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 v. District of Columbia, 528 F.3d at 973 (quoting Graham v. Connor, 490 U.S. at 388,
and Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993)). Assessing the reasonableness of a
seizure requires giving “careful attention to the facts and circumstances of [the] particular case,
including the severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officer or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Id. at 974 (quoting Graham v. Connor, 490 U.S. at 396). 2
The Superior Court made two rulings in Mr. Fenwick’s juvenile delinquency
proceeding that entailed factual findings and legal conclusions which may have preclusive effect
on Mr. Fenwick’s excessive force claims. Any determinations made by that court are binding
here as long as they were necessary to the judgment and Mr. Fenwick had a full and fair
opportunity to litigate them. Allen v. McCurry, 449 U.S. at 95; Modiri v. 1342 Rest. Group,
Inc., 904 A.2d at 394.
First, the court denied a motion by Mr. Fenwick to suppress tangible evidence in
the form of photographs of the Lincoln Mark that he was driving at the time of his encounter

2

Although Mr. Fenwick eluded capture at the scene of his encounter with the
deputies and was arrested only later at the hospital where he sought emergency treatment for his
injuries, the defendants do not argue that his shooting fails to qualify as a “seizure” under the
Fourth Amendment; indeed, they appear to concede the point. See Mem. at 25 (“[T]here can be
no question that apprehension by the use of deadly force is a seizure subject to the
reasonableness requirement of the Fourth Amendment.”) (quoting Tennessee v. Garner, 471 U.S.
1, 7 (1985)).
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with the deputies. See Defs.’ Sealed Ex. 3 (“Mot. to Suppress”).3 After fleeing the scene of the
shooting and coming across his stepfather driving his own car, Mr. Fenwick left the Lincoln on
the street, got into his stepfather’s car, and was taken to the hospital. The abandoned Lincoln
later was recovered by the police and taken to its crime lab, where it was searched and
photographed pursuant to a search warrant. Mr. Fenwick sought to suppress all photographs of
the vehicle as the fruits of an illegal seizure. He argued that when the deputies shot Mr. Fenwick
they lacked the reasonable suspicion that would justify an investigative stop under Terry v. Ohio,
392 U.S. 21 (1968), as well as probable cause for an arrest and justification for the use of deadly
force under Tennessee v. Garner, 471 U.S. 1 (1985). Mot. to Suppress at 4. In essence, Mr.
Fenwick’s argument was that but for the allegedly illegal seizure that occurred when the
Deputies shot Mr. Fenwick, the police would not have recovered the Lincoln or any evidence
derived therefrom. Id. at 6.
In pressing this argument before the Superior Court, Mr. Fenwick contended that
the deputies began shooting at him during the moment at which he had stopped the car after
backing it out of the parking space but before he began accelerating forward toward the exit to
the parking lot — the act that, according to the deputies and an eyewitness named Otis Williams,
put Deputy Pudimott in danger of being hit by the vehicle. Based largely on this proffered
version of the facts, Mr. Fenwick argued as a legal matter that the deputies used constitutionally
excessive force in shooting him because they lacked the necessary justification for such force
under Tennessee v. Garner, and that the excessiveness of this force rendered the resulting search
of the vehicle unlawful. See Pl.’s Sealed Ex. 12 at 204-205; Defs.’ Sealed Ex. 14 at 15-17,
20-25.
3

These photographs supported the government’s charge that the Lincoln was
stolen, showing that the ignition had been removed and covered by a T-shirt, and that the lock to
the car door was damaged. See Defs.’ Sealed Ex. 9 at 3.
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Responding to the motion to suppress the photographs of the Lincoln Mark, the
District of Columbia advanced several arguments about why the search of the Lincoln was
lawful. On the facts, the District disputed the claim that the deputies started shooting before Mr.
Fenwick began accelerating forward in the car, arguing instead that the shooting occurred only
after and in response to the dangerous forward acceleration of the car. Defs.’ Sealed Ex. 9 at 2
(“Mot. to Suppress Opp.”). The District also argued that Mr. Fenwick had no standing to
challenge the recovery of evidence from the Lincoln because he had abandoned the car,
relinquishing any legitimate expectation of privacy that he might have had in its contents. Mot.
to Suppress Opp. at 8; Defs.’ Sealed Ex. 11 at 1-2; Defs.’ Sealed Ex. 14 at 28. The District
further argued that, regardless of what happened during Mr. Fenwick’s confrontation with the
deputies, the subsequent search warrant for the Lincoln was valid. Defs.’ Sealed Ex. 14 at 28.
None of the District’s written or oral submissions addressed whether the deputies used excessive
force in shooting Mr. Fenwick, with the exception of steadfastly maintaining that the shooting
did not precede Mr. Fenwick’s alleged assault.
Judge Broderick heard evidence related to the motion to suppress in tandem with
the evidence presented on the merits of the delinquency charges. She ruled orally on the motion
to suppress as follows:
[W]ith the evidence presented before me, I find the testimony of
the officers to be particularly credible and compelling.
The most compelling witness to me is Otis Williams [the lay
witness] -- or one of the most compelling -- who I think gave a
very frank, truthful and, again, compelling statement of what
occurred. And he very clearly stated in his testimony that the shots
were fired after the car nearly hit at least two of the officers.
[H]e also stated that when the defendant -- or the respondent drove
up, the officers commented on his youth. What I see from the facts
that have been presented before me in evidence is that the
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defendant -- or the respondent drove up. When he got out of the
car, his youth was noted. One of the officers noted the recent
damage to the car, which made him suspect. And also one of the
other officers noted the broken door lock. And most of them
noticed his youth. . . .
So they had someone who they suspected was driving a car with a
broken door lock, and looked too young to drive, all of which gave
them at least reasonable suspicion, if not probable cause, right then
and there.
And so they asked him to stop, which I think they had a perfect
right to do, under Terry versus Ohio. They did ask him to stop. He
indicated to them, who me, by his gestures. Everyone confirms that
action. And when they indicated yes, he continued to get in the car.
And in very short order, as the video shows, and as the testimony
indicates, the car backed up and began to move.
But my understanding, having gone through the APO statute that’s
in the Red Book, is that part of the theory here is resisting [an
officer], opposing [an officer], et cetera. And so at that point I do
have your client resisting and opposing arrest.
So I think that the evidence, as I see it and as I’ve heard it, is that
after the car backed up and then went forward, and it nearly hit two
officers while they tried to stop your client -- I don’t see or find
anything inappropriate in their actions at all.
And I agree with [prosecutor] Leighton’s rendition of the fact that
there is a search warrant for the contents of the car. And so I also
follow his theory of abandonment, and agree with it. So for all of
those reasons I deny the motion to suppress the tangible evidence
at this time.
Defs.’ Sealed Ex. 1 at 3-6. Contrary to the defendants’ argument, in her ruling Judge Broderick
cannot fairly be said to have passed judgment on whether the deputies’ shooting of Mr. Fenwick
amounted to constitutionally excessive force.
To begin with, the analysis focused exclusively on whether the deputies had
adequate cause to question Mr. Fenwick and stop him from leaving the parking lot. The judge
did not address whether shooting Mr. Fenwick was constitutionally permissible under the

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circumstances. Although Mr. Fenwick invited a ruling on that point through one aspect of his
suppression argument — that the excessiveness of the force used by the deputies against Mr.
Fenwick rendered illegal the subsequent search of the Lincoln — Judge Broderick simply did not
engage with that convoluted aspect of the argument.4 Instead, she merely rejected Mr.
Fenwick’s contention that the deputies lacked the requisite cause under Terry v. Ohio to question
Mr. Fenwick at the scene, making no comment on whether shooting him was a legitimate
response after he ignored the deputies’ entreaties and attempted to escape. The judge’s statement
that she did not “see or find anything inappropriate in [the deputies’] actions as all,” when read in
the context of the ruling as a whole, does not evince a ruling that firing on Mr. Fenwick was
constitutionally permissible. The oral ruling contained not so much as a passing mention of the
constitutional requirements for the use of deadly force, much less a discussion of any of the
relevant case law or the factual findings necessary to support a conclusion on that issue. “An
evaluation of the severity of the police response to [Mr. Fenwick]’s attack was not at issue, and
thus was not adjudicated, in the juvenile proceeding. It follows that collateral estoppel does not
necessarily bar [his] claim.” Lassiter v. Dist. of Columbia, 447 A.2d at 460.
Even if the court’s ruling on the motion to suppress did constitute a determination
about whether the deputies used constitutionally excessive force against Mr. Fenwick, that
determination was not “essential to the judgment,” as required for issue preclusion. Modiri v.
1342 Rest. Group, Inc., 904 A.2d at 394. The government raised several independent arguments
in opposition to the motion, two of which had nothing to do with the legality of the deputies’
conduct, and Judge Broderick explained that she agreed with all of them. See Defs.’ Sealed Ex.
4

As the District maintained, courts have held that “excessive force in making an
arrest or seizure is not a basis for the exclusion of evidence.” Evans v. Poskon, 603 F.3d 362,
364 (7th Cir. 2010).
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1 at 5-6 (“And I agree with [the prosecutor’s] rendition of the fact that there is a search warrant
for the contents of the car. And so I also follow his theory of abandonment, and agree with it.
So for all of those reasons I deny the motion to suppress the tangible evidence at this time.”)
(emphasis added). Because the government’s “search warrant” and “abandonment” arguments
were each independently sufficient reasons to deny the motion to suppress, any determination
made about the constitutional reasonableness of Mr. Fenwick’s shooting was not “necessary to
the outcome” of the contested motion. Carr v. Rose, 701 A.2d at 1076; cf. Connors v. Tanoma
Min. Co., Inc., 953 F.2d 682, 685-86 (D.C. Cir. 1992) (where “both arguments pointed toward a
judgment for the Alabama producers, [and] the court had no reason to choose between them . . .
the precise legal basis upon which the judgment rests is unclear” and “[i]n view of this lingering
uncertainty, we cannot say that the producers have discharged their burden of showing that the
[earlier decision] ‘actually and necessarily’ resolved the issue that the trustees have raised in this
case”).
Finally, the context of the motion to suppress did not provide a “full and fair
opportunity” for the litigation of Mr. Fenwick’s excessive force claim. Allen v. McCurry, 449
U.S. at 95; Modiri v. 1342 Rest. Group, Inc., 904 A.2d at 394. Despite Mr. Fenwick’s strained
attempt to inject that issue into the suppression determination, the unpersuasiveness of this
attempt and the irrelevance of the issue are apparent from the manner in which the government
and the court virtually ignored the issue.
Thus, because the excessive force claim was not ruled upon by the Superior
Court, because any such ruling would have been dictum, and because Mr. Fenwick lacked a full
and fair opportunity to litigate this weighty issue in such an attenuated context, Judge

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Broderick’s ruling on the motion to suppress does not collaterally estop Mr. Fenwick from
pursuing the issue here.
The second ruling made by the Superior Court with potentially preclusive effect
here was Judge Broderick’s determination, after a bench trial, that Mr. Fenwick committed one
count of assault on a police officer (“APO”). Liability on that charge requires that a defendant,
“without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or
interferes with a law enforcement officer on account of, or while that law enforcement officer is
engaged in the performance of his or her official duties.” D.C. Code § 22-405(b). If the
defendant, while perpetrating this offense, “commits a violent act that creates a grave risk of
causing significant bodily injury to the officer,” the defendant is guilty of a felony. D.C. Code
§ 22-405(c). In concluding that Mr. Fenwick committed felony APO, Judge Broderick orally
announced her findings as follows:
As I mentioned in ruling on the motion [to suppress tangible
evidence], I did credit the testimony of the officers, and
particularly Officers Mickle [and Pudimott]. And also very strong
portions of Mr. Williams’ testimony were very compelling, and
here’s how I see the evidence. I see that the defendant drove up,
had a little trouble parking, finally reparked the car, got out of the
car, walked into the building. The video shows approximately a
minute or so later he comes out of the building. At that time he
goes to the side of the car.
It’s hard to tell what he’s doing from the video, but the officers
testify, and there’s been nothing to suggest that they were
incorrect, that he appears to look like he is using the door-lock
numbers that are underneath. The officers suggest to him that
they’d like to talk with him, and he starts to get into the car. He
opens the door and [is] between the door of the car and the car
when he points to himself and says, who me?
Now, one of the officers testified that at that point he said you’re
not in trouble. We just want to talk with you. The defendant chose
not to comply. He got into the car. He shut the door. He started the
car. He backed up, and at that point the officers rushed towards the
16

car, and that is the first count of APO that the Government is
charging where he backs up and nearly hits [Officer Mickle].
But the officer testified that he was running at the car as the car
was backing up and that he pushed off the car, so what I see at this
point is I see the defendant choosing not to comply, which,
according to the law, he has the right to do particularly because the
officers have said that he’s not in any trouble. So I don’t see . . .
any intent to hit the officer or aim at the officer at that time, and so
I do not see an APO at that time.
However, [Officer Pudimott] testified that he was towards the front
of the car. He first banged on the side window. He couldn’t see the
defendant, or the respondent, so he leaned over the front of the car
and pointed his gun directly at the window and [at] that point he
could see the respondent, and there’s no reason to believe that at
that point the respondent couldn’t see him. At that point he chose
to drive forward, and it’s my belief, both from the video and from
the testimony, that it wasn’t until the officer was in that position
and the car is going forward at him that he got off the car, hit the
side-view mirror, and then fired.
So I do see that his actions in going forward, with the officer there
and clearly visible, was an APO. It was both an assaultive APO, a
resisting APO, an opposing APO, and an interfering APO. As he
drove off, I don’t see that he in any way aimed towards or resisted
or did anything towards Officer Fischer. So I only find one count
of assault [on] a police officer in that regard.
Defs.’ Sealed Ex. 2 at 4-6.
Neither the verdict on the assault charge, nor Judge Broderick’s underlying
factual findings, preclude Mr. Fenwick from pursuing claims against the defendants for
unconstitutional use of deadly force. Once again, issue preclusion “applies only to those matters
actually raised and adjudicated in the antecedent suit.” Lassiter v. Dist. of Columbia, 447 A.2d
at 459. In finding that Mr. Fenwick committed one count of felony APO, Judge Broderick
necessarily determined that he created a grave risk of causing significant bodily injury to Deputy
Pudimott when, without justifiable or excusable cause, he drove the car forward in a manner that
put the deputy in danger of being hit. See D.C. Code §§ 22-405(b), (c); Defs.’ Sealed Ex. 2 at 6.
17

But Judge Broderick did not decide — and had no need to decide — whether the deputies shot
Mr. Fenwick at a point when they still reasonably believed that Deputy Pudimott was in danger,
or whether they instead fired some or all of their shots after the danger already had passed.
Judge Broderick’s own reconstruction of the key moment in the incident, based on the evidence
before her, suggests that Deputy Pudimott, at least, fired when he was already standing clear of
the car: “[I]t’s my belief, both from the video and from the testimony, that it wasn’t until the
officer was in that position [leaning on the car’s hood] and the car is going forward at him that he
got off the car, hit the side-view mirror, and then fired.” Defs.’ Sealed Ex. 2 at 6 (emphasis
added). And it was undisputed in the Superior Court that several bullets entered the car through
the driver’s side window and the passenger side window, not through the front windshield. See
Defs.’ Supp. Br. at 5-6.
As explained later in this Opinion, this unresolved factual question bears on the
reasonableness of the force used by the deputies; but answering the question was not a necessary
part of Mr. Fenwick’s juvenile delinquency adjudication. The only factual matter regarding the
shooting that the Superior Court judge needed to determine for purposes of the assault charge
was whether the deputies began firing before or after Mr. Fenwick accelerated forward in the car.
This determination was necessary to her ruling, because if the officers began firing while the car
was still at rest (as Mr. Fenwick claimed), then driving forward and endangering Deputy
Pudimott in the process could not be regarded as lacking “justifiable and excusable cause.” D.C.
Code § 22-405(b). Further precision about exactly when each deputy fired his weapon, or where
Deputy Pudimott stood in relation to the moving vehicle at the time, was unnecessary.
For the same reasons, Judge Broderick also rendered no opinion on the legal
question of whether shooting Mr. Fenwick in response to the danger posed to Deputy Pudimott

18

— as opposed to taking a less extreme course of action — constituted an excessive use of force
under the Fourth Amendment. That legal conclusion, like the antecedent factual findings it
would have necessitated, was irrelevant to the court’s task. Thus, even if Judge Broderick had
expressed a view about these matters, any such determination would have been “merely dictum”
and not “essential to the judgment.” Modiri v. 1342 Rest. Group, Inc., 904 A.2d at 394.
The District of Columbia Court of Appeals has found collateral estoppel
inapplicable in a case involving similar circumstances. In Lassiter, a police officer was sued for
assault by a plaintiff who had been convicted in juvenile proceedings of assaulting the officer
during the same incident. The court held that because the issues in the two proceedings were
different, collateral estoppel presented no bar to the plaintiff’s claim:
[A]lthough the juvenile court found that appellant assaulted the
police officer — a finding that indicates the reasonableness of
some force by the police to accomplish custody — it is true
nonetheless that the issue of excessive force by the police under the
circumstances was not “actually recognized by the parties as
important and by the trier as necessary to the first judgment[.]” An
evaluation of the severity of the police response to appellant’s
attack was not at issue, and thus was not adjudicated, in the
juvenile proceeding. It follows that collateral estoppel does not
necessarily bar appellant’s assault claim.
Lassiter v. Dist. of Columbia, 447 A.2d at 460 (citations omitted). Similarly, in District of
Columbia v. Peters, 527 A.2d 1269, 1271 (D.C. 1987), police officers shot a plaintiff while
trying to arrest him, and he later sued on a claim of excessive force, prevailing before a jury.
Upholding the verdict, the court of appeals held that the plaintiff’s conviction for APO arising
from the same incident did not preclude his claim, because “[t]he question whether [the officer]
used excessive force in apprehending [the plaintiff] was not necessarily litigated in the criminal
action.” Id. at 1275 (citing Lassiter v. Dist. of Columbia, 447 A.2d at 460).

19

The same holds true here. Neither the precise facts surrounding the deputies’
shooting of Mr. Fenwick as (or after) he assaulted Deputy Pudimott, nor the legal determination
of whether their use of force was excessive, were decided in his juvenile delinquency
proceeding. Under the standards governing collateral estoppel in the District of Columbia,
therefore, the juvenile adjudication does not bar Mr. Fenwick’s Bivens claims for excessive
force.
That conclusion, however, does not end the matter. Although Mr. Fenwick’s
claims are not entirely foreclosed, the juvenile delinquency proceeding necessarily established
certain facts and conclusions of law that significantly limit the scope of the issues he may contest
here. See Modiri v. 1342 Rest. Group, Inc., 904 A.2d at 394; Patton v. Klein, 746 A.2d at 871
(stating that collateral estoppel may be used “to prevent a plaintiff from relitigating issues which
the plaintiff lost previously” in an earlier proceeding); cf. M.D. ex rel. Daniels v. Smith, 504 F.
Supp. 2d 1238, 1252 (M.D. Ala. 2007) (“[E]ven if collateral estoppel does not bar a § 1983 suit,
it may limit what facts a § 1983 plaintiff can dispute on defendant’s motion for summary
judgment[.]”). Although the constitutionality of the force used by the officers against Mr.
Fenwick was not at issue in the earlier proceeding, “the court obviously had to make at least
some findings about [the officers’] own conduct to determine whether [Mr. Fenwick] committed
criminal assault; i.e., the court had to develop a coherent view of how [the officers and Mr.
Fenwick] dealt with each other” during the incident. Lassiter v. Dist. of Columbia, 447 A.2d at
460.
This Court concludes that as a result of the factual and legal issues necessarily
resolved by Judge Broderick in the Superior Court, Mr. Fenwick is precluded from advancing
here the following assertions that he tenders in his complaint:

20



“At all times material hereto, Defendant Officers had no information from . . . any
. . . source suggesting that M.F. was a felon or, in any way, a danger to officers or
the public at large.” Complaint ¶ 16. To the contrary, the deputies’ personal
observations gave them reasonable suspicion that Mr. Fenwick may have been
driving a stolen car. Moreover, at the moment he accelerated forward in the car,
the deputies reasonably could have believed that he was a danger to Deputy
Pudimott.



“M.F. engaged in no conduct which would raise suspicion that he was about to
use any weapon that would create in the mind of a reasonable officer that the fear
of bodily harm was imminent.” Id. ¶ 18. Mr. Fenwick’s acceleration forward in
the vehicle reasonably could have caused the deputies to fear that Deputy
Pudimott was in imminent danger of being hit by the vehicle.



“Defendant officers were not in any reasonable fear or apprehension of bodily
harm nor were they in fear of any imminent danger.” Id. ¶ 19. See above.



“There was no indication that M.F. was stealing a car[.]” Id. ¶ 23. See above.



“M.F. . . . had a right to leave the residential complex unassailed at the time of the
shooting. He did not . . . have any reason to believe he was under arrest.” Id.
¶ 25. While he may not have had reason to believe he was technically under
arrest, at the time Mr. Fenwick accelerated toward the exit to the parking lot, the
deputies were surrounding the car ordering him to stop and exit the vehicle, and
Deputy Pudimott was leaning on the front hood with his gun drawn.



“Defendants Fischer and Pudimott condoned, covered up and engaged in a
conspiracy to hide the misdeeds of themselves and their fellow officers.” Id. ¶ 29.
To the extent that Mr. Fenwick may seek to prove in this action, as he initially
alleged in the juvenile proceeding, that the deputies made up their story about
suspecting him of theft and the danger posed to Deputy Pudimott, such an attempt
is precluded.



“Defendant Officer Mickle did not fire his service weapon but encouraged,
condoned, covered up and engaged in a conspiracy to hide the misdeeds of his
fellow officers.” Id. ¶ 31. See above.



“[T]he Defendant officers had neither probable cause nor reasonable suspicion
that M.F. had committed any crime; or that he presented a threat of serious bodily
harm or death to Defendant Officers.” Id. ¶ 40(B). The deputies had reasonable
suspicion to believe that Mr. Fenwick was driving a stolen vehicle. Moreover, at
the moment he accelerated forward in the car, the deputies had reason to believe
that he presented a threat of serious bodily harm to Deputy Pudimott.

21

Each of these allegations is precluded because it is inconsistent with factual or legal
determinations that were necessary to the adjudication of Mr. Fenwick’s assault charge. See
Defs.’ Sealed Ex. 2 at 4-6.
Likewise, Mr. Fenwick may not attempt to prove the following allegations that he
sets forth in his declaration:


that he was shot while the car was stopped, before it started moving forward;



that “the only reason [he] started driving was to get away from the shooting”; and



that he was not aware that any deputies were near the car until he was shot.

See Fenwick Decl. at 3-4. Contrary to these allegations, Judge Broderick found that before any
shots were fired, Mr. Fenwick drove forward with Deputy Pudimott “clearly visible” leaning
over the hood of the vehicle. Defs.’ Sealed Ex. 2 at 4-6. Mr. Fenwick had a full and fair
opportunity to contest these issues in the Superior Court: the judge and the parties recognized
them as essential to resolution of the assault charge, and Mr. Fenwick relied on video footage,
ballistics evidence, and eyewitness testimony in support of his contentions. See Defs.’ Sealed
Ex. 14 at 20-25; see also Defs.’ Sealed Ex. 12 at 34, 46, 49, 50, 52. The requirements for
collateral estoppel thus satisfied, Mr. Fenwick is precluded from relying on these allegations.
As explained elsewhere in this Opinion, however, Mr. Fenwick has a colorable
claim for excessive force even without any of these allegations, and collateral estoppel therefore
does not demand dismissal of his claims.

2. FTCA Claims for Assault and Battery
Similar reasoning compels the conclusion that Mr. Fenwick’s claims against the
United States under the FTCA for common law assault and battery are not precluded by the
results of his juvenile delinquency adjudication.
22

An assault is defined in the District of Columbia as “an intentional and unlawful
attempt or threat, either by words or by acts, to do physical harm to the victim.” Etheredge v.
Dist. of Columbia, 635 A.2d 908, 916 (D.C. 1993) (citing Jackson v. District of Columbia, 412
A.2d 948, 955 & n.15 (D.C. 1979)). “A battery is an intentional act that causes a harmful or
offensive bodily contact.” Id. (quoting Jackson v. District of Columbia, 412 A.2d at 955).
Shooting a victim constitutes both assault and battery, Etheredge v. District of Columbia, 635
A.2d at 916, and the question in such cases often becomes “whether, under the circumstances,
[the defendant] had the legal right to do so.” Id.; see District of Columbia v. Chinn, 839 A.2d
701, 705-706 (D.C. 2003) (noting that in cases alleging police officer abuse, “[u]sually [the]
technical requirements of assault and battery are satisfied . . . and the outcome of the case turns
on the defense of privilege”). “It is well established that a police officer has a qualified privilege
to use reasonable force to effect an arrest, provided that the means employed are not ‘in excess of
those which the actor reasonably believes to be necessary.” Kotsch v. District of Columbia, 924
A.2d 1040, 1047 (D.C. 2007) (quoting Etheredge v. District of Columbia, 635 A.2d at 916).
“Moreover, any person, including an officer, is justified in using reasonable force to repel an
actual assault, or if he reasonably believes he is in danger of bodily harm.” Id. “For assault and
battery the inquiry is whether the officer’s conduct was reasonably necessary and thereby
privileged[.]” District of Columbia v. Chinn, 839 A.2d at 707 (quoting Holder v. District of
Columbia, 700 A.2d 738, 742 (D.C. 1997)).
Just as the judge in Mr. Fenwick’s delinquency proceeding had no need to
determine whether the deputies’ actions constituted excessive force under the Fourth
Amendment, or to make the factual findings necessary for such a determination, she also did not
need to decide whether, at the moment they fired their weapons, the deputies “reasonably

23

believe[d] [they were] in danger of bodily harm,” or whether the means they employed to stop
Mr. Fenwick were “in excess of those which [they] reasonably believe[d] to be necessary.”
Kotsch v. District of Columbia, 924 A.2d at 1047; see id. at 1050 (“[A]lthough the officers had
probable cause to arrest appellant . . . the jury could consider that the offense he allegedly
committed . . . did not warrant the use of such force as would cause the injuries appellant
suffered.”). Such questions were immaterial to the adjudication of the assault charge against Mr.
Fenwick, the sole exception being the question of whether the deputies shot Mr. Fenwick without
any provocation at all, as he claimed. The judge made no factual findings and reached no legal
conclusion about whether the deputies still reasonably believed Deputy Pudimott to be in danger
when they fired on Mr. Fenwick, or whether their use of deadly force went beyond what they
reasonably could believe to be necessary under the circumstances.
Thus, Mr. Fenwick’s assault and battery claims against the United States under
the FTCA are not precluded. The scope of the issues that Mr. Fenwick may contest with respect
to those claims, however, is limited by the Superior Court’s resolution the factual and legal
matters set forth above with respect to his Fourth Amendment claim.

B. Heck v. Humphrey
“Under Heck v. Humphrey, a section 1983 damages claim that is based on
conduct whose unlawfulness would demonstrate the invalidity of a conviction or sentence is not
cognizable unless the conviction or sentence has been invalidated or called into question by
issuance of a writ of habeas corpus.” In re Jones, 652 F.3d 36, 37-38 (D.C. Cir. 2011) (citing
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). The Heck doctrine applies to Bivens actions
as well as to Section 1983 actions. Williams v. Hill, 74 F.3d 1339, 1341 (D.C. Cir. 1996). But
“Heck’s application is limited to suits that, if successful, would necessarily imply the invalidity
24

of the plaintiff’s conviction or sentence, i.e., suits challenging the fact or duration of
confinement.” Taylor v. U.S. Prob. Office, 409 F.3d 426, 427 (D.C. Cir. 2005) (emphasis aded).
The Supreme Court was “careful . . . to stress the importance of the term ‘necessarily’” in
concluding that damages actions are barred if their success would “necessarily imply” the
invalidity of a conviction or sentence. Nelson v. Campbell, 541 U.S. 637, 647 (2004).
Underlying the Heck doctrine is the principle is that “civil tort actions are not appropriate
vehicles for challenging the validity of outstanding criminal judgments[.]” Taylor v. U.S. Prob.
Office, 409 F.3d at 429 (quoting Heck v. Humphrey, 512 U.S. at 486). The doctrine “is not . . .
implicated by a prisoner’s challenge that threatens no consequence for his conviction or the
duration of his sentence.” Id. at 427 (quoting Muhammad v. Close, 540 U.S. 749, 751 (2004)).
When “the plaintiff’s action, even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action should be allowed to proceed.” Id.
(quoting Heck v. Humphrey, 512 U.S. at 487).
“A § 1983 excessive force claim brought against a police officer that arises out of
the officer’s use of force during an arrest does not necessarily call into question the validity of an
underlying state conviction and so is not barred by Heck.” Thore v. Howe, 466 F.3d 173, 180
(1st Cir. 2006) (citing VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006)). “Even the fact
that [a] defendant was convicted of assault on a police officer does not, under Heck, as a matter
of law necessarily bar a § 1983 claim of excessive force.” Id. (citing Smithart v. Towery, 79
F.3d 951, 952-53 (9th Cir. 1996), and Ballard v. Burton, 444 F.3d 391, 399-400 (5th Cir. 2006)).
Instead, “courts will allow § 1983 suits to proceed when it is possible that the facts could allow a
successful § 1983 suit and the underlying conviction both to stand without contradicting each
other.” Dyer v. Lee, 488 F.3d 876, 881 (11th Cir. 2007). See, e.g., Ballard v. Burton, 444 F.3d

25

at 398 (“If it is possible for Ballard to have assaulted Boling and for Burton’s shooting of Ballard
to have been objectively unreasonable, then Heck does not bar Ballard’s claim.”). “To properly
apply Heck’s bar against certain damage actions, a district court must analyze the relationship
between the plaintiff’s [ ] claim and the charge on which he was convicted.” Hardrick v. City of
Bolingbrook, 522 F.3d 758, 762 (7th Cir. 2008).
Under the assault on a police officer statute, D.C. Code § 22-405(b), “[w]hoever
without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or
interferes with a law enforcement officer on account of, or while that law enforcement officer is
engaged in the performance of his or her official duties,” is liable for misdemeanor assault on a
police officer. “A person who violates subsection (b) [and] commits a violent act that creates a
grave risk of causing significant bodily injury to the officer, shall be guilty of a felony.” D.C.
Code § 22-405(c). Mr. Fenwick was found to have committed felony assault on an officer for
driving forward in a vehicle with Deputy Pudimott in view and in danger of being hit, and the
Superior Court held that this was an “assaultive,” “resisting,” “opposing,” and “interfering”
violation of the statute. Defs.’ Sealed Ex. 2 at 4-6.
There are at least three discernible theories under which Mr. Fenwick could
prevail in this Court on his claims of excessive force arising from his encounter with the
deputies. Success on the first theory would imply that the outcome of his juvenile adjudication
for assault on a police officer was invalid. It therefore is barred under Heck, and Mr. Fenwick
may not pursue it. But because the other two theories would not in any way undermine the
legitimacy of his assault adjudication, Heck does not present a complete bar to his excessive
force claims.

26

First, Mr. Fenwick could prevail by demonstrating (as alleged in his complaint)
that the deputies fired on him while the car he was driving was at rest — conduct that under the
circumstances likely would constitute excessive force. If he prevails on this basis, however, it
would imply that the result of his assault adjudication was invalid, because if Mr. Fenwick drove
the car forward (endangering Deputy Pudimott) to escape from unprovoked gunfire, then he
could not legitimately have been found in violation of D.C. Code § 22-405(b), which exempts
actions having “justifiable and excusable cause.” This is especially true here because Judge
Broderick specifically found that Mr. Fenwick committed an “assaultive” violation of the statute,
and not merely a “resisting,” “opposing,” and “interfering” violation. Defs.’ Sealed Ex. 2 at 6.
If Mr. Fenwick’s allegations were accepted in this Court, the Superior Court’s judgment on the
assault charge would have to be regarded as invalid — a consideration that is fatal to those
allegations under Heck. See Thore v. Howe, 466 F.3d at 180 (“In this case Thore asserts two
theories. The first is that he was not guilty of assault at all, and so Officer Howe’s use of force
was excessive. That theory is plainly barred by Heck.”). Moreover, as explained above, Mr.
Fenwick independently is collaterally estopped from advancing in this Court the allegation that
he was fired upon while the vehicle was at rest.
Accepting, as this Court must, that the deputies fired on Mr. Fenwick only after
he began driving forward and placed Deputy Pudimott in danger, Mr. Fenwick still might be able
to prevail on an excessive force claim by demonstrating that some or all of the shots that hit him
were fired by the deputies after it was clear that the danger to Deputy Pudimott already had
passed. See Complaint ¶ 38; Fenwick Decl. at 3-4; Opp. at 21-22 (arguing that “the shooting
came after the threat ended” when Deputy Pudimott “was clear of the car and in no danger,” and
that “the video tape clearly shows the car driving away while the officer fires at it”). Whether or

27

not the evidence and the law will support this theory — something discussed below in regard to
qualified immunity — Mr. Fenwick’s success would have no bearing on the validity of his
adjudication, which required only a determination that Mr. Fenwick first assaulted Deputy
Pudimott. A verdict that the deputies’ response to that assault was excessive would not call the
adjudication into doubt. See Dyer v. Lee, 488 F.3d at 882-83 (“[S]o long as the last act in the
altercation was one of excessive force by the police, a § 1983 suit on that basis would not negate
the underlying conviction.”); Sanford v. Motts, 258 F.3d 1117, 1120 (9th Cir. 2001) (“[I]f Motts
used excessive force subsequent to the time Sanford interfered with his duty, success in her
section 1983 claim will not invalidate her conviction.”).
Mr. Fenwick theoretically also could prevail on his excessive force claims by
demonstrating that under the circumstances the deputies’ use of deadly force was an objectively
unreasonable response to the danger he posed to Deputy Pudimott, regardless of when the shots
were fired. See Complaint ¶ 40(A) (“At the time of the shooting, Defendant Officers acted in the
absence of any reasonable, individualized suspicion that [Mr. Fenwick] was guilty of any crime
justifying the use of a firearm.”); Opp. at 35-36 (“[The defendants] do not claim that they needed
to kill Plaintiff in order to protect their lives. . . . They protected themselves, to the extent they
[were] in danger, simply by taking a step back from the car.”). Whatever the merit of this theory,
its success would in no way imply the invalidity of Mr. Fenwick’s adjudication, as it would not
negate any element of the assault statute that he was found to have violated. His contentions
therefore “do not present a collateral attack to [his] conviction, but rather assert an argument that
[he] suffered unnecessary injuries because [the deputy’s] response to his resistance . . . was not,
under the law governing excessive use of force, objectively reasonable.” Hardrick v. City of
Bolingbrook, 522 F.3d at 764 (internal quotation marks omitted). Indeed, to hold Mr. Fenwick’s

28

claims entirely barred merely because of his assault adjudication “would imply that once a
person resists law enforcement, he has invited the police to inflict any reaction or retribution they
choose, while forfeiting the right to sue for damages.” VanGilder v. Baker, 435 F.3d at 692.
“Public officials who use force reasonably necessary to subdue an aggressor are not liable on the
merits; but whether the force was reasonable is a question that may be litigated without
transgressing Heck[.]” Gilbert v. Cook, 512 F.3d 899, 901 (7th Cir. 2008).
In short, a jury could accept that Mr. Fenwick assaulted Deputy Pudimott as
described in the Superior Court’s findings and that the deputies responded to this assault with
constitutionally excessive force — because less extreme measures should have been taken, or
because some of the deadly force was directed at Mr. Fenwick after he no longer posed a threat,
or both. “Because a successful . . . action for excessive force would not necessarily imply the
invalidity of [Mr. Fenwick]’s arrest or conviction, Heck does not preclude [his] excessive force
claim” in its entirety. Smithart v. Towery, 79 F.3d at 952.
When a plaintiff’s complaint advances factual and legal assertions that are barred
by Heck, but where the complaint also supports other viable theories of relief that do not depend
on those assertions, a court may disregard, “as mere surplusage,” the portions of the complaint
that set forth allegations precluded by Heck. Moore v. Mahone, 652 F.3d 722, 725 (7th Cir.
2011); see id. (finding dismissal warranted because without the Heck-barred allegations the
plaintiff stated no plausible claim for relief); Evans v. Poskon, 603 F.3d at 364 (“Heck prevents
[a] person from prevailing . . . on a position incompatible with the conviction, but the plaintiff
need not adopt the defendants’ view of what occurred in order to contest the degree of force
used.”). For the purposes of summary judgment, this Court will consider only those arguments
and assertions made by Mr. Fenwick that are not barred by his previous adjudication. Should the

29

case proceed to trial, the Court can implement Heck by precluding certain evidence and “through
instructions to the jury at the start of trial, as necessary during the evidence, and at the close of
the evidence.” Gilbert v. Cook, 512 F.3d at 902.5
In this case, the outcome demanded by Heck v. Humphrey dovetails with the
requirements of collateral estoppel, because the factual and legal conclusions that Mr. Fenwick
may not relitigate here as a result of collateral estoppel are the same ones that — if decided in his
favor — would imply the invalidity of his juvenile delinquency adjudication. While neither
doctrine bars his claims, both identically restrict the scope of the issues he may litigate in this
Court.6

C. FTCA Claim for False Imprisonment
Although Mr. Fenwick’s complaint lists false imprisonment under the FTCA as
one of its claims, he does not allege that he was detained at the scene of his encounter with the
deputies. The only allegation in the complaint that relates in any way to false imprisonment is
Mr. Fenwick’s assertion that he “continued to suffer at the hands of the conspirators as [he] was
restrained to a hospital bed in a very painful position, was denied access to his mother, and
denied access to his attorney while in the hospital beyond any reasonable period of detention as
set forth under D.C. law.” Complaint ¶ 40(E). These allegations have not been developed
5

See, e.g., Gilbert v. Cook, 512 F.3d at 902 (“It would have sufficed to tell the
jurors that Gilbert struck the first blow during the fracas[,] that any statements to the contrary by
Gilbert [or] a witness must be ignored, and that what the jurors needed to determine was whether
the guards used more force than was reasonably necessary to protect themselves from an unruly
prisoner.”).
6

Although the parties have only fleetingly addressed the issue, see Mem. at 39;
Opp. at 46, courts have held that Heck v. Humphrey can bar FTCA claims against the United
States. See Hall v. Admin. Office of U.S. Courts, 496 F. Supp. 2d 203, 208 (D.D.C. 2007). It
appears to the Court that any limitations imposed by Heck on Mr. Fenwick’s assault and battery
claims would be the same as the restrictions imposed on his Bivens claim for excessive force.
30

further in Mr. Fenwick’s briefing. See Opp.; Pl.’s Supp. Mem. Moreover, Mr. Fenwick has
furnished no evidence of how the purportedly objectionable circumstances of his hospital stay
have any connection to the deputies (who were not the ones to arrest him), nor has he made any
more specific allegations fleshing out this accusation. In fact, he does not address the false
imprisonment claim at all in his opposition to the defendants’ motion to dismiss. Given these
deficiencies and the apparent lack of substance to the claim, the Court will grant judgment to the
United States on Mr. Fenwick’s FTCA claim for false imprisonment. See Laningham v. United
States Navy, 813 F.2d at 1242 (summary judgment may be granted if non-moving party fails to
provide evidence that would permit a reasonable jury to find in his favor).

D. Claims Against Deputy Mickle
It is undisputed that Deputy U.S. Marshal John Mickle never fired his weapon
during the incident. See Complaint ¶ 31. The complaint alleges only that he “encouraged,
condoned, covered up and entered into a conspiracy to hide the misdeeds of his fellow officers.”
Id. To the extent that Mr. Fenwick may be arguing that Deputy Mickle “encouraged” the
shooting, he has offered no evidence to support that allegation. Nor has he provided any
evidence that Deputy Mickle “condoned, covered up and entered into a conspiracy to hide the
misdeeds of his fellow officers,” assuming that such conduct could lead to liability for assault,
battery, or excessive force. For these reasons, the Court will grant the defendants’ motion for
summary judgment with respect to the Bivens claim against Deputy Mickle and any FTCA
claims against the United States that are premised on the actions of Deputy Mickle.

31

E. Qualified Immunity
The defendants maintain that they are entitled to judgment on Mr. Fenwick’s
Bivens and FTCA claims because the deputies’ conduct is, at minimum, protected by qualified
immunity. Key facts are in dispute, however, that if resolved in the plaintiff’s favor could result
in a finding that the deputies violated Mr. Fenwick’s clearly established rights. The Court
therefore does not find the defendants entitled to qualified immunity at this juncture.

1. Standards Governing Qualified Immunity
“The Supreme Court has held that ‘government officials performing discretionary
functions generally are shielded 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.’” Pitt v. District of Columbia, 491 F.3d 494, 509 (D.C. Cir. 2007) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Whether an official protected by qualified immunity
may be held personally liable . . . generally turns on the objective legal reasonableness of the
action.” Muhammad v. Dist. of Columbia, 881 F. Supp. 2d 115, 121 (D.D.C. 2012) (quoting
Wilson v. Layne, 526 U.S. 603, 614 (1999)). A defendant’s entitlement to qualified immunity
thus is a question of law to be decided by the Court. Pitt v. District of Columbia, 491 F.3d at
509.
In determining whether an official has qualified immunity, the Court engages in a
two-step analysis, and the Court has “discretion to decide which of the two prongs of [the]
qualified-immunity analysis to tackle first.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)
(citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)); accord Taylor v. Reilly, 685 F.3d 1110,
1112-13 (D.C. Cir. 2012). The Court may begin by asking whether, “[t]aken in the light most
favorable to the party asserting the injury . . . the facts alleged show the officer’s conduct
32

violated a constitutional right[.]” Saucier v. Katz, 533 U.S. 194, 201 (2001); see id. (“If no
constitutional right would have been violated were the allegations established, there is no
necessity for further inquiries concerning qualified immunity.”). If a constitutional right of the
plaintiff has been violated, the court must then assess whether, “in light of the specific context of
the case,” the right in question was “clearly established.” Id. As the Supreme Court observed in
Pearson, however, “[t]here are cases in which it is plain that a constitutional right is not clearly
established but far from obvious whether in fact there is such a right.” Pearson v. Callahan, 555
U.S. at 237. In such cases the court may end the inquiry without deciding whether the plaintiffs’
rights were violated. Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (citing Pearson v.
Callahan, 555 U.S. at 227, 236).
“[T]he protection of qualified immunity is available if ‘a reasonable officer could
have believed that [his or her actions were] lawful, in light of clearly established law and the
information the officers possessed.’” Youngbey v. March, 676 F.3d 1114, 1117 (D.C. Cir. 2012)
(quoting Wilson v. Layne, 526 U.S. at 615) (second brackets in original). Showing that the
defendant’s actions violated clearly established law “do[es] not require a case directly on point,
but existing precedent must have placed the statutory or constitutional question beyond debate.”
Ashcroft v. al-Kidd, 131 S. Ct. at 2083; see also Taylor v. Reilly, 685 F.3d at 1113-14. A clearly
established right is derived from an examination of Supreme Court rulings and controlling
authority in a court’s respective jurisdiction; if neither of those sources provides controlling
authority the Court “must [then] determine whether there is ‘a consensus of cases of persuasive
authority.’” Youngbey v. March, 676 F.3d at 1117 (quoting Wilson v. Layne, 526 U.S. at 615).
“The contours of the right must be sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Ashcroft v. al-Kidd, 131 S. Ct. at 2083 (quoting

33

Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (alterations omitted); accord Butera v. District
of Columbia, 235 F.3d 637, 646 (D.C. Cir. 2001).
While trial courts should resolve immunity questions “at the earliest possible
stage in litigation,” Hunter v. Bryant, 502 U.S. 224, 226 (1991), “[p]re-trial resolution of the
[qualified immunity] defense . . . may be thwarted by a factual dispute.” Halcomb v.
Washington Metro. Area Transit Auth., 526 F. Supp. 2d 20, 22 (D.D.C. 2007) (quoting Warren
v. Dwyer, 906 F.2d 70, 74 (2d Cir. 1990)); see Johnson v. District of Columbia, 528 F.3d 969,
977-78 (D.C. Cir. 2008) (summary judgment on qualified immunity was “premature” where
testimony of plaintiff and police officers conflicted, creating genuine issue of material fact as to
whether police acted reasonably); Arrington v. United States, 473 F.3d 329, 338-39 (D.C. Cir.
2006) (same).7

2. Genuine Issues of Material Fact Regarding Excessive Force
In this case, genuine issues of material fact prevent the Court from granting
summary judgment to the defendants. Based on the evidence before the Court, taken in the light
most favorable to Mr. Fenwick, a reasonable jury could conclude that Deputies Fischer and
Pudimott fired some or all of the shots that injured Mr. Fenwick at a point when it should have
7

That is why in some cases “[c]ourts . . . have permitted the defense [of qualified
immunity] to be raised at the close of plaintiff’s evidence on a motion for a directed verdict, and
even on a subsequent motion for judgment notwithstanding the verdict.” Warren v. Dwyer, 906
F.2d at 74. A trial court may also require the jury to answer special interrogatories in order to
decide which version of the facts should be relied upon by the court in reaching its legal
conclusion with respect to qualified immunity. See 2 SHELDON H. NAHMOD, CIVIL RIGHTS AND
CIVIL LIBERTIES LITIGATION § 8:22 at 8-88 to 8-90 (4th ed. 2003); see also Cowan ex rel. Estate
of Cooper v. Breen, 352 F.3d 756, 764 (2d Cir. 2003) (recommending use of “interrogatories on
the key factual disputes”); Johnson v. Breeden, 280 F.3d 1308, 1318 (11th Cir. 2002) (“When the
case goes to trial, the jury itself decides the issues of historical fact that are determinative of the
qualified immunity defense, but the jury does not apply the law relating to qualified immunity to
those historical facts it finds; that is the court’s duty. . . . A tool used to apportion the jury and
court functions relating to qualified immunity issues in cases that go to trial is special
interrogatories to the jury.”).
34

been apparent to them that neither Deputy Pudimott nor anyone else was in any danger. If so,
then under the circumstances of this case the deputies violated Mr. Fenwick’s clearly established
constitutional rights. Because the Court cannot make its qualified immunity determination
without resolving this factual dispute, the Court must deny the defendants’ request for summary
judgment. See Johnson v. District of Columbia, 528 F.3d at 977; Halcomb v. Washington
Metro. Area Transit Auth., 526 F. Supp. 2d at 23 (“Because there appear to be legitimate and
material factual disputes about what Officer Woods and Ms. Halcomb actually did, this Court is
not yet in a position to decide, as a matter of law, whether Officer Woods is entitled to qualified
immunity.”).
In a case involving the use of deadly force against a suspect who is attempting to
flee, “the constitutional question . . . is governed by the principles enunciated in Tennessee v.
Garner, 471 U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386 (1989).” Brosseau v. Haugen,
543 U.S. 194, 197 (2004). “These cases establish that claims of excessive force are to be judged
under the Fourth Amendment’s ‘objective reasonableness’ standard.” Id. (quoting Graham v.
Connor, 490 U.S. at 388). “Specifically with regard to deadly force, [the Supreme Court]
explained in Garner that it is unreasonable for an officer to ‘seize an unarmed, nondangerous
suspect by shooting him dead.’ But ‘[w]here the officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either to the officer or to others, it is not
constitutionally unreasonable to prevent escape by using deadly force.’” Id. (quoting Tennessee
v. Garner, 471 U.S.at 11). The “reasonableness” of a particular use of force “must be judged
from the perspective of a reasonable officer on the scene, rather than with 20/20 vision of
hindsight.” White v. United States, 863 F. Supp. 2d 41, 48 (D.D.C. 2012) (quoting Graham v.
Connor, 490 U.S. at 396). Only the objective reasonableness of the force may be considered; the

35

subjective intent of the officers is irrelevant. Wasserman v. Rodacker, 557 F.3d 635, 641 (D.C.
Cir. 2009). While courts evaluate the objective reasonableness of officers’ actions by viewing
the events from their perspective, the facts in the record and all reasonable inferences derived
therefrom must be viewed in the light most favorable to the plaintiff. Scott v. District of
Columbia, 101 F.3d 748, 759 (D.C. Cir. 1996) (citing Wardlaw v. Pickett, 1 F.3d 1297, 1303
(D.C. Cir. 1993)).
Here, the defendants contend that a reasonable officer could have believed it
necessary to fire on Mr. Fenwick to stop “his dangerous and potentially life threatening driving
of the vehicle directed toward one or more deputies.” Mem. at 25. As an initial matter, the
defendants offer no evidence that Mr. Fenwick ever posed a threat to Deputy Fischer or Deputy
Mickle or that the deputies reasonably could have thought so.8 Nor have they offered evidence
that Mr. Fenwick’s conduct may have endangered any bystanders at the scene. The defendants’
actions, therefore, can be justified only as a response to the threat Mr. Fenwick posed to Deputy
Pudimott.
In support of their version of events — in which deadly force was reasonably
deemed necessary by the deputies to mitigate the threat to Deputy Pudimott — the defendants
rely exclusively on video footage of the incident and on the findings made by the Superior Court
in Mr. Fenwick’s juvenile delinquency proceedings. See Mem. at 30. With respect to the latter,
Mr. Fenwick’s juvenile adjudication for felony assault on an officer does establish, as a matter of
collateral estoppel, that during the encounter Mr. Fenwick created a “grave risk of causing
significant bodily injury” to Deputy Pudimott by driving the vehicle forward in a way that could
8

Indeed, the Superior Court judge concluded to the contrary: “As he drove off, I
don’t see that he in any way aimed towards or resisted or did anything towards Officer Fischer.
So I only find one count of assault with a police officer in that regard.” Defs.’ Sealed Ex. 2 at 6
(emphasis added).
36

have harmed the deputy. See D.C. Code § 22-405(c); Defs.’ Sealed Ex. 2 at 4-6. But as
explained earlier, that adjudication did not establish whether the deputies reasonably could have
believed that Mr. Fenwick still posed a danger to Deputy Pudimott by the time they shot him.
These questions were irrelevant to the assault charge under consideration.
The video evidence consists of surveillance footage of the area in which the
incident occurred, taken from several cameras positioned in different locations. One video in
particular captures most of the incident. As the Superior Court judge observed, however, “the
quality of the video is somewhat grainy” and “a lot of what happens [occurs] in the darker
portion of the video,” so the video is “helpful for broad strokes” but is “not particularly helpful
for finer movements and finer points.” Defs.’ Sealed Ex. 2 at 3-4. Perhaps as a result, the
defendants and the plaintiff both see the video as vindicating their own accounts of what took
place.
Having examined the video footage carefully, the Court is not persuaded that it
provides ready answers to the factual dispute between the parties about when Mr. Fenwick was
shot — particularly since all reasonable inferences must be drawn in Mr. Fenwick’s favor at the
summary judgment stage. That is, the Court believes that a reasonable jury could conclude
based on the video footage that Deputy Fischer, Deputy Pudimott, or both fired on Mr. Fenwick
at a point when it was clear to any reasonable officer that Deputy Pudimott already was safe
from any danger posed by Mr. Fenwick’s driving.
Most of the encounter was captured by a camera positioned across the street from
the parking space in which Mr. Fenwick had parked the car; the camera footage faces the back of
the parked vehicle from an elevated vantage point. The video shows Mr. Fenwick walk back to
the car from the residence he had visited, open the door, pause momentarily while looking across

37

the street and pointing to his chest in the “Who, me?” manner described earlier, get into the car,
and close the door. The car’s brake lights promptly come on, and the car begins pulling
backward out of the spot. As it does so, Deputy Pudimott enters the video frame from the left
and rushes toward the driver’s side door, seemingly running into the door and pushing off from it
with his hands. The car continues to reverse out of the parking space backward and to the left in
a curved “J” shape, coming to rest momentarily when it is almost perpendicular to the parking
space it just vacated (and thus almost parallel to the street) but still slanting slightly toward the
parking spaces on its left. At this point, Deputy Pudimott can be seen near the driver’s side
rearview mirror, and Deputy Mickle becomes visible near the driver’s side back door.
By the time the car has backed out of the parking space, it and the deputies are
covered by the shadow cast by a nearby building and are positioned in the bottom-left corner of
the video frame, so that the car is only partially visible. This, along with the blurry quality of the
video, makes it difficult to discern exactly what is happening and where the deputies are
positioned. Contributing to the difficulty is the fact that Deputies Pudimott and Mickle can be
seen only on the other side of the vehicle, which obscures the bottom halves of their bodies. It is
clear, however, that in the next moments as the car begins to move forward, Deputy Pudimott
can be seen moving along with it, leaning over the hood on the left side of the car. The deputy’s
left hand is visible resting on the hood while his right arm is extended toward the cab of the
vehicle. As the car continues to move forward and veers right to become fully parallel with the
street, Deputy Pudimott keeps up with it for a few steps but quickly is left behind as the car
continues onward and out of the picture on the right-hand side of the frame.
From the video, one cannot easily tell when Deputy Pudimott fires at Mr.
Fenwick during this sequence or where he is positioned in relation to the car as he is shooting.

38

For that reason, one cannot discern whether he fired while still in danger of being hit by the car
(or while he may reasonably have thought he was still in danger) or whether he fired after he was
standing clear of the vehicle and it was continuing on its way. Therefore the video alone, in the
Court’s view, does not conclusively resolve whether Mr. Fenwick could have been seen as
“pos[ing] a threat of serious physical harm” to Deputy Pudimott when the officer shot him.
Tennessee v. Garner, 471 U.S. at 11.
Deputy Fischer is partly visible in the same video. As the car begins to pass
Deputy Pudimott, the top half of Deputy Fischer’s body comes into view at the bottom of the
screen, both hands pointing his gun toward the car. Deputy Fischer can be seen taking a step or
two to keep pace with the vehicle, then stopping and pivoting, turning his body to keep his gun
pointed at the car as it continues out of the screen. Footage from a different camera, positioned
across the street, shows Deputy Fischer moving briskly along the street with his gun pointed at
something unseen below the bottom edge of the video frame. A portion of the car then briefly
comes into view in the lower left corner of the frame as it drives past Deputy Fischer out of view.
Here too, Deputy Fischer can be seen stopping and pivoting as the car passes him, keeping his
gun pointed at the car until it is well past him and out of the video frame. It is not possible to say
definitively from either video alone when Deputy Fischer fires his weapon — at least in the
absence of supplementary evidence or assistance in interpreting the footage. And because the
other deputies are not visible at all in the second video, which catches only a partial glimpse of
the car as it passes by, it is not apparent where Deputy Pudimott is located in relation to the car
during any of Deputy Fischer’s movements.
Presented with the video evidence alone, a jury reasonably might conclude that
either or both of the deputies fired upon Mr. Fenwick when it was evident that Deputy Pudimott

39

was standing clear of the vehicle and was in no danger of being hit by the vehicle. Cf. Scott v.
Harris, 550 U.S. 372, 378 (2007) (“The videotape quite clearly contradicts the version of the
story told by respondent and adopted by the Court of Appeals.”). In addition, Mr. Fenwick has
furnished other evidence supporting his version of events. An FBI trajectory analysis reveals
that three bullets entered the vehicle’s driver’s side window, three more bullets entered the front
windshield on the passenger side, and a seventh bullet entered the passenger side window. Opp.,
Ex. 1 at 3 (FBI Laboratory Firearms/Toolmarks Unit Report of Examination). The preliminary
report of Mr. Fenwick’s expert forensic scientist concludes, based on the positions of the bullet
holes, that “the responsible shots could not have been fired from a position or positions directly
in front of the vehicle or even in close proximity to the front of the vehicle.” Opp., Ex. 9 at 1
(Preliminary Report of Edward E. Hueske).
On the other hand, if the jury were to conclude, as it also reasonably could based
on the video evidence, that the deputies shot Mr. Fenwick only while it appeared to them that
Deputy Pudimott was still in danger, then their use of deadly force could be found objectively
reasonable under the Fourth Amendment. See Hermiz v. City of Southfield, 484 F. App’x 13, 16
(6th Cir. 2012), cert. denied, 133 S. Ct. 650 (2012) (“Fourth Amendment law provides that an
officer may shoot at a driver that appears to pose an immediate threat to the officer’s safety or
the safety of others — for example, a driver who objectively appears ready to drive into an
officer or bystander with his car.”) (citing Brosseau v. Haugen, 543 U.S. at 197-200).
Where “the material facts underlying a defendant’s claim of qualified immunity
are in dispute, ‘it is impossible for the court to determine, as a matter of law, what predicate facts
exist to decide whether or not the officer’s conduct clearly violated established law.’” Estate of
Gaither v. Dist. of Columbia, 655 F. Supp. 2d 69, 98 (D.D.C. 2009) (quoting Halcomb v.

40

Washington Metro. Area Transit Auth., 526 F. Supp. 2d at 22). “In other words, the Court
cannot determine at the summary judgment stage whether the challenged conduct would be
viewed as lawful by an objectively reasonable officer if the very facts establishing what that
conduct was are legitimately in dispute.” Id. (quotation omitted). Those disputed facts “must
first be decided by the jury before the court answers the ultimate legal question whether a
defendant is entitled to qualified immunity.” Zhi Chen v. Dist. of Columbia, 808 F. Supp. 2d
252, 259 (D.D.C. 2011) (citing Zellner v. Summerlin, 494 F.3d 344, 367-68 (2d Cir. 2007)); see
Johnson v. District of Columbia, 528 F.3d at 977-78. “If these facts are resolved in [the
deputies’] favor, then it seems likely that [they] would be entitled to qualified immunity. But if
the jury resolves the facts in plaintiff[‘s] favor . . . then it seems equally likely that [the deputies]
would not be entitled to qualified immunity because it would have been clear to a reasonable
officer that his actions were unlawful under those circumstances.” Bolger v. Dist. of Columbia,
608 F. Supp. 2d 10, 22-23 (D.D.C. 2009).
Assessing the reasonableness of a use of force requires giving “careful attention to
the facts and circumstances of [the] particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officer or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight.” Johnson v. District of
Columbia, 528 F.3d at 974 (quoting Graham v. Connor, 490 U.S. at 396); accord Oberwetter v.
Hilliard, 639 F.3d 545, 555 (D.C. Cir. 2011). The first and third of these factors certainly favor
the permissibility of some level of force here. Mr. Fenwick was trying to escape: he admits that
he recognized the individual defendants as law enforcement officers, and both the video and the
Superior Court’s findings in his juvenile delinquency adjudication confirm that he was aware of
their desire to stop his flight. While the deputies’ suspicion that Mr. Fenwick was driving a

41

stolen vehicle would not alone justify the use of deadly force, his maneuvering of that vehicle in
a manner that physically endangered an officer might. Tennessee v. Garner, 471 U.S. at 11; see
Brosseau v. Haugen, 543 U.S. at 598.
The second factor therefore is potentially dispositive here, because if Mr. Fenwick
clearly posed no “immediate threat to the safety of the officers or others,” Oberwetter v. Hilliard,
639 F.3d at 555 (emphasis added), then shooting him could be found objectively unreasonable in
the circumstances of this case. See, e.g., Abraham v. Raso, 183 F.3d 279, 294 (3d Cir. 1999) (“A
passing risk to a police officer is not an ongoing license to kill an otherwise unthreatening
suspect.”); Hermiz v. City of Southfield, 484 F. App’x at 16; Cowan ex rel. Estate of Cooper v.
Breen, 352 F.3d at 762-63. In this case, the facts alleged by the plaintiff (and supported by
evidence) could support a finding that the deputies’ conduct was objectively unreasonable. As
long as factual questions about that matter remain in dispute, a finding of qualified immunity is
premature.
In the defendants’ view, however, the factual dispute is not material — and thus
does not preclude summary judgment — because the deputies still are entitled to qualified
immunity even if the shooting occurred just as alleged by Mr. Fenwick. “The fast-moving
events,” they argue, “did not allow much time for reflection,” and “given the danger of the
moving vehicle . . . the officers cannot be said to have acted without cause in attempting to
defend themselves, by matching Plaintiff’s use of deadly force.” Reply at 18. The defendants
rely on decisions in which law enforcement officers making split-second decisions in similarly
fast-moving situations were held entitled to qualified immunity because their actions were not
objectively unreasonable under the circumstances. See, e.g., Terrell v. Smith, 668 F.3d 1244
(11th Cir. 2012); Williams v. City of Grosse Pointe Park, 496 F.3d 482 (6th Cir. 2007). The

42

defendants contend that the rapid sequence of events — which offered, at best, minimal pause
between the onset of Mr. Fenwick’s threat to Deputy Pudimott and the cessation of that threat —
distinguishes this case from the decisions cited by Mr. Fenwick in which officers used excessive
force against a plaintiff well after his menacing or violent behavior ceased and the plaintiff had
been subdued.
The events here unfolded quickly: according to the video of the incident, roughly
twenty seconds elapse from the moment Mr. Fenwick opens the car door to the point where the
car has completely passed by the deputies. For at least a moment during the encounter with Mr.
Fenwick, the deputies had cause to believe that he posed “a threat of serious physical harm” to
Deputy Pudimott. Tennessee v. Garner, 471 U.S. at 11. Even if a careful retrospective
examination yields the conclusion that this threat was gone by the time the deputies shot him, in
such a fast-moving situation that conclusion alone would not necessarily mean that “the
excessiveness of the force [was] so apparent that no reasonable officer could have believed in the
lawfulness of his actions.” Wardlaw v. Pickett, 1 F.3d at 1303. And the objective
reasonableness of the force used “must be judged from the perspective of a reasonable officer on
the scene, rather than with 20/20 vision of hindsight.” Id. (quoting Graham v. Connor, 490 U.S.
at 396). Therefore “the ultimate question is not whether [Deputy Pudimott] really was in danger
as a matter of fact, but is instead whether it was objectively reasonable for [the deputies] to
believe that [he] was.” Abraham v. Raso, 183 F.3d at 294.

3. Clearly Established Right
With respect to the second prong of the qualified immunity analysis, it was clearly
established at the time of this incident that shooting a fleeing suspect who is not presently a
danger to anyone, where no other justification for such force presents itself other than the desire
43

to apprehend the suspect, violates the Constitution. As the Supreme Court made clear over
twenty years earlier in Garner: “Where the suspect poses no immediate threat to the officer and
no threat to others, the harm resulting from failing to apprehend him does not justify the use of
deadly force to do so.” Tennessee v. Garner, 471 U.S. at 11. If the plaintiff’s version of events
is found to be true — i.e., if Deputies Fischer or Pudimott fired when it was evident that Mr.
Fenwick was not at risk of injuring anyone, and if no other considerations called for such
extreme force — then a reasonable officer would understand that shooting Mr. Fenwick violated
his constitutional rights. Although Garner is “cast at a high level of generality,” Brosseau v.
Haugen, 543 U.S. at 599, and although it involved a suspect fleeing on foot who never posed a
danger to the officer, clearly established law does not require “a case directly on point,” but
merely that existing precedent has “placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 131 S. Ct. at 2083. The applicability of Garner’s basic lesson to
the scenario that Mr. Fenwick alleges is sufficiently obvious that “it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.” Brosseau v.
Haugen, 543 U.S. at 599 (quoting Saucier v. Katz, 533 U.S. at 202).9
Some courts, confronting factual scenarios similar to the one presented here, have
reached different outcomes, both as to the existence of a constitutional violation and whether any
right violated was clearly established. E.g., Terrell v. Smith, 668 F.3d at 1250-58. But as the
Supreme Court has observed, “this area is one in which the result depends very much on the facts
of each case.” Brosseau v. Haugen, 543 U.S. at 201. The Court concludes that the defendants
are not entitled to summary judgment on Mr. Fenwick’s excessive force claims on the basis of
9

It is not farfetched to suppose that the deputies were cognizant of that lesson —
one of them admitted as much in Superior Court, agreeing that under the policies of the Marshal
Service, “[t]he only time you can shoot at a fleeing suspect is if that person possessed an eminent
[sic] danger of death or serious bodily harm to another person at that point.” Defs.’ Sealed Ex.
12 at 129.
44

qualified immunity. The pertinent facts surrounding the deputies’ conduct must first be resolved
by a jury before that determination can be made. The same genuine factual dispute also
precludes summary judgment in favor of the defendants on Mr. Fenwick’s claims for assault and
battery under the FTCA. See Arrington v. United States, 473 F.3d at 335-38.

IV. CONCLUSION
Because of the existence of genuine issues of material fact requiring resolution by
a jury, the defendants are not entitled to summary judgment on Mr. Fenwick’s claims for
excessive force against Deputies Fischer and Pudimott or on his FTCA claims for assault and
battery against the United States. Collateral estoppel does not preclude Mr. Fenwick from
litigating the issues underlying those claims, because they were not resolved in his juvenile
delinquency adjudication, and Heck v. Humphrey does not bar his claims, because his success
would not imply the invalidity of that adjudication. Mr. Fenwick, however, will not be permitted
to contest in this Court the factual and legal issues that were decided adversely to him in
Superior Court, identified supra at 20-22. In addition, his FTCA claim for false imprisonment
and all of his claims against Officer Mickle or based on the conduct of Officer Mickle are
dismissed.
An Order consistent with this Opinion will issue this same day.
SO ORDERED.

DATE: March 1, 2013

/s/________________________
PAUL L. FRIEDMAN
United States District Judge

45