GREENE v. SHEGAN
Filing
52
MEMORANDUM OPINION memorializing the findings and conclusions announced at the August 11, 2015 hearing, at which the defendants' motion for summary judgment was denied. Signed by Chief Judge Richard W. Roberts on 8/24/15. (lcrwr2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
ABDUL GREENE,
)
)
Plaintiff,
)
)
v.
)
Civil Action No. 12-109 (RWR)
)
JODY SHEGAN, et al.,
)
)
Defendants.
)
______________________________)
MEMORANDUM OPINION
Plaintiff Abdul Greene filed an action asserting common law
claims of false arrest, assault and battery, and intentional
infliction of emotional distress, and a claim under 42 U.S.C.
' 1983 of deprivation under color of law of the constitutional
right to be free from unreasonable seizure, all stemming from an
encounter with Metropolitan Police Officer Jody Shegan in 2010.
Defendants Shegan and the District of Columbia filed a postdiscovery motion for summary judgment, arguing that probable
cause for arresting Greene shielded Shegan with qualified
immunity from liability, that Shegan used reasonable force to
effect the lawful arrest, and that Greene's factual allegations
of intentional infliction of emotional distress are insufficient
as a matter of law.
August 11, 2015.
The Court heard arguments on the motion on
Because genuine disputes existed over material
facts bearing on whether probable cause existed to arrest and
use force against Greene and whether Shegan's actions could
-2amount to extreme and outrageous conduct, the defendants' motion
for summary judgment was denied.
This memorandum opinion
memorializes the findings and conclusions announced at the
hearing.
DISCUSSION
The defendants moved under Federal Rule of Civil Procedure
56(a) for summary judgment on all of Greene=s claims.
Summary
judgment may be granted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
56(a).
Fed. R. Civ. P.
A dispute is genuine where the “evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At
summary judgment stage, a court must view the conflicting
evidence and draw all reasonable inferences from it in the light
most favorable to the nonmoving party.
I.
Id. at 255.
QUALIFIED IMMUNITY
The first of the defendants' three principal arguments
advanced was that the undisputed facts show that Officer Shegan
had probable cause to arrest Greene.
The defendants claimed
that the presence of probable cause entitled Officer Shegan to
qualified immunity from Greene=s 42 U.S.C. ' 1983 claim, and
voided Greene’s false arrest/false imprisonment claim.
Defs.’
-3Mem. of P. & A. in Supp. of Defs.’ Mot. for Summ. J. (“Defs.’
Mem. of P. & A.”), ECF No. 43-1 at 5-8.
“The doctrine of qualified immunity protects government
officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
To resolve a
government official=s qualified immunity claim, “a court must
decide [(1)] whether the facts that the plaintiff has alleged or
shown make out a violation of a constitutional right . . . [and
(2)] whether the right at issue was ‘clearly established’ at the
time of the defendant=s alleged misconduct.”
Id. at 232
(internal citations omitted).
It was well established when this event occurred that the
Fourth Amendment prohibits unreasonable searches and seizures.
An arrest without probable cause is an unreasonable seizure that
violates the Fourth Amendment.
262 (D.C. Cir. 1987).
Martin v. Malhoyt, 830 F.2d 237,
Under D.C. law,
[t]he focal point of [a false arrest or false
imprisonment] action is the question whether the
arresting officer was justified in ordering the arrest
of the plaintiff; if so, the conduct of the arresting
officer is privileged and the action fails. . . .
-4Justification can be established by showing that there
was probable cause for arrest of the plaintiff on the
grounds charged.
Dellums v. Powell, 566 F.2d 167, 175 (D.C. Cir. 1977).
“Probable cause to make an arrest requires a showing that
the police had ‘enough information to warrant a man of
reasonable caution in the belief that a crime has been committed
and that the person arrested has committed it.’”
Barham v.
Ramsey, 434 F.3d 565, 572 (D.C. Cir. 2006) (quoting United
States v. Short, 570 F.2d 1051, 1053 (D.C. Cir. 1978) (internal
quotation marks and citation omitted)).
Under Title 18 of the
District of Columbia Municipal Regulations (“DCMR”), ' 2000.2, no
pedestrian “shall fail or refuse to comply with any lawful order
or direction of any police officer.”
Officer Shegan said that
he drove up to Greene and told Greene to get out of the street;
that Greene kept walking in the street after Shegan told Greene
several times to stop; and that Shegan then arrested Greene for
failing to comply with Shegan’s order.
Def. Jody Shegan’s
Resps. to Pl.’s First Set of Interrogs., Ex. 3, Defs.’ Mot. for
Summ. J., at 3.
But Greene countered that when Officer Shegan
told Greene to move out of the street, Greene replied that he
was trying to move but was unable to do so because he could not
get around Shegan=s car.
See Pl.’s Mem. of P. & A. in Opp’n to
Defs.’ Mot. for Summ. J. (“Pl.’s Mem. of P. & A.”), ECF No. 44
at 2.
-5A reasonable jury could credit Greene’s version that it was
factually impossible to comply with Shegan’s order, and that
could negate probable cause for arresting Greene for failure to
comply.
That is not unlike the case of Dingle v. District of
Columbia, 571 F. Supp. 2d 87 (D.D.C. 2008), where the plaintiff
said that an officer did not give the plaintiff a chance to
comply under ' 2000.2 with the officer’s order to disperse before
the officer pounced upon the plaintiff.
Because there is a
genuine dispute of material fact regarding whether Shegan had
probable cause to arrest Greene for violating 18 DCMR ' 2000.2,
summary judgment on Greene=s ' 1983 and false arrest/false
imprisonment claims was not warranted.
II.
POLICE USE OF FORCE
The defendants’ second principal argument was that they
were entitled to summary judgment on Greene=s assault and battery
claim because Shegan was entitled to use reasonable force to
arrest Greene.
Defs.’ Mem. of P. & A. at 9-10.
An assault “is
an intentional and unlawful attempt or threat, either by words
or by acts, to do physical harm to the victim.
A battery is an
intentional act that causes a harmful or offensive bodily
contact.”
Etheredge v. District of Columbia, 635 A.2d 908, 916
(D.C. 1993) (internal citations and quotation omitted).
“A
police officer has a qualified privilege to use reasonable force
to effect an arrest, provided that the means employed are not
-6‘in excess of those which the actor reasonably believes to be
necessary.’”
Id. (quoting Jackson v. District of Columbia, 412
A.2d 948, 955 (D.C. 1980)).
Because there is a genuine dispute
of material fact regarding whether Shegan had probable cause to
arrest Greene for violating 18 DCMR ' 2000.2, the defendants were
not entitled to summary judgment on the claim that Shegan had a
qualified privilege to use force to arrest Greene.
The defendants also sought summary judgment noting that
Greene presented no expert evidence to show that Shegan used
unreasonable force to arrest Greene.
They argued that how to
conduct and effect an arrest is distinctly related to a police
officer=s profession and is too technical for a lay juror to
understand without expert testimony.
11-12.
Defs.’ Mem. of P. & A. at
“[E]xpert testimony is required when the subject
presented is ‘so distinctly related to some science, profession,
business or occupation as to be beyond the ken of the average
layman.’”
District of Columbia v. White, 442 A.2d 159, 164
(D.C. 1982) (quoting Matthews v. District of Columbia, 387 A.2d
731, 734-735 (D.C. 1978)).
Expert testimony on the procedures
police are taught to follow in conducting arrests is “admitted
routinely[.]”
(D.C. 2004).
Steele v. D.C. Tiger Market, 854 A.2d 175, 183
However, even if the defendants were to present
facts at trial establishing that Shegan had probable cause to
arrest Greene, expert testimony would not be required to prove
-7an assault and battery claim and establish that Shegan used
unreasonable force to arrest Greene.
For example, in Smith v.
District of Columbia, 882 A.2d 778, 792 (D.C. 2005), the D.C.
Court of Appeals held that expert witness testimony was not
required to make out an assault and battery claim that arose
from a police officer using excessive force in arresting the
plaintiff.
And, in Tillman v. Washington Metropolitan Area
Transit Authority, 695 A.2d 94, 97 (D.C. 1997), the court
suggested that the plaintiff could show that a police officer
used excessive force in handcuffing the plaintiff by offering
either expert testimony or “evidence of police department
regulations governing the use of handcuffs[.]”
Thus, Greene’s
lack of expert evidence regarding the use of force during an
arrest did not entitle the defendants to summary judgment.
III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The defendants’ third principal argument was that Shegan’s
conduct, even as described by Greene, was not sufficiently
extreme or outrageous to establish a claim of intentional
infliction of emotional distress.
“To establish a prima facie
case of intentional infliction of emotional distress, a
plaintiff must show (1) extreme and outrageous conduct on the
part of the defendant which (2) either intentionally or
recklessly (3) causes the plaintiff severe emotional distress.”
Larijani v. Georgetown University, 791 A.2d 41, 44 (D.C. 2002).
-8The defendants challenged only the first prong of this threeprong test. 1
The D.C. Court of Appeals has explained that to state an
intentional infliction of emotional distress claim, the conduct
alleged must be “‘so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.’”
Kotsch v.
District of Columbia, 924 A.2d 1040, 1046 (D.C. 1982) (quoting
Restatement (Second) of Torts § 46, cmt. d (1965)).
The D.C.
Court of Appeals has also discussed in Drejza v. Vaccaro, 650
A.2d 1308, 1314 (1994), how a police officer’s abuse of his
position of authority may be considered “outrageous conduct.”
However, Comment d to the Restatement (Second) of Torts ' 46
explains that even where the defendant abuses a position of
power, “the actor [is still] not . . . liable for mere insults,
indignities, or annoyances that are not extreme or outrageous.”
As it has been construed in the District of Columbia, the
tort of intentional infliction of emotional distress sets a very
high bar for satisfying the requisite level of outrageousness.
That bar was not met in cases the defendants cited from the D.C.
1
A single, dismissive sentence in the defendants’
brief mentioned Greene’s claims of embarrassment, but
basis for summary judgment raised in a reply brief is
That argument, if it was intended, was waived and was
considered.
reply
a new
untimely.
not
-9Court of Appeals like Minch v. District of Columbia, 952 A.2d
929 (2008), District of Columbia v. Thompson, 570 A.2d 277
(1990), and Bernstein v. Fernandez, 649 A.2d 1064 (1991).
But this case does not involve just a 6-hour consensual
interview by a murder detective of a young hearing-impaired
student who was given breaks and food throughout, as in Minch;
or a fired library employee about whom a supervisor had written
22 memos recording the employee's poor performance and
attendance, as in Thompson; or a landlord who failed to
effectively repair leaks and floors, and treat for vermin
infestation, as in Bernstein.
If Greene's allegations are true, this is a case where a
white on-duty police officer races his car up to block the path
of a black off-duty police officer on foot who had committed no
crime, tells the black officer to “get the f*** out of the
street,” disregards Greene’s explanation that he was blocked in,
tells Greene “didn’t I tell you to get the f*** out of the
street,” grabs Greene’s arm, twists it behind Greene's back,
throws him against a parked van, responds to Greene's
identifying himself as an off-duty police officer and Greene's
asking to see an official by saying “you want to see my
official? . . . Well, you’re locked up,” keeps him handcuffed
before his friends and family for an hour, and dismisses other
black officers who identify Greene as a police officer.
See
-10Dep. of Abdul Greene, Ex. 1, Pl.’s Mem. of P. & A., ECF No. 44-1
at 26-27.
He also does nothing to intervene when other white
officers threaten the black officers who vouched for Greene with
arrest and "desk duty," accuse Greene of “being drunk,” ignore
Greene’s request to take a breathalyzer, and berate and insult
Greene.
See Pl.’s Mem. of P. & A. at 2; Dep. of Abdul Greene,
Ex. 1, Pl.’s Mem. of P. & A., at 35-36; 11/7/2010 Email from
Abdul Greene to Michael Anzallo, et al., Ex. 2, Defs.’ Mot. to
Dismiss, ECF No. 32-2 at 1-2.
These circumstances are not
wholly unlike those in Cotton v. District of Columbia, 541 F.
Supp. 2d 195 (D.D.C. 2008), which denied summary judgment on an
intentional infliction of emotional distress claim where the
material facts in dispute concerned an officer responding to a
complaint about a knife-yielding woman by allegedly yanking a
woman to the ground, handcuffing her, and threatening her with
jail and losing custody of her children, despite eyewitnesses
telling the officer that she was not the one with the knife but
another woman was.
A reasonable jury could find that Shegan’s actions
constituted “extreme and outrageous conduct exceeding the bounds
of decency.”
Wade v. Washington Metropolitan Area Transit
Authority, Civ. Case No. 01-0334 (TFH), 2005 WL 1513137 at *6
(D.D.C. June 27, 2005).
Thus, the defendants were not entitled
to summary judgment on this claim.
-11CONCLUSION
Genuine disputes existed over material facts bearing on
whether probable cause existed to arrest and use force against
Greene and whether Shegan's actions could amount to extreme and
outrageous conduct.
Thus, the defendants' motion for summary
judgment was denied.
SIGNED this 24th day of August, 2015.
/s/
RICHARD W. ROBERTS
Chief Judge
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