INGRAM v. SHIPMAN-MEYER et al
MEMORANDUM OPINION to the Order granting in part and denying part Defendants' Motion for Summary Judgment and denying Plaintiff's Motion for Summary Judgment in its entirety. Signed by Judge Gladys Kessler on 3/20/17. (CL)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Michael Shipman-Meyer, et al.,:
Civil Action No. 12-1915 (GK)
Plaintiff is Dayshawn Ingram, the son of the decedent, Anthony
Mr. Chambers died immediately after a violent encounter
chokehold on his father, which caused his death.
several claims against Officers Shipman-Meyer, William Karabelas,
and Elizabeth LaDuca,
as well as the District of
Columbia, stemming from the death of his father.
Presently before the Court are Plaintiff's and Defendants'
Cross-motions for Summary Judgment.
Having reviewed the parties'
Plaintiff's Motion for Summary Judgment is denied in its entirety
and Defendants' Motion for Summary Judgment is granted in part and
denied in part.
A. Procedural Background
On September 19, 2012, Plaintiff commenced this action in the
Defendants removed the case from Superior Court to this Court,
pursuant to 28
1441 et seq.
After extensive discovery, Plaintiff amended the Complaint he
[Dkt. No. 37].
Count One alleges that the four officers
violating an applicable national standard of
care, resulting in Mr. Chamber's injury and death.
Count Two alleges that the officers committed assault and battery,
resulting in in Mr.
Chamber's injury and death.
Count Three alleges
the officers used excessive force
violation of Mr. Chamber's constitutional rights.
Id. ~~ 18-22.
Count Four alleges that the officers engaged in tortious conduct,
and thereby violated the District's wrongful death statute.
negligently failed to train the officers in the proper use of
chokeholds, resulting in Mr. Chamber's injury and death.
Plaintiff seeks compensatory damages of $5,000,000 on each
On January 15,
Pla1ntiff's Motion for Summary Judgment
[Dkt. No. 56] .
Plaintiff seeks summary judgment on parts of Counts
One, Two, Three, and Five of his First Amended Complaint, but does
not seek summary judgment as to any part of Count Four.
Plaintiff concedes that there is a genuine dispute as to whether
or not the officers' actions caused the death of Mr. Chambers, and
therefore that he cannot fully prevail on any of his claims at the
summary judgment stage.
Id. at 25 n.6.
Instead, he essentially
asks the Court to hold that he is entitled to judgment on all the
other elements necessary to succeed on those claims, leaving only
the issue of causation for trial.
De£endants filed an
The Defendants also cross-moved for summary judgment on all
Defs.' MSJ at 1.
Plaintiffs filed an Opposition, to which
Plaintiff's Opposition ("Pl. 's Opp'n")
Reply ("Defs.' Reply")
[Dkt. No. 63], Defendants'
[Dkt. No. 65], Plaintiff's Surreply ("Pl.'s
[Dkt. No. 69].
B. Factual Background
1. The Court Will not Rely on Defendants' Statement of
Undisputed Material Facts
statement of material facts should be accepted, virtually in its
entirety, because Plaintiff failed to comply with Local Rule 7.
Defs.' Analysis of Material Facts, Exh. 1 to Defs.' Reply at 1 n.1
(citing LCvR 7)
Court were to do so,
Defendants argue that,
there are essentially no material facts in
dispute in this case.
Reply at 2 n.2.
In other words,
exclusively on their characterization of what occurred.
Local Rule 7 requires a party moving for summary judgment to
LCvR 7(h) (1).
In addition, it requires that a party
summary judgment motion must
respond to the moving
"a concise statement"
material facts" that remain in dispute.
Where the non-movant
fails to "controvert" a statement of undisputed fact made by the
movant, the Court may assume that the statement is admitted.
see also Broady v. Zanzibar on the Waterfront, LLC, 576 F. Supp.
2d 14, 16-17 (D.D.C. 2008).
Both Plaintiffs and Defendants
Defendants, in their Opposition to Plaintiff's Motion for Summary
Judgment, filed the required response to Plaintiff's statement of
indicating what facts Defendants believed remain
Plaintiff failed to respond to Defendants' statement
in his Opposition to Defendants'
he simply resubmitted his original
statement of material facts with only a few additional facts added.
Given Plaintiff's failure to comply with Local Rule 7, Defendants
argue that their statement of material facts should be admitted in
See Defs.' Analysis of Material Facts
that all but one of Defendants' statement of material facts not in
dispute have been admitted by failure to comply with the local
Though "strict compliance with the local rule" is the norm,
See Hedgpeth v. Rahim, 2016 WL 5720699, *5-6 (D.D.C.
ref le ct
(refusing to admit Defendant's uncontradicted
This is one such case.
so biased that
it did not
involving deadly force,
likely to contradict the officer's story is unable to testify, courts
the person [killed] -
. may not simply accept what may
be a self-serving account by the police officer.
carefully examine all
determine whether the officer's story is internally consistent and
consistent with other known facts.
Courts must also look at the
circumstantial evidence that, if believed, would tend to discredit
the police officer's story,
and consider whether this evidence
Flythe v. District of Columbia,
791 F.3d 13, 19
(internal citations and quotation marks omitted).
Heeding the di rec ti ve of
the Court of Appeals,
carefully examined the evidence in the record to determine whether
the account provided by Defendants, or any portions thereof, were
contradicted by other record evidence.
791 F.3d at 19.
Having done so, the Court concludes that Defendants' Statement of
presents - as undisputed - facts that Defendants'
contradict, and it omits facts that are inconvenient to its overall
Defendants' version of what occurred in deciding these Motions.
the Court will present the relevant facts
culled from the record and then identify the key issues of material
fact ~hat remain in dispute.
2. Statement of Undisputed and Disputed Facts
Anthony Chambers was 38 years old on June 8, 2012.
he was staying with his sister, Valentina Chambers.
was experiencing some sort of mental disturbance, possibly brought
on by his use of PCP.
Seeking assistance, Mr. Chambers contacted
the Mayor's office.
Two employees of the Department of Behavioral Health ("DBH"),
Linda Miller and Gary Yingling, were dispatched to the Chambers'
residence to assist him.
Mr. Chambers appeared agitated, telling
them that a chip had been planted inside him by the government.
The DBH employees asked Mr. Chambers to accompany them so that he
could receive treatment,
but he refused and then demanded that
they leave. He threatened violence if they did not.
Believing Mr. Chambers to be a potential danger to himself or
Miller and Yingling sought assistance from the police.
prepared a document authorizing the detention of Mr. Chambers for
a psychiatric evaluation.
Given Mr. Chamber's size, he stood 6'
4" tall and weighed more than 370 pounds, and prior behavior, they
asked that multiple officers accompany them to assist in detaining
and transporting him.
Four off ice rs were assigned the task Stephen
the officers were told about
their assignment is
All the officers understood that they were acting on a
dealing with a mentally disturbed individual,
not there to make an arrest.
The evidence suggests that neither
the DBH employees nor the officers were aware that Mr. Chambers'
mental health episode was drug-related.
Deposition of Linda Miller
the officers were
apparently informed that Mr. Chambers was a butcher by trade, and
earlier that day.
Officer Shipman-Meyer was not
made aware of either of these facts.
See Deposition of Officer
Shipman-Meyer ("Shipman-Meyer Dep.") at 71:19-73:2
12]; Defs.' Analysis of Material Facts
These six people then set out for the Chambers'
Upon arriving they ascended the staircase that led to the landing
outside the apartment unit.
The DBH employees and MPD officers
stood at various points outside - on the stairs above the landing,
on the landing itself, and on the stairs below the ·1anding - and
called for Mr. Chambers to come outside.
These six are the only
living eyewitnesses to what took place on the landing.
apartment he was shirtless, sweaty, and appeared highly agitated.
He quickly became verbally combative with the officers.
the Officers indicated that they wanted to put him in
handcuffs before transporting him for treatment.
Valentina Chambers ("Chambers Dep.") at 31:10-32:2
[Dkt. No. 61-
All of this was consistent with what the Officers already
believed - that they were dealing with an agitated, mentally-ill
individual who was in need of assistance.
Up to this point, there
was no reason for them to use force against Mr. Chambers, nor did
they do so.
Karabelas, causing him to fall backwards and hit his head on the
wall behind him.
Next he punched Officer Rose several times in
Finally, he punched Officer Shipman-Meyer in the face,
causing a fracture to his left orbital bone.
It is uncontroverted that,
at this point, Mr.
assaulted two of the officers, likely in violation of D.C. Code
22-405(b), a misdemeanor, and had assaulted Officer
and likely caused him "significant bodily injury" in violation of
D.C. Code§ 22-405(c),
At that moment,
had probable cause to arrest Mr. Chambers for a crime and, given
the violent nature of the crime, to use force to seize him.
They did so,
though precisely what occurred is obscured by
the haze of battle and inconsistent testimony.
Chambers, while Officer LaDuca deployed her pepper spray on Mr.
Three of the officers,
Meyer, all grabbed hold of Mr. Chambers and tried to restrain him.
Officer Karabelas testified to grabbing hold of Mr. Chambers' right
while both Officers Rose and Shipman-Meyer claim to have
grabbed hold of his left arm.
While holding on to one of Mr.
Chambers' arms, Officer Shipman-Meyer punched Mr. Chambers in the
with no success
LaDucca, who had been standing further from Mr. Chambers when the
altercation began and had not been attacked, approached and sprayed
Mr. Chambers in the face with pepper spray.
"An individual suffers a significant bodily injury where there
is an injury to the body .
. that necessitates the individual
being taken to the hospital or receiving medical treatment shortly
after the injury was inflicted. Hospitalization or medical
treatment is required where it is necessary to preserve the health
and well being of the individual, e.g., to prevent long-term
physical damage, possible disability, disfigurement, or severe
Fadero v. United States, 59 A.3d 1239, 1250 n. 50 (D.C.
App. 2013) (internal citations and quotations marks omitted).
undisputed that the struggle between the officers and Mr. Chambers
then moved from the landing into the apartment.
is undisputed that this transition took only a matter of seconds
Defs.' MSJ at 9 (quoting the various officers' depositions). There
is, however, a significant dispute as to how the officers and Mr.
Chambers arrived in the apartment.
According to the account presented by Defendants, they were
unable to control Mr. Chambers, who used his superior strength to
drag Officers Rose and Shipman-Meyer - both of whom had grabbed on
to some part of his body - backwards into the apartment.
Analysis of Material Facts at
16 (Mr. Chambers "overpowered" the
two officers and "dragged them backwards ... against their will");
Defs.' MSJ at 8.
Yet, that account does not comport with much of
the evidence in the record.
First for example, Officer Karabelas, who had a hold of Mr.
Chamber's right arm, makes no appearance in the Defendants' story.
See Deposition of Officer Karabelas
("Karabelas Dep.") at 41:11-
(making clear that he had a hold on Mr.
Chambers' right arm from the time they were on the landing until
after they entered the apartment).
Perhaps that was because,
unlike the other officers, he did not testify that Mr.
dragged them backward, but simply that they all "fell" together.
see also "Miller Dep." at 26:9-28:11
fell in") .
the testimony of Mr.
the Defendants' account.
Yingling directly contradicts
He testified that the officers were able
to successfully restrain Mr.
arms and knock him "off
balance," sending him backwards into the apartment and down to the
Deposition of Gary Yingling
[Dkt. No. 61-13].
That testimony is partially confirmed by
the depositions of Officers Karabelas and Rose,
in which they
right and left arms,
Karabelas Dep. at 41:11-42:22, 48:5-13, 52:16-20;
Deposition of Officer Rose ("Rose Dep.") at 22:7-11, 23:10-14 [Dkt.
Central to the Defendants'
narrative is the contention that Mr.
uncontrollable throughout the encounter.
assert that each of the progressively forceful measures deployed
by the officers up to this point - punches, pepper spray, arm holds
- failed to subdue Mr. Chambers.
Defs.' MSJ at 16-17.
they claim he was able to use his "super-human 11
against their will."
Id. at 16.
However, when viewed in its entirety, there is contradictory
The record plausibly establishes that after the
surprise of Mr. Chambers' attack had worn off, the officers were
immediately able to gain a tactical advantage over him through a
combination of their superior numbers and their own use of force
punches and pepper spray.
It suggests that rather than Mr.
Chambers dragging them backwards, the officers knocked him back;
in other words, rather than their use of force being ineffective,
it was a success.
and two other individuals were
already inside the apartment, and came into the living room to see
the commotion that was taking place.
inside the apartment the struggle continued,
exactly what transpired is unclear. 2
Two things appear
eyewitnesses: the four officers, Mr. Yingling, and Ms. Chambers.
There is no testimony in the record from the other two individuals
who were inside the apartment.
All four of the officers were engaged in a struggle with Mr.
Chambers, and their respective stories reflect the fact that their
participation limited their ability to testify clearly or
conclusively about what occurred.
However, neither Mr. Yingling
nor Ms. Chambers were participants in the struggle and were able
consistent from the testimony of all individuals.
this point forward,
there is no evidence that Mr.
Yingling Dep. at 26:6-9; Rose Dep. at 25:2-26:4; Chambers Dep. at
(describing Mr. Chambers as physically unable to
fight back or move).
This contradicts Defendants' suggestion that
Chambers was violent throughout the encounter.
Defs.' MSJ at 10.
immediately brought Mr. Chambers down to his knees. Chambers Dep.
20:15 ("[The officers] wrestled him to the ground."); Id. at 42:9;
Yingling Dep. at 25:22-27:19. That the officers were able to get
Chambers down on the ground so quickly further undermines
assertion that they found it impossible to control
See also Karabelas Dep. at 54:4-6 ("[Mr. Chambers] began to
weaken" once they entered the apartment) .
According to Defendants, at the point that Mr. Chambers was
knocked to the ground but before he was placed in a chokehold,
they became "separated" and lost sight of one another, with the
mass of Mr. Chambers blocking the view of one of the Officers and
any means of escape.
Defs.' Reply at 7; Defs.' MSJ at 9.
to see the entirety of what transpired next. Yingling Dep. 32:1317 (stating he head a "clear, unimpeded view"); Chambers Dep. 21:522:12 (stating she was three to five steps away from the struggle).
entering the apartment, and it is not clear how he could block any
of the officer's vision while on the ground.
room was quite small,
so it is unclear how the officers could
become "separated" or "fragmented" as they were no more than a few
feet from one another.
See Defs.' Reply at 7; Defs.' MSJ at 9;
Karabelas Dep. at 50:21-22
(describing the living room as "not a
big room") .
From this kneeling position the officers were able to tackle
Mr. Chambers to a prone position on the ground.
in this prone position,
placed him in a chokehold.
By the time Mr.
Officer Shipman-Meyer had
It is difficult to determine from the
various participants' testimony how long he held Mr. Chambers in
the chokehold, but it was likely no less than 20 or 30 seconds and
may have been minutes.3
The officers' testimony makes clear that the enti~e encounter
was incredibly short, and took as little as one minute and at most
"a couple minutes."
See Shipman-Meyer Dep. at 107: 15-20.
portion of the encounter that took place on the landing outside
the apartment lasted no more than 20 seconds. See Karabelas Dep.
at 46:15-47:15. While no witness provided an estimate of how long
it took to bring Mr. Chambers to the ground, the fairest reading
of the record is that it was also quite short.
Even if the Court
were to assume that it took ten or even twenty seconds to bring
him to the ground, and based on the testimony even twenty seconds
seems far-fetched, that would suggest that Mr. Chambers was placed
in a chokehold no later than 30-40 seconds after the encounter
According to Defendants,
Chambers continued to resist
after Officer Shipman-Meyer had placed him in the chokehold, and
this necessitated the continued use of the chokehold until he was
incapacitated and non-responsive. 4
Defs.' MSJ at 12.
Shipman-Meyer testified that he was in a vulnerable position face down on the floor and unable to see what was transpiring -
Thus, even crediting the off ice rs' testimony implies that
Officer Shipman-Meyer held Mr. Chambers in a chokehold for at least
20-30 seconds, assuming the encounter lasted no more than a minute.
To the extent the encounter lasted two minutes, then Officer
Shipman-Meyer would have held him in a chokehold for up to 90
seconds, although no one directly testified that the chokehold
lasted that long.
And if Officer Shipman-Meyer used "a couple
minutes" in the colloquial sense to mean "a few minutes," it may
have been even longer.
Moreover, Plaintiff has introduced evidence of the extent and
nature of Mr. Chambers' injuries which suggest that he was subject
to a tracheal choke hold. See Expert Report of Dr. Jonathan Arden
[Dkt. No. 61-1]; Expert Report of Fernando
Yamasaki, Exh. 9 to Pl. 's MSJ at 4 [Dkt. No. 56-1] ("Yamasaki
Report") (stating that Mr. Chambers neck was so large, Officer
Shipman-Meyer would have been unable to place him in a pure carotid
choke) . Plaintiff has also introduced evidence indicating that a
tracheal chokehold takes up to three minutes to render a subject
unconscious, as may have occurred with Mr. Chambers.
Corps Close Combat Manual, Chapter 6 Choke Holds, Exh. 15 to Pl.'s
Opp'n [Dkt. No. 63-1] ("Marine Corps Close Combat Manual"). This
further supports the inference that Mr. Chambers was held in a
chokehold for a significant amount of time.
According to Officer Shipman-Meyer, Mr. Chambers was lying on
his left side and Officer Shipman-Meyer's right arm was around Mr.
Chambers' neck in a carotid hold. Officer Shipman-Meyer testified
that he was face down on the floor, unable to see Mr. Chambers or
the other officers. He further testified that he felt vulnerable
in this position, as Mr. Chambers was continuing to resist and was
attempting to roll on top of him. At 78:14-88:4.
on top of
Shipman-Meyer Dep. at 78:14-88:4.
In contrast, testimony from Ms. Chambers, Mr. Yingling, and
several of the other officers suggests that the officers already
had the upper hand and that Mr. Chambers was effectively subdued
"couldn't fight back"
(stating that Mr.
because he was being held in a
chokehold by one officer, with multiple other officers on top of
Similarly, Officer LaDuca testified that Mr. Chambers was
face down on his stomach with Officer Shipman-Meyer on top of Mr.
Chambers' back, and that Mr. Chambers was completely surrounded by
the other officers.
Deposition of Officer LaDuca Dep.
describes an extended sequence in which she attempted to strike
Chambers with her ASP baton while he was on the ground and
then repeatedly tried to pry his arms out from under him, using
the baton as a lever.
LaDucca Dep. at 41:8-43:2.
in addition to Officer LaDuca,
Officer Shipman-Meyer on top of Mr. Chambers and testified that he
had hold of one of Mr. Chambers arms.
Karabelas Dep. at 57:3-8,
Yingling testified that as soon as Mr.
restraining both of his arms.
Yingling Dep. at 27:22-28:1.
None of the other officers - nor Mr. Yingling - saw Officer
Shipman-Meyer place and maintain a chokehold on Mr. Chambers.
despite the fact that they were mere feet from Officer ShipmanMeyer when he was using the chokehold and that the use of the
chokehold may well have lasted at least 30 seconds - which is at
least as long as all the prior events in the encounter - if not
several minutes longer.
For example, despite being directly above the two and with a
clear vantage point,
Officer LaDuca claims
to have never seen
Officer Shipman-Meyer place his arms around Mr.
LaDuca Dep. at 50:21-51:1-2.
Similarly, Officer Rose claims not
to have seen Officer Shipman-Meyer with an arm around Mr. Chamber's
neck, despite being mere inches or feet away from him.
Officer Karabelas did see Officer Shipman-Meyer with
his arms around Mr. Chambers' neck or shoulder area, but was unable
to see whether or not Officer Shipman-Meyer had placed him in a
Id. at 56:21-59:2.
Yingling Dep. at 32:13-17,
Similarly, Mr. Yingling, who claims
nonetheless states that he never saw
Officer Shipman-Meyer use a chokehold.
this testimony is implicitly contradicted by that of Ms. Chambers,
who was present for the same events, but had no trouble seeing her
brother being choked.
Chambers Dep. at 42:21-45:5.
indeterminate amount of time,
eventually releasing Mr.
when he determined that Mr. Chambers had stopped moving.
time the other officers who had been attempting to handcuff Mr.
Chambers were finally able to do so.
placing him in handcuffs,
the officers noticed Mr. Chambers was
non-responsive and in apparent medical distress.
agree that they rolled him into an upright position on the floor
and checked his pulse and breathing, but none provided emergency
called for an ambulance.
Other officers arrived on the
scene, and the four officers who were involved in the melee left
Some amount of
time passed before an ambulance
arrived and took Mr. Chambers for treatment, but he died en route
to the hospital.
the following material questions are conclusively
resolved by the record.
Did Mr. Chambers possess such "super-
human" strength, that it was impossible to control him, or did the
officers immediately gain an advantage in their battle with him
after the surprise of his attack had faded?
Did Officer Shipman-
Meyer use the chokehold as a last-ditch effort to gain control of
Mr. Chambers or had he already been subdued at that point?
Officer Shipman-Meyer maintain the chokehold for only the bare
minimum of time necessary to handcuff Mr.
or did he
maintain it for a significant period of time after Mr. Chambers
had been subdued?
Having reviewed in great detail the testimony presented by
the various witnesses,
the Court has no trouble concluding that
there are material facts in dispute.
STANDARD OF REVIEW
Summary judgment may be granted only if the pleadings,
discovery materials, and affidavits on file show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. See Arrington v. United
States, 473 F.3d 329, 333 (D.C. Cir. 2006); Fed. R. Civ. P. 56(c).
"A dispute over a material fact is 'genuine' if 'the evidence is
Arrington, 473 F.3d at 333
"material" if it might affect the outcome of the case under the
substantive governing law. Id.
The burden is on the moving party to demonstrate the absence
of any genuine issues of material fact. Celotex Corp. v. Catrett,
(1986). When a moving party successfully does
so, the nonmoving party must show the existence of a genuine issue
of material fact by providing "specific facts showing that there
allegations or denials" to prevail.
517 (D.C. Cir. 2002)
Burke v. Gould, 286 F.3d 513,
(quoting Anderson, 477 U.S. at 248 (internal
quotation marks omitted) . The moving party is entitled to summary
sufficient to establish an essential element of a claim on which
it will bear the burden of proof at trial. Celotex, 477 U.S. at
In reviewing the evidence on a motion for summary judgment,
the court views the evidence in the light most favorable to the
nonmoving party and draws all inferences in her favor. Johnson v.
the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those
of a judge at summary judgment."
Inc., 715 F.3d 354, 358 (D.C. Cir. 2013)
PA Consulting Grp.
(internal quotation marks
and citation omitted). Accordingly, the Court's role is "not [to]
determine the truth of the matter,
whether there is a genuine issue for trial."
Plaintiff brings two distinct sets of claims in this action.
First, he brings claims based on a federal statute,
1983, against all four officers alleging that they violated his
father's constitutional rights.
he brings a number of
claims based on the laws of the District of Columbia against the
Plaintiff's federal claims before turning to his claims based on
the laws of the District.
A. Federal Section 1983 Claims against the Four Officers
Count Three of Plaintiff's Complaint alleges that the four
officers violated his father's rights under the Fourth Amendment
of the United States Constitution to be free from excessive force.
Plaintiff argues that Officer Shipman-Meyer violated his
father's rights by using a chokehold on him.
argues that the other three officers violated his father's rights
by failing to stop Officer Shipman-Meyer. The Court will deal with
each claim in turn.
1. Neither Party Is Entitled to Summary Judgment on
the Claims against Officer Shipman-Meyer
Plaintiff claims that Officer Shipman-Meyer used excessive
force against Mr. Chambers and thereby violated 42 U.S.C.
and has moved for summary judgment.
Defendants have also moved
for summary judgment arguing that the claim is barred under the
doctrine of qualified immunity.
The Court begins with the issue
of qualified immunity.
a. Officer Shipman-Meyer Is Not Entitled to
Qualified Immunity for his Use of a Chokehold
Qualified Immunity Standard
"In order to protect officers from undue interference with
their duties and from potentially disabling threats of liability,
qualified immunity shields federal officials from damages suits
Fenwick v. Pudimott, 778 F. 3d 133, 136-37 (D. C. Cir. 2015) .
defeat a defense of qualified immunity, a plaintiff must show not
only that an official 'violated a constitutional right' but also
(quoting Saucier v.
see also Plumhoff v.
present pure questions of law.
See Scott v. Harris, 550 U.S. 372,
381 n. 8 (2007).
In deciding a motion for summary judgment on the basis of
qualified immunity, the plaintiff is the non-moving party, and the
Court resolves all issues of material fact in her favor.
550 U.S. at 378-79.
In cases involving deadly force,
does not simply accept the account of the officers, but instead,
carefully examines all the evidence to determine whether a rational
jury could conclude that the officer acted unreasonably.
791 F.3d at 19.
Prong 1: Officer Shipman-Meyer Violated
Defendants argue that Officer Shipman-Meyer is entitled to
qualified immunity because his use of a chokehold on Mr. Chambers
was reasonable and therefore did not violate the Fourth Amendment.
therefore unlawful unless objectively reasonable in light of the
facts and circumstances confronting
[the officer] . "
District of Columbia, 791 F.3d at 18 (citing Tennessee v. Garner,
471 U.S. 1, 7 (1985) and Graham v. Connor, 490 U.S. 386, 397 (1989}
reasonableness of a seizure,
[the Court] must balance the nature
and quality of the intrusion on the individual's Fourth Amendment
interests against the
Columbia, 528 F.3d 969, 974 (D.C. Cir. 2008).
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
528 F. 3d at 974.
The Court "analyze[s]
from the perspective "of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight."
Plumhoff, 134 S. Ct. at
In assessing an officer's use of deadly force, the test does
not differ from a claim involving less-than-deadly force; the sole
inquiry is whether
Scott, 550 U.S. at 381-83.
However, the "nature and quality" of
the intrusion on the individual's Fourth Amendment interest is at
a maximum in a deadly force case because she has been deprived of
her greatest liberty interest, her life.
Accordingly, the primary
focus is on whether the government's interests can justify that
Ordinarily, the use of deadly force is reasonable where
an individual "poses an actual and imminent threat to the lives of
the officers involved" or other individuals.
See Flythe, 791 F.3d
In this case,
the Court is called upon to determine whether
Officer Shipman-Meyer's use of a
chokehold on Mr.
In order to make this assessment,
the Court begins
with a discussion of the chqkehold procedure.
seemingly distinct control procedures.
One of these procedures is
the "carotid hold" in which "an officer positioned behind a subject
places one arm around the subject's neck and holds the wrist of
that arm with his other hand.
forearm and bicep muscle,
by using his lower
applies pressure concentrating on the
carotid arteries located on the sides of the subject's neck. The
carotid hold is capable of rendering the subject unconscious by
diminishing the flow of oxygenated blood to the brain."
The carotid hold, when
properly applied, renders the subject unconscious in a matter of
Marine Corps Close Combat Manual at 1.
The term "chokehold" may also refer to "tracheal holds," also
known as "bar arm" holds.
461 U.S. at 97-98.
Yamasaki Report at 1; see also
In this procedure an officer positioned behind
the subject uses his arm or arms in a manner similar to the "carotid
hold," but applies pressure to the subject's trachea, reducing the
flow of oxygen to the subject's lungs.
The tracheal hold is also
able to render a
but ordinarily takes far
longer than the carotid hold to do so.
The record in this case
suggests that a tracheal hold takes anywhere from 2-3 minutes to
render a subject unconscious, even when correctly applied.
Corps Close Combat Manual at 1.
The two procedures are often discussed as though they are
In practice it is difficult to apply one without
also applying the other.
Yamasaki Report at 1.
For example, an
officer may seek to place an individual in a
carotid hold but
inadvertently apply pressure to the subject's trachea, cutting off
air flow to the subject's lungs as well as his brain.
that case, the officer has effectively placed the subject in both
a carotid and tracheal hold.
It is especially difficult to apply
one type of hold where the officer and subject are engaged in a
physical struggle because the movement of both officer and subject
prevent the officer from precisely directing where she applies
pressure to the subject's neck.
To live, a human needs oxygenated blood to be
delivered to the brain and needs a sufficient amount of oxygen to
be delivered to the lungs.
if held for a
Chokeholds arrest these processes, and
sufficient amount of time necessarily carry the
potential for death.
Lyons, 461 U.S. at 117 n.
7 (Marshall, J.
dissenting) . s
properly considered the application of deadly force.
See Coley v.
The lengthy duration of a chokehold is not the only mechanism
that may cause death.
Lyons, 461 U.S. at 117 n. 7 (Marshall, J.
Even chokeholds of a short duration can damage
structures in the neck, thereby leading to asphyxiation.
addition, carotid holds may trigger processes in the central
nervous system that lead to cardiac arrest.
chokehold as "deadly physical force");
Nava v. Dublin,
(letting stand district court finding
that carotid hold constitutes "deadly force"), overruled on other
grounds in Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040 n.1
the District of Columbia itself has
statutorily established that the application of a chokehold by a
law enforcement officer "constitutes the use of lethal force."
The nature of a chokehold informs the excessive force analysis
in subtle, but significant ways.
While some applications of force,
such as a gunshot, are instantaneous and discrete, the application
of a chokehold is not; it is, instead, continuous.
When an officer
shoots an individual, there is a single decision point, whether or
not to pull the trigger.
Thus, in determining whether an officer's
shooting of an individual was reasonable,
the analysis properly
focuses on what transpired before she pulled the trigger.
chokehold is applied to a
held for some indeterminate period of time.
officer retains the ability to release the hold.
subject and then
the context of a chokehold case, the analysis of whether an officer
acted reasonably focuses not only on the decision to apply the
hold in the first
instance but also on the officer's continued
initially placing a subject in a chokehold - because the subject
poses a threat - but act unreasonably in her continued application
of the hold because the threat has passed.
See Flythe, 791 F.3d
at 22 ("Justification for deadly force exists only for the life of
With these principals in mind, the Court analyzes the facts,
known to Officer Shipman-Meyer from the time he first placed Mr.
Chambers in a chokehold until the time he released him, in order
to determine whether the Officer's conduct was reasonable.
Shipman-Meyer knew that Mr.
Chambers was an agitated, mentally-
ill man, who had threatened or menaced the DBH employees, but he
had no reason to believe that Mr. Chambers had committed a crime
or was armed.
attack against Officer Shipman-Meyer and his colleagues.
responded with force, punching and pepper spraying him, and quickly
knocked him to his knees and then to the ground.
Once on the
ground, two of the officers effectively restrained Mr. Chambers'
while Officer Shipman-Meyer straddled his back.
while Officer LaDuca stood at
ready to assist
At this point, the officers had effectively subdued Mr.
At some point during all this chaos - but certainly no later
than when Officer Shipman-Meyer was on top of Mr. Chambers' back
Officer Shipman-Meyer put him in a chokehold.
outnumbered, did not possess a weapon, had never attempted to grab
a weapon, and that his crime was assaulting the officers with his
potentially for 90 seconds,
if not more - until he became non-
The Court concludes that
it was unreasonable for
Officer Shipman-Meyer to continue choking Mr. Chambers after the
officers had subdued him.
The use of force on a suspect who has already been subdued is
601, 607 (6th Cir. 2006)
force after a
Baker v. City of Hamilton, 471 F.3d
("We have held repeatedly that the use of
suspect has been incapacitated or neutralized is
excessive as a matter of law.")
F.3d 706, 732 (7th Cir. 2013)
("police officers cannot continue to
"This prohibition against
use force once a suspect is subdued")
carrying a weapon. "
Miller v. Gonzalez,
761 F.3d 822,
Accordingly, courts have consistently held that officers may
restraints on a suspect after he has been subdued.
v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003)
(it was excessive
force for two officers to sit on subject - causing him "positional
asphyxia" - after he had been subdued); Weigel v. Broad, 544 F.3d
subdued, causing asphyxiation, constitutes excessive force), cert
denied, 556 U.S. 1236 (2009); Booker v. Gomez, 745 F.3d 405 (10th
(continued use of chokehold on subject after he had
been subdued constituted excessive force, even though he had tried
to punch the officer) .
The reason for such a rule is obvious: once an individual has
been effectively subdued, she no longer poses a significant threat
to the officers or others, and therefore the need to use force has
In Drummond, a man called the police to assist his neighbor,
who was experiencing a mental health episode.
343 F.3d at 1054.
Three officers knocked the neighbor to the ground and handcuffed
Despite the fact that he was subdued and face down on
the ground, two officers placed their weight on his neck and torso
to further restrain him.
Id. at 1054-55.
The combined weight of
the officers caused Drummond to experience positional asphyxia and
put him into a permanent vegetative state.
The court held that once Drummond was on the ground and subdued he
no longer posed a threat to the officers and others.
manner that was
Id. at 1057-
decision to restrain him in a
likely to asphyxiate him was unreasonable and
Id. at 1058-60.
the police and Weigel were
accident on the highway.
544 F.3d at 1147.
involved in a
After the accident,
Weigel began behaving erratically, running into traffic.
The officers tackled Weigel and tried to restrain him, but
he resisted their efforts.
Eventually, they handcuffed him
and tied up his legs but he continued to struggle, so one of the
officers sat on his torso while a bystander sat on his legs for
Weigel was asphyxiated as a result of the
pressure on his chest and died.
off ice rs
restraining Weigel in this manner was potentially lethal.
Given that they had already subdued him,
the court held
that their use of a potentially-lethal restraint was unreasonable
In this case, Mr. Chambers was significantly outnumbered by
Three officers had effectively pinned Mr. Chambers to
the ground and gained control of his arms, while a fourth officer
stood at the ready to assist them.
Under such circumstances, the
officers had subdued Mr. Chambers, and he did not "pose an actual
and imminent threat to the lives of the officers involved" or other
791 F.3d at 18.
Once he was subdued,
unreasonable and excessive.
Officer Shipman-Meyer was
and it should have been obvious to him that the extended
use of a chokehold was potentially lethal. 7
The fact that Mr. Chambers was not handcuffed at this stage
does not mean he was not subdued. See Malory v. Whiting, 489 Fed.
Appx. 78, 86 (6th Cir. 2012) (unpublished) (holding that although
Plaintiff was not handcuffed, he was nonetheless subdued, and
therefore, forced use was unreasonable); Laury v. Rodriguez, 659
Fed. Appx. 837, 844 (6th Cir. 2016) (unpublished)
Malory as rejecting argument that the right to be free from
excessive force once subdued was not clearly established because
the plaintiff was not handcuffed) .
The District's statutes establish that the use of a chokehold
constitutes "lethal force", DC St. § 5-125.01.
Given the common
law presumption that "every person [knows] the law," Cheek v. US,
498 U.S. 192, 199 (1991), it is appropriate to presume a reasonable
MPD officer was aware of that fact.
See Kleinberg v. Clements,
2012 WL 1019290, *9 (D.N.J. March 23, 2012) ("police officers are
presumed to know the law"); Brewer v. Hayman, 2009 WL 2139429, *8
(D.N.J. July 10, 2009).
decision to maintain a chokehold on Mr. Chambers after he had been
subdued was objectively unreasonable.a
the fact that Mr. Chambers resisted the officers'
attempts to handcuff him and was not handcuffed until after the
chokehold was released does not alter the analysis.
A number of
courts have held that it is unreasonable for an officer to use a
chokehold in order to make an arrest, simply because the individual
resists being handcuffed.
In Thompson v.
the court held that an officer was
not entitled to qualified immunity where he used a chokehold in
order to arrest a suspect who had both fled and fought with the
2004 WL 1197436
(May 28, 2004 N.D. Ill.).
two police officers were on patrol and saw Thompson engage in an
apparent drug purchase.
and fled in his car.
Id. at *1-2.
Thompson saw the officers
Id. The officers pursued him,
other cars joined the chase before Thompson crashed.
Thompson emerged from the car, and two of the many officers
on hand attempted to subdue him.
Thompson punched one of the two
officers, which resulted in a physical struggle.
ground and Thompson continued to
This is sufficient, in and of itself, to defeat Officer
Shipman-Meyer's arguments on the first prong of the qualified
officers attempted to handcuff him.
One of the officers was
able to climb on Thompson's back and place him in a chokehold,
which he maintained until
Shortly thereafter, Thompson began to exhibit signs of respiratory
distress and eventually died.
Despite Thompson's potential drug crime, attempt to flee from
attempts to resist being handcuffed and arrested, the court held
that the officer was not entitled to qualified immunity.
Even under this set of facts, the court held that the use of
the defendants themselves conceded
that the use of a
chokehold was unreasonable and violated the
Similarly in Griffith v.
officer lacked qualified immunity where he had been called by
Arthur Partee' s
because he was experiencing a mental
health issue - and he placed Mr. Partee in a chokehold after Partee
9 The Defendants denied that any officers had used a chokehold and
a jury ultimately acquitted the officers on the claim of excessive
See Thompson v. Chicago, 472 F.3d 444 (7th Cir. 2006).
However, the jury's decision does not alter or displace the
district court's conclusion that use of a chokehold constituted
deadly force and that deadly force was unauthorized under the
resisted the officer's attempts to handcuff him.
473 F.3d 650,
involuntarily commit Partee, but - in order to get him treatment
- decided to arrest him on an outstanding warrant stemming from a
Partee refused to go with the officers, and
when they attempted to handcuff him, he resisted their attempts to
During the course of the struggle, one of the officers
chokehold, leading to his death.
Id. at 654.
On this set of facts the court held that a jury could find
accepting the officer's contention that Partee had attempted to
grab his gun.
to grab the gun,
The court reasoned that, despite this attempt
Partee never actually posed a
threat to the
officers because he was unsuccessful in grabbing the gun.
The court held that, absent such a real threat, the officer lacked
justification to use deadly force against Partee.
Thompson and Griffith both make
Chokeholds are not justified simply because a suspect
resists being handcuffed,
or even punches an officer.
the suspect must have done something that makes him a threat to
the lives of the officers or others.
are viewed in a
In this case, when the facts
light most favorable to Plaintiffs,
cannot demonstrate that Mr. Chambers posed this level of threat.
Defendants claim that the following factors,
when considered in
and losing their
battle with Mr. Chambers when Officer Shipman-Meyer placed him in
a chokehold; addi,tional individuals were present in the apartment,
instilling further fear in the officers; and Mr. Chambers continued
to resist throughout the encounter and had been extremely violent
at its outset.
As to the first factor - whether the officers were losing
their battle with Mr. Chambers - that is a question of fact for
As discussed above, even accepting the officers' claim
that they were injured and exhausted,
there is evidence in the
record suggesting that the officers had effectively subdued Mr.
Chambers despite their physical condition.
unreasonable and excessive.
As to the presence of other indi victuals in the apartment,
coconspirators, because the officers were there on a mental health
not in response to a report of criminal activity.
there was no objective basis to regard them as a threat. 10
The fact that Mr.
Chambers attacked the officers does not
change this calculus because - from the officers' vantage point his violence was
the result of
mental heal th issue and not
connected to any underlying criminal activity.
While the presence
of criminal accomplices may increase the danger perceived by a
the Defendants fail to identify any case in
which the presence of innocent bystanders validates a heightened
danger by an officer.
objective basis for perceiving these other individuals as a threat,
their presence does not justify any additional force beyond that
which was reasonable had they not also been in the apartment.
Defendants' argument that use of the chokehold was justified
by Mr. Chambers' continued resistance also fails.
viewed in a light most favorable to plaintiff, casts doubt on the
notion that Defendant was violently resisting when he was placed
Moreover, the actions of these individuals confirmed to the
officer's that they were not a threat.
For example, the officers
heard the occupants of the apartment discuss the need to let the
police do their job and not interfere.
Karabelas Dep. at 66:812; Yingling Dep. at 29:15-19.
that after the
initial punches thrown on the landing, Mr. Chambers did not throw
or land a
kick or other blow,
at least in part
because the officers had successfully subdued him.
The officers argue that even if he was unable to land another
blow, Mr. Chambers continued to struggle while he was on the ground
struggle entailed was given by Officer Shipman-Meyer who described
as Plaintiff's expert points out,
Yamasaki Report at 3.
such behavior is a
That an individual, who is
literally being choked to death, would flail in response would be
obvious to any reasonable person, including Officer Shipman-Meyer.
characterize these movements as violent resistance.
the other evidence suggesting that Mr.
In light of
Chambers was effectively
whatever they were,
would not justify
Officer Shipman-Meyer's continued use of the chokehold.
Ultimately, the heart of the Defendants' argument is that Mr.
Chambers had violently attacked the officers,
chokehold until he was handcuffed.
Defendants' argument ignores
the evidence suggesting that Officer Shipman-Meyer continued to
choke Mr. Chambers after the officers had effectively subdued him.
There is a clear "prohibition against significant force against a
suspect ... notwithstanding
behavior .... "
Miller, 761 F.3d at 829.
As our Court of Appeals
has said, "That an individual at one point posed a threat does not
grant officers an irrevocable license to kill."
Flythe, 791 F.3d
the Court finds
chokehold was objectively unreasonable and violated Mr. Chambers'
rights under the Fourth Amendment.
Prong 2: The Right to Be Free from Deadly
Though a reasonable jury could conclude that Officer ShipmanMeyer used excessive force in violation of the Fourth Amendment,
he is still entitled to qualified immunity if the right to be free
was not clearly established at
violation, which was June 8, 2012.
This prong of the qualified immunity analysis "begin [s]
analyze the right at issue."
Johnson v. District of Columbia, 528
F.3d 969, 975 (D.C. Cir. 2008).
It is insufficient to ask whether
Chambers had a right to be free from unreasonable seizure.
the "dispositive inquiry ... is whether it would be
clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.
In this case, the relevant question
"To determine whether the officer
established bounds of lawfulness, '
'cases of controlling authority.'"
675 F.3d 13,
676 F.3d 1114, 1117
(internal citations omitted)).
Wesby v. District of Columbia,
(quoting Youngbey v. March,
(D.C. Cir. 2012)
'strayed beyond clearly
"If there is no
whether there is 'a consensus of cases of persuasive authority.'"
676 F.3d at 1117
Ct. 2074, 2084
(quoting Ashcroft v. al-Kidd,
The court "need not identify cases with
materially similar facts, but ha[s] only to show that the state of
the law at the time of the incident gave the officer fair warning
[her] particular conduct was unconstitutional."
F.3d at 26.
It is clear that as of June 8,
a reasonable officer
would have been on notice that she could not choke to death an
unarmed subject who had already been subdued by fellow officers.
An officer may use deadly force where a suspect "pose[s] an actual
and imminent threat to the lives" of the officer or others.
550 U.S. at 384.
Once a suspect is subdued, they no longer pose
a sufficient threat to justify the use of force.
See Abbott v.
Sangamon County, 705 F.3d 706, 732 (7th Cir. 2013)
("it was well-
established in 2007 that police officers cannot continue to use
force once a
suspect is subdued"
(emphasis added) ) ; Baker,
F.3d at 607 ("We have held repeatedly that the use of force after
a suspect has been incapacitated or neutralized is excessive as a
matter of law.").
Moreover, a number of Courts of Appeals have held that once
officers may not
potentially-lethal methods of restraint, such as chokeholds.
Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. ,2003); Weigel
sufficiently robust consensus of cases of persuasive precedent,
Officer Shipman-Meyer on notice
continued application of
chokehold after Mr.
subdued was excessive.
When viewed in a light most favorable to Plaintiff, the facts
suggest that Mr. Chambers was already subdued and that a reasonable
officer in that situation would have recognized that continuing to
keep Mr. Chambers in a chokehold was unreasonable, excessive, and
in violation of the law as it stood at the time.
For that reason
Officer Shipman-Meyer is not entitled to qualified immunity.
b. The Plaintiff Is also Not Entitled to Swrunary
Plaintiff has also moved for summary judgment on his claim of
movants, and viewing the facts in the light most favorable to them,
the Court concludes that the Plaintiff is not entitled to summary
It is undisputed that Mr. Chambers launched a surprise attack
on the officers,
seriously injuring one of them.
then attempted to restrain him, but their punches and pepper spray
had little effect on him.
Instead, Mr. Chambers used his super-
human strength to drag them backwards into the apartment,
they all fell to the ground.
As the officers were outmatched and
unable to control Mr. Chambers, Officer Shipman-Meyer used a lastditch maneuver to bring him to the ground.
He immediately placed
him in a carotid hold, which lasted the minimum time necessary to
render Mr. Chambers unconscious, no more than twenty seconds.
Chambers finally subdued,
Meyer released the hold,
and his fellow officers handcuffed Mr.
Under those facts, a rational jury could conclude that Officer
Shipman-Meyer reasonably feared for his own life and those of his
fellow officers and,
that his use of a chokehold was
It is true that both Griffith and Thompson
suggest that resisting arrest, even when done violently, does not
473 F.3d 650 and Thompson,
unlike those cases, Mr.
2004 WL 1197436.
Chambers was able to seriously injure -
with his bare hands alone - at least one of the officers.
if the officers'
testimony is credited, he possessed super-human
strength - possibly as a result of his consumption of PCP - that
prevented them from controlling him in order to make an arrest.
Given those additional factors,
Chambers possessed a
though he was unarmed.
jury could conclude that Mr.
threat to the lives of the officers,
In light of this threat, a jury could find
that a chokehold was the only available means to gain control of
Chambers and that Officer Shipman-Meyer's decision to do so
until Mr. Chambers was subdued was objectively reasonable.
In addition, Plaintiff cannot demonstrate that the right to
be free of force under these circumstances was clearly established
demonstrate that a reasonable officer would be on notice that he
was prohibited from using a
through other means.
chokehold on a violently resisting
Plaintiff has not identified any controlling
case in this Circuit that addresses a similar factual scenario.
Virtually all of the cases from other Circuits address a scenario
restraint after the subject was subdued.
Whether Officer Shipman-Meyer continued to choke Mr. Chambers
after he had been subdued is the key fact in the qualified immunity
But it is also one of the central facts in dispute.
Accordingly, neither the Defendants nor Plaintiff are entitled to
summary judgment on the qualified immunity issue because this case
"presents the exceptional situation in which the
complete its qualified immunity analysis without first determining
disputed material facts." Maestas v. Lujan,
351 F.3d 1001, 1009-
10 (10th Cir. 2003) . 11
However, that "does not mean that the officers cannot reassert
their qualified immunity claims at and after trial when the factual
disputes have been resolved."
Dixon, 922 F.2d at 1463; see also
Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1041 n. 5 (1st Cir.
2. Neither Party Is Entitled to Sununary Judgment on
the Claims of Bystander Liability
Plaintiff also argues that the other officers, LaDuca, Rose,
and Karabelas, can be held liable for Officer Shipman-Meyer's use
of a chokehold because they failed to intervene to stop him from
P1 . ' s
25 - 26 .
parties have moved for summary judgment on this claim, but because
there are issues of material fact in dispute,
neither party is
entitled to it.
"[A] plaintiff can show that
[an] officer is liable under a
theory of bystander liability. Under that theory,
an officer is
held liable for a constitutional violation if he:
(1) knows that
(2) has a reasonable opportunity to prevent the harm; and
(3) chooses not to act."
Matthews v. District of Columbia, 730 F.
(internal citations and quotation
marks omitted); see also Moore v. District of Columbia, 79 F. Supp.
3d 121, 134-35 (D.D.C. 2015).
In this case,
there are significant issues of material fact
in dispute that preclude judgment for either side.
above, a jury could reasonably conclude from the record: 1) that
1988) ("A defendant who has appropriately pleaded the affirmative
defense of qualified immunity may establish his right to immunity
at any point in the proceeding, including at trial.").
Officer Shipman-Meyer held Mr. Chambers in a chokehold despite the
significant period of time after Mr. Chambers was subdued; and 3)
given the amount of time Mr. Chambers was in the chokehold and the
fact that the other officers were mere feet from what transpired,
that they saw all of this.
First, should a jury resolve those questions in favor of the
three elements of bystander liability would be
The three other officers were present for the entire
sequence of events,
may well have observed everything
that Officer Shipman-Meyer did, contrary to their denials. 12
is more, the Court has already concluded that the right to be free
established at the time.
if a jury concluded that Officer
The Defendants argue that because the other officers deny even
seeing Officer Shipman-Meyer use a chokehold, they cannot be held
liable under a bystander liability theory.
If that fact was not
in dispute, as they assert, they would be correct.
But as the
Court has already discussed, there is reason to doubt the other
When viewed in a light most favorable to Plaintiff, the facts
suggest that some if not all of the other officers saw Officer
Shipman-Meyer use a chokehold.
Again, the facts suggest that he
may have employed the chokehold for minutes.
While it was used,
the other officers were within feet, perhaps inches, of Officer.
Under those circumstances, the other officers'
testimony that they did not see any use of a chokehold is
conclude that the other officers knew that Officer Shipman-Meyer
was violating Mr. Chambers' constitutional rights.
Second, given that Mr. Chambers was subdued by the officers,
when the facts are viewed in a light most favorable to Plaintiff,
a jury could also reasonably conclude that the other officers had
Officer Shipman-Meyer to release the chokehold.
no evidence in the record that any of the officers did anything to
get Officer Shipman-Meyer to end the chokehold.
Indeed, they all
deny ever seeing him use a chokehold, which necessarily forecloses
them from arguing that they attempted to stop it.
By the same token, when the facts are viewed in a light most
the other officers,
Plaintiff ·is not entitled to
Given that the chokehold may have lasted no
more than fifteen to twenty seconds and that the officers claim
they were all attempting to restrain Mr. Chambers during the midst
of a violent struggle, a jury could reasonably credit the officers'
testimony that they did not see Officer Shipman-Meyer place Mr.
Chambers in a chokehold.
If the other officers did not see Officer
Shipman-Meyer use the chokehold,
Plaintiff cannot show that they
were aware that his rights were being violated.
That alone is
sufficient to defeat Plaintiff's theory of bystander liability,
and thus precludes summary judgment on his behalf.
Consequently, neither party is entitled to summary judgment
on the claim of bystander liability against Officers LaDuca, Rose,
B. Claims Based on DC Law
The remainder of Plaintiff's claims are brought pursuant to
the laws of the District of Columbia.
The Court begins with Count
Two, claiming that the officers committed an assault and battery.
FAC at ~~ 14-17.
the Court turns to Count One,
that Officer Shipman-Meyer was negligent in his use of a chokehold.
FAC at ~~ 8-13.
The Court then addresses Count Five,
that the District was negligent in its training of officers on the
use of chokeholds.
Count Four, claiming wrongful death.
Finally, the Court addresses
FAC at ~~ 23-25.
1. Count Two: Assault and Battery
assault and battery in violation of District of Columbia law.
advances two theories of liability in support of this claim.
Opp' n at 2 7 - 2 8 .
Plaintiff argues that Officer Shipman-
Meyer's use of a chokehold constitutes assault and battery.
Second, Plaintiff argues that if Officer Shipman-Meyer's use of a
and Rose also committed assault and battery because
they aided and abetted him.
Both parties have moved for
a. Neither Party Is Entitled to Summary Judgment
on the Claim that Officer Shipman-Meyer
Committed Assault and Battery
Defendants argue that Officer Shipman-Meyer had a qualified
chokehold on Mr.
therefore entitled to summary judgment.
Defs.' MSJ at 19-21.
Just as qualified immunity is a shield against liability in
Section 1983 excessive force claims, qualified privilege protects
officers in common law claims of assault and battery.
Columbia v Chinn,
839 A.2d 701,
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.
v. District of Columbia, 973 A.2d 722, 730 (D.C. App. 2009). "[T]he
test for qualified privilege in an assault and battery suit is
believe that he or she used no more force than necessary, but the
officer's judgment is compared to that of a hypothetical reasonable
police officer placed in the same situation.
objective piece of the qualified privilege analysis is "similar to
the excessive force standard applied in the Section 1983 context."
Dormu v. District of Columbia, 795 F. Supp. 2d 7, 27 (D.D.C. 2011).
concluded that a rational jury could conclude that Officer ShipmanMeyer' s use of a chokehold was not objectively reasonable. That
conclusion applies with equal
claim of qualified
Accordingly, Officer Shipman-Meyer is not entitled to
qualified privilege on Plaintiff's assault and battery claim at
the summary judgment stage.
Plaintiff is also not entitled to summary judgment on his
assault and battery claim.
In his deposition,
Analysis of Material Facts at
And, as discussed above, when
the evidence is viewed in a light most favorable to the Defendants
conclude that Officer Shipman-Meyer had a qualified privilege to
place and maintain a chokehold on Mr. Chambers.
Consequently, neither party is entitled to summary judgment
on the issue of whether Officer Shipman-Meyer committed assault
b. Defendants Are Entitled to Summary Judgment on
the Claim that the other Three Officers
Committed Assault and Battery
Defendants argue that they are entitled to summary judgment
on Plaintiff's theory that one or more of the other three officers
- Karabelas, LaDuca, or Rose - aided and abetted Officer ShipmanMeyer because it is without merit.
In the District of Columbia, a person aiding or abetting the
principal of fender in the commission of a crime is held as liable
as the principal.
"Aiding and abetting is
established if the accused 'in some sort associated himself with
the venture, participated in it as in something that he wished to
Hackney v. U.S.,
389 A.2d 1336, 1342
1978), cert. denied,
However, to prove that a person is an accessory
who aided and abetted the principal, "there must exist a community
of unlawful intent between the accessory and the perpetrator of
Plaintiff's aiding and abetting claim is without any merit
because he has presented no evidence establishing a community of
unlawful intent between Officer Shipman-Meyer and any of the other
There is no evidence that any of these three
shared an intent with Officer Shipman-Meyer that he unnecessarily
suggests that they intended to restrain Mr.
Chambers, which was
entirely lawful given his assault of the officers, and that when
Officer Shipman-Meyer used a
chokehold to do so,
they did not
actively intervene once it became clear that the chokehold was no
Those facts are insufficient to establish the
requisite criminal state of mind on the part of any of the other
Therefore, Defendants are entitled to summary judgment on the
claim that Officers Karabelas, LaDuca, and Rose aided and abetted
an assault and battery.
2. Count One: Claim of Negligence by Officer ShipmanMeyer
Plaintiff alleges in his First Amended Complaint that Officer
Shipman-Meyer's use of a chokehold violated a national standard of
care and was therefore negligent.
stricter standard than the Cons ti tut ion requires."
quotation marks omitted) .
Scales v. D. C. ,
even where an officer does not
violate a suspect's constitutional rights, he may still be liable
under a different, heightened standard of care that is established
by the District of Columbia.
"In order to prevail on a
negligence cause of action, the plaintiff must prove the applicable
standard of care, a deviation from that standard by the defendant,
Plaintiff argues that the District of Columbia Limitation on
the Use of the Chokehold Act of 1985 ("Chokehold Act"), D.C. Law
6-77, establishes such a heightened standard of care.
prohibits officers from ever using tracheal holds.
5-125. 03 (a) .
DC Code Ann.
it prohibits officers from using carotid
holds unless: 1) an officer has been trained in the use of carotid
holds; and 2)
lethal force is necessary to protect the life of a
civilian or another officer.
Id. at§§ 5-125.03 (a), (a) (1).
an officer who has
carotid hold to render
immediate first aid and medical treatment to the suspect if he
125. 03 (a) (2).
In Plaintiff's Motion for Summary Judgment, he advances three
distinct theories of negligence based on the Chokehold Act.
he argues that Officer Shipman-Meyer applied a tracheal hold to
Mr. Chambers, and that this was negligent in light of the statute's
prohibition on tracheal holds.
Pl.'s MSJ at 8-11.
he argues that even if Officer Shipman-Meyer used a carotid hold,
he was negligent because he had not received training on the use
of carotid holds, which is a prerequisite to their use.
that Officer Shipman-Meyer was
negligent because he failed to immediately provide first aid and
emergency medical treatment to Mr. Chambers after he was subdued
as required by the Chokehold Act.
Pl.'s MSJ at 18-19. Plaintiff
has moved for summary judgment on all three theories.
Defendants argue that
Defs.' MSJ at at
subsumed within his assault and battery claim.
as a matter of
Officer Shipman-Meyer did not proximately cause injuries to Mr.
assault of the officers was an
intervening and superseding cause of his injuries.
a. Plaintiff's Negligence Claim Is Distinct from
his Assault and Battery Claim
negligence that is distinct from his claim for assault and battery.
MSJ at 21-22
(citing District of Columbia v.
A.2d 701, 711 (D.C. 2003)).
battery based on excessive force must ensure that the negligence
'based upon at
factual scenario that presents an aspect of negligence apart from
distinct standard of care.'" Dormu v. D.C., 795 F. Supp. 2d at30
(quoting Chinn, 839 A. 2d at 711)
Contrary to Defendants' argument, Plaintiff satisfies Chinn's
three requirements. First, Plaintiff has pled his negligence claim
separately from his claims for assault and battery. See FAC at
(setting forth distinct claims for negligence,
One, and assault and battery, Count Two).
Second, all three of Plaintiff's theories of negligence are
"based upon at least one factual scenario that presents an aspect
of negligence apart from the use of excessive force itself."
Plaintiff argues that Officer Shipman-Meyer violated
this standard of care by mistakenly employing a tracheal chokehold
at most, a carotid hold was aut.horized.
This claim shares
one of the features the Chinn court identified as common in cases
"These requirements stem from the different states of mind that
each theory of liability requires. Battery and assault are
intentional torts. Negligence is not.
'Intent and negligence are
regarded as mutually exclusive grounds of liability. As the saying
goes, there is no such thing as a negligent battery.'
Court of Appeals has nonetheless held that there are 'certain
circumstances in which the events surrounding the application of
excessive force may lend themselves to a theory of negligence as
well' as assault and battery. Dormu, 795 F. Supp. 2d at 30 (quoting
Chinn, 839 A.2d at 706-07).
where plaintiffs have been allowed to proceed, namely a possible
'misperception of fact.' See Chinn, 839 A.2d at 711; Dormu, 795 F.
Supp. 2d at 30.
Whether Officer Shipman-Meyer knew he was using
a tracheal hold rather than a carotid hold is the kind of factual
mistake relevant to whether he acted negligently.
Alternatively, Plaintiff argues that if Officer Shipman-Meyer
us,ed a carotid hold, he violated the standard of care because he
was not trained in their use as
required by statute.
Officer Shipman-Meyer was trained in the use of carotid holds is
factually distinct from the question of whether the circumstances
made it reasonable to place Mr. Chambers in a carotid hold in the
For the very same reason, Plaintiff's argument that
Officer Shipman-Meyer failed to treat Mr.
Chambers after he had
underlying his assault and battery claim.
requirement that there be a violation of a "distinct standard of
Chinn, 839 A.2d at 711.
Plaintiff alleges that District
of Colmbia law establishes a distinct standard of care with regard
to the use of force - prohibiting the use of tracheal holds in all
instances and only authorizing the use of carotid holds by officers
who have been trained.
This is distinct from the standard of care
under his assault and battery claim, which requires'only that the
officer's use of either type of chokehold be reasonable under the
Plaintiff's failure-to-treat claim alleges that
officers who employ carotid holds are required to treat a suspect
standard of care than whether an officer's use of a carotid hold
Plaintiff's claims that Officer Shipman-Meyer
acted negligently are distinct from his assault and battery claims.
b. The Court Will Not Resolve at this Time
Superseding Cause of his Injuries
Defendants also argue that even if Plaintiff could establish
original assault on the officers was a superseding cause of his
own injuries, and therefore that Plaintiff cannot succeed on his
negligence claim as a matter of law.
Defs.' MSJ at at 22-24.
"In order to prevail. on a negligence cause of action," one of
relationship between that deviation and the plaintiff's injury."
Scales, 973 A.2d at 730.
"D.C. follows the black-letter tort law
principle that an intervening force breaks the chain of proximate
unforeseeable as to constitute a superseding cause."
District of Columbia,
494 F.3d 1097,
The commission of a crime is ordinarily such an intervening force.
a matter of
Officer Shipman-Meyer's conduct cannot be a proximate cause of
Plaintiff's injuries, because Mr. Chambers intentionally assaulted
the officers and that assault was not foreseeable.
Plaintiff counters that the Chokehold Act establishes the
relevant standard of care,
and on its face,
the Chokehold Act
appears to fully foresee violent conduct such as that committed by
A statute or regulation may establish the relevant
to protect a
particular class of persons or to protect against a particular
type of harm.
"At a minimum  the statute or regulation relied on must promote
public safety and have been enacted to protect persons
position or to prevent
occurred." See McNeil Pharm. v. Hawkins, 686 A.2d 567, 579
The Chokehold Act appears to be precisely this kind of public
The Chokehold Act establishes strict limits on
the use of chokeholds by the police.
See DC Code Ann.
These limits were established because the District of
chokeholds "presents an unnecessary danger to the public." Id. at
Thus, the text of the statute suggests it was designed
Pharm., 686 A.2d at 579.
protections were intended to apply to individuals in Mr. Chambers'
The Chokehold Act categorically bans the use of tracheal
·holds "by any police officer ... under any circumstances."
5-125. 03 (a).
It also bans the use of carotid holds, "except
under those circumstances .and conditions under which the use of
lethal force is necessary to protect the life of a civilian or a
law enforcement officer."
Thus, on its face, the Chokehold Act contemplates that police
officers may confront an individual who is so violent,
poses a threat to the life of the officer or others.
standard of care police must comply with by: 1) prohibiting the
only allowing carotid holds by
including those where a suspect is violent but does not threaten
the lives of the officers or others, the Chokehold Act bars police
officers from using either tracheal or carotid holds.
in enacting the Chokehold Act, the Council appears to
situation presented in this
suspect violently resisting the police - and it prescribed specific
officers does not appear to be an
to follow for
the purpose of
this all presumes that the Chokehold Act is in
fact a public safety statute that establishes a distinct standard
Whether that is the case appears to be a question of
Resolution of that question is a
judicial [decision], for the court to make," based on a detailed
inquiry into the statute's purposes.
See McNeil Pharm., 686 A.2d
at 579 (internal citations and quotations omitted) .
little, if any, briefing on the merits by the Parties. In his First
Amended Complaint, Plaintiff alleged that the Defendants' conduct
was negligent because it violated a
"national standard of care
required of Police Officers in such circumstances."
FAC at ~ 11.
However, a statute of the District of Columbia cannot establish a
Complaint did not properly raise this argument.
filed his Motion for Summary Judgment
It was not until
argued that the Chokehold Act established the governing standard
The Court may disregard a claim raised for the first time in
a memorandum of law.
Tunica-Biloxi Tribe of La. v. U.S., 577 F.
Supp. 2d 382, 411 (D.D.C. 2008).
However, it is inappropriate to
strike the newly-raised claim if the "factual basis for [her] new
claim is substantially similar" to a claim already alleged in her
Wiley v. Glassman, 511 F.3d 151, 159 (D.C. Cir. 2007).
the newly-raised claim,
the court must
afford the plaintiff leave to amend her complaint to include it.
See Tunica-Biloxi Tribe, 577 F. Supp. 2d at 411.
Given that this is a question of first impression, involving
the interpretation of a statute of the District of Columbia, and
negligence based on violations of the Chokehold Act is not properly
before the Court and the Court will not consider it.
may seek leave to amend his First Amended Complaint to include
this claim. 14
However, with regard to Plaintiff's existing negligence claim
contained in Count One of the First Amended Complaint, Plaintiff
has not even attempted to establish the existence of a national
standard of care, let alone succeeded.
Motion for Summary Judgment on this claim will be granted,
Plaintiff's Motion for Summary Judgment on this claim will be
3. Count Five: Neither Party Is Entitled to Surrunary
Judgment on the Claim of Negligent Training by the
District of Columbia
Plaintiff also alleges that the District was negligent in
failing to train its officers as to when chokeholds were authorized
under the Chokehold Act.
FAC at 26-32.
Plaintiff has also moved for summary judgment on the issue of
whether Defendants may assert the defenses of contributory
negligence and assumption of the risk.
Pl.' s MSJ at 27-28.
Whether these defenses bar Plaintiff's negligence claim hinges on
whether the Chokehold Act is a public safety statute.
George Hyman Const. Co., 395 A.2d 63, 69-74. (D.C. App. 1978)
(assumption of the risk and contributory negligence are not a bar
to a claim of negligence based on deviation from a standard of
care established by a public safety statute). Accordingly, these
arguments cannot be resolved unless and until Plaintiff amends his
Judgment because Mr. Chambers Conduct Was not
a Superseding Act
Defendants have moved for summary judgment, arguing that Mr .
assault on the police officers was an intervening and
Defs.' MSJ at 23-24.
They contend that the D.C. Circuit's decision
in Hundley prevents a plaintiff who assaults a police officer from
bringing a claim of negligent training against MPD because the
plaintiff's violent conduct was a
See Defs.' MSJ at 23-24
superseding cause of her own
494 F.3d at
The Defendants' arguments make far too much out of Hundley,
which announced a
fairly limited principle:
when an officer is
negligent in initially seizing an individual, it is not foreseeable
that the person seized will violently assault the officer.
F. 3d at
however negligent - is not the proximate cause of any harm that
results from the officer's subsequent use of force.
In contrast, it should be foreseeable to any police department
that its officers,
in the regular course of duty, will encounter
individuals who commit crimes, including assault on the officers
Because violence against officers is foreseeable at
the departmental-level, police department policies on the use of
force must appropriately train the officers on how to respond.
District suggests that Hundley does not have the reach Defendants
in the District of
Columbia have regularly
advanced claims that MPD was negligent in training its officers.
In many of those cases, the plaintiff first assaulted the officer
before the allegedly excessive force was used.
have not barred those claims on the principle that the plaintiff's
criminal activity was a superseding cause of their injuries.
District of Columbia v.
527 A.2d 1269
(plaintiff who struck officer before officer used force able to
proceed on negligent training claim only if he introduced expert
442 A.2d 159
As this is the only basis on which Defendants have moved
for summary judgment on this count, their Motion must be denied.
b. Plaintiff Is Not Entitled to Swnmary Judgment
because He Cannot Establish Causation
Plaintiff has also moved for summary judgment, asserting that
it is "axiomatic" that MPD's failure to train its officers on the
use of force was negligent. Indeed, Plaintiff appears so sure of
his claim that he has failed to cite to a single case or proposition
of law in support.
See Pl.'s MSJ at 26-27.
As stated above,
"in order to prevail on a negligence cause
the plaintiff must prove the applicable standard of
care, a deviation from that standard by the defendant, and a causal
relationship between that deviation and the plaintiff's injury."
973 A.2d at 730.
Plaintiff can satisfy the first two
elements but not the third.
Plaintiff's expert provided his opinion that
standard of care requires a police force to train its officers on
Supplemental Expert Report by Robert Klotz
to Pl.' s
("Klotz Report), Exh.
He further opined that MPD
deviated from that standard of care, because MPD does not properly
train officers on the limitations established in the Chokehold
(noting that MPD has itself identified improper training
as a problem (citing District of Columbia, Police Complaints Board,
Improving MPD' s
Policy on the Use of Chokeholds and other Neck
train caused Mr. Chambers' injuries.
When the facts are viewed in
jury could reasonably
conclude that Mr.
Chambers posed a
life of the
the Chokehold Act authorizes an
officer to use a carotid hold to subdue a suspect, which is what
Officer Shipman-Meyer claims he did.
Accordingly, even if Officer
Shipman-Meyer had been properly trained, Mr. Chambers might still
have died, in which case the failure-to-train was not the cause of
his injuries, and Plaintiff is not entitled to Summary Judgment.
4. Count Four: The Defendants Are not Entitled to
Summary Judgment on Plaintiff's Wrongful Death
Plaintiff has not moved for summary judgment on their wrongful
death claim but Defendants have done so.
Plaintiff's wrongful death claim is based on D.C. Code
Plaintiff must prove both: 1) an "underlying tort
(common law or
constitutional);" and 2) "injury to the survivor," here Mr. Ingram.
Defendants argue that they are entitled to summary judgment
because Plaintiff cannot show any underlying tort.
as discussed above,
Defs.' MSJ at
Plaintiff certainly has a
sufficient to maintain his claim for wrongful death.
Defendants are denied summary judgment on this Count.
For the foregoing reasons,
the judgment of the Court is as
Plaintiff's Motion for
denied in its
Plaintiff's claims that Officer Shipman-Meyer's conduct was
in light of
care established by the
were improperly raised for the first
time in a
memorandum of law and are not properly before the Court;
Plaintiff may seek leave to further amend its
First Amended Complaint to include these negligence claims;
Defendant's Motion for Summary Judgment is granted in part,
as to Count One of Plaintiff's First Amended Complaint, in so far
as it alleges negligence based on violation of a national standard
of care, and as to Count Two, in so far as it alleges that Officers
and Rose aided and abetted Officer Shipman-
Meyer's assault and battery of Mr. Chambers, and denied in part,
as to all other remaining Counts.
March 20, 2017
United States District Judge
Copies to: attorneys on record via ECF
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