CAMPBELL v. DISTRICT OF COLUMBIA et al

Filing 19

MEMORANDUM OPINION re 12 Defendants' Motion for Summary Judgment. Signed by Judge Christopher R. Cooper on 3/29/2017. (lccrc2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BERNARD CAMPBELL,
Plaintiff,
v.

Case No. 15-cv-00706 (CRC)

DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
After observing Plaintiff Bernard Campbell participate in what they suspected was a drug
deal, two Washington D.C. Metropolitan Police Department (“MPD”) officers followed him into
a liquor store. When one of the officers stopped Campbell to question him further, Campbell
broke from the officer’s grasp and attempted to exit the store. Surveillance video captured the
ensuing struggle, including the officer pulling Campbell to the ground by his scarf and arresting
him. A subsequent search uncovered the narcotic suboxone hidden in the lining of Campbell’s
jacket. Campbell was charged with assaulting a police officer and unlawful possession of a
controlled substance, but prosecutors ultimately decided not to pursue either charge. Alleging
that the District of Columbia and the two officers violated his constitutional rights by unlawfully
seizing, arresting, and prosecuting him, Campbell later filed suit under both 42 U.S.C § 1983 and
District of Columbia common law. With discovery now complete, Defendants move for
summary judgment on all remaining claims on the grounds that the officers were justified in
stopping and arresting Campbell, and are protected from liability by qualified immunity. Having
closely examined the surveillance video, and for the reasons explained below, the Court will
award summary judgment to Defendants on all claims save one—the initial investigatory stop of
Mr. Campbell inside the liquor store.

I.

Background
A.

The Incident

On the evening of March 5, 2014, veteran MPD Vice Unit officers Newton and Croson
were patrolling New York Avenue N.W. in an unmarked car when they spotted Mr. Campbell
facing another man at the corner of 1st Street N.W. Pl.’s Opp’n Mem. Supp. Mot. Summ. J.
(“Opp’n”), Ex. 3 (“Newton Dep.”) at 13:17–21. Officer Newton testified in his deposition that
Campbell had his arm outstretched, “displaying something in his hand.” Id. at 14:11–12. At no
point during this interaction, which lasted under a minute, did either officer see the other man
gesture at Campbell or hand him anything. Id. at 15:1–7. Nevertheless, believing that a
narcotics transaction was taking place, the officers drove towards the pair, but did not activate
any emergency equipment to indicate that they were police officers. Id. at 17:2–20. Campbell
then began walking east towards the corner of North Capitol Street and New York Avenue,
where the iconic Big Ben liquor store is located. Id. at 18:10–12. Officer Newton, wearing a
black tactical vest with “POLICE” written prominently in white on the front and back, got out of
the car and followed Campbell on foot. Id. at 19:1–6. Newton started out five to ten feet behind
Campbell but closed the distance to within two to three feet by the time Campbell reached the
entrance of Big Ben. Id. at 22:18–22. Campbell was walking quickly, but did not run or
otherwise quicken his pace while he was being followed. Id. As soon as Officer Newton entered
Big Ben, he says he observed Campbell make a tossing motion toward a trash can located in the
corner of the store, but did not see what was in his hand. Id. at 23:22–24:5. Newton grabbed
Campbell by his waist, at which point, Newton testified, Campbell punched him in the face
before attempting to flee through the open door. Id. at 28:14–21.

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Mr. Campbell recounts things differently. See Pl.’s Opp’n, Ex. 4 (“Campbell Dep.”). He
testified in his deposition that he was on his way to Big Ben with a friend who had asked
Campbell to buy alcohol for him. Id. at 11:1–9. His mother lived on 1st Street and Campbell
was using a shortcut to reach New York Avenue. Id. at 11:16–22. Campbell denies ever
stopping to show his friend anything and insists that he did not know he was being followed until
he was inside the store and people “ran up behind [him] . . . [and] just started grabbing [him].”
Id. at 14:6–18. Campbell purports not to have realized that his pursuers were police officers until
well into the encounter because they did not announce themselves and “POLICE” was not
clearly visible on the front of their vests. Id. at 14:14–16.
Both parties have also submitted surveillance video footage (without audio) that captures
what transpired inside Big Ben from multiple angles. See Def.’s Mem. Supp. Mot. Summ. J.
(“MSJ”), Ex. 4 (Video). The video shows Campbell enter the store with Officer Newton close
behind him. Almost immediately upon entering, Officer Newton grabs Campbell’s right arm and
then takes his other arm while glancing behind his right shoulder at something located off screen.
Campbell—who appears to be much larger than either officer—starts to jerk in the direction of
the open door while using his hands to break Officer Newton’s grasp. Officer Croson at that
point comes through the open doorway to assist and the two officers are able to corner Campbell.
To Campbell’s right is an icebox, which the officers attempt to have him bend over with his
hands and face flat on its surface. When Campbell hesitates, Officer Newton puts his hand
around Campbell’s neck to try to force his head down to the icebox. Still unable to pull
Campbell’s head down, Officer Newton puts both of his hands around Campbell’s neck to try
again. Campbell reacts by pushing Newton in the chest. After stumbling back a few steps,
Newton latches onto Campbell’s scarf and uses it to pull Campbell down to the ground, where he

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pins him to the floor while Officer Croson calls for back-up. The two officers struggle to keep
Campbell on the floor, but within minutes multiple officers arrive to assist and secure the
suspect. Campbell, propped up by multiple officers, is led off camera. The video does not show
Campbell punching Officer Newton, nor does it show either officer striking Campbell during this
encounter.
Sergeant Martello, the commanding officer at the scene, authorized the officers to charge
Campbell with assault on a police officer, a misdemeanor offense under D.C. Code § 22-405.
The arrest report states that the officers discovered suboxone sublingual film strips (a Schedule
III narcotic)1 in the lining of Campbell’s jacket and recovered $300 from a trash can inside Big
Ben. See Def.’s MSJ, Ex. 5 (Arrest Report). Campbell complained of dizziness and chest pains
after the arrest. He was taken to a nearby hospital, but was released several hours later after tests
came back negative. See Pl.’s Opp’n, Ex. 7 (Medical Records).
B.

Procedural History

After his arrest on March 5, 2014, an Information charged Campbell with (1) Assaulting,
Resisting or Interfering with a Police Officer in violation of D.C. Code § 22–405(b); and (2)
Unlawful Possession of a Controlled Substance (Suboxone) in violation of D.C. Code § 48–
904.01(d). On September 4, 2014, weeks before the case was set for trial, the Government filed
a Notice of Nolle Prosequi, indicating their intention not to pursue charges. Def.’s MSJ, Ex. 6.
Campbell subsequently filed a complaint in the Superior Court for the District of Columbia
against Officers Newton, Croson, and the District of Columbia, raising § 1983 and common-law
tort claims. Defendants removed the case and moved for a partial dismissal, which the Court

1

Suboxone is a treatment for opiod dependence but can be unlawfully abused.
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granted, dismissing all § 1983 claims brought under the Fifth and Fourteenth Amendment and
the § 1983 and punitive damage claims against the District of Columbia. The parties proceeded
to discovery, and Defendants now move for summary judgment on all remaining claims. The
Court held a hearing on the motion on March 1, 2017. At the hearing, Campbell’s counsel
conceded that nothing found in discovery supported his negligent supervision and hiring claim.
The Court therefore dismisses that claim and addresses the remaining claims below.
II.

Legal Standards
A.

Summary Judgment

The Court will grant summary judgment only if the movant shows that there is no
genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). A fact is material if it could affect
the outcome of the litigation and a dispute is genuine if it could move a reasonable jury to return
a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A court considering a motion for summary judgment must draw all reasonable inferences in
favor of the non-movant. Id. at 255. The court’s role at this stage does not include making
credibility determinations or weighing the evidence; instead, it is limited to deciding if there is a
genuine issue warranting a trial. Id. at 249.
To prevail on a motion for summary judgment, therefore, the moving party must show
that the evidence, even when viewed in favor of the non-movant, cannot support an essential
element of the case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To defeat summary
judgment, the non-moving party cannot simply rely on unsupported allegations or denials but
must offer affidavits or other competent evidence to establish that material factual disputes exist.
Id. at 324. When video evidence is available and “opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a

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court should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 378 (2007). Rather, “in a case where the court has the
benefit of video evidence, the Supreme Court has stated that courts deciding summary judgment
motions should view the facts in the light depicted by the videotape[.]” Armbruster v. Frost, 962
F. Supp. 2d 105, 110 (D.D.C. 2013) (quoting Scott, 550 U.S. at 380–81) (internal quotation
marks omitted).
B.

Qualified Immunity

A law enforcement official, acting “under color of [state or D.C. law], [who] subjects, or
causes to be subjected, any citizen of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured.” 42 U.S.C. § 1983. While § 1983 “permits a state actor to be held accountable in his
individual capacity for conduct that violates constitutional rights,” qualified immunity can limit
individual liability if the official’s actions are found to warrant it. Kyle v. Bedlion, 177 F. Supp.
3d 380, 387–88 (D.D.C. 2016). “Qualified immunity prevents officials who violate the law from
having to defend against lawsuits for money damages unless the legal rules that were clearly
established at the time the action was taken gave those officials fair warning that they were
acting contrary to law.” Id. (quoting Messerschmidt v. Millender, 565 U.S. 535, 546 (2012))
(internal quotation marks and citation omitted).
A defendant must first raise the defense of qualified immunity when facing a § 1983
claim, but once asserted, “the burden of proof . . . falls to the plaintiff to show that the official is
not entitled to qualified immunity.” Winder v. Erste, 905 F. Supp. 2d 19, 28 (D.D.C. 2012)
(internal citation omitted). The Supreme Court has created a two-part inquiry for determining
whether qualified immunity applies at the summary-judgment stage: (1) looking at the facts in

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the light most favorable to the injured party, did the officer violate a federal right and (2) were
the legal rules governing that right “clearly established” at the time of the officer’s actions?
Messerschmidt, 565 U.S. at 546. The suit can only proceed if the plaintiff can show that the
answer to both questions is yes. Id.
A right is “clearly established” if it is “sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Taylor v. Barkes, 135 S. Ct.
2042, 2044 (2015) (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)). “‘Ordinarily, in
order for the law to be clearly established, there must be a Supreme Court or [D.C.] Circuit
decision on point, or the clearly established weight of authority from other courts must have
found the law to be as the plaintiff maintains.’” Doe v. D.C., 796 F.3d 96, 104 (D.C. Cir. 2015)
(quoting Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001)). In other words, “existing
precedent must have placed the statutory or constitutional question beyond debate.” Hargraves
v. D.C., 134 F. Supp. 3d 68, 78–79 (D.D.C. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,
741 (2011)).
III.

Discussion
Campbell’s remaining claims for relief arise under § 1983 and several common-law torts.

Under § 1983, he claims that the officers violated his constitutional rights by unlawfully seizing
him, falsely arresting and imprisoning him without probable cause, and using excessive force
against him when conducting the stop and arrest. See Compl. Count I. Campbell’s tort claims
include: (1) assault; (2) battery; (3) false arrest, imprisonment, and prosecution; and (4)
intentional infliction of emotional distress (IIED). See id. Counts II–V. The Court will address
each claim below.

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A.

§ 1983 Claims: Unlawful Seizure

In an encounter with law enforcement, potential constitutional violations are evaluated
independently for the purposes of § 1983. See Muehler v. Mena, 544 U.S. 93, 102 (2005).
Therefore, an investigatory stop, arrest, or any associated search must meet the corresponding
Fourth Amendment standard applicable to that particular action. Id. Police officers conducting
an investigatory stop, such as here, must be operating on a reasonable and articulable suspicion
that the suspect is engaged in criminal activity, rather than an “inchoate and unparticularized
suspicion or hunch.” Terry v. Ohio, 392 U.S. 1, 27 (1968). A full-blown arrest, by contrast,
must be supported by probable cause. Martin v. Malhoyt, 830 F.2d 237, 262 (D.C. Cir. 1987).
Both inquiries are objective: they ask whether a reasonably prudent officer would be warranted
in his belief based solely on the “facts available to [her] at the moment of the seizure.” Id. In
§ 1983 cases, qualified immunity also protects an officer’s mistaken (but reasonable) conclusion
regarding the law. See Dormu v. D.C., 795 F. Supp. 2d 7, 19 (D.D.C. 2011) (quoting Wardlaw
v. Pickett, 1 F.3d 1297, 1304 (D.C. Cir. 1993)).
1. Investigatory Stop
To determine whether reasonable suspicion exists to conduct an investigatory stop, courts
consider the totality of the circumstances, “understanding that factors individually susceptible to
an innocent explanation may suffice to form a particularized and objective basis when taken
together.” United States v. Castle, 825 F.3d 625, 634–35 (D.C. Cir. 2016) (quoting United States
v. Arvizu, 534 U.S. 266, 277 (2002)) (internal quotation marks omitted). At the hearing, both
sides agreed that Officer Newton conducted an investigatory stop when he initially grabbed
Campbell’s arm just inside Big Ben. Defendants further contend that the stop was justified
because Officer Newton had a reasonable, articulable suspicion that Campbell had committed a

8

narcotics-related offense. They point to the following facts to support the officer’s suspicion:
(1) the officers were in a high-crime area known for the sale and use of narcotics, (2) Officer
Newton saw Campbell display something in his palm to another individual, (3) Campbell walked
quickly away from the officers, and (4) Officer Newton observed Campbell make a “tossing
motion” towards a trash can inside the liquor store. See Def.’s MSJ 6.
Campbell, by contrast, denies ever displaying anything to his friend or tossing anything
into the trash, and maintains that he did not realize that he was being followed by police until
they confronted him inside Big Ben. Because none of the circumstances discussed above
occurred on camera, the Court must view the facts in the light most favorable to Campbell and
draw every reasonable inference in his favor to determine if summary judgment is warranted in
favor of Defendants. See Flythe v. D.C., 791 F.3d 13, 19 (D.C. Cir. 2015). Applying that
standard here, the only undisputed facts bearing on the officers’ suspicions are that the incident
occurred in a purportedly high crime area and that Campbell walked quickly toward Big Ben
liquor store soon after they observed him. Compare Defs’ SMF ¶ 1–10 with Pl.’s SMF ¶ 1–10.
And those factors alone do not give rise to reasonable suspicion. See Brown v. Texas, 443 U.S.
47, 52 (1979) (no reasonable suspicion where suspect walked away from another individual in a
neighborhood known for drug trafficking); Castle, 825 F.3d at 636 (no reasonable suspicion
where defendant walked away from an unmarked police car in a “high-crime area particularly
associated with PCP distribution”); U.S. v. Beauchamp, 659 F.3d 560, 570–71 (6th Cir. 2011)
(no reasonable suspicion where suspect “hurriedly walk[ed] away from an officer” in a highcrime area); U.S. v. Sprinkle, 106 F.3d 613, 617–19 (4th Cir. 1997) (no reasonable suspicion
where suspect with a criminal record was stopped in a high-crime area after huddling with an
acquaintance in his car and driving away upon seeing the police pass by). Therefore, “[a]t this

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stage in the proceedings, during which the Court may not engage in credibility determinations or
weigh the evidence[,]” the Court concludes that material factual disputes exist regarding whether
the officers violated Campbell’s constitutional rights by initially seizing him without reasonable
suspicion. See Dormu, 795 F. Supp. 2d at 21.2
Even if the undisputed facts were to establish as a matter of law that the investigatory
stop violated the Fourth Amendment, Defendants would be entitled to summary judgment on
their qualified immunity defense if the violation Campbell complains of was not “clearly
established.” See id. “In determining whether officers strayed beyond clearly established
bounds of lawfulness, [the Court] look[s] to cases from the Supreme Court and [the D.C.
Circuit], as well as to cases from other courts exhibiting a consensus view. [It] need not identify
cases with ‘materially similar’ facts, but [has] only to show that ‘the state of the law [at the time
of the incident] gave [the officer] fair warning that [his alleged misconduct] . . . was
unconstitutional.’” Johnson v. D.C., 528 F.3d 969, 976 (D.C. Cir. 2008) (quoting Hope v.
Pelzer, 536 U.S. 730, 741 (2002)). It is well-established that investigatory stops must be

2

The Court further notes that even under Officer Newton’s version of events, as
presented in his deposition and in Defendants’ summary-judgment briefing, his observations
would likely still not give rise to reasonable, articulable suspicion. In Duhart v. United States,
589 A.2d 895 (D.C. 1991), the D.C. Court of Appeals found unconstitutional an investigatory
stop based on the following circumstances: (1) the suspect and another individual were
examining an “object” on the street, (2) they were in a high-crime area, (3) they walked away
from police when approached, (4) the suspect shoved an item into his pocket when he saw the
police and would not remove his hand from his pocket when asked. See id. at 898–99. The
Duhart court found these circumstances lacking because the “suspicious” behavior could be
explained by any number of “innocent explanations,” and the fact that the incident occurred in a
“high narcotics activity area [did] not objectively lend any sinister connotation to facts that are
innocent on their face.” Id. at 899–900. D.C. Court of Appeals decisions are “instructive, albeit
not binding” on the Court’s Fourth Amendment analysis. Castle, 825 F.3d at 633; see also Kyle,
177 F. Supp. 3d at 397 (looking to D.C. Court of Appeals precedent for guidance on Fourth
Amendment jurisprudence).
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supported by reasonable suspicion. See Terry, 392 U.S. at 30. And as noted previously,
decades-old Supreme Court precedent instructs that observing a suspect walking away in an area
known for drug trafficking is not enough to support a reasonable, particularized suspicion to
justify a Terry stop. See Brown, 443 U.S. at 52 (1979). Lower courts agree. See, e.g., Castle,
825 F.3d at 636; Beauchamp, 659 F.3d at 571; Sprinkle, 106 F.3d at 619; Duhart, 589 A.2d at
900. Accordingly, under clearly established precedent, Defendants are not entitled to summary
judgment on the basis of qualified immunity because, on the undisputed facts, the officers would
have had “fair warning” that they were acting contrary to the law when they conducted the
investigatory stop.
2. The Arrest and Prosecution
The Court’s inquiry does not end with Campbell’s initial seizure because the
investigatory stop eventually morphed into an arrest requiring probable cause. Defendants
contend that Campbell’s arrest was lawful because the officers had probable cause to arrest him
for assault on a police officer (“APO”). See D.C. Code § 22-405(b). Section 405(b) of the D.C.
Code provides that “whoever without justifiable and excusable cause, assaults, resists, opposes,
impedes, intimidates, or interferes with a law enforcement officer on account of, or while that
law enforcement officer is engaged in the performance of his or her official duties shall be guilty
of a misdemeanor[.]” Id. § 22–405(b).3 The D.C. Court of Appeals has explained that, to
“constitute ‘resisting’ a police officer, a person’s conduct must go beyond speech and mere

3

Section 22-405(d) further specifies that “[i]t is neither justifiable nor excusable cause
for a person to use force to resist an arrest when such an arrest is made by an individual he or she
has reason to believe is a law enforcement officer, whether or not such arrest is lawful.” D.C.
Code § 22-405(d) (emphasis added).

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passive resistance or avoidance, and cross the line into active confrontation, obstruction or other
action directed against an officer’s performance in the line of duty by actively interposing some
obstacle that precluded the officer from questioning him or attempting to arrest him.” Gayden v.
United States, 107 A.3d 1101, 1104–05 (D.C. 2014).
The surveillance video plainly shows Campbell putting up such obstacles: As previously
discussed, Officer Newton was facing Campbell when he grabbed him by his right arm to hold
him in place for an investigatory stop. But Campbell immediately proceeded to jerk towards the
open doorway while forcefully pushing Officer Newton’s hands away. After seeing what was
happening from outside, Officer Croson entered the store to assist his partner and the two
officers physically directed Campbell to lean onto the nearby icebox. When Campbell demurred,
Officer Newton attempted to push him onto the icebox, but Campbell continued resisting and
used both of his hands to push Officer Newton away. At this point, Officer Newton attempted to
gain control of Campbell by grabbing his scarf and pulling him to the ground. Campbell’s
actions throughout this encounter were clearly “active and confrontational,”—rather than
“passive”—thus, creating the probable cause necessary to arrest him on an APO charge.
Compare Hargraves, 134 F. Supp. 3d at 84 (finding that defendant’s refusal to follow officer’s
instruction to get down on the ground and balling his hand into a fist was active resistance) with
In re C.L.D., 739 A.2d at 357–58 (finding that a defendant’s refusal to identify himself was
passive resistance); Howard v. United States, 966 A.2d 854, 856 (D.C. 2009) (finding that
defendant’s defiance of an instruction to remove her hands from pockets was passive resistance).
Campbell argues that there was no probable cause for the APO arrest because he did not
know that Newton and Croson were police officers. See Campbell Dep. at 14:14–17 (“On the
front of them you can’t really see nothing[.]”). The video record unmistakably contradicts his

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account, however, because it shows both officers outfitted in black tactical vests with “POLICE”
in bold, white letters on the front and back. Cf. Smith v. United States, 121 F. Supp. 3d 112,
125–26 (D.D.C. 2015) (finding that “[t]he fact that [the officer] was in uniform was more than
enough to establish the additional element of assault on a police officer”), aff’d, 843 F.3d 509
(D.C. Cir. 2016). Campbell also contends that Officer Newton’s unsubstantiated allegation that
he was punched in the face prior to making the arrest precludes a finding of probable cause.
Campbell is correct that such a fact would normally bear on Officer Newton’s credibility,
perhaps creating a triable issue. But while a punch would have indisputably strengthened the
officers’ basis for arresting Campbell, the video evidence alone is enough to show that probable
cause supported the arrest based on his physical resistance. Therefore, the Court concludes that
Campbell cannot establish as a matter of law that Defendants falsely arrested him in violation of
the Fourth Amendment.4
B.

§ 1983: Excessive Force

“In addressing an excessive force claim brought under § 1983, analysis begins by
identifying the specific constitutional right allegedly infringed by the challenged application of
force.” Graham v. Connor, 490 U.S. 386, 394 (1989). When, as here, an individual claims to
have been the victim of excessive force by law enforcement, Fourth Amendment analysis will
govern his claim. Id. A violation of the Fourth Amendment, therefore, requires an individual to
have been “seized,” and for the force used in seizing the individual to have been “objectively

4

Because probable cause supported Campbell’s arrest, his § 1983 malicious prosecution
claim also fails. See Pitt v. D.C., 491 F.3d 494, 511 (D.C. Cir. 2007) (“We join the large
majority of circuits in holding that malicious prosecution is actionable under 42 U.S.C. § 1983 to
the extent that the defendant’s actions cause the plaintiff to be unreasonably ‘seized’ without
probable cause, in violation of the Fourth Amendment.”).
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unreasonable.” Id. at 388. In making this “reasonableness” determination, the D.C. Circuit has
set forth four factors for courts to consider: (1) the facts and circumstances of the particular case,
(2) the severity of the crime, (3) whether the plaintiff posed an immediate threat to the safety of
the officers or other individuals, and (4) whether the plaintiff was actively resisting arrest or
attempting to flee. See Wasserman v. Rodacker, 557 F.3d 635, 641 (D.C. Cir. 2009) (quoting
Graham, 490 U.S. at 396). The assessment should be “objective,” i.e., the subjective intent of
the arresting officer has no bearing on the outcome of the analysis. See id. (citing Whren v.
United States, 517 U.S. 806, 812–13 (1996)). A defendant’s motion for summary judgment on
an excessive force claim “is to be granted unless ‘the excessiveness of the force is so apparent
that no reasonable officer could have believed in the lawfulness of his actions.’” Wasserman,
557 F.3d at 641 (D.C. Cir. 2009) (quoting Wardlaw, 1 F.3d at 1303) (emphasis added).
Both parties agreed at the hearing that Campbell was “seized” when he was arrested
inside of Big Ben liquor store. See Graham, 490 U.S. at 396. The pertinent question, then, is
whether the officers’ use of force in arresting Campbell was objectively unreasonable. The
record indicates it was not. Looking to the particular facts and circumstances of this case,
Campbell, at 6’6” and 230 pounds, towered over Officer Newton, who at 5’10”, was unable to
control Campbell using ordinary tactics, such as holding him by the waist. And as evidenced by
the video, Officer Newton escalated his use of force only after Campbell attempted to pull away
from him and flee. Indeed, Officer Croson left a suspect outside and intervened because he
feared for the safety of his partner. Def.’s MSJ, Ex. 3 (“Croson Dep.”) at 21:9–21. The tactical
maneuvers Officer Newton employed on Campbell—pushing him by the neck and yanking on
his scarf—might, in twenty-twenty hindsight, be more than were necessary to subdue Campbell,
but they did not fall outside of the realm of what a reasonable officer would do when faced with

14

a much larger, actively resisting suspect. “The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.” Graham, 490 U.S. at 396–97; see also Hargraves, 134 F.
Supp. 3d at 87 (“The Fourth Amendment is not violated . . . by every push or shove, even if it
may later seem unnecessary in the peace of a judge’s chambers.”). Furthermore, neither of the
officers struck Campbell and although he was taken to the hospital, he was released later that
night when tests failed to show any sign of significant injury. Cf. Wasserman, 557 F.3d at 641
(finding that the lack of bruise or injury “tends to confirm that [defendant] did not use more force
than reasonably appeared necessary to secure [plaintiff’s] compliance” (internal quotation marks
and citation omitted)). In light of the facts and circumstances of the arrest, the Court concludes
that Defendants’ use of force was not unreasonable.
C.

Common-Law Claims5

“Under District of Columbia law, the existence of probable cause is an affirmative
defense that can be raised in response to an accusation of false arrest.” Smith, 121 F. Supp. 3d at
119–20 (citing Scales v. D.C., 973 A.2d 722, 729 (D.C. 2009)); see also Scott v. D.C., 101 F.3d
748, 753–54 (D.C. Cir. 1996) (“The elements of a constitutional claim for false arrest are
substantially identical to the elements of a common-law false arrest claim.”). As the Court
previously explained, the video, which provides an objective record of Campbell’s seizure,

5

Because the Court exercises supplemental jurisdiction over Campbell’s common law
claims, it will apply District of Columbia’s choice of law rules to determine which law governs
Campbell’s intentional tort claims. “In this case, the District of Columbia is where the alleged
injury occurred, where the alleged injurious conduct occurred, and where the parties’ relationship
was centered. Thus, the substantial-interest test requires the application of [District of Columbia]
law to the common law claims.” Reed v. D.C., 474 F. Supp. 2d 163, 166–67 (D.D.C. 2007).
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shows that probable cause supported his arrest. See supra Section III.A.2. When Campbell
pulled away and pushed Officer Newton’s hands away from him while Officer Newton was
attempting to conduct a stop, his physical resistance created probable cause for charging him
with assault on a police officer, which includes “interfer[ing] with a law enforcement officer . . .
while that officer in engaged in the performance of his official duties.” D.C. Code § 22-405(b).
Because “there was sufficient information to support a reasonable belief that [Campbell]
committed the crime[] of assault on a police officer . . . then there was probable cause to arrest
him, and any claims arising out of his allegedly false arrest must be dismissed.” Smith, 121 F.
Supp. 3d at 119–20.
Campbell’s other common-law claims likewise fail because probable cause supported his
arrest. See Smith, 843 F.3d at 513 (“The existence of probable cause foreclosed not only
[plaintiff’s] false arrest, malicious prosecution and Fourth Amendment claims, but also his claim
of intentional infliction of emotional distress based on his arrest.”) (citing Amobi v. D.C. Dep’t
of Corr., 755 F.3d 980, 989–90, 992–93 (D.C. Cir. 2014) and Kotsch v. D.C., 924 A.2d 1040,
1046 (D.C. 2007)); see also DeWitt v. D.C., 43 A.3d 291, 295–96 (D.C. 2012) (“The existence
of probable cause will likewise defeat a claim for malicious prosecution[.]” (internal citations
omitted)). Moreover, for his IIED claim, Campbell must establish “(1) extreme and outrageous
conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff
severe emotional distress.” Minch v. D.C., 952 A.2d 929, 940 (D.C. 2008) (quoting D.C. v.
Thompson, 570 A.2d 277, 289–90 (D.C. 1990)). Here, the officers’ use of reasonable force in
effectuating an arrest does not constitute extreme and outrageous conduct and the distress
suffered from a lawful arrest does not entitle Campbell to recovery. See Smith, 843 F.3d at 513;
see also Kotsch, 924 A.2d at 1046, 1050 n.5 (holding that a lawful arrest itself cannot form the

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basis for a claim of extreme or outrageous conduct and the extreme and outrageous standard is
even more exacting than the “reasonableness” standard used for analyzing § 1983 excessive
force claims).
Similarly, because Campbell’s arrest was lawful and the officers’ use of force was
reasonable, see supra Section III.A.2, summary judgment is also warranted in favor of
Defendants on the assault and battery claims. Officer Newton was “privileged to use force so
long as the means employed [were] not in excess of those which [he] reasonably believe[d]
[were] necessary.” Etheredge v. D.C., 635 A.2d 908, 916 (D.C. 1993); see also Dormu, 795 F.
Supp. 2d at 27–28 (“[U]nless the threatened use of force is clearly excessive, an officer is
protected against liability for assault.” (quoting Jackson v. D.C., 412 A.2d 948, 956 (D.C.
1980))); Magliore v. Brooks, 844 F. Supp. 2d 38, 44 (D.D.C. 2012) (granting summary judgment
on a battery claim because “[i]f the officer does not use force beyond that which the officer
reasonably believes is necessary, given the conditions apparent to the officer at the time of the
arrest, he is clothed with privilege.” (internal citation omitted)).
IV.

Conclusion
For the reasons set forth above, the Court will grant in part and deny in part Defendants’

motion for summary judgment. A separate Order accompanies this Memorandum Opinion.

CHRISTOPHER R. COOPER
United States District Judge
Date: March 29, 2017
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