KING v. BARBOUR, JR.

Filing 61

MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on 8-21-2019. (lcckk3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KURTIS KING,
Plaintiff
Civil Action No. 16-727 (CKK)

v.
HALEY BARBOUR, JR.,
Defendant

MEMORANDUM OPINION
(August 21, 2019)
This case arises from a physical altercation that took place between Plaintiff and
Defendant on April 30, 2015. Defendant was standing on a sidewalk with his wife and two
friends. Defendant attacked Plaintiff after taking offense to comments Plaintiff made about the
appearance of Defendant’s wife. Plaintiff filed this civil lawsuit asserting causes of action for
assault, battery, and intentional infliction of emotional distress. Defendant also faced criminal
charges for the alleged attack and was convicted of criminal simple assault on August 2, 2018.
Plaintiff has filed a [57] Motion for Partial Summary Judgment based on the collateral
estoppel effect of Defendant’s guilty verdict. Plaintiff asks the Court to grant summary judgment
on Plaintiff’s Count 1 claim for assault and Count 2 claim for battery. Plaintiff also asks the
Court to grant summary judgment as to the element of intentional conduct with respect to
Plaintiff’s Count 3 claim for intentional infliction of emotional distress. 1

In his Reply, Plaintiff also asks that the Court grant summary judgment “[i]n favor of Mr. King
on whatever remains of Count I … of Mr. Barbour’s Counterclaim.” Pl.’s Reply, ECF No. 59, 1.
But, the Court already dismissed Defendant’s Count I counterclaim. See Feb. 28, 2017 Order,
ECF No. 43. As Defendant’s Count I counterclaim has already been dismissed, summary
judgment on that claim is unnecessary.
1
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Upon consideration of the pleadings, 2 the relevant legal authorities, and the record as a
whole, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s [57] Motion to for
Partial Summary Judgment. The Court GRANTS Plaintiff’s Motion for Summary Judgment on
his Count 1 claim for assault and his Count 2 claim for battery based on collateral estoppel.
However, the court DENIES Plaintiff’s Motion for Summary Judgment on the element of
intentional conduct with respect to Plaintiff’s Count 3 claim for intentional infliction of
emotional distress as that issue was not litigated in Defendant’s criminal trial.
I. BACKGROUND
According to the findings of the judge presiding over Defendant’s criminal trial in the
Superior Court of the District of Columbia, on April 30, 2015, Defendant was standing with his
wife and two others on a sidewalk. As Plaintiff, who was intoxicated, passed the group, Plaintiff
passed close to Defendant’s wife and made offensive remarks to her. Defendant did not hear
exactly what the remarks were, but his wife did. She understandably took offense. Defendant
called out to Plaintiff who had already passed the group. Defendant then attacked Plaintiff. The
parties continue to dispute the events leading up to this interaction. However, the events of
Defendant’s criminal trial, described below, are not disputed.

The Court’s consideration has focused on the following documents:
• Pl./Counter-Def.’s Mem. of Points and Authority in Support of his Mot. for Partial
Summary Judgment (“Pl.’s Mot.”), ECF No. 57-2;
• Def. Barbour’s Opp’n to Pl.’s Mot. for Partial Summary Judgment (“Def.’s Opp’n”),
ECF No. 58; and
• Pl./Counter-Def.’s Reply Mem. in Support of his Mot. for Partial Summary Judgment
(“Pl.’s Reply”), ECF No. 59.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
2
2

On August 1 and 2, 2018, Defendant’s criminal trial was conducted in the Superior Court
of the District of Columbia. Pl.’s Statement of Undisputed Material Facts (“Pl.’s Stat.”), ECF No
57-3, ¶ 1. Defendant was represented by Marlon Griffith, who also represents Defendant in this
civil matter. Id. at ¶ 2. At the trial, the United States presented three witnesses—Plaintiff,
Detective Michael Murphy, and Jill Quinones, a friend of Plaintiff’s who was with him the night
of the incident. Id. at ¶ 3.
During the United States’ case, Plaintiff testified, in relevant part, that while walking to
his car he saw and commented on an attractive woman. Id. at ¶ 4d; see also Ex. B, ECF No. 57-4,
3: 11-75: 11 (Plaintiff’s testimony at Defendant’s criminal trial). Plaintiff testified that he did not
make physical contact with the woman and continued walking. Id. at ¶ 4e. Plaintiff then stated
that he heard Defendant shouting at him. Immediately following these shouts, Defendant ran
towards Plaintiff and began hitting and attacking him. Id. at ¶ 4f-g. Plaintiff testified that
Defendant continued striking him with a closed fist in the head even after he had fallen to his
knees. Id. at ¶ 4j, o. Plaintiff further testified that he had no time to react or to get out of the way
and that he never lunged or hit at Defendant. Id. at ¶ 4h-i. Plaintiff explained that he was
seriously injured by the attack. Id. at ¶ 4k-n.
In his testimony, Detective Murphy stated that he had interviewed Defendant after his
arrest the morning of May 1, 2015. Id. at ¶ 5b; see also Ex. B, ECF No. 57-4, 75: 15-80: 9
(Detective Murphy’s testimony). Detective Murphy stated that Defendant had been charged at
the time with aggravated assault. Id. at ¶ 5c. The government moved into evidence the video
recording of Detective Murphy’s interview with Defendant. Ex. B, ECF No. 57-4, 79: 4.

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Finally, Ms. Quinones, who was with Plaintiff the night of the incident, testified that after
walking past two men playfighting next to a woman on the sidewalk she noticed that Plaintiff
was no longer walking with her. Pl.’s Stat., ECF No. 57-3, ¶ 6c; see also Ex. B, ECF No. 57-4,
80: 24-117: 20 (Ms. Quinones’s testimony). When she turned to look for Plaintiff, she saw him
on the ground being physically attacked by Defendant. Id. at ¶ 6d. She testified that Defendant
stood over Plaintiff and punched him several times, but she never saw Plaintiff hit Defendant. Id.
at ¶ 6e-f.
When it was time for the Defense to put on its case, Defendant took the stand to testify in
his own defense. Id. at ¶ 7; see also Ex. C, ECF No. 57-5, 3: 21- 35: 2 (Defendant’s testimony).
Defendant stated that he was on a date with his wife, standing in front of a restaurant saying
goodbye to friends, when he saw Plaintiff walk close by his wife and say something. Id. at ¶ 7b.
Defendant testified that he asked Plaintiff what he said multiple times until Plaintiff turned
around. Id. at ¶ 7c. Defendant stated that Plaintiff then took a few steps towards Defendant and
his group. Id. at ¶ 7e. Defendant testified that he stepped towards Plaintiff because he thought
Plaintiff was coming to hit him. Id. at ¶ 7f. Defendant stated that he struck Plaintiff in the face
two or three times before Plaintiff fell to the ground. Id. at ¶ 7g. Defendant explained that he
struck Plaintiff with his right hand and held Plaintiff’s head with his left hand but stopped hitting
Plaintiff when Plaintiff fell to his knees. Id. at ¶ 7j-k. Defendant admitted that he did not call 911
or remain at the scene after the attack. Id. at ¶ 7m. Defendant explained that he hit Plaintiff
because he thought Plaintiff was going to strike him, his wife, or one of his friends and he felt
threatened. Id. at ¶ 7h-i. He admitted that during his custodial interview with Detective Murphy
he had said that he “beat the shit” out of Plaintiff. Id. at ¶ 7l.
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Following Defendant’s testimony, Defendant moved for judgment of acquittal but was
denied. The parties then made their closing statements. Id. at ¶ 8.
In its closing statement, the United States argued that Defendant assaulted Plaintiff and
had not acted in self-defense. Id. at ¶ 9a-b; see also Ex. C, ECF No. 57-5, 39: 3-46: 15 (United
States’ closing statement). The United States contended that Plaintiff had walked away from
Defendant after his comment to Defendant’s wife and that Defendant had rushed to attack
Plaintiff. Id. at ¶ 9c-d. The United States emphasized that, during his custodial interview,
Defendant had not mentioned Plaintiff moving to attack him or the need for self-defense or
defense of others. Id. at ¶ 9e-f.
In Defendant’s closing statement, Defense counsel argued that Defendant had hit Plaintiff
in self-defense or defense of others because he felt threatened. Id. at ¶ 10a-b; see also Ex. C, ECF
No. 57-5, 46: 17-61: 17 (Defendant’s closing statement). Defense counsel pointed out that
Plaintiff was intoxicated at the time and that Plaintiff’s arguments were more consistent with
being hit once or twice, not repeatedly. Id. at ¶ 10d-e.
After a brief recess to consider the arguments, the court made an oral ruling. Id. at ¶ 11;
see also Ex. C, ECF No. 57-5, 68: 25-76: 12 (the judge’s oral ruling). The court began by noting
that, to prove simple assault, “the Government must prove that defendant in this case, Haley
Barbour, Jr., with force of violence injured or attempted to injure a person, in this case it’s Kurtis
King. Second, he intended to use force of violence against the person, and third, at the time he
had the apparent ability to injure that person.” Ex. C, ECF No. 57-5, 69: 3-8. The court decided
that “[t]here’s no dispute that those elements are satisfied.” Id. at 69: 9.

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The court went on to explain that “[t]he defendant has introduced the defense of self
defense, which I find they have done so to the point that the Government must now prove
beyond a reasonable doubt that the defendant was not acting in self defense.” Id. at 69: 10-13.
The court then rejected Defendant’s self-defense and defense of others theories. First, the court
found that “[t]here’s no evidence to my mind that shows that Mr. Barbour reasonably believed
himself to be in danger at that time.” Id. at 74: 2-4. The court explained that Defendant “easily
could have chosen not to approach. Assuming for the sake of argument that Mr. King approached
him, he could have chosen not to approach him. He could have chosen not to engage. He was
standing with other people. He could have warned him, you come any step closer I’ll do
something. None of that took place.” Id. at 74: 5-10. The court found that Defendant “did not
believe himself to be in physical danger, that he was angry at what he believes to be an insult. He
wasn’t defending his wife from physical threats. He wasn’t defending himself from physical
threats. He was avenging an insult to his wife’s honor.” Id. at 74: 19-23. Elaborating, the judge
stated that Defendant “was protecting [his wife] from offensive remarks and insult. He was not
protecting her physically. He was not in physical danger. His wife was not in physical danger.”
Id. at 76: 5-8. Finally, the Court determined that “[e]ven assuming that Mr. Barbour believed that
he had to punch first in order to protect himself, I find him guilty of simply assault because I
believe he used excessive force.” Id. at 74: 16-18. However, this Court notes that the judge in
Defendant’s criminal trial made no finding as to how many times Defendant punched Plaintiff.
On August 21, 2018, the court held a sentencing hearing during which Plaintiff gave a
victim impact statement. Pl.’s Stat., ECF No 57-3, ¶ 17-18. The court ordered restitution in the
amount of $1,342 as that amount is the “uncompensated expenses directly attributable to the
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immediate treatment received after the injury.” Ex. D, ECF No. 57-6, 20: 9-11. The court also
sentenced Defendant to a suspended 60-day incarceration, one year of probation, and 20 hours of
community service. Pl.’s Stat., ECF No 57-3, ¶ 19. The court reiterated that Defendant had not
acted in self-defense or defense of others. Id. at ¶ 20. The court then entered a Judgment and
Commitment order. Id. at ¶ 21.3
II. LEGAL STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to
the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to
specific parts of the record—including deposition testimony, documentary evidence, affidavits or
declarations, or other competent evidence—in support of its position, or (b) demonstrate that the

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In his Statement of Undisputed Facts, Defendant states that, prior to the trial discussed here, a
jury trial was commenced on February 6, 2018. At the conclusion of the United States’ case, the
court granted a Judgment of Acquittal and dismissed Defendant’s felony assault count.
Additionally, the jury was unable to reach a verdict on the count of simple assault and a mistrial
was declared. Def.’s Opp’n, ECF No. 58, 1. As Defendant was found guilty of simple assault
during a second trial, the initial mistrial has no impact on the Court’s analysis.
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materials relied upon by the opposing party do not actually establish the absence or presence of a
genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis
in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass'n
of Flight Attendants-CWA, AFL-CIO v. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).
Moreover, where “a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact,” the district court may “consider the fact undisputed for
purposes of the motion.” Fed. R. Civ. P. 56(e).
When faced with a motion for summary judgment, the district court may not make
credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the
light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty
Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are
susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine
“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477
U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not

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significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50
(internal citations omitted)
III. DISCUSSION
Plaintiff requests that summary judgment be granted as to his Count 1 claim for assault,
his Count 2 claim for battery, and the element of intentional conduct with respect to his Count 3
claim for intentional infliction of emotional distress. Plaintiff requests summary judgment on the
grounds of collateral estoppel.
Collateral estoppel bars litigants from re-litigating issues that either were previously
litigated or could have been previously litigated. Collateral estoppel has “the dual purpose of
protecting litigants from the burden of relitigating an identical issue with the same party or his
privy and of promoting judicial economy by preventing needless litigation.” Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 326 (1979). A party is collaterally estopped from relitigating an issue
when “(1) the issue is actually litigated and (2) determined by a valid, final judgment on the
merits, (3) after a full and fair opportunity for litigation by the parties or their privies, (4) under
circumstances where the determination was essential to the judgment, and not merely dictum.”
Bryson v. Gere, 268 F. Supp. 2d 46, 56-57 (D.D.C. 2003) (quoting Wash. Med. Ctr. v. Holle, 573
A.2d 1269, 1283 (D.C. 1990)).4

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The Court notes that there is some debate as to whether collateral estoppel is substantive or
procedural and whether a court sitting in diversity should apply federal or state collateral
estoppel standards. See Bryson, 268 F. supp. 2d at 55-57. However, the standards for collateral
estoppel are substantially similar under District of Columbia state or federal law. Id. The
additional consideration under federal law, “whether applying collateral estoppel would work a
basic unfairness,” would not affect its application in this case. Scahill v. District of Columbia,
271 F. Supp. 3d 216, 226 n.5 (D.D.C. 2017) (internal quotation marks omitted).
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In Defendant’s criminal lawsuit, Plaintiff was the complaining witness; however, Plaintiff
was not actually party to the suit. As the previous lawsuit was a criminal matter, the parties to the
suit were the United States and Defendant. However, “[u]nder the doctrine of offensive collateral
estoppel, or issue preclusion, a defendant may be prevented from relitigating identical issues that
the defendant litigated and lost against another plaintiff.” Hurst v. The Socialist People’s Libyan
Arab Jamahiriya, 474 F. Supp. 2d 19, 31 (D.D.C. 2007) (citing Jack Faucett Associates, Inc. v.
AT&T, 744 F.2d 118, 124 (D.C. Cir. 1984)). Trial courts have “broad discretion” to determine
when the use of offensive collateral estoppel is appropriate. Parklane, 439 U.S. at 331-332.
Courts in the District of Columbia have used offensive collateral estoppel to bar civil
litigants from re-litigating issues which were resolved in a prior criminal suit. See Ross v.
Lawson, 395 A.2d 54, 56-57 (D.C. 1978) (using collateral estoppel to bar re-litigation of the
issue of liability for assault in a civil lawsuit when the defendant had been criminally convicted
of the assault); United States v. Uzzell, 648 F. Supp. 1362, 1365-66 (D.D.C. 1986) (using the
collateral estoppel effect of the defendants’ criminal conviction to bar re-litigation of liability in
a civil lawsuit); Hinton v. Shaw Pittman Potts & Trowbridge, 257 F. Supp. 2d 96, 100 (D.D.C.
2003) (finding that the defendant’s criminal conviction barred re-litigation of the same issue in a
civil action); S.E.C. v. Bilzerian, 29 F.3d 689, 694 (D.C. Cir. 1994) (affirming district court’s
grant of partial summary judgment based on collateral estoppel effect of the defendant’s criminal
conviction). As such, the Court must determine the collateral estoppel effect on this civil lawsuit
of Defendant’s criminal conviction for simple assault.

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A. Collateral Estoppel Effect on Plaintiff’s Claims for Assault and Battery
First, Plaintiff seeks partial summary judgment as to his Count 1 claim of assault and his
Count 2 claim of battery. As was previously explained, Defendant was found guilty beyond a
reasonable doubt of criminal simple assault under D.C. Code § 22-404(a)(1). In finding
Defendant guilty of criminal simple assault, the judge found beyond a reasonable doubt that
Defendant, with force or violence, injured or attempted to injure Plaintiff, that Defendant
intended to use force or violence against Plaintiff, and that Defendant had the apparent ability to
do so. Ex. C, ECF No. 57-5, 69: 1-8; see also Mungo v. United States, 772 A.2d 240, 245 (D.C.
2001) (explaining that assault is defined “as the unlawful use of force causing injury to another
or the attempt to cause injury with the present ability to do so”). In order to be liable for civil
assault, the defendant must intend to cause harmful or offensive contact with the person of
another or intend to cause “an imminent apprehension of such a contact” and that person must be
“put in such imminent apprehension.” Restatement (Second) of Torts § 21. And, to be liable for
civil battery, the defendant must intend to cause a harmful or offensive contact with another or
intend to cause “an imminent apprehension of such a contact” and harmful contact with the
person must result. Id. at § 13; see Davis v. Giles, 769 F.2d 813, 815 (D.C. Cir. 1985) (looking to
the Restatement for the elements of civil assault and battery). Accordingly, “civil and criminal
liability for assault and battery are predicated on proof of the same basic elements of an act and
an intent to commit the act.” Id. at 816 (Wald, J., dissenting). The primary difference between
the two is that a higher degree of forcefulness or violence is required for a criminal conviction
than for civil liability. Id. at 815.

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Plaintiff argues that Defendant is collaterally estopped from contesting civil liability for
assault and battery based on Defendant’s criminal assault conviction. See Ross, 395 A.2d at 55
(finding that a plaintiff in a civil assault case may collaterally estop defendant with a prior
conviction for criminal assault arising from the same incident from contesting liability). The
Court agrees and concludes that Defendant’s liability for assault and battery has been actually
litigated, determined by a valid judgment on the merits, after Defendant had a full and fair
opportunity for litigation, and was essential to the judgment. Bryson, 268 F. Supp. 2d at 56-57
First, the Court finds that there is no material factual dispute that Defendant’s liability has
been actually litigated in the criminal case. In determining if an issue was actually litigated, the
Court “look[s] beyond the labels of the claims and examine[s] the single, certain and material
points arising out of the allegations and contentions of the parties.” Id. at 57 (internal quotation
marks omitted). During Defendant’s criminal trial, the United States and Defendant both
presented evidence related to the attack on Plaintiff. See generally Ex. B, ECF No. 57-4 (trial
transcript part 1); Ex. C, ECF No. 57-5 (trial transcript part 2). The United States presented three
witnesses and Defendant testified in his own defense. Id. When testifying, Defendant presented
his self-defense and defense of others theories. Ex. C, ECF No. 57-5, 3: 21-35: 2. Additionally,
the closing arguments of both the United States and Defendant focused exclusively on the nature
of Defendant’s attack on Plaintiff and whether or not such an attack was legally justified. Id. at
39: 3-61: 17. These issues, which were actually litigated in Defendant’s criminal trial, are the
same issues central to Plaintiff’s civil assault and battery claims.
The Court notes that this case is not like that cited by Defendant, Lassiter v. District of
Columbia, 447 A.2d 456 (D.C. 1982). In Lassiter, the plaintiff brought civil claims against the
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District of Columbia and an officer for assault and false arrest. 447 A.2d at 459. Defendants
argued that the plaintiff’s claims were barred by collateral estoppel because the plaintiff had
previously been convicted for assault of the officer based on the same events. The court
concluded that collateral estoppel did not bar the plaintiff’s claims because, during the plaintiff’s
criminal proceeding, the issue of whether or not the officer used excessive force was not actually
litigated. Id. at 460. Here, whether or not Defendant used excessive force was a central issue in
Defendant’s criminal trial because Defendant argued self-defense and defense of others to legally
justify his assault of Plaintiff. And, the judge in Defendant’s criminal trial explicitly found that
Defendant used excessive force. Ex. C, ECF No. 57-5, 74: 17-18 (“I find him guilty of simple
assault because I believe he used excessive force.”). Accordingly, Lassiter does not assist
Defendant because, in Defendant’s criminal trial, the issue of excessive force was actually
litigated.
Because the issues of Defendant’s liability for his attack on Plaintiff and whether or not
such attack was legally justified were actually litigated, the Court concludes that Plaintiff has
met the first requirement for the use of collateral estoppel.
Second, the Court concludes that there is no material factual dispute that Defendant’s
liability and lack of legal justification were determined by a valid judgment on the merits.
Defendant does not contest that the D.C. Superior Court is a court of competent jurisdiction and
that the Judgment and Commitment Order, confirming the judge’s oral ruling at the conclusion
of the trial, completed Defendant’s guilty verdict. See Ex. E, ECF No. 57-7 (sentence of the
court). As such, the court finds that Plaintiff has also met the second requirement for the use of
collateral estoppel.
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Third, the Court finds no material factual dispute as to whether Defendant had a full and
fair opportunity to litigate his liability and his self-defense and defense of others theories during
his criminal trial. During Defendant’s criminal trial, Defendant was fully represented by the
same counsel that represents him in this civil suit. Defense counsel cross-examined each of the
United States’ witnesses. See generally Ex. B, ECF No. 57-4 (showing cross examination of
United States’ witnesses). Additionally, during the criminal trial, Defense counsel introduced at
least some evidence which had been obtained through discovery in this case. Id. at 112: 7-113: 4
(using Ms. Quinones’s deposition testimony in this case to question her while she testified in the
criminal trial). Furthermore, Defendant testified on his own behalf during his trial, giving
Defendant the opportunity to share his interpretation of what happened, specifically his selfdefense and defense of others theories. Ex. C, ECF No. 57-5, 3: 21- 35: 2. Defendant points to no
incidents at trial that prevented him from having a full and fair opportunity to litigate his
liability. Additionally, Defendant cites no evidence that was excluded from the criminal trial but
could potentially be introduced in this civil matter. As such, the Court concludes that the third
requirement for collateral estoppel is also met.
Fourth, the Court concludes that there is no material factual dispute as to whether
Defendant’s liability and lack of legal justification were essential to the judgment. Defendant
was criminally charged with only one offense, simple assault. As such, in Defendant’s criminal
trial, his liability for assaulting Plaintiff, as well as the validity of his self-defense and defense of
others theories, were the only issues presented.
These issues were also the only issues discussed by the judge in issuing his oral ruling.
The judge explained that, to prove simple assault, “the Government must prove that the
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defendant in this case … with force of violence injured or attempted to injure a person, in this
case it’s [Plaintiff]. Second, he intended to use force or violence against the person, and third, at
the time he had the apparent ability to injure that person.” Ex. C, ECF No. 57-5, 69: 3-8. The
judge found that “[t]here’s no dispute that those elements are satisfied.” Id. at 69: 9-10. In
discrediting Defendant’s self-defense and defense of others theories, the judge explained that
there was “no evidence … that shows that [Defendant] reasonably believed himself to be in
danger at that time.” Id. at 74: 2-4. Moreover, the judge went on to explain that, even if
Defendant believed he was protecting himself, Defendant was still “guilty of simple assault
because I believe he used excessive force.” Id. at 74: 16-18. As such, the findings that Defendant
was liable for assault and battery and that his actions were not justified by self-defense or
defense of others were essential to the judgment. The Court determines that the fourth factor also
weighs in favor of collateral estoppel.
After finding that the conditions of collateral estoppel are met, the Court must still
determine whether or not the use of collateral estoppel is appropriate under the circumstances of
this case. Parklane, 439 U.S. at 331-332 (granting courts “broad discretion” in determining when
to apply offensive collateral estoppel). The Court finds that the circumstances of this case make
the use of collateral estoppel appropriate as to Plaintiff’s Count 1 claim for assault and Count 2
claim for battery. See Ross, 395 A.2d at 56-57 (approving of the use of offensive collateral
estoppel to bar the defendant from relitigating his liability for assault following the defendant’s
assault conviction). This case was stayed for approximately ten months pending the results of
Defendant’s criminal trial. Defendant consented to the staying of this civil matter pending the
resolution of his criminal trial. See e.g., Oct. 18, 2017 Joint Status Report, ECF No. 51
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(explaining that “the parties hereby consent to the … stay of the above-captioned matter until the
conclusion of the Defendant’s related criminal trial”). It would make little sense to stay this case
pending the resolution of Defendant’s criminal trial if the resolution of that trial would have no
effect on this civil proceeding.
In his Opposition, Defendant spends only a page and a half arguing against the
application of collateral estoppel to Plaintiff’ Count 1 claim for assault and his Count 2 claim for
battery. While it is not clear, Defendant appears to make three arguments against the use of
collateral estoppel on these two Counts. First, Defendant contends that, even though his selfdefense claim was rejected in his criminal trial, “his claim will still be relevant in the civil case
because, if credited by a jury, [his claim] would negate a necessary element of intentional
infliction of emotional distress. Thus, it would be fundamentally unfair for the court to not allow
Defendant Barbour to put forth evidence that he believed he was in imminent danger of bodily
injury by the Plaintiff and the circumstances of the encounter.” Def.’s Opp’n, ECF No. 58, 8.
Second, Defendant contends that collateral estoppel would not promote judicial economy as the
evidence necessary for Plaintiff’s claim for intentional infliction of emotional distress would be
similar to the evidence for Plaintiff’s assault and battery claims. Third, Defendant contends that
“it can be potentially confusing to a jury to receive evidence of self-defense and yet be told that
they cannot consider liability.” Id. The Court is persuaded by none of Defendant’s arguments.
The Court finds that there would be no unfairness to Defendant in preventing him from relitigating issues which he has already litigated, and which were already decided against him
using a higher burden of proof than that required for civil liability.

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First, Defendant contends that the use of collateral estoppel would be unfair as it would
prevent him from putting forth evidence that he believed he was in imminent danger. Defendant
posits that such evidence, if credited, may negate a necessary element of Plaintiff’s intentional
infliction of emotional distress claim. The Court disagrees. As was discussed above, Defendant
put on evidence of self-defense and defense of others during his criminal trial. The judge in
Defendant’s criminal trial made detailed and specific findings showing that the United States had
proved beyond a reasonable doubt that Defendant’s actions were not justified by self-defense or
defense of others. The court explained that Defendant “did not believe himself to be in physical
danger, that he was angry at what he believes to be an insult. He wasn’t defending his wife from
physical threats. He wasn’t defending himself from physical threats. He was avenging an insult
to his wife’s honor.” Ex. C, ECF No. 57-5, 74: 19-23. The court went on to find that “[e]ven
assuming that Mr. Barbour believed that he had to punch first in order to protect himself, I find
him guilty of simple assault because I believe he used excessive force.” Id. at 74: 16-18.
Defendant’s claims of self defense and defense of others have already been adjudicated,
thoroughly considered, and rejected. It is not unfair to deny him a second bite at the apple.
Second, the Court disagrees with Defendant and finds that the use of collateral estoppel
will promote judicial efficiency in this case. Defendant contends that collateral estoppel will not
promote judicial efficiency because, in presenting his intentional infliction of emotional distress
claim, Plaintiff must still put forth evidence of Defendant’s conduct. Defendant argues that such
evidence will be largely similar to the evidence which would need to be presented for Plaintiff’s
assault and battery claims. As such, according to Defendant, the use of collateral estoppel will
not make the civil trial more efficient.
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The Court finds that, even if evidence of Defendant’s conduct may be overlapping to
some degree between Plaintiff’s intentional infliction of emotional distress claim and his claims
for assault and battery, collateral estoppel will still promote judicial efficiency. The use of
collateral estoppel in this case resolves the issues of Defendant’s liability for Plaintiff’s Count 1
and 2 claims for assault and battery. Additionally, the use of collateral estoppel resolves the issue
of whether or not Defendant’s actions were justified by self-defense or defense of others. As
such, the Court finds that the use of collateral estoppel will conserve this Court’s resources.
Finally, Defendant argues that the jury would be confused if it were to receive evidence
that Defendant believed he was in imminent danger but be unable to consider liability for
Plaintiff’s assault and battery claims. The Court finds this concern to be overstated. If this
litigation results in a jury trial, the Court can instruct the jury that liability has already been
decided for Plaintiff’s claims for assault and battery. As “[a] jury is presumed to follow its
instructions,” limiting certain evidence to particular legal issues would not cause undue
confusion. Weeks v. Angelone, 528 U.S. 225, 234 (2000).
Accordingly, the Court concludes that collateral estoppel bars re-litigation of Defendant’s
liability as to Plaintiff’s Count 1 claim for assault and his Count 2 claim for battery. The Court
further concludes that collateral estoppel bars re-litigation of Defendant’s self-defense and
defense of others theories. The Court GRANTS summary judgment as to Plaintiff’s Count 1 and
2 claims for assault and battery. The only issue remaining as to those claims is damages. The
Court notes that Plaintiff will not be compensated in this civil matter for the $1,342 that
Defendant already paid in restitution as a result of Defendant’s criminal conviction.

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B. Collateral Estoppel Effect on Plaintiff’s Claim for Intentional Infliction of Emotional
Distress
In addition to requesting collateral estoppel on his Counts 1 and 2 claims for assault and
battery, Plaintiff also requests that the Court use collateral estoppel to find that the element of
intentional conduct has been satisfied as a matter of law for Plaintiff’s Count 3 claim of
intentional infliction of emotional distress. As was previously explained, to state a claim for the
intentional infliction of emotional distress, a plaintiff must allege “(1) extreme and outrageous
conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff
[to suffer] severe emotional distress.” Ortberg, 64 A.3d at 163 (internal quotation marks
omitted). Plaintiff asks the Court to find that the element of intentionality has been satisfied
through collateral estoppel, leaving only the issues of whether or not Defendant’s conduct was
extreme and outrageous and whether or not Plaintiff suffered severe emotional distress.
The Court finds that the use of collateral estoppel is not appropriate in these
circumstances. In convicting Defendant of assault, the judge in Defendant’s criminal trial found
that Defendant “intended to use force or violence against [Plaintiff.]” Ex. C, ECF No. 57-5, 69:
6-7. However, in Defendant’s criminal trial, the judge did not find that Defendant intended to
cause Plaintiff to suffer severe emotional distress as that issue was not presented. See Waldon v.
Covington, 415 A.2d 1070, 1076, n. 18 (D.C. 1980) (explaining that courts look to “whether a
reasonable man performing these acts could be presumed to have foreseen causing emotional
distress” when determining the intent element for a claim of intentional infliction of emotional
distress). In Defendant’s criminal assault trial, the issue of whether or not Defendant intended to
cause Plaintiff to suffer severe emotional distress was not litigated, was not determined by the
judge, and was not essential to Defendant’s conviction. It is not an appropriate use of offensive
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collateral estoppel to extrapolate an intent to cause severe emotional distress from the judge’s
prior finding that Defendant intended to use physical force or violence against Plaintiff. Plaintiff
cites no case in which collateral estoppel has been used in such a way. Accordingly, the Court
finds that the use of collateral estoppel on Plaintiff’s Count 3 claim for the intentional infliction
of emotional distress claim is not appropriate.
While collateral estoppel does not apply to the intentionality element of Plaintiff’s
intentional infliction of emotional distress claim, the Court notes that Defendant will not be
permitted to argue that his actions were justified by self-defense or defense of others. As the
Court has previously explained, Defendant raised these theories in his criminal trial, and, making
detailed findings, the judge rejected these theories. Supra Sec. III.A. While Defendant will not be
permitted to raise self-defense or defense of others, he will be permitted to introduce other
evidence or testimony that may be used to disprove the elements of intentional infliction of
emotional distress. For example, Defendant can introduce evidence that Plaintiff initiated the
contact which started the incident and that Plaintiff made insulting comments to Defendant’s
wife so that Defendant “was avenging an insult to his wife’s honor.” Ex. C, ECF No. 57-5, 74:
22-23.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s [57] Motion for Partial Summary Judgment is
GRANTED IN PART and DENIED IN PART. The Court finds that the use of collateral estoppel
is appropriate as to Plaintiff’s Count 1 claim for assault and Count 2 claim for battery. The Court
GRANTS Plaintiff summary judgment on those claims, with the issue of damages to be decided
at a later time. However, the Court finds that collateral estoppel cannot be used to establish the
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intent element for Plaintiff’s Count 3 intentional infliction of emotional distress claim as that
issue was not litigated in Defendant’s criminal trial for assault. The Court DENIES Plaintiff
summary judgment on the intent element of his claim for intentional infliction of emotional
distress.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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