HYLTON v. DISTRICT OF COLUMBIA

Filing 38

MEMORANDUM OPINION re 26 Motion for Summary Judgment: See document for details. Signed by Judge Jia M. Cobb on March 7, 2025. (lcjmc1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KAREN HYLTON,
Plaintiff,

Civil Action No. 21-cv-2673 (JMC)

v.
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Karen Hylton brings this suit against the District of Columbia Metropolitan Police
Department (MPD) and its Officer Christopher Delisi, alleging that Delisi violated her Fourth and
Fifth Amendment rights by unlawfully seizing her and using excessive force as Hylton
spray-painted (with permission, she claims) the side of a building at night. Hylton also claims that
she was subject to battery, false arrest, and a retaliatory arrest during that encounter. But
body-worn camera (BWC) footage—footage whose validity she does not contest—refutes those
claims in their entirety. That footage reveals nothing more than a brief and reasonable investigatory
stop for apparent vandalism, followed by a brief and reasonable seizure for assault of a police
officer. Within two minutes of Delisi’s initial approach, Hylton left the scene with no further arrest,
no charges, and no serious injuries. Because no reasonable jury could find that encounter to violate
the alleged provisions of the U.S. Constitution or D.C. law, the Court will GRANT Defendants’
motion for summary judgment on all of Hylton’s claims. 1

Unless otherwise indicated, the formatting of quoted materials has been modified throughout this opinion, for
example, by omitting internal quotation marks and citations, and by incorporating emphases, changes to capitalization,
and other bracketed alterations therein. All pincites to documents filed on the docket are to the automatically generated
ECF Page ID number that appears at the top of each page.

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I.

BACKGROUND
A. Factual Background
For the reasons explained below, the Court treats Defendants’ motion as a motion for

summary judgment. On this motion, the record before the Court is limited to BWC footage from
three officers, including Delisi, which Defendants submitted with their motion. See ECF 26-2 at 1.
This opinion refers to Delisi’s BWC footage as “Delisi BWC” and uses the “Stabilized” version
provided. See id. (citing Delisi BWC (X6039BF0Q) (Stabilized)). The opinion refers to the other
two officers’ BWC footage as “Officer 2 BWC,” see id. (citing BWC (X6039BF2F)) and “Officer
3 BWC,” see id. (citing BWC (X039BEZ1)). The Court accepts the Parties’ characterizations of
what the footage shows where the Parties agree. Where they disagree as to what the footage shows,
the Court resolves those disagreements in favor of Hylton unless her characterization “is blatantly
contradicted by” the video footage. Scott v. Harris, 550 U.S. 372, 380 (2007). If the video does
contradict her account, and thereby renders her characterization a “visible fiction,” the Court views
the facts “in the light depicted by” the BWC footage. Id. at 380–81.
The following facts are undisputed. At around 6:16 PM on the night of November 14, 2020,
Karen Hylton was with a friend in a parking lot in Northwest Washington, D.C. 2 ECF 26-1 ¶ 1.
Delisi observed Hylton spray-painting the side of a privately-owned row home that abutted the
parking lot, which also had some “pre-existing graffiti” on it. Id.; ECF 28-1 ¶ 102. Delisi did not
believe Hylton to be the owner of that home, and he walked up to her. ECF 26-1 ¶¶ 2–4. As he
walked closer, Hylton stopped spray-painting the wall, turned around, and approached him. Id.

Although both Parties reference November 19, 2020, instead of November 14, 2020, at various points, the Court
uses the November 14 date stated in Defendants’ Statement of Material Facts and visible in the BWC footage. See
ECF 26-1 ¶ 1. Regardless, resolution of this factual detail does not affect the outcome of this case.
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¶ 4. At first, she accused him of having turned off his body-worn camera, but he responded, “No,
we [he and the other officer(s) present] turned them on. We’re trying to talk to you.” Id. ¶ 6. 3
Hylton responded, “Okay. Like I—You’re not trying to talk to me. You’re tryna tell me
what I cannot do. Y’all cannot kill my son. You can’t kill my fucking son and think you’ll get
away with it.” Id. ¶ 7. 4 Those remarks referred to the death of her son, Karon Hylton-Brown, who
died in a police chase a few weeks prior. One of the MPD officers involved was ultimately
convicted of second-degree murder for Karon’s death—though he later received a presidential
pardon. 5 To Hylton’s remarks, Delisi responded, “I’m telling you, you can’t spray paint there.” Id.
¶ 8. Hylton began to respond, “And I’m telling you, you can’t—” but then stopped talking,
approached the wall, and resumed spray-painting it. Id. ¶ 9.
At that point, Delisi moved closer to Plaintiff and said, “Okay. We’re not doing that. You’re
not doing that. You’re not doing that,” as she spray-painted the wall. Id. ¶ 10. 6 He then attempted
to take the spray-paint can away from her by grabbing for her right arm, which was holding the
can. Id. ¶ 11. He also placed his left hand on Hylton’s back, with some degree of force, as he held
her right arm. 7 Id. ¶ 12.

The fact that Delisi’s BWC footage of this encounter exists (and is before this Court) confirms that his BWC was
not turned off during this encounter.
4
In her counterstatement of facts, Hylton says the exact words “may be slightly different” because some are “hard to
make out” in the BWC footage, but she does not “generally dispute[]” this characterization. ECF 28-1 ¶ 7. Note also
that the audio on Delisi’s BWC was off during the first moments of their encounter. Accordingly, the Court does not
know (nor do the Parties claim to know) exactly what Delisi said to Hylton before she accused him of having turned
off his body-worn camera. But her next statement—“You’re tryna tell me what I cannot do”—suggests that he told
her to stop spray-painting the building as soon as he walked up and before she responded as such. ECF 28-1 ¶ 7. That
sequence of events is consistent with both Parties’ account.
5
See Verdict Form, United States v. Sutton, No. 21-cr-598 (D.D.C. Dec. 21, 2022), ECF 426; White House, Executive
Grant of Clemency for Terence Sutton (Jan. 22, 2025), https://perma.cc/92ZT-47SC. The Court “may take judicial
notice of public records . . . in adjudicating a motion for summary judgment.” Kennedy-Jarvis v. Wells, 195 F. Supp.
3d 230, 235 (D.D.C. 2016) (citing Covad Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005)).
6
Again here, Hylton says the exact words may have differed slightly from this quote, because it is hard to make out
what is being said from the video, but she does not generally dispute the characterization. ECF 28-1 ¶ 10.
7
Hylton disputes Defendants’ characterization that Delisi merely “place[d] his hands” on her and argues that the video
shows that he “did more than” that. ECF 28-1 ¶ 12. The Delisi BWC footage shows that Delisi used some degree of
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The Parties dispute what happened next. According to Defendants, Hylton “turned around
and swung her arms at Officer Delisi, hitting him.” Id. ¶ 13. Hylton disputes that characterization
and points to the BWC footage for support. ECF 28-1 ¶ 13. That footage makes clear that Hylton
did indeed turn around and swing her left arm, which by that point was holding the can of spraypaint, at Delisi’s upper body or face (at a level above his BWC). See Delisi BWC 18:17:01–03.8
The Parties dispute the next set of events, too. Defendants say that Delisi then attempted to
arrest Hylton for assault on a police officer (“APO”), a crime in the District of Columbia. See D.C.
Code § 22–405(b) (criminalizing those who, “without justifiable and excusable cause assault[] a
law enforcement officer on account of, or while that law enforcement officer is engaged in the
performance of his or her official duties”). For support, Defendants point to both the
contemporaneous BWC footage and the recording from several minutes later, when Delisi was
recounting the incident to another officer and stated that he had been “trying to handcuff [Hylton].”
ECF 26-1 ¶ 14 (citing Delisi BWC 18:22:10, 18:28:31). Hylton, however, contends that “[t]here
is no contemporaneous evidence that Officer Delisi attempted to arrest [her].” ECF 28-1 ¶ 14. She
suggests that the footage of the interaction itself does not establish that Delisi was trying to arrest
her, and that Delisi’s post hoc explanation is not “contemporaneous evidence” and therefore not
determinative. Id.; ECF 28 at 11.

force when placing his hand on her back, but not enough to push her forward toward the wall, and he then removed
his hand as Hylton turned around. Delisi BWC 18:17:00–18:17:02. Construing this ambiguity in favor of Hylton, the
Court will accept that Delisi used some degree of force on Hylton’s back in that moment but finds that Defendants’
characterization is essentially accurate based upon the video footage. And ultimately, whether Delisi merely “placed
his hand” on Hylton or did something “more” is not material to the outcome of this case.
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Although the video establishes that Hylton swung her arm at Delisi, it does not clearly show whether Hylton actually
“hit[]” Delisi, as Defendants claim. ECF 26-1 ¶ 13. Thus, the Court does not find, for purposes of this motion, that
Hylton hit Delisi. But whether she made contact with Delisi or merely swung at him and missed does not change the
result in this case.

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Ultimately, what Delisi was “trying” to do in that moment is immaterial, as the Court will
explain below. What is both material and clear from the BWC footage, however, is that Hylton
and Delisi engaged in a physical struggle after she turned around and swung her arm at him. See
Delisi BWC 18:17:05–18:17:12. That struggle included Delisi turning Hylton back around to face
the wall that she had been spray-painting and working with another officer to hold her against the
wall. See id. At that point, a crowd had formed around Hylton, Delisi, and the other officer(s) at
the scene, and two other MPD officers approached. ECF 26-1 ¶ 15; see Officer 2 BWC 18:17:05–
18:17:15; Officer 3 BWC 18:17:13–18:17:36. Defendants characterize Hylton’s behavior during
that struggle as “resist[ing]” arrest, whereas Hylton again disputes that Delisi was trying to arrest
her. ECF 26-1 ¶ 16; ECF 28-1 ¶ 16. Regardless of what Delisi was trying to do during that period,
the videos clearly show a physical struggle between the officers and Hylton. Delisi BWC
18:17:05–18:17:35; Officer 2 BWC 18:17:14–18:17:37; Officer 3 BWC 18:17:19–18:17:41.
During that time, men in the observing crowd interfered and tried to pull Hylton away from the
officers. ECF 26-1 ¶ 17. Id. Within about 35 seconds of Hylton first swinging her arm at Delisi,
the men in the crowd had successfully pulled Hylton away from the officers, and she left the scene.
ECF 26-1 ¶ 17. 9
About five minutes later, as Delisi recounted the incident to a group of officers on the scene
and then to someone (apparently a supervisor) over the phone, Delisi repeatedly stated that he
“tried to grab [Hylton] real quick” to “get her to stop spray-painting the wall.” ECF 28-1 ¶ 101

The BWC footage does not clearly show exactly what happened in the period between Hylton’s swing at Delisi and
the men in the crowd pulling her away. Delisi’s BWC is obscured during much of the encounter, and the other two
officers’ footage does not capture large portions of it. The court does not attempt to reconstruct exactly what happened.
Its findings here are based only on what is clear from the video, which is that a scuffle ensued that included Delisi and
at least one other officer physically restraining Hylton for a maximum of about 35 seconds until she left the scene. See
Delisi BWC 18:17:00–18:17:38; Officer 2 BWC 18:17:00–18:17:38; Officer 3 BWC 18:17:00–18:17:38.
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(quoting Delisi BWC 18:22:40–18:22:54). He also said that he had “never known [Hylton] to live”
at the house she was painting and that he “d[id]n’t recognize her as being the owner,” despite her
claim during the encounter that it was her house. ECF 26-1 ¶ 3 (quoting Delisi BWC 18:25:38–
18:25:45, 18:22:44); ECF 28-1 ¶ 3. 10
B. Procedural Background
Hylton initially filed a pro se complaint in this court. ECF 1. Her factual assertions
recounted the events of November 14, 2020, as well as another incident that allegedly occurred in
December 2020. See generally id. The allegations related to the December event were not included
in subsequently filed amended complaints and are no longer relevant to the disposition of this case.
Complying with this Court’s instructions, Hylton filed an amended complaint. See ECF 3; ECF 4.
Defendants filed a motion to dismiss the amended complaint. ECF 14. Hylton then obtained
counsel and filed a second amended complaint, ECF 21, which is the operative complaint in this
case. The second amended complaint names the District of Columbia and Delisi as Defendants
and brings claims alleging unreasonable seizure, excessive force, false arrest, retaliation, and
battery. ECF 21 ¶¶ 3–4, 47–70. Defendants filed another motion to dismiss or for summary
judgment, ECF 26, to which Hylton responded, ECF 28, and Defendants replied, ECF 29.
II.

LEGAL STANDARD
For the reasons discussed below, the Court construes Defendants’ motion as a motion for

summary judgment. The Court may grant summary judgment only if “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In considering such a motion, the court “must draw all reasonable

Defendants rely in their statement of facts on the truth of this statement. See ECF 26-1 ¶ 3. Hylton does not dispute
this statement or make a hearsay objection, so the Court considers it.
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inferences in favor of the nonmoving party, and it may not make credibility determinations or
weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). As
long as the non-moving party “present[s] evidence from which a jury might return a verdict in his
favor,” then “there is a genuine issue of fact that requires a trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 257 (1986). However, a genuine dispute of fact does not exist where one party’s
account of the facts is “blatantly contradicted by the record, so that no reasonable jury could
believe it.” Scott, 550 U.S. at 380. Where video footage reveals such blatant contradictions, courts
must view those disputed facts “in the light depicted by the videotape.” Id. at 380–81.
III.

ANALYSIS
A. Construing Defendants’ Motion
Defendants style their instant motion as a motion to dismiss Hylton’s second amended

complaint or, in the alternative, as a motion for summary judgment. See ECF 26 at 1, 24. On reply,
they repeat their request that this Court either “dismiss [Hylton’s] claims or enter judgment in
favor of [Defendants].” ECF 29 at 5. As the basis for a summary judgment posture, Defendants
point to the BWC footage that they attached to their motion. See ECF 26-2. Hylton, meanwhile,
prefers that this Court construe Defendants’ motion as a motion to dismiss, not one for summary
judgment. ECF 28 at 9–10. According to Hylton, the video footage does not “material[ly]
contradict[]” Hylton’s allegations and therefore need not be considered. Id. at 10 (stating that a
court need only “view the facts in the light depicted by the videotape” when “a plaintiff’s recitation
of facts contradicts accurate video footage of an incident” (quoting ECF 26 at 6; Scott, 550 U.S.
at 380–81)).
The Court thus proceeds to a summary judgment posture because, despite Hylton’s
insistence otherwise, the BWC footage directly contradicts Hylton’s account of a material fact in
this case. That key fact arose after Delisi told Hylton not to continue spray-painting the wall and
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then grabbed her arm and back. In both her second amended complaint and her opposition to
Defendants’ motion, Hylton asserts that she merely turned around and exclaimed, “Yo!” at him,
and then Delisi began using additional force against her. See ECF 21 ¶¶ 34–35; ECF 28 at 13 n.3;
ECF 28-1 ¶ 12. But Delisi’s BWC footage clearly shows Hylton swinging her left arm at Delisi’s
face or upper body after he initially touched her arm and before he tried to restrain her further. See
Delisi BWC 18:17:01–03; ECF 26-1 ¶ 13.
Both Parties here acknowledge that a summary judgment posture would be appropriate if
the body-worn camera footage contradicted Hylton’s account of the facts. See ECF 28 at 10;
ECF 26 at 15. That is consistent with the rule in Scott and the practice of courts in this Circuit,
which deal with motions of this kind as summary-judgment motions only when the defendant’s
video evidence contradicts the plaintiff’s account of the facts. Compare Leach v. District of
Columbia, No. 19-cv-947, 2022 WL 1316436, at *3 (D.D.C. May 3, 2022) (treating the motion as
one for summary judgment for the claims as to which the body-worn camera footage was relevant),
and Smith v. United States, 121 F. Supp. 3d 112, 117 n.4 (D.D.C. 2015), aff’d, 843 F.3d 509 (D.C.
Cir. 2016) (same), with Singleton v. District of Columbia, No. 21-cv-1914, 2022 WL 4235128,
at *2, 5–6 (D.D.C. Sept. 14, 2022) (treating the motion as a motion to dismiss, and dismissing,
despite defendants’ submission of BWC footage).
The Court is mindful of the D.C. Circuit’s instruction that district courts “ha[ve] discretion
whether to consider affidavits or other factual matter outside the pleadings” and must
“exercise[] . . . great caution and attention to the parties’ procedural rights” when choosing to
convert a motion to dismiss into a motion for summary judgment. Hurd v. District of Columbia.,
864 F.3d 671, 687 (D.C. Cir. 2017). Specifically, Federal Rule of Civil Procedure 12(d) requires
courts to give parties “a reasonable opportunity to present all the material that is pertinent to the

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motion” when outside-the-pleadings evidence converts a motion to dismiss into a motion for
summary judgment. Fed. R. Civ. P. 12(d). And Rule 56 permits a nonmovant to submit an
“affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its
opposition” to a summary judgment motion, and allows the Court to then defer or deny the motion,
give additional time for discovery, or enter “any other appropriate order.” Fed. R. Civ. P. 56(d).
But here, Hylton does not invoke those procedural rights in response to Defendants’ pre-discovery
summary judgment motion. 11 Instead, she merely insists that “Defendants have not identified any
material contradictions” between the allegations in her second amended complaint and the BWC
footage. ECF 28 at 10. But she is wrong about that: Defendants have, in fact, identified a material
contradiction. Accordingly, the Court construes Defendants’ motion as a motion for summary
judgment and considers all the evidence before it.
B. Unreasonable Seizure
Hylton claims that Delisi violated her Fourth Amendment right to be free from
unreasonable seizure by restraining her movement despite her assertions that she had permission
to spray-paint the building. ECF 21 ¶¶ 47–50. Delisi argues that the Court should enter judgment
in his favor because he had probable cause to seize Hylton. ECF 26 at 17–20. The Court finds that
Delisi possessed (at least) reasonable suspicion that Hylton was illegally spray-painting the wall,
which gave him reason to conduct an investigative stop and try to restrain Hylton from continuing
to spray-paint the wall. Then, when Hylton turned around and swung at Delisi, he had probable

While Hylton refers to the fact that discovery has not yet begun, she does not submit the required affidavit or
declaration establishing that she cannot present facts necessary to justify her opposition or the need for additional
discovery beyond the BWC footage. Rather, she responds fully to Defendants’ statement of purported material and
undisputed facts and offers additional facts of her own, citing record evidence (the BWC footage). See ECF 28-1.
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cause to further seize her for assaulting a police officer. His seizures were therefore reasonable as
a matter of law.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
Under the Fourth Amendment, the lawfulness of any given seizure depends on whether it was
reasonable. See id. In general, a warrantless arrest is reasonable if an officer has “probable cause
to believe that the suspect committed a crime in the officer’s presence.” District of Columbia v.
Wesby, 583 U.S. 48, 56 (2018). Whether an officer had probable cause is determined by evaluating
the fact pattern from “the standpoint of an objectively reasonable police officer.” Id. at 56–57
(quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003)). This is a relatively low bar: officers need
only demonstrate “a probability or substantial chance of criminal activity,” not an absolute
certainty that criminal activity occurred. Id. at 57 (quoting Illinois v. Gates, 462 U.S. 213, 243–44
n.13 (1983)).
Although the Fourth Amendment generally requires that officers have probable cause to
seize an individual, they do not need probable cause to “briefly detain a citizen” where they “ha[ve]
a reasonable, articulable suspicion that ‘criminal activity may be afoot.”’ United States v.
Edmonds, 240 F.3d 55, 59 (D.C. Cir. 2001) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). Under
Terry, to “seize[ ] a person on less than probable cause,” an officer “must be able to point to
specific and articulable facts which, taken together with rational inferences from those facts,
support a reasonable and articulable suspicion that the person seized is engaged in criminal
activity.” United States v. Castle, 825 F.3d 625, 634 (D.C. Cir. 2016).
Still, such a so-called “Terry stop” or “investigatory stop” must be limited, lest it become
a de facto arrest and require probable cause. For one thing, it must “last no longer than is necessary

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to effectuate the purpose of the stop.” Hall v. District of Columbia, 867 F.3d 138, 153 (D.C.
Cir. 2017). An investigatory stop’s purpose can include, as its name suggests, “maintain[ing] the
status quo momentarily while obtaining more information.” Id. (quoting Adams v. Williams, 407
U.S. 143, 146 (1972)). In addition, such a stop does not typically involve “physical restraint.”
Hargraves v. District of Columbia, 134 F. Supp. 3d 68, 82 (D.D.C. 2015). However, the use of
some physical restraint, such as putting the suspect in handcuffs, “does not automatically convert
[an investigatory stop] into an arrest,” id., because “the right to make an arrest or investigatory
stop necessarily carries with it the right to use some degree of physical coercion or threat thereof
to effect it,” Graham v. Connor, 490 U.S. 386, 396 (1989). And officers may use additional force
in effecting the investigatory stop where “the suspect poses an immediate threat to the safety of
the officers or others” or “is actively resisting arrest or attempting to evade arrest by flight.” United
States v. Dykes, 406 F.3d 717, 720 (D.C. Cir. 2005) (quoting Graham, 490 U.S. at 396). In those
circumstances, the officers’ use of physical force does not convert the investigatory stop into an
arrest for which probable cause must be present.
Those black-letter rules doom Hylton’s unreasonable seizure claim. When Delisi first
arrived on the scene, he possessed, at minimum, “specific and articulable facts” to “support a
reasonable and articulable suspicion that [Hylton was] engaged in criminal activity.” Castle, 825
F.3d at 634. At that time, and as the Parties do not dispute, he believed that Hylton was
spray-painting the side of a building that she did not live in or own, ECF 26-1 ¶ 3; ECF 28-1 ¶ 3,
which can constitute a crime under D.C. law, see, e.g., D.C. Code § 22-3312.01 (“It shall be
unlawful for any person . . . to write, mark, draw, or paint, without the consent of the owner or
proprietor thereof . . . any word, sign, or figure upon . . . . [a]ny property . . . .”). Notably, he
would have observed that she was spray-painting at night, ECF 26-1 ¶ 1, which may have

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contributed to his sense of suspicion. See United States v. Brown, 334 F.3d 1161, 1165 (D.C.
Cir. 2003) (describing “the lateness of the hour” as a relevant factor in the reasonable suspicion
analysis). These factors, taken together, provided Delisi reasonable grounds to suspect “criminal
activity may be afoot,” approach Hylton, and request that she stop painting the building so he could
investigate the scene. Edmonds, 240 F.3d at 59.
Hylton argues that, at this early point in the confrontation, Delisi had two valid options:
“arrest or validly seize her, or verbally tell her to stop what she was doing without physically
touching her.” ECF 28 at 13. She claims that Delisi did neither and that he is “legally responsible
for the consequences.” Id. Those claims misstate both the facts and the law. Factually, although
the record does not show that Delisi used the specific word, “Stop,” it is undisputed that he told
Hylton, “you can’t spray paint there,” and that she understood him to be giving her instructions.
ECF 26-1 ¶ 8; id. ¶ 7 (Hylton saying to Delisi, “[y]ou’re tryna tell me what I cannot do”). Further,
legally, Delisi was authorized to use some degree of physical force to investigate the scene under
Terry and Graham. Recall that Delisi physically touched Hylton (on the arm holding the spray
can) only after she had defied his verbal instructions and continued to spray-paint the wall.
ECF 26-1 ¶ 9. In other words, Delisi first tried to “maintain the status quo” through verbal
commands. Only after those commands failed did he use some physical force to keep her from
continuing to spray-paint. See ECF 28-1 ¶ 101 (Delisi recounting that he “tried to grab [Hylton]
real quick” to “get her to stop spray-painting the wall” (quoting Delisi BWC 18:22:40–18:22:54)).
All of that conduct falls squarely under Terry and its progeny, and Delisi’s reasonable suspicion
that Hylton was vandalizing someone else’s property justifies his conduct.
Arguably, the rest of the 35-second physical struggle between Delisi, Hylton, and the
officers who came to Delisi’s aid also falls under Terry’s shield, given Hylton’s physical

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resistance. See Dykes, 406 F.3d at 384. But the Court need not, and does not, decide that question
because Hylton’s conduct gave Delisi the right to move beyond an investigatory stop into an arrest.
D.C. law criminalizes “assault[ing] a law enforcement officer on account of, or while that law
enforcement officer is engaged in the performance of his or her official duties.” D.C. Code § 22–
405(b). And the D.C. Court of Appeals defines “assault” as “an attempt with force or violence to
do a corporal injury to another.” Perez Hernandez v. United States, 286 A.3d 990, 997 (D.C. 2022)
(en banc) (quoting Patterson v. Pillans, 43 App. D.C. 505, 506 (D.C. Cir. 1915)). Once Hylton
turned around and swung her arm at Delisi (while holding a canister of spray paint), he had
probable cause to believe she was attempting to use force or violence to injure him. See ECF 26
at 19–20. From that moment, Delisi possessed probable cause to seize Hylton, and Hylton’s
unreasonable seizure claim must fail. Whren v. United States, 517 U.S. 806, 817 (1996) (explaining
that, with “rare exceptions,” the reasonableness of a seizure “is not in doubt where . . . the seizure
is based upon probable cause”). 12

To be fair to Hylton, Defendants’ motion partially misrepresents the law on this issue. At one point, Defendants
argue that Delisi “had probable cause to arrest Plaintiff for APO” as soon as she “did not comply with [Delisi’s] lawful
commands.” ECF 26 at 19–20. For support, Defendants quote the 2015 version of D.C. Code § 22–405(b), which
criminalized anyone who “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.” See ECF 26 at 19 (quoting D.C. Code § 22–405(b) (2015)). But the D.C.
Council amended that statute in 2017, three years before the incident at issue here, due to concerns that the prior
language was overbroad and criminalized “even yelling at an officer.” Coleman v. United States, 194 A.3d 915, 917–
18 (D.C. 2018). Since then, Section 22-405 criminalizes only “assault[]” of a law enforcement officer, whereas a new
provision, Section 22-405.01, criminalizes “resist[ing] an arrest.” D.C. Code §§ 22–405(b), 22–405.01(b). In other
words, merely resisting or disobeying an officer’s instructions before any attempt at an arrest has begun is no longer
a crime in D.C. And the cases in this Circuit that rely on that statute as providing probable cause to arrest someone
who yells at or disobeys an officer—most notably, Cromartie v. District of Columbia, 479 Fed. App’x 355, 357 (D.C.
Cir. 2012)—are no longer good law for events that occurred in 2017 or later. It is therefore concerning that Defendants
quoted that old, now-defunct version of the law, and cited Cromartie, to argue that Delisi had probable cause to arrest
Hylton merely because she yelled and disobeyed his orders. Such an argument from the District, misquoting its own
laws in briefing to this Court, is frivolous. Ultimately, though, Defendants’ error does not affect the outcome here
because Delisi developed probable cause soon thereafter, as the Court has explained.
12

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Hylton suggests that Delisi did not possess probable cause when he seized her because
Hylton told him she had permission to spray paint the building. ECF 28 at 13–14. But Delisi did
not need probable cause to conduct an investigatory stop or to effectuate that stop by grabbing
Hylton’s arm. Further, even had he needed to meet the higher standard of probable cause, Delisi
was not obligated to believe Hylton’s claim that she had permission to spray-paint the building. A
mistaken determination of suspicious or criminal behavior does not automatically render a seizure
unlawful, see Herring v. United States, 555 U.S. 135, 139 (2009), and the probable cause analysis
“does not depend on the elimination of all innocent explanations for a situation,” United States v.
Jackson, 415 F.3d 88, 94 (D.C. Cir. 2005). Rather, the crux of the inquiry Delisi had to conduct,
even under the higher probable-cause bar, was whether Delisi reasonably believed Hylton’s
conduct was illegal. See Wesby, 583 U.S. at 56–57. Hylton’s statement that she had permission to
spray-paint the wall is one factor that Delisi could have considered in making his determination—
but it was also reasonable for him to consider that Hylton was spray-painting the side of a building,
at night, that he believed she did not own or live in. Under those circumstances, it was not
unreasonable for Delisi to conduct a brief seizure in order to maintain the status quo and investigate
the scene.
Hylton also argues that the seizure that followed Hylton’s swing was unlawful because
Delisi was not “attempt[ing] to effect an arrest.” ECF 28 at 12. She cites a single out-of-circuit
district court opinion to suggest that the Fourth Amendment bars an officer from “striking an
individual who was not being arrested and was not presenting an imminent threat to the safety of
the officer.” Id. (quoting Williams v. Cnty. of Scotts Bluff, No. 05-cv-5018, 2006 WL 1288631,
at *3 (D. Neb. May 9, 2006)). Even construing the facts in Hylton’s favor, that Delisi never
intended to arrest Hylton, the Court remains unconvinced. For one thing, Williams involved an

14

excessive force claim, not an unreasonable seizure claim. See 2006 WL 1288631, at *3. As
discussed below, Hylton does not properly allege an excessive force claim and instead only alleges
Fourth Amendment unreasonable seizure. For another, that court cited multiple facts that
contributed to its determination that a reasonable jury could find a constitutional violation, not just
the fact that the officer never formally arrested the suspect. See id.
What’s more, even if Williams were on point, it would not bind this Court. Neither the
Supreme Court, the D.C. Circuit, nor any court in this District (or even the District of Nebraska)
of which this Court is aware has held that a seizure that goes beyond a Terry stop is reasonable
only where an officer intended to or in fact formally arrested (i.e., took into custody and initiated
formal charges against) the person they seized. To the contrary, the D.C. Circuit has defined “the
term arrest” as “any case where a person is taken into custody or restrained of his full liberty.”
Coleman v. United States, 295 F.2d 555, 563–64 (D.C. Cir. 1961) (emphasis added). Similarly,
the Supreme Court has held that an arrest “was complete” at the moment when officers “restricted
[the suspects’] liberty of movement.” Henry v. United States, 361 U.S. 98, 103 (1959). Hylton’s
liberty of movement was restricted when Delisi and his fellow officers restrained her for about 35
seconds until the observing crowd took her away. ECF 26-1 ¶¶ 14–17. Thus, even if Hylton is
correct (as the Court must assume she is for purposes of this motion) that Delisi did not intend to
arrest her, the undisputed facts suggest that Delisi did in fact arrest Hylton in the sense relevant for
the Fourth Amendment analysis. Hylton’s insistence that she was not formally arrested plays word
games with the term “arrest” that the caselaw rejects. 13

13
Hylton’s all-or-nothing construction of the term “arrest” also runs headlong into the reasoning of Terry. In Terry,
the Supreme Court explicitly rejected a sharp dichotomy, for Fourth Amendment purposes, between a “technical
arrest” (i.e., “a trip to the station house and prosecution for crime”) and any police action that falls short of such arrest
but nonetheless constitutes a “governmental invasion of a citizen’s personal security.” 392 U.S. at 16–19. Instead,
Terry recognized that the Fourth Amendment contemplates (and covers) actions short of formal arrest and held that

15

Instead, under the Fourth Amendment, this Court need only determine whether the “seizure
which took place” was “unreasonable” or not—that is, “whether the officer’s action was justified
at its inception, and whether it was reasonably related in scope to the circumstances which justified
the interference in the first place.” Terry, 392 U.S. at 19–20. Whether the officer later releases the
person or takes the person into custody does not impact the analysis of whether the seizure was
justified in the moment. Neither does any subjective intent of the officer, because “an arresting
officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable
cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004); see id. at 153–54 (rejecting a rule that
would make “the lawfulness of an arrest turn upon the motivation of the arresting officer”). The
question here is not whether Delisi intended to take Hylton into formal custody when he seized
her—it is whether he possessed sufficient justification to effect the seizure. In this case, because
of Hylton’s conduct, he had reasonable suspicion and then probable cause to seize Hylton. And
when an officer has probable cause, even amid “protestations of innocence,” a seizure is not
unreasonable. Wesby, 583 U.S. at 62.
In short, when Delisi first approached Hylton upon seeing her standing in a parking lot at
night and spray-painting the side of a building she did not own, he had, at minimum, reasonable
suspicion to conduct an investigatory stop. No unreasonable seizure. When Hylton continued
spray-painting the building in defiance of his instruction that she not do so, he had the authority to
escalate his investigatory stop by applying physical force to maintain the status quo. Again, no
unreasonable seizure. When she then swung her arm at Delisi, he had probable cause to arrest her.
Still no unreasonable seizure. And when the observing crowd then pulled Hylton away from Delisi

the permissible degree and kind of restraint depend on the amount of suspicion that the officer reasonably possesses.
Id. at 19–22.

16

and the other officers until Hylton left the scene, the incident ended. No further seizure—
unreasonable or otherwise. Accordingly, Hylton fails to state a claim for unreasonable seizure
under the Fourth Amendment.
C. Excessive Force
Hylton next claims that Officer Delisi used excessive force in violation of the Fifth
Amendment’s Due Process Clause. ECF 21 ¶¶ 51–54. Defendants argue that this claim fails as a
matter of law because the Due Process Clause “is inapplicable to any claim that a law enforcement
officer utilized excessive force during a detention.” ECF 26 at 24. The Court agrees with
Defendants’ position.
As the Supreme Court held in Graham, “all claims that law enforcement officers have used
excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of
a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard,
rather than under a ‘substantive due process’ approach.” 490 U.S. at 395. 14 Because the alleged
excessive force here occurred in the course of a seizure, Hylton should have brought this claim
under the Fourth Amendment rather than the Fifth Amendment. Hylton effectively concedes this
point in her response to Defendants’ motion to dismiss by noting she brought her substantive due
process claim “in the alternative in case Defendants argued that Hylton was not seized.” ECF 28
at 10–11 n.2. Yet, Hylton clearly brings only her “[u]nreasonable seizure” claim under the Fourth
Amendment—and brings her “[e]xcessive [f]orce” claim under only the Fifth Amendment. See
ECF 21 at 8; see also ECF 28 at 10–11 (Hylton discussing the differences between her

Substantive due process claims involving physical force by police may be viable where a search or seizure does not
occur but police use physical force. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843–44 (1998).

14

17

unreasonable seizure claim and her excessive force claim). The Court must therefore dismiss
Hylton’s excessive force claim because it invokes the wrong constitutional provision.
D. First Amendment Retaliation
Hylton also alleges that Delisi retaliated against her in violation of the First Amendment.
ECF 21 ¶¶ 60–65. She claims that her criticism of MPD’s treatment of her son and her “painting
the wall with permission to do so” was protected speech, id. ¶¶ 61–62, and that Delisi seized her
in retaliation for that speech, id. ¶ 63. Defendants argue that Hylton’s claim fails because Delisi
had probable cause. ECF 26 at 21–22. Despite its disagreement with some of Defendants’
reasoning, the Court ultimately sides with Defendants.
To establish retaliatory arrest, a plaintiff must demonstrate “the absence of probable cause
for the arrest.” Nieves v. Bartlett, 587 U.S. 391, 402 (2019). As explained above, Hylton’s
allegations establish that Delisi had probable cause to arrest Hylton as soon as she swung her
can-wielding arm at him. “This alone defeats [her] claim” as to all of Delisi’s (and the other
officers’) conduct after the swing. Johnson v. District of Columbia, 490 F. Supp. 3d 144, 158–59
(D.D.C. 2020); see also Hinkle v. Beckham Cnty. Bd. of Cnty. Comm’rs, 962 F.3d 1204, 1227
(10th Cir. 2020) (“We have already concluded that Deputy Estep had probable cause to arrest
Hinkle. So, under Nieves, Hinkle’s retaliatory-arrest claim must fail.”); Lund v. City of Rockford,
956 F.3d 938, 944 (7th Cir. 2020).
That rule holds even if retaliatory intent made up some portion of Delisi’s motivation to
seize Hylton, as Hylton claims. See ECF 28 at 15–16. That is because an officer’s “action colored
by some degree of bad motive does not amount to a constitutional tort if that action would have
been taken anyway,” Hartman v. Moore, 547 U.S. 250, 260 (2006). When Hylton took a swing at
Delisi, he had probable cause to arrest her for APO. Under Nieves, that probable cause provided
but-for causation for the arrest, and any other suspected retaliatory motivation is irrelevant. See
18

Nieves, 587 U.S. at 402–04 (holding that the objective presence of probable cause establishes butfor causation for the arrest and that the officers’ subjective motivations are irrelevant at that
point). 15
A slightly different question arises with respect to Delisi’s conduct prior to Hylton’s swing
at him. As explained above, construing the record in the light most favorable to Hylton, Delisi did
not have probable cause to arrest Hylton until she swung her arm at him. Yet, he had already taken
an “adverse action” against her by conducting an investigatory stop, including grabbing her arm
and back. Nieves, 587 U.S. at 398; see Waters v. Madson, 921 F.3d 725, 742 (8th Cir. 2019)
(construing a Terry stop as an adverse action for retaliation purposes); Allen v. Cisneros, 815 F.3d
239, 244–45 (5th Cir. 2016) (per curiam) (same). Theoretically, the same result should follow. Just
as Delisi’s arrest of Hylton was justified by probable cause, his investigatory stop was justified by
reasonable suspicion, as explained above. So, under the logic of Nieves, and Hartman before it,
any retaliatory motive was not the but-for cause of the stop, and Hylton’s First Amendment claim
must fail.
The wrinkle is that neither the D.C. Circuit nor the Supreme Court has extended the rule
of Nieves (arrest) and Hartman (malicious prosecution) to the context of investigatory stops. But
at least three other circuits have applied that rule to investigatory stops, either on the merits of the
First Amendment claim or as a matter of qualified immunity. See Waters, 921 F.3d at 742; Allen,
815 F.3d at 244–45; George v. Rehiel, 738 F.3d 562, 585–86 (3d Cir. 2013). This Court does the
same. At a minimum, it was not “clearly established” that Delisi could not conduct an investigatory

Nieves carves out a narrow exception to this rule “for circumstances where officers have probable cause to make
arrests, but typically exercise their discretion not to do so.” 587 U.S. at 406. That exception does not help Hylton: she
provides no authority, and the Court is not aware of any, demonstrating that officers do not arrest suspects (at least
briefly) for the crime of assaulting a police officer.
15

19

stop of Hylton upon reasonable suspicion that she was committing a crime just because she was
also engaged in First Amendment-protected speech. Mullenix v. Luna, 577 U.S. 7, 11 (2015) (“A
clearly established right is one that is sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.”).
Hylton’s only retort to these arguments echoes her unreasonable-seizure argument: that
Delisi did not intend to formally arrest Hylton and that Defendants’ caselaw applies only where
the officer actually intended an arrest. ECF 28 at 15–16. But, again, she offers no on-point
authority, binding or otherwise, for such a claim. The best Hylton can muster is a claim that
Defendants’ argument constitutes an “erroneous use of ‘greater-includes-the-lesser logic’”—of the
kind that courts have rejected in other contexts—because it would authorize an officer to conduct
a seizure that falls short of an arrest (the lesser power) just because that officer could have actually
completed, or tried to complete, the arrest (the greater power). Id.
Not so. Even accepting arguendo Hylton’s claims that (a) greater-includes-the-lesser
reasoning would be inappropriate in this context, and (b) Hylton was not in fact arrested when her
“liberty of movement” was restricted,” Henry, 361 U.S. at 103—neither of which is convincing—
Defendants’ argument stands. The key case, Nieves, turned on whether the officers’ conduct was
justified by probable cause, an “objective standard[] of reasonableness.” 587 U.S. at 403. The
“presence of probable cause to arrest,” not any intent to arrest, is what matters under Nieves. Id.
at 405. Indeed, the Nieves Court explicitly rejected any inquiry into the officer’s “subjective intent”
once probable cause is found. Id. at 403. Further, the Supreme Court has made clear that “probable
cause to arrest” is precisely equivalent to “probable cause to believe [the suspect] committed the
crime.” Pringle, 540 U.S. at 371–72, 374. As explained above, the objective and undisputed facts
and circumstances in the record establish that Delisi had probable cause to believe Hylton was

20

committing a crime once she swung her arm at him. Under Nieves, such probable cause defeats a
retaliation claim, regardless of what Hylton claims Delisi intended or was “trying” to do when he
seized her. ECF 28 at 15. And by that same logic, Delisi’s reasonable suspicion that Hylton was
painting the wall without permission justified Delisi’s investigatory stop, again regardless of his
subjective intent.
Finally, Hylton’s allegation that she was “engaged in protected speech by criticizing
MPD’s and Delisi’s conduct and by spray-painting the wall” does not alter the above analysis.
ECF 28 at 16. Nieves and its progeny also involve “protected speech.” The question in those cases
is whether “probable cause to make an arrest,” or reasonable suspicion to make a Terry stop,
“defeats a claim that the arrest was in retaliation for” that “speech protected by the First
Amendment.” Nieves, 587 U.S. at 397–98. Those cases’ answer is “yes.” Again, Delisi had
probable cause to make an arrest because he had probable cause to believe Hylton was committing
a crime. Accordingly, under Nieves, Hylton’s retaliation claim must be dismissed whether she was
engaged in protected speech or not.
E. False Arrest
Hylton also alleges that Delisi administered a false arrest under D.C. common law. ECF 21
¶¶ 56–59. 16 This claim suffers from the same defect as Hylton’s constitutional claims: Delisi had
reasonable suspicion and then probable cause to seize her. Under D.C. law, “[t]he gravamen of a
complaint for false arrest . . . is an unlawful detention.” Enders v. District of Columbia, 4 A.3d

Although, by this point, the Court has granted judgment against all of Hylton’s federal claims, the Court retains
supplemental jurisdiction over Hylton’s common-law false arrest and battery claims. Defendants request that the Court
exercise such jurisdiction over these claims, Hylton does not object, and the Court agrees that supplemental
jurisdiction is appropriate because the claims “derive from a common nucleus of operative fact.” Women Prisoners of
the D.C. Dep’t of Corr. v. District of Columbia, 93 F.3d 901, 920 (D.C. Cir. 1996); see ECF 26 at 28–29; ECF 28
at 16.
16

21

457, 461 (D.C. 2010). Without that, the claim fails. See id. Accordingly, where the officer has “socalled constitutional probable cause to arrest, determined by reference to the objective standard
used to determine probable cause in a criminal proceeding . . . the arrest will be lawful and the
officer accordingly will have a complete defense to a false arrest claim.” Scales v. District of
Columbia, 973 A.2d 722, 729 (D.C. 2009). Such a defense is “based entirely on the objective facts”
and “does not consider what [the] officer may have actually, even reasonably, perceived the facts
to be.” Id. Similarly, a false arrest claim fails for investigatory stops where the police have the
constitutionally required reasonable suspicion. See, e.g., Zhi Chen v. District of Columbia, 808 F.
Supp. 2d 252, 257 (D.D.C. 2011); Olaniyi v. District of Columbia, 876 F. Supp. 2d 39, 53
(D.D.C. 2012). As already established, Delisi had constitutional reasonable suspicion and then
probable cause to arrest Hylton. Her false arrest claim therefore “must fail as a matter of law.”
Scales, 973 A.2d at 729.
Hylton’s argument to the contrary misstates that clear rule. Hylton points to an earlier D.C.
Court of Appeals case for the proposition that an officer has a defense to false arrest “only where
the officer can demonstrate that (1) he or she believed, in good faith, that his or her conduct was
lawful, and (2) this belief was reasonable.” ECF 28 at 17 (quoting Scott v. District of Columbia,
493 A.2d 319, 321 (D.C. 1985)). But that is not what Scott says. Instead, Scott describes the above
test as a way an officer “can justify his conduct,” not the only way. Scott, 493 A.2d at 321. And,
as Defendants correctly note, more recent D.C. caselaw makes clear that Scott’s “subjective” test
is just one of two alternatives available to the defending officer; the other is the “objective
showing” of constitutional probable cause. Scales, 973 A.2d at 729; ECF 26 at 29; ECF 29 at 12–
13. Defendants have established the latter, which suffices to defeat Hylton’s false arrest claim.

22

F. Battery
Finally, Hylton alleges a battery claim under D.C. law. ECF 21 ¶¶ 66–70. Hylton stands
firm on her claim that Delisi neither subjectively believed nor reasonably could have believed that
Hylton was committing a crime. Id ¶¶ 69–70; ECF 28 at 18–19. Defendants argue that Delisi’s
battery was privileged because his use of force was reasonable under the circumstances, ECF 26
at 29, and the Court agrees.
A battery consists of “an intentional act that causes a harmful or offensive bodily contact.”
Evans-Reid v. District of Columbia, 930 A.2d 930, 937 (D.C. 2007) (quoting Jackson v. District
of Columbia, 412 A.2d 948, 955 (D.C. 1980)). There is no dispute that Delisi’s conduct constituted
battery. ECF 28 at 18. The battery occurred when Delisi grabbed Hylton’s right arm to take the
spray-paint can away from her, placed his left hand on her back, and restrained her for about 30
seconds. See ECF 26-1 ¶¶ 11–15.
However, an officer has a “qualified privilege” to commit what would otherwise be battery
“to effect an arrest, provided that the means employed are not in excess of those which the actor
reasonably believes to be necessary.” Scales, 973 A.2d at 730 (quoting Evans-Reid, 930 A.2d
at 937). That same rule applies to investigative stops. Katz v. District of Columbia, 285 A.3d 1289,
1312 (D.C. 2022). In both contexts, the question is “whether the officer’s conduct was reasonably
necessary and thereby privileged.” Id. (quoting District of Columbia v. Chinn, 839 A.2d 701, 707
(D.C. 2003)). Unlike the privilege for false arrest, this test of reasonableness “is both subjective
and objective: the officer must subjectively 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.” Scales, 973 A.2d at 730. And “[t]he officer’s judgment is to be
reviewed from the perspective of a reasonable officer on the scene,” id, not “with the 20-20 vision
of hindsight,” Chinn, 839 A.2d at 706. D.C. law therefore “allow[s] for the fact that police officers
23

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.” Etheredge
v. District of Columbia, 635 A.2d 908, 916 (D.C. 1993) (quoting Graham, 490 U.S. at 397).
Defendants contend that, from Delisi’s perspective on the scene, Delisi used reasonable
but necessary force to seize Hylton and prevent her from engaging further in what he reasonably
believed to be criminal acts—first, apparent destruction of property, and then assaulting a police
officer. ECF 26 at 32. The Court agrees. When Delisi arrived on the scene, he encountered Hylton
spray-painting a building at night and subjectively and reasonably believed that she was
committing a crime in doing so. ECF 26-1 ¶¶ 1, 3. At that point, he gave her verbal instructions to
stop painting the wall (even if he did not use those exact words). Id. ¶¶ 7–8. Only after Hylton
yelled at Delisi, turned away, “resumed spray-painting,” and ignored Delisi’s further instruction
not to paint the wall did he physically touch her to get her to stop spray-painting. Id. ¶¶ 7–11. The
caselaw establishes that such a use of force is reasonable. For example, judges in this District
(relying on D.C. law) have authorized officers to handcuff suspects when conducting an
investigative stop, particularly when the suspect does not follow verbal instructions. See, e.g.,
Hargraves, 134 F. Supp. 3d at 82–83 (citing Graham, 490 U.S. at 396); Moore v. Volpe, 177 F.
Supp. 3d 409, 417–18 (D.D.C. 2016). And the D.C. Court of Appeals has “recognized that
handcuffing can sometimes be a reasonable way for officers to ‘maintain the status quo’ while
diligently pursuing an investigation, such as where a suspect may attempt to flee.” Katz, 285 A.3d
at 1306. 17 Indeed, “[c]ourts have routinely held the use of handcuffs in the Terry context to be

17
That said, the D.C. Court of Appeals, in that same case, said that “[h]andcuffing is ordinarily improper in a Terry
stop absent a safety concern.” Katz, 285 A.3d at 1306. It is not clear from the BWC footage that Hylton posed a safety
threat to Delisi before she swung her arm at him. Yet, the Katz opinion’s explanation of the law on this issue suggests
that the resisting-an-officer’s-instructions justification for handcuffing during a Terry stop, as recognized by Womack,
constitutes an exception to that rule of what is “ordinarily” improper. See Katz, 285 A.3d at 1306 (citing Womack, 673

24

reasonable in situations where suspects attempted to resist police, made furtive gestures, ignored
police commands, attempted to flee, or otherwise frustrated police inquiry.” Womack v. United
States, 673 A.3d 603, 609 (D.C. 1996).
Under that caselaw, Delisi’s use of force during the investigative-stop portion of this
incident was reasonable as a matter of law. Although Delisi would have been authorized to
handcuff Hylton once she “ignored [Delisi’s] commands” and “frustrated [his] inquiry” into the
scene, id., Delisi did not even get that far. Instead, he merely grabbed her arm, at which point she
resisted and swung her other arm at him. Such minimal use of force on Delisi’s part does not create
a jury issue on Hylton’s battery claim.
Neither does Delisi’s subsequent restraint of Hylton after she swung her arm at him. That
swing not only gave Delisi probable cause to arrest Hylton for APO; it also authorized reasonable
force to restrain her. By swinging her arm at Delisi, Hylton began to “pose[] an immediate threat
to the safety of the officers or others” and was “actively resisting arrest.” Graham, 490 U.S. at 396.
As the D.C. Court of Appeals has held, “[a]ny person, including an officer, is justified in using
reasonable force to repel an actual assault, or if he reasonably believes he is in danger of bodily
harm.” Evans-Reid, 930 A.2d at 937 (quoting Etheredge, 635 A.2d at 916). Indeed, courts applying
these rules have upheld similar, if not more severe, police uses of force in response to less. See,
e.g., Oberwetter v. Hilliard, 639 F.3d 545, 548, 555 (D.C. Cir. 2011) (holding, in the related
constitutional excessive force context, that an officer did not use excessive force by “ripping apart
[the plaintiff’s] earbud, shoving her against a pillar, and violently twisting her arm” when she
refused the officer’s order to stop dancing and leave the Jefferson Memorial at night). Moreover,

A.2d at 609). Further, even if that is incorrect and Katz narrowed Womack sub silentio, that would not change the
result here because Delisi’s use of force during the Terry-stop portion of this encounter (i.e., before she swung her
arm at him) fell short of handcuffing.

25

Hylton acknowledges that she was not “gravely injured” and that Delisi “did not draw a weapon
on her or attempt to tackle or beat her.” ECF 28 at 19. As Hylton herself puts it, the alleged battery
was “subtle.” Id. This fact further weakens her battery claim. Cf. Wasserman v. Rodacker, 557
F.3d 635, 641 (D.C. Cir. 2009) (holding that the suspect’s lack of “bruise or injury . . . tends to
confirm that [the officer] did not use more force than reasonably appeared necessary to secure [the
suspect’s] compliance”). Finally, after some other men pulled Hylton away from Delisi’s hold, she
stopped spray-painting, stopped swinging at Delisi, and left. And Delisi made no further physical
contact.
Like clockwork, Hylton argues again that Delisi’s force was excessive and therefore not
privileged—under both her (defective) Fifth Amendment claim and her D.C. common-law battery
claim—because Delisi “did not make any . . . attempt to effect an arrest.” ECF 28 at 12. The Court
has already explained why that argument holds no water in the constitutional context, but it also
does nothing for Hylton under D.C. common law. For one thing, her common-law false arrest
claim relies on the premise that Hylton was, well, arrested. See ECF 28 at 17 (“To plead false arrest
under D.C. law, plaintiffs must allege that defendants wrongfully arrested them.”). To try to have
it both ways by alleging arrest for common-law false arrest but no arrest for common-law battery
is a bridge too far. 18 In addition, Hylton correctly concedes in her excessive-force argument that
Delisi would have been justified in using the force he used against her once he developed “probable
cause to arrest” her. Id. at 13. Hylton merely argues that no such probable cause developed until
after Delisi physically touched her. Id. That is true, but irrelevant. Delisi’s initial contact with
Hylton was privileged as part of his Terry stop. And once she swung at him, he had probable cause

Of course, it is possible that Hylton intended to plead those claims as alternatives, but she does not say so in her
briefing, nor does she otherwise acknowledge this contradiction.
18

26

to arrest her for APO. Hylton provides no authority that condemns the 35-second physical restraint
of someone who apparently assaults an officer, nor could she. Her battery claim cannot overcome
that problem. 19
IV.

CONCLUSION
All that said, construing all the facts in Hylton’s favor, the Court understands why Hylton

was upset by her interaction with Delisi. Hylton claims that she was spray-painting, with
permission, in honor of her son who was killed by an MPD officer. Further, she believes that Delisi
tried to stop her from doing so, and physically seized her, in retaliation for her protests of her son’s
murder. That experience could make any mother—any person—feel deeply wronged. But this
Court must apply the law. And the law allows officers to investigate potential crimes and use
reasonable force to seize apparent wrongdoers who resist those officers’ instructions and attempt
to physically assault the officers—even when done against the backdrop of tragic loss.
For the foregoing reasons, Defendants’ motion for summary judgment, ECF 26, is
GRANTED.
A separate Order accompanies this memorandum opinion.
SO ORDERED.

Jia M. Cobb
U.S. District Court Judge
Date: March 7, 2025

Had Hylton properly alleged a constitutional excessive force claim under the Fourth Amendment, that claim would
have failed for the same reasons as her battery claim. See Rogala v. District of Columbia, 161 F.3d 44, 57 (D.C.
Cir. 1998) (citing Etheredge, 635 A.2d at 916, for the proposition that constitutional excessive force and D.C.
common-law battery claims apply a “similar” standard, namely the Supreme Court’s standard in Graham).
19

27