Ingram v. Shipman-Meyer

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Dayshawn Ingram,

Plaintiff,

v.

Michael Shipman-Meyer, et al.,: Civil Action No. 12-1915 (GK)

Defendants.

MEMORANDUM OPINION

Plaintiff is Dayshawn Ingram, the son of the decedent, Anthony

Chambers. Mr. Chambers died immediately after a violent encounter

with the police. Plaintiff alleges that one of the police

officers, Officer Michael Shipman-Meyer, illegally used a

chokehold on his father, which caused his death. Plaintiff brings

several claims against Officers Shipman-Meyer, William Karabelas,

Stephen Rose, and Elizabeth LaDuca, as well as the District of

Columbia, stemming from the death of his father.

Presently before the Court are Plaintiff's and Defendants'

Cross-motions for Summary Judgment. Having reviewed the parties'

respective Motions, Oppositions, Replies, and Surreplies,

Plaintiff's Motion for Summary Judgment is denied in its entirety

and Defendants' Motion for Summary Judgment is granted in part and

denied in part.

1

I . BACKGROUND

A. Procedural Background

On September 19, 2012, Plaintiff commenced this action in the

Superior Court of the District of Columbia. Subsequently,

Defendants removed the case from Superior Court to this Court,

pursuant to 28 u.s.c. § 1441 et seq.

After extensive discovery, Plaintiff amended the Complaint he

originally filed in Superior Court. First Amended Complaint

("FAC") [Dkt. No. 37]. Count One alleges that the four officers

acted negligently, violating an applicable national standard of

care, resulting in Mr. Chamber's injury and death. FAC ~~ 8-13.

Count Two alleges that the officers committed assault and battery,

resulting in in Mr. Chamber's injury and death. Id. ~~ 14-17.

Count Three alleges that the officers used excessive force in

violation of Mr. Chamber's constitutional rights. Id. ~~ 18-22.

Count Four alleges that the officers engaged in tortious conduct,

and thereby violated the District's wrongful death statute. Id.

~~ 23-25. Finally, Count Five alleges that the District

negligently failed to train the officers in the proper use of

chokeholds, resulting in Mr. Chamber's injury and death. Id. ~~

26-32. Plaintiff seeks compensatory damages of $5,000,000 on each

count.

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On January 15, 2016, Plaintiff moved for partial summary

judgment. Pla1ntiff's Motion for Summary Judgment ("Pl.'s MSJ")

[Dkt. No. 56] . Plaintiff seeks summary judgment on parts of Counts

One, Two, Three, and Five of his First Amended Complaint, but does

not seek summary judgment as to any part of Count Four. See id.

Plaintiff concedes that there is a genuine dispute as to whether

or not the officers' actions caused the death of Mr. Chambers, and

therefore that he cannot fully prevail on any of his claims at the

summary judgment stage. Id. at 25 n.6. Instead, he essentially

asks the Court to hold that he is entitled to judgment on all the

other elements necessary to succeed on those claims, leaving only

the issue of causation for trial. See id. De£endants filed an

Opposition. Defendants' Opposition ("Defs.' Opp'n") [Dkt. No.

59] .

The Defendants also cross-moved for summary judgment on all

counts. Defs.' MSJ at 1. Plaintiffs filed an Opposition, to which

Defendants filed a Reply, and both parties filed Surreplies.

Plaintiff's Opposition ("Pl. 's Opp'n") [Dkt. No. 63], Defendants'

Reply ("Defs.' Reply") [Dkt. No. 65], Plaintiff's Surreply ("Pl.'s

Surreply") [Dkt. No. 68], and Defendants' Surreply ("Defs.'

Surreply") [Dkt. No. 69].

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B. Factual Background

1. The Court Will not Rely on Defendants' Statement of

Undisputed Material Facts

As a preliminary matter, Defendants argue that their

statement of material facts should be accepted, virtually in its

entirety, because Plaintiff failed to comply with Local Rule 7.

Defs.' Analysis of Material Facts, Exh. 1 to Defs.' Reply at 1 n.1

(citing LCvR 7) [Dkt. No. 65-1] Defendants argue that, if the

Court were to do so, there are essentially no material facts in

dispute in this case. Defs.' Reply at 2 n.2. In other words,

Defendants ask the Court to decide this case based almost

exclusively on their characterization of what occurred.

Local Rule 7 requires a party moving for summary judgment to

file a "statement of material facts" that it contends are

undisputed. LCvR 7(h) (1). In addition, it requires that a party

opposing a summary judgment motion must respond to the moving

party's statement of facts with "a concise statement" of "all

material facts" that remain in dispute. Id. Where the non-movant

fails to "controvert" a statement of undisputed fact made by the

movant, the Court may assume that the statement is admitted. Id.;

see also Broady v. Zanzibar on the Waterfront, LLC, 576 F. Supp.

2d 14, 16-17 (D.D.C. 2008).

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Both Plaintiffs and Defendants filed the required Rule 7

statement with their respective motions for summary judgment.

Defendants, in their Opposition to Plaintiff's Motion for Summary

Judgment, filed the required response to Plaintiff's statement of

material facts, indicating what facts Defendants believed remain

in dispute. Plaintiff failed to respond to Defendants' statement

of material facts in his Opposition to Defendants' Motion for

Summary Judgment. Instead, he simply resubmitted his original

statement of material facts with only a few additional facts added.

Given Plaintiff's failure to comply with Local Rule 7, Defendants

argue that their statement of material facts should be admitted in

its entirety. See Defs.' Analysis of Material Facts (asserting

that all but one of Defendants' statement of material facts not in

dispute have been admitted by failure to comply with the local

rule) .

Though "strict compliance with the local rule" is the norm,

Broady, F. Supp. 2d at 16, there are cases in which it is

unwarranted. See Hedgpeth v. Rahim, 2016 WL 5720699, *5-6 (D.D.C.

October 3, 2016) (refusing to admit Defendant's uncontradicted

statement, where the statement was so biased that it did not

accurately ref le ct what material facts were and were not in

dispute). This is one such case.

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In cases involving deadly force, "where the witness most

likely to contradict the officer's story - the person [killed] -

is unable to testify, courts . may not simply accept what may

be a self-serving account by the police officer. Instead, courts

must carefully examine all the evidence in the record to

determine whether the officer's story is internally consistent and

consistent with other known facts. Courts must also look at the

circumstantial evidence that, if believed, would tend to discredit

the police officer's story, and consider whether this evidence

could convince a rational factf inder that the officer acted

unreasonably." Flythe v. District of Columbia, 791 F.3d 13, 19

(2015) (internal citations and quotation marks omitted).

Heeding the di rec ti ve of the Court of Appeals, the Court

carefully examined the evidence in the record to determine whether

the account provided by Defendants, or any portions thereof, were

contradicted by other record evidence. Flythe, 791 F.3d at 19.

Having done so, the Court concludes that Defendants' Statement of

Material Facts not in dispute is materially inaccurate. It

presents - as undisputed - facts that Defendants' own witnesses

contradict, and it omits facts that are inconvenient to its overall

narrative. Consequently, the Court cannot simply rely on

Defendants' version of what occurred in deciding these Motions.

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Instead, the Court will present the relevant facts it has

culled from the record and then identify the key issues of material

fact ~hat remain in dispute.

2. Statement of Undisputed and Disputed Facts

Anthony Chambers was 38 years old on June 8, 2012. That day

he was staying with his sister, Valentina Chambers. Mr. Chambers

was experiencing some sort of mental disturbance, possibly brought

on by his use of PCP. Seeking assistance, Mr. Chambers contacted

the Mayor's office.

Two employees of the Department of Behavioral Health ("DBH"),

Linda Miller and Gary Yingling, were dispatched to the Chambers'

residence to assist him. Mr. Chambers appeared agitated, telling

them that a chip had been planted inside him by the government.

The DBH employees asked Mr. Chambers to accompany them so that he

could receive treatment, but he refused and then demanded that

they leave. He threatened violence if they did not.

Believing Mr. Chambers to be a potential danger to himself or

others, Miller and Yingling sought assistance from the police.

They went to the First District police station, where Miller

prepared a document authorizing the detention of Mr. Chambers for

a psychiatric evaluation. Given Mr. Chamber's size, he stood 6'

4" tall and weighed more than 370 pounds, and prior behavior, they

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...

asked that multiple officers accompany them to assist in detaining

and transporting him.

Four off ice rs were assigned the task - William Karabelas,

Stephen Rose, Michael Shipman-Meyer, and Elizabeth LaDuca.

Exactly what the officers were told about their assignment is

unclear. All the officers understood that they were acting on a

civil matter, dealing with a mentally disturbed individual, and

not there to make an arrest. The evidence suggests that neither

the DBH employees nor the officers were aware that Mr. Chambers'

mental health episode was drug-related. Deposition of Linda Miller

("Miller Dep.") at 19:1-4 [Dkt. No. 61-10]. However, prior to

heading to the Chambers' residence, some of the officers were

apparently informed that Mr. Chambers was a butcher by trade, and

therefore known to carry knives, and had threatened violence

earlier that day. Significantly, Officer Shipman-Meyer was not

made aware of either of these facts. See Deposition of Officer

Shipman-Meyer ("Shipman-Meyer Dep.") at 71:19-73:2 [Dkt. No. 61-

12]; Defs.' Analysis of Material Facts at~ 5.

These six people then set out for the Chambers' apartment.

Upon arriving they ascended the staircase that led to the landing

outside the apartment unit. The DBH employees and MPD officers

stood at various points outside - on the stairs above the landing,

on the landing itself, and on the stairs below the ·1anding - and

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called for Mr. Chambers to come outside. These six are the only

living eyewitnesses to what took place on the landing.

When Mr. Chambers presented himself at the door of the

apartment he was shirtless, sweaty, and appeared highly agitated.

He quickly became verbally combative with the officers. As a

result, the Officers indicated that they wanted to put him in

handcuffs before transporting him for treatment. Deposition of

Valentina Chambers ("Chambers Dep.") at 31:10-32:2 [Dkt. No. 61-

5] . All of this was consistent with what the Officers already

believed - that they were dealing with an agitated, mentally-ill

individual who was in need of assistance. Up to this point, there

was no reason for them to use force against Mr. Chambers, nor did

they do so.

The scene then quickly changed. Without provocation Mr.

Chambers attacked the officers. First, he punched Officer

Karabelas, causing him to fall backwards and hit his head on the

wall behind him. Next he punched Officer Rose several times in

the head. Finally, he punched Officer Shipman-Meyer in the face,

causing a fracture to his left orbital bone.

It is uncontroverted that, at this point, Mr. Chambers had

assaulted two of the officers, likely in violation of D.C. Code §

22-405(b), a misdemeanor, and had assaulted Officer Shipman~Meyer

and likely caused him "significant bodily injury" in violation of

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D.C. Code§ 22-405(c), a felony. 1 At that moment, the officers

had probable cause to arrest Mr. Chambers for a crime and, given

the violent nature of the crime, to use force to seize him.

They did so, though precisely what occurred is obscured by

the haze of battle and inconsistent testimony. Officers Karabelas,

Rose, and Shipman-Meyer attempted to restrain and subdue Mr.

Chambers, while Officer LaDuca deployed her pepper spray on Mr.

Chambers. Three of the officers, Karabelas, Rose, and Shipman-

Meyer, all grabbed hold of Mr. Chambers and tried to restrain him.

Officer Karabelas testified to grabbing hold of Mr. Chambers' right

arm, while both Officers Rose and Shipman-Meyer claim to have

grabbed hold of his left arm. While holding on to one of Mr.

Chambers' arms, Officer Shipman-Meyer punched Mr. Chambers in the

face multiple times with no success of calming him. Officer

LaDucca, who had been standing further from Mr. Chambers when the

altercation began and had not been attacked, approached and sprayed

Mr. Chambers in the face with pepper spray.

1 "An individual suffers a significant bodily injury where there

is an injury to the body . . that necessitates the individual

being taken to the hospital or receiving medical treatment shortly

after the injury was inflicted. Hospitalization or medical

treatment is required where it is necessary to preserve the health

and well being of the individual, e.g., to prevent long-term

physical damage, possible disability, disfigurement, or severe

pain." Fadero v. United States, 59 A.3d 1239, 1250 n. 50 (D.C.

App. 2013) (internal citations and quotations marks omitted).

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After she sprayed Mr. Chambers with pepper spray, it is

undisputed that the struggle between the officers and Mr. Chambers

then moved from the landing into the apartment. Additionally, it

is undisputed that this transition took only a matter of seconds

from the time that Mr. Chambers first attacked the officers.

Defs.' MSJ at 9 (quoting the various officers' depositions). There

is, however, a significant dispute as to how the officers and Mr.

Chambers arrived in the apartment.

According to the account presented by Defendants, they were

unable to control Mr. Chambers, who used his superior strength to

drag Officers Rose and Shipman-Meyer - both of whom had grabbed on

to some part of his body - backwards into the apartment. Defs.'

Analysis of Material Facts at ~ 16 (Mr. Chambers "overpowered" the

two officers and "dragged them backwards ... against their will");

Defs.' MSJ at 8. Yet, that account does not comport with much of

the evidence in the record.

First for example, Officer Karabelas, who had a hold of Mr.

Chamber's right arm, makes no appearance in the Defendants' story.

See Deposition of Officer Karabelas ("Karabelas Dep.") at 41:11-

52:20 [Dkt. No. 61-8] (making clear that he had a hold on Mr.

Chambers' right arm from the time they were on the landing until

after they entered the apartment). Perhaps that was because,

unlike the other officers, he did not testify that Mr. Chambers

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dragged them backward, but simply that they all "fell" together.

Id. at 49:1-8; see also "Miller Dep." at 26:9-28:11 ("they all

fell in") .

Second, the testimony of Mr. Yingling directly contradicts

the Defendants' account. He testified that the officers were able

to successfully restrain Mr. Chambers' arms and knock him "off

balance," sending him backwards into the apartment and down to the

ground: Deposition of Gary Yingling ("Yingling Dep.") at 25:2-

26:13 [Dkt. No. 61-13]. That testimony is partially confirmed by

the depositions of Officers Karabelas and Rose, in which they

describe having "locked-up" Mr. Chambers' right and left arms,

respectively. Karabelas Dep. at 41:11-42:22, 48:5-13, 52:16-20;

Deposition of Officer Rose ("Rose Dep.") at 22:7-11, 23:10-14 [Dkt.

No. 61-11].

The significance of this dispute cannot be overstated.

Central to the Defendants' narrative is the contention that Mr.

Chambers was so strong and so violent that he was virtually

uncontrollable throughout the encounter. Accordingly, Defendants

assert that each of the progressively forceful measures deployed

by the officers up to this point - punches, pepper spray, arm holds

- failed to subdue Mr. Chambers. Defs.' MSJ at 16-17. Despite

these efforts, they claim he was able to use his "super-human 11

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strength to "drag [the officers] backwards into his apartment

against their will." Id. at 16.

However, when viewed in its entirety, there is contradictory

record evidence. The record plausibly establishes that after the

surprise of Mr. Chambers' attack had worn off, the officers were

immediately able to gain a tactical advantage over him through a

combination of their superior numbers and their own use of force

- punches and pepper spray. It suggests that rather than Mr.

Chambers dragging them backwards, the officers knocked him back;

in other words, rather than their use of force being ineffective,

it was a success.

The fight then spilled into the apartment. Valentina

Chambers, Mr. Chambers' sister, and two other individuals were

already inside the apartment, and came into the living room to see

the commotion that was taking place.

Once inside the apartment the struggle continued, though,

again, exactly what transpired is unclear. 2 Two things appear

2 From this point forward, the record contains six

eyewitnesses: the four officers, Mr. Yingling, and Ms. Chambers.

There is no testimony in the record from the other two individuals

who were inside the apartment.

All four of the officers were engaged in a struggle with Mr.

Chambers, and their respective stories reflect the fact that their

participation limited their ability to testify clearly or

conclusively about what occurred. However, neither Mr. Yingling

nor Ms. Chambers were participants in the struggle and were able

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consistent from the testimony of all individuals. First, from

this point forward, there is no evidence that Mr. Chambers ever

attempted to kick. or strike any of the officers again. See

Yingling Dep. at 26:6-9; Rose Dep. at 25:2-26:4; Chambers Dep. at

42:19, 44:12-15 (describing Mr. Chambers as physically unable to

fight back or move). This contradicts Defendants' suggestion that

Chambers was violent throughout the encounter. Defs.' MSJ at 10.

Second, upon entering the apartment the officers almost

immediately brought Mr. Chambers down to his knees. Chambers Dep.

20:15 ("[The officers] wrestled him to the ground."); Id. at 42:9;

Yingling Dep. at 25:22-27:19. That the officers were able to get

Mr. Chambers down on the ground so quickly further undermines

Defendants' assertion that they found it impossible to control

him. See also Karabelas Dep. at 54:4-6 ("[Mr. Chambers] began to

weaken" once they entered the apartment) .

According to Defendants, at the point that Mr. Chambers was

knocked to the ground but before he was placed in a chokehold,

they became "separated" and lost sight of one another, with the

mass of Mr. Chambers blocking the view of one of the Officers and

any means of escape. Defs.' Reply at 7; Defs.' MSJ at 9. But

to see the entirety of what transpired next. Yingling Dep. 32:13-

17 (stating he head a "clear, unimpeded view"); Chambers Dep. 21:5-

22:12 (stating she was three to five steps away from the struggle).

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Mr. Chambers was brought down almost instantaneously after

entering the apartment, and it is not clear how he could block any

of the officer's vision while on the ground. Furthermore, the

room was quite small, so it is unclear how the officers could

become "separated" or "fragmented" as they were no more than a few

feet from one another. See Defs.' Reply at 7; Defs.' MSJ at 9;

Karabelas Dep. at 50:21-22 (describing the living room as "not a

big room") .

From this kneeling position the officers were able to tackle

Mr. Chambers to a prone position on the ground. By the time Mr.

Chambers was in this prone position, Officer Shipman-Meyer had

placed him in a chokehold. It is difficult to determine from the

various participants' testimony how long he held Mr. Chambers in

the chokehold, but it was likely no less than 20 or 30 seconds and

may have been minutes.3

3 The officers' testimony makes clear that the enti~e encounter

was incredibly short, and took as little as one minute and at most

"a couple minutes." See Shipman-Meyer Dep. at 107: 15-20. The

portion of the encounter that took place on the landing outside

the apartment lasted no more than 20 seconds. See Karabelas Dep.

at 46:15-47:15. While no witness provided an estimate of how long

it took to bring Mr. Chambers to the ground, the fairest reading

of the record is that it was also quite short. Even if the Court

were to assume that it took ten or even twenty seconds to bring

him to the ground, and based on the testimony even twenty seconds

seems far-fetched, that would suggest that Mr. Chambers was placed

in a chokehold no later than 30-40 seconds after the encounter

began.

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According to Defendants, Mr. Chambers continued to resist

after Officer Shipman-Meyer had placed him in the chokehold, and

this necessitated the continued use of the chokehold until he was

incapacitated and non-responsive. 4 Defs.' MSJ at 12. Officer

Shipman-Meyer testified that he was in a vulnerable position -

face down on the floor and unable to see what was transpiring -

Thus, even crediting the off ice rs' testimony implies that

Officer Shipman-Meyer held Mr. Chambers in a chokehold for at least

20-30 seconds, assuming the encounter lasted no more than a minute.

To the extent the encounter lasted two minutes, then Officer

Shipman-Meyer would have held him in a chokehold for up to 90

seconds, although no one directly testified that the chokehold

lasted that long. And if Officer Shipman-Meyer used "a couple

minutes" in the colloquial sense to mean "a few minutes," it may

have been even longer.

Moreover, Plaintiff has introduced evidence of the extent and

nature of Mr. Chambers' injuries which suggest that he was subject

to a tracheal choke hold. See Expert Report of Dr. Jonathan Arden

("Arden Report") [Dkt. No. 61-1]; Expert Report of Fernando

Yamasaki, Exh. 9 to Pl. 's MSJ at 4 [Dkt. No. 56-1] ("Yamasaki

Report") (stating that Mr. Chambers neck was so large, Officer

Shipman-Meyer would have been unable to place him in a pure carotid

choke) . Plaintiff has also introduced evidence indicating that a

tracheal chokehold takes up to three minutes to render a subject

unconscious, as may have occurred with Mr. Chambers. See Marine

Corps Close Combat Manual, Chapter 6 Choke Holds, Exh. 15 to Pl.'s

Opp'n [Dkt. No. 63-1] ("Marine Corps Close Combat Manual"). This

further supports the inference that Mr. Chambers was held in a

chokehold for a significant amount of time.

4 According to Officer Shipman-Meyer, Mr. Chambers was lying on

his left side and Officer Shipman-Meyer's right arm was around Mr.

Chambers' neck in a carotid hold. Officer Shipman-Meyer testified

that he was face down on the floor, unable to see Mr. Chambers or

the other officers. He further testified that he felt vulnerable

in this position, as Mr. Chambers was continuing to resist and was

attempting to roll on top of him. At 78:14-88:4.

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and that Mr. Chambers was attempting to roll on top of him.

Shipman-Meyer Dep. at 78:14-88:4.

In contrast, testimony from Ms. Chambers, Mr. Yingling, and

several of the other officers suggests that the officers already

had the upper hand and that Mr. Chambers was effectively subdued

by this time. Chambers Dep. at 42:16-45:5 (stating that Mr.

Chambers "couldn't fight back" because he was being held in a

chokehold by one officer, with multiple other officers on top of

him). Similarly, Officer LaDuca testified that Mr. Chambers was

face down on his stomach with Officer Shipman-Meyer on top of Mr.

Chambers' back, and that Mr. Chambers was completely surrounded by

the other officers. Deposition of Officer LaDuca Dep. ("LaDuca

Dep") at 41:22 - 45:22, 51:3-7 [Dkt. No. 61-9]. Indeed, she

describes an extended sequence in which she attempted to strike

Mr. Chambers with her ASP baton while he was on the ground and

then repeatedly tried to pry his arms out from under him, using

the baton as a lever. LaDucca Dep. at 41:8-43:2.

Officer Karabelas, in addition to Officer LaDuca, also saw

Officer Shipman-Meyer on top of Mr. Chambers and testified that he

had hold of one of Mr. Chambers arms. Karabelas Dep. at 57:3-8,

58:4-5. Similarly, Mr. Yingling testified that as soon as Mr.

Chambers was taken to the ground he saw multiple officers

restraining both of his arms. Yingling Dep. at 27:22-28:1.

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None of the other officers - nor Mr. Yingling - saw Officer

Shipman-Meyer place and maintain a chokehold on Mr. Chambers. This

despite the fact that they were mere feet from Officer Shipman-

Meyer when he was using the chokehold and that the use of the

chokehold may well have lasted at least 30 seconds - which is at

least as long as all the prior events in the encounter - if not

several minutes longer.

For example, despite being directly above the two and with a

clear vantage point, Officer LaDuca claims to have never seen

Officer Shipman-Meyer place his arms around Mr. Chambers' neck.

LaDuca Dep. at 50:21-51:1-2. Similarly, Officer Rose claims not

to have seen Officer Shipman-Meyer with an arm around Mr. Chamber's

neck, despite being mere inches or feet away from him. Rose Dep.

at 29:19-21. Officer Karabelas did see Officer Shipman-Meyer with

his arms around Mr. Chambers' neck or shoulder area, but was unable

to see whether or not Officer Shipman-Meyer had placed him in a

chokehold. Id. at 56:21-59:2. Similarly, Mr. Yingling, who claims

to have a "clear, unimpeded view" throughout the encounter,

Yingling Dep. at 32:13-17, nonetheless states that he never saw

Officer Shipman-Meyer use a chokehold. Id. at 31:9-12. All of

this testimony is implicitly contradicted by that of Ms. Chambers,

who was present for the same events, but had no trouble seeing her

brother being choked. Chambers Dep. at 42:21-45:5.

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.. '

Officer Shipman-Meyer maintained the hold for some

indeterminate amount of time, eventually releasing Mr. Chambers

when he determined that Mr. Chambers had stopped moving. At this

time the other officers who had been attempting to handcuff Mr.

Chambers were finally able to do so. Very shortly after

placing him in handcuffs, the officers noticed Mr. Chambers was

non-responsive and in apparent medical distress. The officers

agree that they rolled him into an upright position on the floor

and checked his pulse and breathing, but none provided emergency

first-aid assistance. One of the officers, possibly Officer

LaDuca, called for an ambulance. Other officers arrived on the

scene, and the four officers who were involved in the melee left

the apartment. Some amount of time passed before an ambulance

arrived and took Mr. Chambers for treatment, but he died en route

to the hospital.

None of the following material questions are conclusively

resolved by the record. Did Mr. Chambers possess such "super-

human" strength, that it was impossible to control him, or did the

officers immediately gain an advantage in their battle with him

after the surprise of his attack had faded? Did Officer Shipman-

Meyer use the chokehold as a last-ditch effort to gain control of

Mr. Chambers or had he already been subdued at that point? Did

Officer Shipman-Meyer maintain the chokehold for only the bare

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: ·•

minimum of time necessary to handcuff Mr. Chambers, or did he

maintain it for a significant period of time after Mr. Chambers

had been subdued?

Having reviewed in great detail the testimony presented by

the various witnesses, the Court has no trouble concluding that

there are material facts in dispute.

II. STANDARD OF REVIEW

Summary judgment may be granted only if the pleadings, the

discovery materials, and affidavits on file show that there is no

genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law. See Arrington v. United

States, 473 F.3d 329, 333 (D.C. Cir. 2006); Fed. R. Civ. P. 56(c).

"A dispute over a material fact is 'genuine' if 'the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.'" Arrington, 473 F.3d at 333 (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is

"material" if it might affect the outcome of the case under the

substantive governing law. Id.

The burden is on the moving party to demonstrate the absence

of any genuine issues of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). When a moving party successfully does

so, the nonmoving party must show the existence of a genuine issue

of material fact by providing "specific facts showing that there

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is a genuine issue for trial," and "may not rest on mere

allegations or denials" to prevail. Burke v. Gould, 286 F.3d 513,

517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248 (internal

quotation marks omitted) . The moving party is entitled to summary

judgment when the nonmoving party fails to offer evidence

sufficient to establish an essential element of a claim on which

it will bear the burden of proof at trial. Celotex, 477 U.S. at

322.

In reviewing the evidence on a motion for summary judgment,

the court views the evidence in the light most favorable to the

nonmoving party and draws all inferences in her favor. Johnson v.

Perez, 823 F.3d 701, 705 (D.C. Cir. 2016). "Credibility

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those

of a judge at summary judgment." Barnett v. PA Consulting Grp.

Inc., 715 F.3d 354, 358 (D.C. Cir. 2013) (internal quotation marks

and citation omitted). Accordingly, the Court's role is "not [to]

determine the truth of the matter, but instead [to] decide only

whether there is a genuine issue for trial." Id.

III. ANALYSIS

Plaintiff brings two distinct sets of claims in this action.

First, he brings claims based on a federal statute, 42 U.S.C. §

1983, against all four officers alleging that they violated his

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father's constitutional rights. Second, he brings a number of

claims based on the laws of the District of Columbia against the

officers and the District itself. The Court begins with

Plaintiff's federal claims before turning to his claims based on

the laws of the District.

A. Federal Section 1983 Claims against the Four Officers

Count Three of Plaintiff's Complaint alleges that the four

officers violated his father's rights under the Fourth Amendment

of the United States Constitution to be free from excessive force.

First, Plaintiff argues that Officer Shipman-Meyer violated his

father's rights by using a chokehold on him. Second, Plaintiff

argues that the other three officers violated his father's rights

by failing to stop Officer Shipman-Meyer. The Court will deal with

each claim in turn.

1. Neither Party Is Entitled to Summary Judgment on

the Claims against Officer Shipman-Meyer

Plaintiff claims that Officer Shipman-Meyer used excessive

force against Mr. Chambers and thereby violated 42 U.S.C. § 1983,

and has moved for summary judgment. Defendants have also moved

for summary judgment arguing that the claim is barred under the

doctrine of qualified immunity. The Court begins with the issue

of qualified immunity.

-22-

a. Officer Shipman-Meyer Is Not Entitled to

Qualified Immunity for his Use of a Chokehold

i. Qualified Immunity Standard

"In order to protect officers from undue interference with

their duties and from potentially disabling threats of liability,

qualified immunity shields federal officials from damages suits

for actions taken while carrying out their official duties."

Fenwick v. Pudimott, 778 F. 3d 133, 136-37 (D. C. Cir. 2015) . "To

defeat a defense of qualified immunity, a plaintiff must show not

only that an official 'violated a constitutional right' but also

that 'the right was clearly established' at the time of the

violation. Id. at 137 (quoting Saucier v. Katz, 533 U.S. 194,

200-01 (2001)); see also Plumhoff v. Rickard, 134 S. Ct. 2012,

2023 (2014). Both prongs of the qualified immunity analysis

present pure questions of law. See Scott v. Harris, 550 U.S. 372,

381 n. 8 (2007).

In deciding a motion for summary judgment on the basis of

qualified immunity, the plaintiff is the non-moving party, and the

Court resolves all issues of material fact in her favor. Scott,

550 U.S. at 378-79. In cases involving deadly force, the Court

does not simply accept the account of the officers, but instead,

carefully examines all the evidence to determine whether a rational

-23-

jury could conclude that the officer acted unreasonably. Flythe,

791 F.3d at 19.

ii. Prong 1: Officer Shipman-Meyer Violated

the Constitution

Defendants argue that Officer Shipman-Meyer is entitled to

qualified immunity because his use of a chokehold on Mr. Chambers

was reasonable and therefore did not violate the Fourth Amendment.

"Apprehension of a suspect through deadly force, i.e.,

killing him, qualifies as a Fourth Amendment seizure, and is

therefore unlawful unless objectively reasonable in light of the

facts and circumstances confronting [the officer] . " Flythe v.

District of Columbia, 791 F.3d at 18 (citing Tennessee v. Garner,

471 U.S. 1, 7 (1985) and Graham v. Connor, 490 U.S. 386, 397 (1989}

(internal quotation marks omitted)) . "To assess the

reasonableness of a seizure, [the Court] must balance the nature

and quality of the intrusion on the individual's Fourth Amendment

interests against the importance of the governmental interests

alleged to justify the intrusion." Johnson v. District of

Columbia, 528 F.3d 969, 974 (D.C. Cir. 2008).

The Court "give[s] careful attention to the facts and

circumstances of the particular case, including the severity of

the crime at issue, whether the suspect poses an immediate threat

to the safety of the officer or others, and whether he is actively

-24-

resisting arrest or attempting to evade arrest by flight."

Johnson, 528 F. 3d at 974. The Court "analyze[s] this question

from the perspective "of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight." Plumhoff, 134 S. Ct. at

2020.

In assessing an officer's use of deadly force, the test does

not differ from a claim involving less-than-deadly force; the sole

inquiry is whether the force used was objectively reasonable.

Scott, 550 U.S. at 381-83. However, the "nature and quality" of

the intrusion on the individual's Fourth Amendment interest is at

a maximum in a deadly force case because she has been deprived of

her greatest liberty interest, her life. Accordingly, the primary

focus is on whether the government's interests can justify that

intrusion. Ordinarily, the use of deadly force is reasonable where

an individual "poses an actual and imminent threat to the lives of

the officers involved" or other individuals. See Flythe, 791 F.3d

at 18.

In this case, the Court is called upon to determine whether

Officer Shipman-Meyer's use of a chokehold on Mr. Chambers was

reasonable. In order to make this assessment, the Court begins

with a discussion of the chqkehold procedure.

The term "chokehold" is imprecise, as it encompasses two

seemingly distinct control procedures. One of these procedures is

-25-

the "carotid hold" in which "an officer positioned behind a subject

places one arm around the subject's neck and holds the wrist of

that arm with his other hand. The officer, by using his lower

forearm and bicep muscle, applies pressure concentrating on the

carotid arteries located on the sides of the subject's neck. The

carotid hold is capable of rendering the subject unconscious by

diminishing the flow of oxygenated blood to the brain." Lyons v.

Los Angeles, 461 US. 95, 97 n.1 (1983). The carotid hold, when

properly applied, renders the subject unconscious in a matter of

seconds. Marine Corps Close Combat Manual at 1.

The term "chokehold" may also refer to "tracheal holds," also

known as "bar arm" holds. Yamasaki Report at 1; see also ~yons,

461 U.S. at 97-98. In this procedure an officer positioned behind

the subject uses his arm or arms in a manner similar to the "carotid

hold," but applies pressure to the subject's trachea, reducing the

flow of oxygen to the subject's lungs. The tracheal hold is also

able to render a subject unconscious, but ordinarily takes far

longer than the carotid hold to do so. The record in this case

suggests that a tracheal hold takes anywhere from 2-3 minutes to

render a subject unconscious, even when correctly applied. Marine

Corps Close Combat Manual at 1.

The two procedures are often discussed as though they are

wholly distinct. In practice it is difficult to apply one without

-26-

also applying the other. Yamasaki Report at 1. For example, an

officer may seek to place an individual in a carotid hold but

inadvertently apply pressure to the subject's trachea, cutting off

air flow to the subject's lungs as well as his brain. Id. In

that case, the officer has effectively placed the subject in both

a carotid and tracheal hold. It is especially difficult to apply

one type of hold where the officer and subject are engaged in a

physical struggle because the movement of both officer and subject

prevent the officer from precisely directing where she applies

pressure to the subject's neck. Id.

It is self-evident that both forms of chokeholds are

potentially lethal. To live, a human needs oxygenated blood to be

delivered to the brain and needs a sufficient amount of oxygen to

be delivered to the lungs. Chokeholds arrest these processes, and

if held for a sufficient amount of time necessarily carry the

potential for death. Lyons, 461 U.S. at 117 n. 7 (Marshall, J.

dissenting) . s

For these reasons, the application of any chokehold is

properly considered the application of deadly force. See Coley v.

5 The lengthy duration of a chokehold is not the only mechanism

that may cause death. Lyons, 461 U.S. at 117 n. 7 (Marshall, J.

dissenting) . Even chokeholds of a short duration can damage

structures in the neck, thereby leading to asphyxiation. In

addition, carotid holds may trigger processes in the central

nervous system that lead to cardiac arrest. Id.

-27-

Lucas County, 799 F.3d 530, 541 (6th Cir. 2015) (describing a·

chokehold as "deadly physical force"); Nava v. Dublin, 121 F.3d

453, 458 (9th Cir. 1997) (letting stand district court finding

that carotid hold constitutes "deadly force"), overruled on other

grounds in Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040 n.1

(9th Cir. 1999). Indeed, the District of Columbia itself has

statutorily established that the application of a chokehold by a

law enforcement officer "constitutes the use of lethal force." DC

St. § 5-125. 01.

The nature of a chokehold informs the excessive force analysis

in subtle, but significant ways. While some applications of force,

such as a gunshot, are instantaneous and discrete, the application

of a chokehold is not; it is, instead, continuous. When an officer

shoots an individual, there is a single decision point, whether or

not to pull the trigger. Thus, in determining whether an officer's

shooting of an individual was reasonable, the analysis properly

focuses on what transpired before she pulled the trigger.

In contrast, a chokehold is applied to a subject and then

held for some indeterminate period of time. Once applied, the

officer retains the ability to release the hold. Consequently, in

the context of a chokehold case, the analysis of whether an officer

acted reasonably focuses not only on the decision to apply the

hold in the first instance but also on the officer's continued

-28-

application of the hold. An officer may act reasonably in

initially placing a subject in a chokehold - because the subject

poses a threat - but act unreasonably in her continued application

of the hold because the threat has passed. See Flythe, 791 F.3d

at 22 ("Justification for deadly force exists only for the life of

the threat.").

With these principals in mind, the Court analyzes the facts,

known to Officer Shipman-Meyer from the time he first placed Mr.

Chambers in a chokehold until the time he released him, in order

to determine whether the Officer's conduct was reasonable. Officer

Shipman-Meyer knew that Mr. Chambers was an agitated, mentally-

ill man, who had threatened or menaced the DBH employees, but he

had no reason to believe that Mr. Chambers had committed a crime

or was armed.

Very soon after the officers' arrival at the Chambers'

residence, Mr. Chambers became violent, launching a surprise

attack against Officer Shipman-Meyer and his colleagues. They

responded with force, punching and pepper spraying him, and quickly

knocked him to his knees and then to the ground. Once on the

ground, two of the officers effectively restrained Mr. Chambers'

arms, while Officer Shipman-Meyer straddled his back. All the

while Officer LaDuca stood at the ready to assist her fellow

-29-

officers. At this point, the officers had effectively subdued Mr.

Chambers.

At some point during all this chaos - but certainly no later

than when Officer Shipman-Meyer was on top of Mr. Chambers' back

- Officer Shipman-Meyer put him in a chokehold. Yet, once Mr.

Chambers was subdued and despite the fact that he was

outnumbered, did not possess a weapon, had never attempted to grab

a weapon, and that his crime was assaulting the officers with his

bare hands Officer Shipman-Meyer continued choking him

potentially for 90 seconds, if not more - until he became non-

responsive. The Court concludes that it was unreasonable for

Officer Shipman-Meyer to continue choking Mr. Chambers after the

officers had subdued him.

The use of force on a suspect who has already been subdued is

plainly excessive. See e.g. Baker v. City of Hamilton, 471 F.3d

601, 607 (6th Cir. 2006) ("We have held repeatedly that the use of

force after a suspect has been incapacitated or neutralized is

excessive as a matter of law.") i Abbott v. Sangamon County, 705

F.3d 706, 732 (7th Cir. 2013) ("police officers cannot continue to

use force once a suspect is subdued") "This prohibition against

significant force against a subdued suspect applies

notwithstanding a suspect's previous behavior including

resisting arrest, threatening officer safety, or potentially

-30-

carrying a weapon. " Miller v. Gonzalez, 761 F.3d 822, 829 (7th

Cir. 2014).

Accordingly, courts have consistently held that officers may

not continue to use chokeholds and other similarly lethal

restraints on a suspect after he has been subdued. See Drummond

v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003) (it was excessive

force for two officers to sit on subject - causing him "positional

asphyxia" - after he had been subdued); Weigel v. Broad, 544 F.3d

1143 (10th Cir. 2008) (sitting on subject after he has been

subdued, causing asphyxiation, constitutes excessive force), cert

denied, 556 U.S. 1236 (2009); Booker v. Gomez, 745 F.3d 405 (10th

Cir. 2014) (continued use of chokehold on subject after he had

been subdued constituted excessive force, even though he had tried

to punch the officer) .

The reason for such a rule is obvious: once an individual has

been effectively subdued, she no longer poses a significant threat

to the officers or others, and therefore the need to use force has

ended.

In Drummond, a man called the police to assist his neighbor,

who was experiencing a mental health episode. 343 F.3d at 1054.

Three officers knocked the neighbor to the ground and handcuffed

him. Id. Despite the fact that he was subdued and face down on

the ground, two officers placed their weight on his neck and torso

-31-

to further restrain him. Id. at 1054-55. The combined weight of

the officers caused Drummond to experience positional asphyxia and

put him into a permanent vegetative state. Id. at 1055, 1057.

The court held that once Drummond was on the ground and subdued he

no longer posed a threat to the officers and others. Id. at 1057-

58. Consequently, the officers' decision to restrain him in a

manner that was likely to asphyxiate him was unreasonable and

excessive. Id. at 1058-60.

In Weigel, the police and Weigel were involved in a car

accident on the highway. 544 F.3d at 1147. After the accident,

Weigel began behaving erratically, running into traffic. Id. at

1148. The officers tackled Weigel and tried to restrain him, but

he resisted their efforts. Id. Eventually, they handcuffed him

and tied up his legs but he continued to struggle, so one of the

officers sat on his torso while a bystander sat on his legs for

several minutes. Id. Weigel was asphyxiated as a result of the

pressure on his chest and died. Id.

The Court held that the off ice rs should have known that

restraining Weigel in this manner was potentially lethal. Id. at

1153. Given that they had already subdued him, the court held

that their use of a potentially-lethal restraint was unreasonable

and excessive. Id.

-32-

In this case, Mr. Chambers was significantly outnumbered by

the police. Three officers had effectively pinned Mr. Chambers to

the ground and gained control of his arms, while a fourth officer

stood at the ready to assist them. Under such circumstances, the

officers had subdued Mr. Chambers, and he did not "pose[] an actual

and imminent threat to the lives of the officers involved" or other

individuals. 6 See Flythe, 791 F.3d at 18. Once he was subdued,

continued use of the chokehold was unnecessary and therefore

unreasonable and excessive.

Officer Shipman-Meyer was aware of all of these relevant

facts, and it should have been obvious to him that the extended

use of a chokehold was potentially lethal. 7 Consequently, his

6 The fact that Mr. Chambers was not handcuffed at this stage

does not mean he was not subdued. See Malory v. Whiting, 489 Fed.

Appx. 78, 86 (6th Cir. 2012) (unpublished) (holding that although

Plaintiff was not handcuffed, he was nonetheless subdued, and

therefore, forced use was unreasonable); Laury v. Rodriguez, 659

Fed. Appx. 837, 844 (6th Cir. 2016) (unpublished) (describing

Malory as rejecting argument that the right to be free from

excessive force once subdued was not clearly established because

the plaintiff was not handcuffed) .

7 The District's statutes establish that the use of a chokehold

constitutes "lethal force", DC St. § 5-125.01. Given the common

law presumption that "every person [knows] the law," Cheek v. US,

498 U.S. 192, 199 (1991), it is appropriate to presume a reasonable

MPD officer was aware of that fact. See Kleinberg v. Clements,

2012 WL 1019290, *9 (D.N.J. March 23, 2012) ("police officers are

presumed to know the law"); Brewer v. Hayman, 2009 WL 2139429, *8

(D.N.J. July 10, 2009).

-33-

decision to maintain a chokehold on Mr. Chambers after he had been

subdued was objectively unreasonable.a

Moreover, the fact that Mr. Chambers resisted the officers'

attempts to handcuff him and was not handcuffed until after the

chokehold was released does not alter the analysis. A number of

courts have held that it is unreasonable for an officer to use a

chokehold in order to make an arrest, simply because the individual

resists being handcuffed.

In Thompson v. Chicago, the court held that an officer was

not entitled to qualified immunity where he used a chokehold in

order to arrest a suspect who had both fled and fought with the

police. 2004 WL 1197436 (May 28, 2004 N.D. Ill.). In Thompson,

two police officers were on patrol and saw Thompson engage in an

apparent drug purchase. Id. at *1-2. Thompson saw the officers

and fled in his car. Id. The officers pursued him, and several

other cars joined the chase before Thompson crashed. Id.

Thompson emerged from the car, and two of the many officers

on hand attempted to subdue him. Thompson punched one of the two

officers, which resulted in a physical struggle. Id. All three

fell to the ground and Thompson continued to struggle as the

s This is sufficient, in and of itself, to defeat Officer

Shipman-Meyer's arguments on the first prong of the qualified

immunity analysis.

-34-

officers attempted to handcuff him. Id. One of the officers was

able to climb on Thompson's back and place him in a chokehold,

which he maintained until Thompson was eventually handcuffed.

Shortly thereafter, Thompson began to exhibit signs of respiratory

distress and eventually died. Id.

Despite Thompson's potential drug crime, attempt to flee from

arrest, violent assault of a police officer, and subsequent

attempts to resist being handcuffed and arrested, the court held

that the officer was not entitled to qualified immunity. Id. at

*5. Even under this set of facts, the court held that the use of

deadly force, in the form of a chokehold, was excessive and

unreasonable. Id. Indeed, the defendants themselves conceded

that the use of a chokehold was unreasonable and violated the

Fourth Amendment.9 Id.

Similarly in Griffith v. Coburn, the court held that an

officer lacked qualified immunity where he had been called by

Arthur Partee' s mother - because he was experiencing a mental

health issue - and he placed Mr. Partee in a chokehold after Partee

9 The Defendants denied that any officers had used a chokehold and

a jury ultimately acquitted the officers on the claim of excessive

force. See Thompson v. Chicago, 472 F.3d 444 (7th Cir. 2006).

However, the jury's decision does not alter or displace the

district court's conclusion that use of a chokehold constituted

deadly force and that deadly force was unauthorized under the

circumstances.

-35-

•.

resisted the officer's attempts to handcuff him. 473 F.3d 650,

651-53 (6th Cir. 2007). The officers lacked authority to

involuntarily commit Partee, but - in order to get him treatment

- decided to arrest him on an outstanding warrant stemming from a

traffic ticket. Id. Partee refused to go with the officers, and

when they attempted to handcuff him, he resisted their attempts to

do so. Id. During the course of the struggle, one of the officers

claimed Partee attempted to grab his gun, and put him in a

chokehold, leading to his death. Id. at 654.

On this set of facts the court held that a jury could find

that the officer's use of the chokehold was excessive and

unreasonable. Id. at 657-58. The court did so even after

accepting the officer's contention that Partee had attempted to

grab his gun. Id. The court reasoned that, despite this attempt

to grab the gun, Partee never actually posed a threat to the

officers because he was unsuccessful in grabbing the gun. Id.

The court held that, absent such a real threat, the officer lacked

justification to use deadly force against Partee. Id.

Thompson and Griffith both make clear that the use of a

chokehold simply as a tool of effecting an arrest is not

reasonable. Chokeholds are not justified simply because a suspect

resists being handcuffed, or even punches an officer. Instead,

the suspect must have done something that makes him a threat to

-36-

the lives of the officers or others. In this case, when the facts

are viewed in a light most favorable to Plaintiffs, Defendants

cannot demonstrate that Mr. Chambers posed this level of threat.

The Defendants' counterarguments are unpersuasive. The

Defendants claim that the following factors, when considered in

their totality, justify Officer Shipman-Meyer's use of deadly

force: the officers were injured, exhausted, and losing their

battle with Mr. Chambers when Officer Shipman-Meyer placed him in

a chokehold; addi,tional individuals were present in the apartment,

instilling further fear in the officers; and Mr. Chambers continued

to resist throughout the encounter and had been extremely violent

at its outset.

As to the first factor - whether the officers were losing

their battle with Mr. Chambers - that is a question of fact for

the jury. As discussed above, even accepting the officers' claim

that they were injured and exhausted, there is evidence in the

record suggesting that the officers had effectively subdued Mr.

Chambers despite their physical condition. Accordingly, a jury

could reasonably choose to disbelieve Defendants' account and

conclude that continued application of the chokehold was

unreasonable and excessive.

As to the presence of other indi victuals in the apartment,

that fact is wholly unpersuasive. There was no basis for

-37-

suspecting that those individuals were criminals or

coconspirators, because the officers were there on a mental health

call, not in response to a report of criminal activity. Thus,

there was no objective basis to regard them as a threat. 10

The fact that Mr. Chambers attacked the officers does not

change this calculus because - from the officers' vantage point -

his violence was the result of a mental heal th issue and not

connected to any underlying criminal activity. While the presence

of criminal accomplices may increase the danger perceived by a

reasonable officer, the Defendants fail to identify any case in

which the presence of innocent bystanders validates a heightened

perception of danger by an officer. As the officers had no

objective basis for perceiving these other individuals as a threat,

their presence does not justify any additional force beyond that

which was reasonable had they not also been in the apartment.

Defendants' argument that use of the chokehold was justified

by Mr. Chambers' continued resistance also fails. The evidence,

viewed in a light most favorable to plaintiff, casts doubt on the

notion that Defendant was violently resisting when he was placed

10 Moreover, the actions of these individuals confirmed to the

officer's that they were not a threat. For example, the officers

heard the occupants of the apartment discuss the need to let the

police do their job and not interfere. Karabelas Dep. at 66:8-

12; Yingling Dep. at 29:15-19.

-38-

in a chokehold. Instead, the record suggests that after the

initial punches thrown on the landing, Mr. Chambers did not throw

or land a single punch, kick or other blow, at least in part

because the officers had successfully subdued him.

The officers argue that even if he was unable to land another

blow, Mr. Chambers continued to struggle while he was on the ground

and in a chokehold. The only real description of what this

struggle entailed was given by Officer Shipman-Meyer who described

Mr. Chambers as "flailing" and "rolling." Shipman-Meyer Dep.

80:14-21, 87:17-88:4.

Yet, as Plaintiff's expert points out, such behavior is a

virtually automatic, subconscious response to being manually

asphyxiated. Yamasaki Report at 3. That an individual, who is

literally being choked to death, would flail in response would be

obvious to any reasonable person, including Officer Shipman-Meyer.

Accordingly, the Court cannot credit Defendants' attempts to

characterize these movements as violent resistance. In light of

the other evidence suggesting that Mr. Chambers was effectively

subdued, these movements, whatever they were, would not justify

Officer Shipman-Meyer's continued use of the chokehold.

Ultimately, the heart of the Defendants' argument is that Mr.

Chambers had violently attacked the officers, and therefore, it

was reasonable for Officer Shipman-Meyer to place him in a

-39-

chokehold until he was handcuffed. Defendants' argument ignores

the evidence suggesting that Officer Shipman-Meyer continued to

choke Mr. Chambers after the officers had effectively subdued him.

There is a clear "prohibition against significant force against a

subdued suspect ... notwithstanding a suspect's previous

behavior .... " Miller, 761 F.3d at 829. As our Court of Appeals

has said, "That an individual at one point posed a threat does not

grant officers an irrevocable license to kill." Flythe, 791 F.3d

at 22.

For all these reasons, the Court finds that a jury could

reasonably conclude that Officer Shipman-Meyer's use of a

chokehold was objectively unreasonable and violated Mr. Chambers'

rights under the Fourth Amendment.

iii. Prong 2: The Right to Be Free from Deadly

Force once Subdued Was Clearly

Established

Though a reasonable jury could conclude that Officer Shipman-

Meyer used excessive force in violation of the Fourth Amendment,

he is still entitled to qualified immunity if the right to be free

of such force was not clearly established at the time of the

violation, which was June 8, 2012.

This prong of the qualified immunity analysis "begin [s] by

establishing the appropriate level of generality at which to

analyze the right at issue." Johnson v. District of Columbia, 528

-40-

F.3d 969, 975 (D.C. Cir. 2008). It is insufficient to ask whether

Mr. Chambers had a right to be free from unreasonable seizure.

Id. Instead, the "dispositive inquiry ... is whether it would be

clear to a reasonable officer that his conduct was unlawful in the

situation he confronted. 11

Id. In this case, the relevant question

is whether a reasonable officer would have known that it is

unlawful to use a potentially lethal restraint, such as a

chokehold, on an individual who has already been subdued by

multiple officers.

"To determine whether the officer[] 'strayed beyond clearly

established bounds of lawfulness, ' [the court] look [s] first to

'cases of controlling authority.'" Wesby v. District of Columbia,

675 F.3d 13, 26 (quoting Youngbey v. March, 676 F.3d 1114, 1117

(D.C. Cir. 2012) (internal citations omitted)). "If there is no

such controlling authority, then [the court] must determine

whether there is 'a consensus of cases of persuasive authority.'"

Youngbey, 676 F.3d at 1117 (quoting Ashcroft v. al-Kidd, 131 S.

Ct. 2074, 2084 (2011)). The court "need not identify cases with

materially similar facts, but ha[s] only to show that the state of

the law at the time of the incident gave the officer[] fair warning

that [her] particular conduct was unconstitutional." Wesby, 765

F.3d at 26.

-41-

....

It is clear that as of June 8, 2012, a reasonable officer

would have been on notice that she could not choke to death an

unarmed subject who had already been subdued by fellow officers.

An officer may use deadly force where a suspect "pose[s] an actual

and imminent threat to the lives" of the officer or others. Scott,

550 U.S. at 384. Once a suspect is subdued, they no longer pose

a sufficient threat to justify the use of force. See Abbott v.

Sangamon County, 705 F.3d 706, 732 (7th Cir. 2013) ("it was well-

established in 2007 that police officers cannot continue to use

force once a suspect is subdued" (emphasis added) ) ; Baker, 4 71

F.3d at 607 ("We have held repeatedly that the use of force after

a suspect has been incapacitated or neutralized is excessive as a

matter of law.").

Moreover, a number of Courts of Appeals have held that once

a suspect has been subdued, officers may not continue to use

potentially-lethal methods of restraint, such as chokeholds. See

Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. ,2003); Weigel

v. Broad, 544 F.3d 1143 (10th Cir. 2010). This represents a

sufficiently robust consensus of cases of persuasive precedent,

and should have put Officer Shipman-Meyer on notice that his

continued application of the chokehold after Mr. Chambers was

subdued was excessive.

-42-

When viewed in a light most favorable to Plaintiff, the facts

suggest that Mr. Chambers was already subdued and that a reasonable

officer in that situation would have recognized that continuing to

keep Mr. Chambers in a chokehold was unreasonable, excessive, and

in violation of the law as it stood at the time. For that reason

Officer Shipman-Meyer is not entitled to qualified immunity.

b. The Plaintiff Is also Not Entitled to Swrunary

Judgment

Plaintiff has also moved for summary judgment on his claim of

excessive force against Officer Shipman-Meyer. Resolving the

disputed material facts in favor of the Defendants, the non-

movants, and viewing the facts in the light most favorable to them,

the Court concludes that the Plaintiff is not entitled to summary

judgment.

It is undisputed that Mr. Chambers launched a surprise attack

on the officers, seriously injuring one of them. The officers

then attempted to restrain him, but their punches and pepper spray

had little effect on him. Instead, Mr. Chambers used his super-

human strength to drag them backwards into the apartment, where

they all fell to the ground. As the officers were outmatched and

unable to control Mr. Chambers, Officer Shipman-Meyer used a last-

ditch maneuver to bring him to the ground. He immediately placed

him in a carotid hold, which lasted the minimum time necessary to

-43-

render Mr. Chambers unconscious, no more than twenty seconds. At

that point, with Mr. Chambers finally subdued, Officer Shipman-

Meyer released the hold, and his fellow officers handcuffed Mr.

Chambers.

Under those facts, a rational jury could conclude that Officer

Shipman-Meyer reasonably feared for his own life and those of his

fellow officers and, therefore, that his use of a chokehold was

objectively reasonable. It is true that both Griffith and Thompson

suggest that resisting arrest, even when done violently, does not

justify the use of a chokehold on an unarmed suspect. See

Griffith, 473 F.3d 650 and Thompson, 2004 WL 1197436. However,

unlike those cases, Mr. Chambers was able to seriously injure -

with his bare hands alone - at least one of the officers. Moreover,

if the officers' testimony is credited, he possessed super-human

strength - possibly as a result of his consumption of PCP - that

prevented them from controlling him in order to make an arrest.

Given those additional factors, a jury could conclude that Mr.

Chambers possessed a threat to the lives of the officers, even

though he was unarmed. In light of this threat, a jury could find

that a chokehold was the only available means to gain control of

Mr. Chambers and that Officer Shipman-Meyer's decision to do so

until Mr. Chambers was subdued was objectively reasonable.

-44-

...

In addition, Plaintiff cannot demonstrate that the right to

be free of force under these circumstances was clearly established

at the time of the incident. Specifically, Plaintiff cannot

demonstrate that a reasonable officer would be on notice that he

was prohibited from using a chokehold on a violently resisting

suspect who he and his fellow officers were unable to subdue

through other means. Plaintiff has not identified any controlling

case in this Circuit that addresses a similar factual scenario.

Virtually all of the cases from other Circuits address a scenario

in which the officers proceeded to use a potentially lethal

restraint after the subject was subdued.

Whether Officer Shipman-Meyer continued to choke Mr. Chambers

after he had been subdued is the key fact in the qualified immunity

analysis. But it is also one of the central facts in dispute.

Accordingly, neither the Defendants nor Plaintiff are entitled to

summary judgment on the qualified immunity issue because this case

"presents the exceptional situation in which the [] court cannot

complete its qualified immunity analysis without first determining

disputed material facts." Maestas v. Lujan, 351 F.3d 1001, 1009-

10 (10th Cir. 2003) . 11

11 However, that "does not mean that the officers cannot reassert

their qualified immunity claims at and after trial when the factual

disputes have been resolved." Dixon, 922 F.2d at 1463; see also

Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1041 n. 5 (1st Cir.

-45-

2. Neither Party Is Entitled to Sununary Judgment on

the Claims of Bystander Liability

Plaintiff also argues that the other officers, LaDuca, Rose,

and Karabelas, can be held liable for Officer Shipman-Meyer's use

of a chokehold because they failed to intervene to stop him from

violating Mr. Chamber's rights. P1 . ' s Opp' n at 25 - 26 . Both

parties have moved for summary judgment on this claim, but because

there are issues of material fact in dispute, neither party is

entitled to it.

"[A] plaintiff can show that [an] officer is liable under a

theory of bystander liability. Under that theory, an officer is

held liable for a constitutional violation if he: (1) knows that

a fellow officer is violating an individual's constitutional

right; (2) has a reasonable opportunity to prevent the harm; and

(3) chooses not to act." Matthews v. District of Columbia, 730 F.

Supp. 2d 33, 39 (D.D.C. 2010) (internal citations and quotation

marks omitted); see also Moore v. District of Columbia, 79 F. Supp.

3d 121, 134-35 (D.D.C. 2015).

In this case, there are significant issues of material fact

in dispute that preclude judgment for either side. As discussed

above, a jury could reasonably conclude from the record: 1) that

1988) ("A defendant who has appropriately pleaded the affirmative

defense of qualified immunity may establish his right to immunity

at any point in the proceeding, including at trial.").

-46-

Officer Shipman-Meyer held Mr. Chambers in a chokehold despite the

fact he was subdued; 2) that this chokehold lasted for a

significant period of time after Mr. Chambers was subdued; and 3)

given the amount of time Mr. Chambers was in the chokehold and the

fact that the other officers were mere feet from what transpired,

that they saw all of this.

First, should a jury resolve those questions in favor of the

Plaintiff, all three elements of bystander liability would be

satisfied. The three other officers were present for the entire

sequence of events, and thus, may well have observed everything

that Officer Shipman-Meyer did, contrary to their denials. 12 What

is more, the Court has already concluded that the right to be free

of excessive force under these circumstances was clearly

established at the time. Thus, if a jury concluded that Officer

12 The Defendants argue that because the other officers deny even

seeing Officer Shipman-Meyer use a chokehold, they cannot be held

liable under a bystander liability theory. If that fact was not

in dispute, as they assert, they would be correct. But as the

Court has already discussed, there is reason to doubt the other

officers' accounts.

When viewed in a light most favorable to Plaintiff, the facts

suggest that some if not all of the other officers saw Officer

Shipman-Meyer use a chokehold. Again, the facts suggest that he

may have employed the chokehold for minutes. While it was used,

the other officers were within feet, perhaps inches, of Officer.

Shipman-Meyer. Under those circumstances, the other officers'

testimony that they did not see any use of a chokehold is

implausible.

-47-

Shipman-Meyer used excessive force, it could also reasonably

conclude that the other officers knew that Officer Shipman-Meyer

was violating Mr. Chambers' constitutional rights.

Second, given that Mr. Chambers was subdued by the officers,

when the facts are viewed in a light most favorable to Plaintiff,

a jury could also reasonably conclude that the other officers had

a reasonable opportunity to prevent the violation by getting

Officer Shipman-Meyer to release the chokehold. Third, there is

no evidence in the record that any of the officers did anything to

get Officer Shipman-Meyer to end the chokehold. Indeed, they all

deny ever seeing him use a chokehold, which necessarily forecloses

them from arguing that they attempted to stop it.

By the same token, when the facts are viewed in a light most

favorable to the other officers, Plaintiff ·is not entitled to

summary judgment. Given that the chokehold may have lasted no

more than fifteen to twenty seconds and that the officers claim

they were all attempting to restrain Mr. Chambers during the midst

of a violent struggle, a jury could reasonably credit the officers'

testimony that they did not see Officer Shipman-Meyer place Mr.

Chambers in a chokehold. If the other officers did not see Officer

Shipman-Meyer use the chokehold, Plaintiff cannot show that they

were aware that his rights were being violated. That alone is

-48-

sufficient to defeat Plaintiff's theory of bystander liability,

and thus precludes summary judgment on his behalf.

Consequently, neither party is entitled to summary judgment

on the claim of bystander liability against Officers LaDuca, Rose,

and Karabelas.

B. Claims Based on DC Law

The remainder of Plaintiff's claims are brought pursuant to

the laws of the District of Columbia. The Court begins with Count

Two, claiming that the officers committed an assault and battery.

FAC at ~~ 14-17. Next, the Court turns to Count One, claiming

that Officer Shipman-Meyer was negligent in his use of a chokehold.

FAC at ~~ 8-13. The Court then addresses Count Five, claiming

that the District was negligent in its training of officers on the

use of chokeholds. FAC ~~at 26-32. Finally, the Court addresses

Count Four, claiming wrongful death. FAC at ~~ 23-25.

1. Count Two: Assault and Battery

Plaintiff alleges tha,t each of the officers committed an

assault and battery in violation of District of Columbia law. He

advances two theories of liability in support of this claim. Pl.'s

Opp' n at 2 7 - 2 8 . First, Plaintiff argues that Officer Shipman-

Meyer's use of a chokehold constitutes assault and battery. Id.

Second, Plaintiff argues that if Officer Shipman-Meyer's use of a

-49-

chokehold constitutes assault and battery, Officers LaDuca,

Karabelas, and Rose also committed assault and battery because

they aided and abetted him. Id. Both parties have moved for

summary judgment.

a. Neither Party Is Entitled to Summary Judgment

on the Claim that Officer Shipman-Meyer

Committed Assault and Battery

Defendants argue that Officer Shipman-Meyer had a qualified

privilege to use a chokehold on Mr. Chambers and that he is

therefore entitled to summary judgment. Defs.' MSJ at 19-21.

Just as qualified immunity is a shield against liability in

Section 1983 excessive force claims, qualified privilege protects

officers in common law claims of assault and battery. District of

Columbia v Chinn, 839 A.2d 701, 705-06 (D.C. 2003). "A police

officer has a qualified privilege to use reasonable force to effect

an arrest, provided that the means employed are not in excess of

those which the actor reasonably believes to be necessary. 11

Scales

v. District of Columbia, 973 A.2d 722, 730 (D.C. App. 2009). "[T]he

test for qualified privilege in an assault and battery suit is

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. 11

Id. at 730. The

objective piece of the qualified privilege analysis is "similar to

-50-

the excessive force standard applied in the Section 1983 context."

Dormu v. District of Columbia, 795 F. Supp. 2d 7, 27 (D.D.C. 2011).

In addressing Plaintiff's Section 1983 claims, the Court

concluded that a rational jury could conclude that Officer Shipman-

Meyer' s use of a chokehold was not objectively reasonable. That

conclusion applies with equal force to the claim of qualified

privilege. Accordingly, Officer Shipman-Meyer is not entitled to

qualified privilege on Plaintiff's assault and battery claim at

the summary judgment stage.

Plaintiff is also not entitled to summary judgment on his

assault and battery claim. In his deposition, Officer Shipman-

Meyer testified to his subjective fear for his life. Defs.'

Analysis of Material Facts at ~ 24. And, as discussed above, when

the evidence is viewed in a light most favorable to the Defendants

a rational jury could conclude that his use of force was

objectively reasonable. Accordingly, a jury could reasonably

conclude that Officer Shipman-Meyer had a qualified privilege to

place and maintain a chokehold on Mr. Chambers.

Consequently, neither party is entitled to summary judgment

on the issue of whether Officer Shipman-Meyer committed assault

and battery.

-51-

b. Defendants Are Entitled to Summary Judgment on

the Claim that the other Three Officers

Committed Assault and Battery

Defendants argue that they are entitled to summary judgment

on Plaintiff's theory that one or more of the other three officers

- Karabelas, LaDuca, or Rose - aided and abetted Officer Shipman-

Meyer because it is without merit.

In the District of Columbia, a person aiding or abetting the

principal of fender in the commission of a crime is held as liable

as the principal. D.C. Code § 22-1805. "Aiding and abetting is

established if the accused 'in some sort associated himself with

the venture, participated in it as in something that he wished to

bring about, and sought by his action to make it succeed. '"

Hackney v. U.S., 389 A.2d 1336, 1342 (D.C. 1978), cert. denied,

439 U.S. 1132 (1979) (internal citations, quotation marks, and

ellipses omitted). However, to prove that a person is an accessory

who aided and abetted the principal, "there must exist a community

of unlawful intent between the accessory and the perpetrator of

the crime." Id.

Plaintiff's aiding and abetting claim is without any merit

because he has presented no evidence establishing a community of

unlawful intent between Officer Shipman-Meyer and any of the other

three officers. There is no evidence that any of these three

shared an intent with Officer Shipman-Meyer that he unnecessarily

-52-

choke, let alone harm, Mr. Chambers. At best, the evidence

suggests that they intended to restrain Mr. Chambers, which was

entirely lawful given his assault of the officers, and that when

Officer Shipman-Meyer used a chokehold to do so, they did not

actively intervene once it became clear that the chokehold was no

longer necessary. Those facts are insufficient to establish the

requisite criminal state of mind on the part of any of the other

officers.

Therefore, Defendants are entitled to summary judgment on the

claim that Officers Karabelas, LaDuca, and Rose aided and abetted

an assault and battery.

2. Count One: Claim of Negligence by Officer Shipman-

Meyer

Plaintiff alleges in his First Amended Complaint that Officer

Shipman-Meyer's use of a chokehold violated a national standard of

care and was therefore negligent. FAC at ~ 11.

"[A] municipality may choose to hold its officers to a

stricter standard than the Cons ti tut ion requires." Scales v. D. C. ,

973 A.2d 722, 730 (D.C. App. 2009) (internal citations and

quotation marks omitted) . Thus, even where an officer does not

violate a suspect's constitutional rights, he may still be liable

under a different, heightened standard of care that is established

by the District of Columbia. Id. "In order to prevail on a

-53-

negligence cause of action, the plaintiff must prove the applicable

standard of care, a deviation from that standard by the defendant,

and a causal relationship between that deviation and the

plaintiff's injury." Id.

Plaintiff argues that the District of Columbia Limitation on

the Use of the Chokehold Act of 1985 ("Chokehold Act"), D.C. Law

6-77, establishes such a heightened standard of care. First, it

prohibits officers from ever using tracheal holds. DC Code Ann.

§ 5-125. 03 (a) . Second, it prohibits officers from using carotid

holds unless: 1) an officer has been trained in the use of carotid

holds; and 2) lethal force is necessary to protect the life of a

civilian or another officer. Id. at§§ 5-125.03 (a), (a) (1). Third,

it requires an officer who has used a carotid hold to render

immediate first aid and medical treatment to the suspect if he

becomes unconscious as a result of the hold. Id. at § 5-

125. 03 (a) (2).

In Plaintiff's Motion for Summary Judgment, he advances three

distinct theories of negligence based on the Chokehold Act. First,

he argues that Officer Shipman-Meyer applied a tracheal hold to

Mr. Chambers, and that this was negligent in light of the statute's

prohibition on tracheal holds. Pl.'s MSJ at 8-11. Alternatively,

he argues that even if Officer Shipman-Meyer used a carotid hold,

he was negligent because he had not received training on the use

-54-

of carotid holds, which is a prerequisite to their use. Pl.'s MSJ

at 17-18. Finally, he argues that Officer Shipman-Meyer was

negligent because he failed to immediately provide first aid and

emergency medical treatment to Mr. Chambers after he was subdued

as required by the Chokehold Act. Pl.'s MSJ at 18-19. Plaintiff

has moved for summary judgment on all three theories.

Defendants have also cross-moved for summary judgment.

First, they argue that Plaintiff cannot state a claim for

negligence, because the allegedly negligent conduct is wholly

subsumed within his assault and battery claim. Defs.' MSJ at at

21-22. Second, Defendants argue that - as a matter of law -

Officer Shipman-Meyer did not proximately cause injuries to Mr.

Chambers, because Mr. Chambers' assault of the officers was an

intervening and superseding cause of his injuries.

a. Plaintiff's Negligence Claim Is Distinct from

his Assault and Battery Claim

Defendants argue that Plaintiff cannot state a claim for

negligence that is distinct from his claim for assault and battery.

Defs'. MSJ at 21-22 (citing District of Columbia v. Chinn, 839

A.2d 701, 711 (D.C. 2003)).

"Under District of Columbia law, a plaintiff who

simultaneously asserts claims for negligence and assault and

battery based on excessive force must ensure that the negligence

-55-

claim is: (1) 'distinctly pled;' (2) 'based upon at least one

factual scenario that presents an aspect of negligence apart from

the use of excessive force itself;' and (3) 'violative of a

distinct standard of care.'" Dormu v. D.C., 795 F. Supp. 2d at30

(quoting Chinn, 839 A. 2d at 711) .13

Contrary to Defendants' argument, Plaintiff satisfies Chinn's

three requirements. First, Plaintiff has pled his negligence claim

separately from his claims for assault and battery. See FAC at ~~

8-13, 14-17 (setting forth distinct claims for negligence, Count

One, and assault and battery, Count Two).

Second, all three of Plaintiff's theories of negligence are

"based upon at least one factual scenario that presents an aspect

of negligence apart from the use of excessive force itself." Chinn

at 711. Plaintiff argues that Officer Shipman-Meyer violated

this standard of care by mistakenly employing a tracheal chokehold

when, at most, a carotid hold was aut.horized. This claim shares

one of the features the Chinn court identified as common in cases

13 "These requirements stem from the different states of mind that

each theory of liability requires. Battery and assault are

intentional torts. Negligence is not. 'Intent and negligence are

regarded as mutually exclusive grounds of liability. As the saying

goes, there is no such thing as a negligent battery.' The D.C.

Court of Appeals has nonetheless held that there are 'certain

circumstances in which the events surrounding the application of

excessive force may lend themselves to a theory of negligence as

well' as assault and battery. Dormu, 795 F. Supp. 2d at 30 (quoting

Chinn, 839 A.2d at 706-07).

-56-

where plaintiffs have been allowed to proceed, namely a possible

'misperception of fact.' See Chinn, 839 A.2d at 711; Dormu, 795 F.

Supp. 2d at 30. Whether Officer Shipman-Meyer knew he was using

a tracheal hold rather than a carotid hold is the kind of factual

mistake relevant to whether he acted negligently.

Alternatively, Plaintiff argues that if Officer Shipman-Meyer

us,ed a carotid hold, he violated the standard of care because he

was not trained in their use as required by statute. Whether

Officer Shipman-Meyer was trained in the use of carotid holds is

factually distinct from the question of whether the circumstances

made it reasonable to place Mr. Chambers in a carotid hold in the

first place. For the very same reason, Plaintiff's argument that

Officer Shipman-Meyer failed to treat Mr. Chambers after he had

been subdued is totally factually distinct from the facts

underlying his assault and battery claim.

Third, Plaintiff's allegations satisfy the final Chinn

requirement that there be a violation of a "distinct standard of

care." Chinn, 839 A.2d at 711. Plaintiff alleges that District

of Colmbia law establishes a distinct standard of care with regard

to the use of force - prohibiting the use of tracheal holds in all

instances and only authorizing the use of carotid holds by officers

who have been trained. This is distinct from the standard of care

-57-

under his assault and battery claim, which requires'only that the

officer's use of either type of chokehold be reasonable under the

circumstances. Plaintiff's failure-to-treat claim alleges that

officers who employ carotid holds are required to treat a suspect

after they have been subdued, which is obviously a distinct

standard of care than whether an officer's use of a carotid hold

is reasonable.

Consequently, Plaintiff's claims that Officer Shipman-Meyer

acted negligently are distinct from his assault and battery claims.

b. The Court Will Not Resolve at this Time

Defendants' Argument that Mr. Chamber's

Intentional Acts of Violence Were a

Superseding Cause of his Injuries

Defendants also argue that even if Plaintiff could establish

that Officer Shipman-Meyer caused Chambers' death, Chambers'

original assault on the officers was a superseding cause of his

own injuries, and therefore that Plaintiff cannot succeed on his

negligence claim as a matter of law. Defs.' MSJ at at 22-24.

"In order to prevail. on a negligence cause of action," one of

the necessary elements a plaintiff must prove is "a causal

relationship between that deviation and the plaintiff's injury."

Scales, 973 A.2d at 730. "D.C. follows the black-letter tort law

principle that an intervening force breaks the chain of proximate

causation when that intervening force is sufficiently

-58-

unforeseeable as to constitute a superseding cause." Hundley v.

District of Columbia, 494 F.3d 1097, 1104-05 (D.C. Cir. 2007).

The commission of a crime is ordinarily such an intervening force.

Id. Consequently, Defendants argue that as a matter of law,

Officer Shipman-Meyer's conduct cannot be a proximate cause of

Plaintiff's injuries, because Mr. Chambers intentionally assaulted

the officers and that assault was not foreseeable.

Plaintiff counters that the Chokehold Act establishes the

relevant standard of care, and on its face, the Chokehold Act

appears to fully foresee violent conduct such as that committed by

Mr. Chambers. A statute or regulation may establish the relevant

standard of care where its purpose is, in part, to protect a

particular class of persons or to protect against a particular

type of harm. See Restatement (Second) of Torts § 286 (1965).

"At a minimum [] the statute or regulation relied on must promote

public safety and have been enacted to protect persons in the

plaintiff's position or to prevent the type of accident that

occurred." See McNeil Pharm. v. Hawkins, 686 A.2d 567, 579 (D.C.

App. 1996)

The Chokehold Act appears to be precisely this kind of public

safety statute. The Chokehold Act establishes strict limits on

the use of chokeholds by the police. See DC Code Ann. §§ 5-125.01

-59-

- 5-125.03. These limits were established because the District of

Columbia Council determined that the unrestricted use of

chokeholds "presents an unnecessary danger to the public." Id. at

§ 5-125.01. Thus, the text of the statute suggests it was designed

to "prevent the type of accident that occurred." See McNeil

Pharm., 686 A.2d at 579.

Moreover, the text of the statute suggests that these

protections were intended to apply to individuals in Mr. Chambers'

position. The Chokehold Act categorically bans the use of tracheal

·holds "by any police officer ... under any circumstances." DC Code

Ann. § 5-125. 03 (a). It also bans the use of carotid holds, "except

under those circumstances .and conditions under which the use of

lethal force is necessary to protect the life of a civilian or a

law enforcement officer." Id.

Thus, on its face, the Chokehold Act contemplates that police

officers may confront an individual who is so violent, that she

poses a threat to the life of the officer or others. Even under

such extreme circumstances, the Chokehold Act establishes a

standard of care police must comply with by: 1) prohibiting the

use of tracheal holds; and 2) only allowing carotid holds by

officers trained in their use. In all other circumstances,

including those where a suspect is violent but does not threaten

-60-

the lives of the officers or others, the Chokehold Act bars police

officers from using either tracheal or carotid holds.

Thus, in enacting the Chokehold Act, the Council appears to

have fully foreseen the situation presented in this case a

suspect violently resisting the police - and it prescribed specific

rules of conduct for the police to follow for the purpose of

protecting that violent individual from the harm posed by

chokeholds. Accordingly, Mr. Chambers' assault of the police

officers does not appear to be an unforeseea~le, superseding act.

Of course, this all presumes that the Chokehold Act is in

fact a public safety statute that establishes a distinct standard

of care. Whether that is the case appears to be a question of

first impression. Resolution of that question is a "purely a

judicial [decision], for the court to make," based on a detailed

inquiry into the statute's purposes. See McNeil Pharm., 686 A.2d

at 579 (internal citations and quotations omitted) .

Unfortunately, the answer to that question has received

little, if any, briefing on the merits by the Parties. In his First

Amended Complaint, Plaintiff alleged that the Defendants' conduct

was negligent because it violated a "national standard of care

required of Police Officers in such circumstances." FAC at ~ 11.

However, a statute of the District of Columbia cannot establish a

-61-

national standard of care, and therefore his First Amended

Complaint did not properly raise this argument. It was not until

he filed his Motion for Summary Judgment that Plaintiff first

argued that the Chokehold Act established the governing standard

of care.

The Court may disregard a claim raised for the first time in

a memorandum of law. Tunica-Biloxi Tribe of La. v. U.S., 577 F.

Supp. 2d 382, 411 (D.D.C. 2008). However, it is inappropriate to

strike the newly-raised claim if the "factual basis for [her] new

claim is substantially similar" to a claim already alleged in her

complaint. Wiley v. Glassman, 511 F.3d 151, 159 (D.C. Cir. 2007).

If the court dismisses the newly-raised claim, the court must

afford the plaintiff leave to amend her complaint to include it.

See Tunica-Biloxi Tribe, 577 F. Supp. 2d at 411.

Given that this is a question of first impression, involving

the interpretation of a statute of the District of Columbia, and

the absence of substantive briefing, Plaintiff's claim of

negligence based on violations of the Chokehold Act is not properly

before the Court and the Court will not consider it. Plaintiff

-62-

may seek leave to amend his First Amended Complaint to include

this claim. 14

However, with regard to Plaintiff's existing negligence claim

contained in Count One of the First Amended Complaint, Plaintiff

has not even attempted to establish the existence of a national

standard of care, let alone succeeded. Accordingly, Defendants'

Motion for Summary Judgment on this claim will be granted, and

Plaintiff's Motion for Summary Judgment on this claim will be

denied.

3. Count Five: Neither Party Is Entitled to Surrunary

Judgment on the Claim of Negligent Training by the

District of Columbia

Plaintiff also alleges that the District was negligent in

failing to train its officers as to when chokeholds were authorized

under the Chokehold Act. FAC at 26-32.

14 Plaintiff has also moved for summary judgment on the issue of

whether Defendants may assert the defenses of contributory

negligence and assumption of the risk. Pl.' s MSJ at 27-28.

Whether these defenses bar Plaintiff's negligence claim hinges on

whether the Chokehold Act is a public safety statute. Martin v.

George Hyman Const. Co., 395 A.2d 63, 69-74. (D.C. App. 1978)

(assumption of the risk and contributory negligence are not a bar

to a claim of negligence based on deviation from a standard of

care established by a public safety statute). Accordingly, these

arguments cannot be resolved unless and until Plaintiff amends his

Complaint.

-63-

a. Defendants Are not Entitled to Sununary

Judgment because Mr. Chambers Conduct Was not

a Superseding Act

Defendants have moved for summary judgment, arguing that Mr .

. 1

Chambers' assault on the police officers was an intervening and

superseding factor and that Plaintiff cannot show causation.

Defs.' MSJ at 23-24. They contend that the D.C. Circuit's decision

in Hundley prevents a plaintiff who assaults a police officer from

bringing a claim of negligent training against MPD because the

plaintiff's violent conduct was a superseding cause of her own

injuries. See Defs.' MSJ at 23-24 (citing Hundley, 494 F.3d at

1104-05).

The Defendants' arguments make far too much out of Hundley,

which announced a fairly limited principle: when an officer is

negligent in initially seizing an individual, it is not foreseeable

that the person seized will violently assault the officer. 494

F. 3d at 1104-05. Therefore, the officer's original seizure

however negligent - is not the proximate cause of any harm that

results from the officer's subsequent use of force. Id.

In contrast, it should be foreseeable to any police department

that its officers, in the regular course of duty, will encounter

individuals who commit crimes, including assault on the officers

themselves. Because violence against officers is foreseeable at

-64-

the departmental-level, police department policies on the use of

force must appropriately train the officers on how to respond.

Indeed, the history of negligent training claims in the

District suggests that Hundley does not have the reach Defendants

claim. Plaintiffs in the District of Columbia have regularly

advanced claims that MPD was negligent in training its officers.

In many of those cases, the plaintiff first assaulted the officer

before the allegedly excessive force was used. Yet, the courts

have not barred those claims on the principle that the plaintiff's

criminal activity was a superseding cause of their injuries. See

e.g. District of Columbia v. Peters, 527 A.2d 1269 (D.C. 1987)

(plaintiff who struck officer before officer used force able to

proceed on negligent training claim only if he introduced expert

testimony); District of Columbia v. White, 442 A.2d 159 (D.C.

1982) .

As this is the only basis on which Defendants have moved

for summary judgment on this count, their Motion must be denied.

b. Plaintiff Is Not Entitled to Swnmary Judgment

because He Cannot Establish Causation

Plaintiff has also moved for summary judgment, asserting that

it is "axiomatic" that MPD's failure to train its officers on the

use of force was negligent. Indeed, Plaintiff appears so sure of

-65-

his claim that he has failed to cite to a single case or proposition

of law in support. See Pl.'s MSJ at 26-27.

As stated above, "in order to prevail on a negligence cause

of action, the plaintiff must prove the applicable standard of

care, a deviation from that standard by the defendant, and a causal

relationship between that deviation and the plaintiff's injury."

Scales, 973 A.2d at 730. Plaintiff can satisfy the first two

elements but not the third.

Plaintiff's expert provided his opinion that the national

standard of care requires a police force to train its officers on

applicable laws and policies governing the use of force.

Supplemental Expert Report by Robert Klotz ("Klotz Report), Exh.

14 to Pl.' s MSJ [Dkt. No. 56-1]. He further opined that MPD

deviated from that standard of care, because MPD does not properly

train officers on the limitations established in the Chokehold

Act. Id. (noting that MPD has itself identified improper training

as a problem (citing District of Columbia, Police Complaints Board,

Improving MPD' s Policy on the Use of Chokeholds and other Neck

Restraints (August 10, 2015) (available at

https://policecomplaints.dc.gov/chokeholds-neckrestraints))).

However, Plaintiff cannot establish that this failure-to-

train caused Mr. Chambers' injuries. When the facts are viewed in

a light most favorable to Defendants, a jury could reasonably

-66-

...

conclude that Mr. Chambers posed a threat to the life of the

officers. Given that threat, the Chokehold Act authorizes an

officer to use a carotid hold to subdue a suspect, which is what

Officer Shipman-Meyer claims he did. Accordingly, even if Officer

Shipman-Meyer had been properly trained, Mr. Chambers might still

have died, in which case the failure-to-train was not the cause of

his injuries, and Plaintiff is not entitled to Summary Judgment.

4. Count Four: The Defendants Are not Entitled to

Summary Judgment on Plaintiff's Wrongful Death

Claim

Plaintiff has not moved for summary judgment on their wrongful

death claim but Defendants have done so.

Plaintiff's wrongful death claim is based on D.C. Code § 16-

2701. The Parties agree that to succeed under the statute,

Plaintiff must prove both: 1) an "underlying tort (common law or

constitutional);" and 2) "injury to the survivor," here Mr. Ingram.

Defendants argue that they are entitled to summary judgment

because Plaintiff cannot show any underlying tort. Defs.' MSJ at

24-25. However, as discussed above, Plaintiff certainly has a

viable claim of assault and battery under DC law. That is

sufficient to maintain his claim for wrongful death. Accordingly,

Defendants are denied summary judgment on this Count.

-67-

IV. CONCLUSION

For the foregoing reasons, the judgment of the Court is as

follows:

Plaintiff's Motion for Summary Judgment is denied in its

entirety;

Plaintiff's claims that Officer Shipman-Meyer's conduct was

negligent, in light of a standard of care established by the

Chokehold Act, were improperly raised for the first time in a

memorandum of law and are not properly before the Court;

Nonetheless, Plaintiff may seek leave to further amend its

First Amended Complaint to include these negligence claims;

Defendant's Motion for Summary Judgment is granted in part,

as to Count One of Plaintiff's First Amended Complaint, in so far

as it alleges negligence based on violation of a national standard

of care, and as to Count Two, in so far as it alleges that Officers

Karabelas, LaDuca, and Rose aided and abetted Officer Shipman-

Meyer's assault and battery of Mr. Chambers, and denied in part,

as to all other remaining Counts.

March 20, 2017 Gladys

United States District Judge

Copies to: attorneys on record via ECF

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