Smith v. United States

• Decision Date: 09 December 2016
• Docket Number: No. 15-5238,15-5238
• Parties: Ronald M. Smith, Appellant v. United States of America, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

843 F.3d 509

Ronald M. Smith, Appellant

v.United States of America, et al., Appellees

No. 15-5238

United States Court of Appeals, District of Columbia Circuit.

Argued September 9, 2016

Decided December 9, 2016

Gregory L. Lattimer, Washington, DC, argued the cause and filed the briefs for appellant.

W. Mark Nebeker, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were R. Craig Lawrence and Marian L. Borum, Assistant U.S. Attorneys.

Before: Pillard, Circuit Judge, and Edwards and Randolph, Senior Circuit Judges.

Concurring opinion filed by Senior Circuit Judge Edwards.

Randolph, Senior Circuit Judge:

Ronald M. Smith sued the United States and two United States Capitol Police Officers—Corey Rogers and Lawrence O. Anyaso. Smith's complaint alleged false arrest, malicious prosecution, intentional infliction of emotional distress, and, against the officers, a violation of his rights under the Fourth Amendment to the Constitution. He sought $5,000,000 in compensatory and punitive damages.

The district court, K.B. Jackson, J., in a comprehensive opinion, granted summary judgment in favor of the defendants. Smith v. United States , 121 F.Supp.3d 112, 115 (D.D.C. 2015). Smith's main arguments on appeal are that the court erred in deciding that no material facts were in dispute and in refusing to allow Smith to conduct discovery before the court ruled on the defendants' summary judgment motion.

Smith's complaint alleged that while he was working for a federal agency, he drove several agency officials to Capitol Hill on November 5, 2009. The area surrounding the Capitol and the Senate and House office buildings is heavily guarded, with barricades at the entrances to the Capitol grounds, some of which are retractable to allow authorized vehicles to enter. When Smith pulled into the driveway approaching one of these attended barricades to drop off his passengers, Officer Rogers walked over to him. According to the complaint, Officer Rogers "began to chastise and yell at him for dropping off his passengers at that location." Compl. ¶ 7. A heated conversation ensued. Smith then made a U-turn and left the area. Officer Rogers radioed other officers, stating—according to the complaint—that Smith's car struck the officer's leg as Smith drove away. A few minutes later, Officer Anyaso arrested Smith for assault with a deadly weapon and assault on a police officer. The complaint further alleged that Smith spent the night in jail. The United States Attorney charged Smith with assault on a police officer, a misdemeanor offense, D.C. CODE § 22–405, and offered him a plea bargain, reducing the crime to simple assault, which Smith did not accept. Five months later, in April 2010, the government moved to dismiss the charges against Smith, a motion the Superior Court granted with prejudice.

The defense filed a motion to dismiss or, in the alternative, for summary judgment, countering the complaint with a video recording (no audio) of the incident and an audio recording of Officer Rogers' radio transmission. The government had provided Smith with copies of these recordings while his criminal case was pending and Smith's complaint in this case relied on some of this material. The audio recording, which triggered Smith's arrest, contradicted what Smith alleged in his complaint, as he later admitted. Smith , 121 F.Supp.3d at 116 n.2. Officer Rogers did not report on the audiotape that Smith's car hit him. In the recording, Officer Rogers stated that Smith "intentionally almost struck this officer." Audio tape: U.S. Capitol Police Dispatch (Nov. 5, 2009). The video also contradicted Smith's complaint. It shows Officer Rogers, in full uniform, turning away from Smith's car and walking back toward his duty post. At this moment, the video "captured Smith looping around and pulling away aggressively ... [clearly showing] that Smith drove the car toward [Officer] Rogers, and that the passenger side of Smith's car was close to [Officer] Rogers when the car passed by." Smith , 121 F.Supp.3d at 115–16. Smith pulled away from the driveway "much faster than he pulled in, and ... drove in the confined area aggressively and at a higher rate of speed than either of the two vehicles that had entered the checkpoint" during the encounter. Id. at 120–21.

Smith sued under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674, in his action against the United States, and pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 389, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), in his Fourth Amendment claim against the officers. Under District of Columbia law, simple assault has three elements: "(1) an act on the part of the accused (which need not result in injury); (2) the apparent present ability to injure the victim at the time the act is committed; and (3) the intent to perform the act which constitutes the assault at the time the act is committed." Ruffin v. United States , 642 A.2d 1288, 1295 (D.C. 1994). Physical contact is not required. As to assault with a dangerous weapon, the dangerous weapon can be a vehicle. See Frye v. United States , 926 A.2d 1085, 1096–97 (D.C. 2005). As to assault on a police officer, there is the added element "that the defendant knew or should have known the victim was a police officer." In re J.S. , 19 A.3d 328, 330 (D.C. 2011) (internal quotation marks eliminated).

The district court analyzed the governing law of the District of Columbia regarding the crime of assault and carefully reviewed the recordings, taking note of how they contradicted Smith's version of the events in his complaint. Smith , 121 F.Supp.3d at 120–24. The court concluded that the defendant officers had probable cause to arrest Smith for assault with a deadly weapon and assault on a police officer. A "reasonable officer," the court concluded, "would have felt threatened by the proximity of the fast-moving vehicle" to his body. Id. at 121. The fact that Officer Rogers was in uniform was more than enough to establish the additional element of assault on a police officer. The existence of probable cause foreclosed not only Smith's false arrest, malicious prosecution and Fourth Amendment claims, but also his claim of intentional infliction of emotional distress based on his arrest. See Amobi v. D.C. Dep't of Corr. , 755 F.3d 980, 989–90, 992–93 (D.C. Cir. 2014) ; Kotsch v. District of Columbia , 924 A.2d 1040, 1046 (D.C. 2007). The court also held that Smith had failed to allege any facts outrageous enough to constitute intentional infliction of emotional distress. Smith , 121 F.Supp.3d at 125–26.

Smith argues that the court should not have granted summary judgment without giving him an opportunity to engage in discovery. Under Rule 56(d) of the Rules of Civil Procedure, if a party opposing summary judgment submits an affidavit showing that he cannot present facts justifying his opposition, the court "may" allow time for discovery. Convertino v. U.S. Department of Justice , 684 F.3d 93, 99–100 (D.C. Cir. 2012), holds that a Rule 56(d) affiant must, among other things, "outline the particular facts he intends to discover and describe why those facts are necessary to the litigation," and he must explain why he cannot provide evidence to counter his opponent's summary judgment motion. Smith did neither.

Smith had already been provided with the police reports and documents, statements, photographs, and audio and video recordings in connection with the case. But in his Rule 56(d) affidavit, Smith's lawyer stated only that the "plaintiff, at a minimum, needs to depose the named defendants, and the individuals who claim to be eyewitnesses." Joint Appendix 142. The affidavit gave no further explanation. Smith's memorandum opposing summary judgment stated: "At a minimum, the plaintiff needs to depose the two(2) [sic] named defendant officers to ascertain why they took the actions that they took at the time that they did so; and the plaintiff needs to depose [a non-party witness] about her actual observations which are somewhat at odds with the video." Id. at 116. (After viewing the video, this witness stated that it fairly reflected what she had seen.) Smith does not specify how, on this record with its undisputed facts showing probable cause, discovery regarding the officers' state of mind could create a material factual dispute. When pressed at oral argument, Smith's lawyer could offer no details about what additional material facts he expected to discover.

Because the affidavit failed to state with "particularity why additional discovery [was] necessary," the district court acted well within its discretion in denying Smith's request. U.S. ex rel. Folliard v. Gov't Acquisitions, Inc. , 764 F.3d 19, 26 (D.C. Cir. 2014) (quoting Convertino , 684 F.3d at 99 ). His lawyer's affidavit explained neither what Smith hoped to discover nor why such discovery was necessary. Such "vague" requests do not suffice under Rule 56(d). See Folliard , 764 F.3d at 29.

Smith also contends that the undisputed evidence shows that he drove away from, not toward, Officer Rogers. But he does not materially dispute what the video depicts—namely, that from right where Smith had parked facing the barricade, he pulled away from the curb and made a hasty U-turn to exit the driveway. In one sense, as Smith insists, he was driving "away" from Officer Rogers when he turned to exit. But the key point in support of the assault charge is that Smith quickly pulled forward and to the left, passing very close to the officer, before continuing his leftward 180 degree arc to exit the driveway. He did not adjust for the safety of the officer attending on foot by, for example, backing up first to leave a wider berth, or edging his car very slowly around until it was clear of the confined area. The video confirms as much, and Smith's claim of a "dispute" over whether he drove "toward" or "away" from the officer is about nomenclature, not evidence. There is no...