Bushrod v. Dist. of Columbia

Decision Date22 February 2021
Docket NumberCase No. 1:18-cv-02462 (TNM)
Citation521 F.Supp.3d 1
CourtU.S. District Court — District of Columbia
Parties Kevin BUSHROD, Plaintiff, v. DISTRICT OF COLUMBIA, Zachary Blier, Defendants.

Stephen B. Pershing, Pershing Law PLLC, Washington, DC, for Plaintiff.

Benjamin Egan Bryant, District of Columbia Office, Washington, DC, for Defendant District of Columbia.

Michael A. Tilghman, Benjamin Egan Bryant, Brendan Russell Heath, U.S. Attorney's Office, Washington, DC, for Defendant Zachary Blier.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

This action arises from a police shooting in Washington, D.C. Plaintiff Kevin Bushrod sues Officer Zachary Blier and the District of Columbia alleging that Blier used excessive force, committed assault, and intentionally inflicted emotional distress when he shot and injured Bushrod following Bushrod's flight from a traffic stop. Defendants move for summary judgment, contending that Bushrod cannot prevail given the undisputed facts and the protections granted by the doctrines of qualified immunity and qualified privilege. Having scrutinized the parties’ briefs, the entire record, and the applicable law, the Court will grant Defendants’ motions.

I. BACKGROUND

Many facts here are in dispute and—critically—what can be disputed is a matter of dispute. Let us begin with what is undisputed.

In the early evening on September 10, 2014, Officer Blier of the Metropolitan Police Department ("MPD") was driving his cruiser while on patrol in Northeast D.C. See Def. Zachary Blier's Statement of Undisputed Material Facts in Support of Mot. for Summ. J. ("SUMF") at 2, ECF No. 28-1; Second Am. Compl. ("Compl.") at 5; ECF No. 8.1 Officer Gregory Collins rode shotgun. Id. The officers spotted Bushrod driving down South Dakota Avenue in a Ford Crown Victoria. Id. Both recognized him as someone they had arrested several weeks earlier for driving a car without a valid license and with expired registration. SUMF at 2–3; Pl.’s Statement of Disputed Facts in Opp'n to Summary Judgment ("Pl.’s Facts") at 5–6, ECF No. 35-1. Bushrod was out on bail but had been ordered not to drive in the city without a valid permit. Id.

Seeing Bushrod driving the Crown Victoria, Collins checked the car's registration, confirming that it remained expired. SUMF at 3; Pl.’s Facts at 6–7. The officers then followed Bushrod's car to pull him over. Id. The parties dispute what happened next.

According to Bushrod, he did not realize that the officers were following him or trying to pull him over. Pl.’s Facts at 7–8. He drove safely down a quiet residential street in "tame circumstances" before turning back onto South Dakota Avenue, which was clogged with slow-moving rush hour traffic. Compl. at 5. While Bushrod's car was in an intersection waiting for traffic to move, Blier pulled up directly behind him. Id. at 6. Both officers leapt from the cruiser with their guns drawn. Id. Blier yelled expletives and demanded that Bushrod exit his car. Id. Before Bushrod could react, Blier opened the driver's side door, thrust himself across Bushrod's body, and reached for the keys in the ignition. Id. at 6–7. Bushrod tried to put the car back into gear to drive away but, before the car moved, Blier jumped backward out of the car and shot him once without warning. Id. The bullet traveled about three feet through the open car door and struck Bushrod in the left shoulder.2 Id. The wound required emergency surgery and left Bushrod with permanent physical and psychological damage. Id. at 7–8. He suffers from chronic pain and limited use of his arm and torso. Id.

Unsurprisingly, Defendants offer a different story. After confirming that the registration on Bushrod's car remained expired, the officers activated the cruiser's lights and siren. SUMF at 4. Bushrod then pulled to the right lane and slowed down, but as the officers exited the cruiser and approached the car, Bushrod sped off. Id. The officers jumped in their cruiser and chased Bushrod down several streets. Id. He eventually drove back toward South Dakota Avenue, which was blocked by traffic. Id. at 5. Bushrod maneuvered into the busy intersection anyways, stopping only after sideswiping the front of an occupied Honda CR-V and rolling over the curb of the median that divided the inbound and outbound lanes. Id. At this point the rear of the Crown Victoria was partially in front of the Honda CR-V's left bumper. Id. at 6.

After seeing that Bushrod's car had stopped, both officers exited their cruiser. Id. Blier walked around the back of the Honda CR-V and approached the driver's side of Bushrod's car. Id. With his gun drawn but pointed toward the ground, he opened the driver's door of the Crown Victoria with his left hand. Id. at 7. He grabbed Bushrod's arm and tried to pull him out of the car while directing him to comply. Id. Bushrod instead shifted the car into reverse and pressed the accelerator. Id. at 7–8. As the car reversed, the open front door struck Officer Blier in the leg and pushed him backward toward the Honda CR-V. Id. at 8. Officer Blier hopped onto the front hood of the CR-V, with his legs dangling off the front. Id. at 8–9. Officer Blier "feared for his life and that he was in risk of severe bodily harm" so he "discharged his firearm once to stop [Bushrod] from continuing to drag or crush him with Crown Victoria" that was still reversing. Id. at 9.

Right after the shot, Bushrod shifted the car into drive and drove off. Id. at 10. He hit a Ford Escape and a Mercedes Benz as he drove between them, before finally colliding with a Honda Accord down the street. Id. Bushrod abandoned the Crown Victoria and ran away but was apprehended and taken to a hospital. Id.

The parties largely agree on the later legal proceedings.3 The U.S. Attorney's Office charged Bushrod with 15 offenses and the case proceeded to a jury trial in the Superior Court for the District of Columbia.4 Defense counsel conceded that Bushrod drove without a license, eluded the police, and struck Officer Blier with his car, but he contested that Bushrod had committed felony-level assault of a police officer. See Pl.’s Facts at 24–25. Counsel stated during closing arguments: "[Bushrod] resisted. He tried to get away and he shouldn't have. Absolutely. The question is was he armed with a dangerous weapon. And did he put Officer Blier at grave risk of serious bodily injury. The answer is, to both of those questions, [ ] no." Trial Tr. at 97, ECF No. 45-1. As to the car hitting Blier, counsel explained that he "was hit in the lower, left shin by the lower part of the door ... He was bumped." Id. at 96. He also asserted: "[Bushrod] didn't even know Officer Blier was there for all he knew. He backed it up and Officer Blier was in the way. He got bumped." Id. at 99.

A D.C. jury convicted Bushrod of most of the charges.5 Relevant here, the jury found him guilty of fleeing from law enforcement officers while on release for a crime (Count 3); destruction of property for damaging the Honda CR-V (Count 4); and leaving the scene after damaging the Honda CR-V (Count 5). See Trial Tr. at 15–16, ECF No. 45-2. The jury also acquitted him of felony assault on a police officer but convicted him of the lesser included offense of misdemeanor assault on a police officer (Count 6). Id. at 16. Bushrod did not appeal his convictions. See SUMF at 15; Pl.’s Facts at 25–26.

Several years later, Bushrod sued the District of Columbia ("the District") and Blier in Superior Court.6 Defendants removed the case here. See ECF No. 5. Bushrod alleges that Blier violated the Fourth Amendment under 42 U.S.C. § 1983 by using excessive force against him (Count I), assaulted and battered him under D.C. common law (Count II), and intentionally inflicted emotional distress (Count III). Compl. at 11–12. Bushrod also seeks to hold the District vicariously liable for Counts II and III. Id. The parties concluded discovery, and motions for summary judgment by Blier and the District are now ripe.7

II. STANDARD OF REVIEW

Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if it "might affect the outcome of the suit under the governing law" and a dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If evidence conflicts, courts "view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor" when determining whether summary judgment is appropriate. Mastro v. Potomac Elec. Power Co. , 447 F.3d 843, 850 (D.C. Cir. 2006).

The moving party has the initial burden of identifying those portions of the record that show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met that burden, the nonmoving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (cleaned up). It is not enough to advance unsupported allegations or denials in the pleadings. See Fed. R. Civ. P. 56(c). Because the non-moving party must provide evidence that, if true, would permit a reasonable jury to find in his favor, the non-moving party "must have more than a scintilla of evidence to support his claims." Freedman v. MCI Telecommunications Corp. , 255 F.3d 840, 845 (D.C. Cir. 2001). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson , 477 U.S. at 249–50, 106 S.Ct. 2505 (cleaned up).

In cases involving allegations that a police officer used excessive force, " ‘a defendant's motion for summary judgment is to be denied only when, viewing the facts in the record and all reasonable inferences derived therefrom in the light most favorable...

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