Flythe v. Dist. of Columbia, 14–7069.

• Decision Date: 19 June 2015
• Docket Number: No. 14–7069.,14–7069.
• Citation: 791 F.3d 13
• Parties: Betty S. FLYTHE, Personally, and as Personal Representative of the Estate of Tremayne G. Flythe, Appellant v. DISTRICT OF COLUMBIA, a Municipal Corporation, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

791 F.3d 13

Betty S. FLYTHE, Personally, and as Personal Representative of the Estate of Tremayne G. Flythe, Appellant

v.DISTRICT OF COLUMBIA, a Municipal Corporation, et al., Appellees.

No. 14–7069.

United States Court of Appeals, District of Columbia Circuit.

Argued March 20, 2015.

Decided June 19, 2015.

Rehearing En Banc Denied Aug. 6, 2015.

Gregory L. Lattimer argued the cause for appellant. With him on the briefs was Ernest W. McIntosh, Jr.

Carl J. Schifferle, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees District of Columbia. With him on the brief were Eugene A. Adams, Interim Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.

Robert E. Deso argued the cause and filed the brief for appellee Travis Eagan.

Before: TATEL, KAVANAUGH, and PILLARD, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

In this civil action against two police officers and the District of Columbia, appellant Betty S. Flythe alleges that in violation of the Fourth Amendment and D.C. law, each officer assaulted her son and one killed him. Accepting as true the account of the officer who killed appellant's son, the district court found that the officer's actions were objectively reasonable and thus granted summary judgment dismissing all claims against him. The claims against the District and the other officer went to trial, and the jury returned a verdict for Ms. Flythe. For the reasons set forth in this opinion, we affirm the jury's verdict. But because the record reveals genuine issues of material fact with respect to the actions of the officer who fired the fatal shots—thus making himself the only surviving eyewitness to the actual killing—we reverse the district court's grant of summary judgment in his favor.

I.

On Christmas Day in 2009, an unknown assailant threw a brick through the window of a liquor store located on Georgia Avenue in Northwest Washington, setting in motion a chain of events that led to the death of Tremayne G. Flythe. The store's owner, Balbir Singh Hundal, reported the vandalism to the District of Columbia Metropolitan Police Department and then called again the next day to report that the same assailant had tossed an empty bottle at a different window. Early in the afternoon of December 26, Officers Angel Vazquez and Travis Eagan arrived at the store and, acting on Hundal's description of the alleged vandal as a “black male wearing a black jacket walking a dog,” they set off in separate cars to canvass the neighborhood.

Officer Vazquez soon encountered Tremayne Flythe, an African–American man walking a dog. In his deposition, Vazquez testified that he parked his cruiser, approached Flythe, and informed him that the police were doing an investigation and wanted to ask him a few questions. Angel Vazquez Dep. 25, Feb. 29, 2012. As directed by Vazquez, Flythe tied the dog to a fence and began accompanying the officer to the rear of the cruiser. Id. at 24. Vazquez testified that as they approached the cruiser, Flythe's “demeanor started changing” and he “put[ ] his right hand on his black jacket,” prompting the officer to ask “do you have anything on you that I should know[?]” Id. at 25, 22. According to Vazquez, Flythe, standing less than a foot away, responded, “yes, I got a knife,” “pulled out a knife,” and attempted to stab the officer. Id. at 44, 41, 22. Vazquez testified that he then “pushed or kicked” Flythe, drew his gun, ordered Flythe to drop the knife, and fired two shots, at which point his gun jammed. Id. at 46, 47. After clearing the jam, Vazquez fired two additional shots, both of which missed. Id. at 49–50. Flythe then untied the dog and ran away. Id. at 50.

Meanwhile, Officer Eagan, accompanied by store owner Hundal, was patrolling the same neighborhood and heard the following over the police radio:

OFFICER [VAZQUEZ]: Eagan. Four hundred block of Kenyon.

OFFICER [VAZQUEZ]: Hey, (inaudible), copy.

DISPATCHER: 3206 (phonetic).

OFFICER [VAZQUEZ]: Drop the knife.

OFFICER [VAZQUEZ]: Shot.

OFFICER [VAZQUEZ]: Drop the knife.

(Shot fired)

...

OFFICER [VAZQUEZ]: Tried to stab me, ma'am. My gun jammed. Get official on this location.

Radio Run Call 3–4, Dec. 26, 2009.

In his deposition, Eagan testified that shortly after hearing the radio broadcast and seeing Officer Vazquez “running in ... a guard position.... [with] his weapon in his hand,” he encountered Flythe and ordered him to “get on the ground ... now[.]” Travis Eagan Dep. 28, 33, Feb. 29, 2012. According to Eagan, instead of obeying that order, Flythe continued running “3 to 4 feet” past him before suddenly turning around, “yell[ing] something loud,” and “ma [king] a motion towards his waistband,” from which he pulled a knife and “advance[d] towards” the officer. Id. at 35, 43, 34. Eagan fired his weapon, striking Flythe in the leg and abdomen. Id. at 43. After bleeding for more than twenty minutes on the sidewalk, Flythe was taken to a hospital where he died.

Tremayne Flythe's mother, Betty S. Flythe, brought suit in the United States District Court for the District of Columbia against Officers Vazquez and Eagan pursuant to 42 U.S.C. § 1983, alleging that both officers employed excessive force in violation of the Fourth Amendment. See Monell v. Department of Social Services of City of New York, 436 U.S. 658, 700–01, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (section 1983 establishes a private “remedy, to be broadly construed, against all forms of official violation of federally protected rights”). Ms. Flythe also brought common-law assault and battery, wrongful death, and survival claims against both officers and the District of Columbia as their employer. Finally, alleging that the District breached its duty to properly train and supervise the two officers, Ms. Flythe brought a common-law negligent supervision claim against the city.

All defendants—the two officers and the District—moved for summary judgment. Against the excessive force claim, the officers asserted qualified immunity, which protects law enforcement officials “from suit under 42 U.S.C. § 1983 unless they have violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” City & County of San Francisco v. Sheehan,

––– U.S. ––––, 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015) (internal quotation marks omitted). With respect to Officer Vazquez, the district court ultimately found “a genuine issue of material fact as to whether Mr. Flythe did, in fact, pose a threat of serious physical harm” justifying Officer Vazquez's use of force and thus denied summary judgment. Flythe v. District of Columbia, 4 F.Supp.3d 216, 221 (D.D.C.2014). This issue of material fact, the district court ruled, also precluded summary judgment for Officer Vazquez on the assault and battery claim “as a reasonable fact-finder could conclude based on the evidence proffered by the plaintiff that Mr. Flythe carried no weapon and did not otherwise threaten Officer Vazquez during their encounter.” Flythe v. District of Columbia, 994 F.Supp.2d 50, 74 (D.D.C.2013).

The district court reached a different conclusion as to Officer Eagan. Given the radio transmission reporting that Flythe had tried to stab Vazquez, and accepting as “fact[ ]” that “Flythe did not stop [as Eagan ordered], but instead turned around, yelled, [and] reached toward the waistband of his pants which contained a knife,” the court found that Eagan “acted as a reasonable officer would have confronted with the same circumstances” and was thus entitled to qualified immunity. Id. at 66, 67. Based on the “undisputed” evidence “that Mr. Flythe had a knife that put Officer Eagan and third-party members of the public in imminent peril of death or serious bodily injury,” the district court further concluded that Officer Eagan “was privileged to act, and therefore cannot be liable for battery.” Id. at 74. The district court therefore granted summary judgment dismissing all claims against Eagan.

Regarding the District's alleged negligent supervision, the district court held that Ms. Flythe had failed to “put forth any evidence that the District knew or should have known that Officer Vazquez was particularly dangerous or incompetent.” Id. at 72. With respect to Officer Eagan, the district court found it irrelevant that supervisors had questioned his fitness for duty two months prior to the shooting and had ultimately fired him after he tested positive for methamphetamines just four days after killing Flythe. “[T]he District's failure to properly supervise Officer Eagan,” the court reasoned, “was not a substantial factor in bringing about Mr. Flythe's death because any officer in Officer Eagan's position would likely have shot Mr. Flythe in the circumstances.” Flythe v. District of Columbia, 19 F.Supp.3d 311, 318 (D.D.C.2014). The court therefore granted summary judgment to the District on the negligent supervision claim.

The district court denied summary judgment, however, on the question whether the District was vicariously liable for any assault and battery committed by its officers. “[A]ssess[ing] both officers' encounter with Mr. Flythe as a ... single transaction,” the court concluded that “Officer Eagan acted in reliance on representations by Officer Vazquez in his altercation with Mr. Flythe” and thus “a genuine dispute of material fact [remained] as to whether Mr. Flythe presented a danger throughout the encounter with both officers [.]” Flythe, 994 F.Supp.2d at 75, 76.

To sum up, then, only the section 1983 and assault and battery claims against Officer Vazquez, as well as the vicarious assault and battery claim against the District, survived summary judgment and proceeded to trial. In keeping with its dismissal of Ms. Flythe's negligent supervision claim, the district court excluded expert testimony regarding the District's supervision of...