Flythe v. Dist. of Columbia

Decision Date08 November 2013
Docket NumberCivil Action No.: 10–02021(RC)
Citation994 F.Supp.2d 50
CourtU.S. District Court — District of Columbia
PartiesBetty S. Flythe, Plaintiff, v. District of Columbia, et al., Defendants.


Ernest Wendell McIntosh, Newman & McIntosh, LLC, Gregory L. Lattimer, Law Offices Of Gregory L. Lattimer, PLLC, Washington, DC, for Plaintiff.

Wayne C. Beyer, Office Of Attorney General, Washington, DC, for Defendants.

Re Document Nos.: 62, 63


Granting In Part And Denying In Part The Defendants' Motions For Summary Judgment

RUDOLPH CONTRERAS United States District Judge


On December 26, 2009, Tremayne G. Flythe was fatally shot by an officer of the District of Columbia's Metropolitan Police Department (MPD). Mr. Flythe's mother, Betty S. Flythe, brought this action in her personal capacity and on behalf of the estate of Mr. Flythe against the District of Columbia (“the District”) and the two officers directly involved in the shooting, Officers Travis Eagan and Angel Vazquez. The plaintiff has brought 42 U.S.C. § 1983 claims against the defendant officers, as well as common law claims for assault and battery, and wrongful death and survival. In addition, the plaintiff has asserted wrongful death and survival actions against the District for common law assault and battery, and for negligent hiring, training, and supervision. The defendants have all filed motions for summary judgment. For the reasons that follow, the Court will grant in part and deny in part the defendants' motions for summary judgment.


The events giving rise to this case began on December 26, 2009, when Balbir Singh Hundal (“Mr.Hundal”), the owner of Petworth Liquor Store on Georgia Avenue called the police to report that a man had thrown an empty bottle at Mr. Hundal's store window. Def. Eagan's Statement of Undisputed Facts ¶ 22, ECF No. 62–2 (“Eagan's Statement”). Mr. Hundal had also called the police the day prior, reporting that the same man had thrown a brick through another store window, breaking it. Eagan's Statement ¶ 21. MPD Officers Travis Eagan (“Officer Eagan”) and Angel Vazquez (“Officer Vazquez”) were both on patrol that day and Officer Eagan was the first to arrive at Mr. Hundal's store. Eagan's Statement ¶¶ 3–4. He spoke with Mr. Hundal, who described the alleged brick-thrower as a black man with a “dreadlock hairstyle, walking a dog.” Eagan's Statement ¶ 4. Officer Vazquez arrived in his police cruiser shortly thereafter, and Officer Eagan informed him of what had happened, including relaying Mr. Hundal's description of the suspect. Eagan's Statement ¶ 6. Officer Eagan asked Mr. Hundal to accompany him in his police car and search the area to try to find the suspect, and Mr. Hundal complied. Eagan's Statement ¶ 5. Both officers then drove off separately to search for the suspect. Eagan's Statement ¶ 7.

A. Officer Vazquez's pursuit

After Officer Vazquez left the store, he began to search the area in his patrol car and came across a male walking a dog on the 400 Block of Kenyon Street, who he claims he believed fit the suspect's description. Def. Vazquez's Statement of Undisputed Facts ¶ 10, ECF No. 63–1 (“Vazquez's Statement”). After seeing the potential suspect, Officer Vazquez activated his car's lights and drove the wrong way down Kenyon, a one-way street, to approach the individual now known to be Tremayne G. Flythe. See Vazquez Dep. at 16:3–6, ECF No. 63–4. Officer Vazquez claims that he parked his car near the curb, instructed Mr. Flythe to tie his dog to a fence pole in front of the scout car, and asked if he could ask Mr. Flythe some questions. Vazquez's Statement ¶ 13. AfterMr. Flythe tied up his dog, Officer Vazquez got out of his car, and Mr. Flythe asked him what was going on. Vazquez's Statement ¶¶ 14–15. Officer Vazquez replied that he was just conducting an investigation. Vazquez's Statement ¶ 15. At this time, Officer Vazquez and Mr. Flythe were walking toward each other, “going to meet.” Vazquez Dep. at 23:20–22. Officer Vazquez stated that shortly thereafter, they were standing next to each other, facing the same direction with Officer Vazquez attempting to walk Mr. Flythe to the back of his police car. See Vazquez Dep. at 44:4–15.

Officer Vazquez claims that Mr. Flythe's demeanor at that point changed and he started playing with his jacket. See Vazquez Dep. at 21:21–22, 22:1–2. Officer Vazquez then asked Mr. Flythe if he “ha[d] anything on [him] that [he] should know” and in response, Mr. Flythe “said yes and he pulled out a knife and he struck at [Officer Vazquez] with the knife in the right hand.” Vazquez Dep. at 22:2–5. Officer Vazquez then stated that in response, “I think I kicked him or pushed him ... and I retrieved my weapon.” Vazquez Dep. at 45:21, 46:2–3. Vazquez then fired two shots, and his gun jammed. Vazquez Dep. at 48:7–8. Vazquez testified that at that point, Mr. Flythe was coming toward him with the knife, and Vazquez started running from him. Vazquez Dep. at 48:11–12, 20–21. Mr. Flythe eventually grabbed his dog, and ran off down Kenyon Street. Vazquez Dep. at 50:6–8.

Several bystanders witnessed the altercation between Officer Vazquez and Mr. Flythe and offer contrasting versions of the events. Mary Frances McCotter, a resident of Kenyon Street, stated that she was on her front porch on the date in question, saw Officer Vazquez stop Mr. Flythe on Kenyon Street, and that Mr. Flythe tied his dog to a fence and walked towards the police car with his hands in the air, palms up. McCotter Dep. at 11:20–22, 12:1–9, ECF No. 66–7. She testified that she believed he was going to put his hands on the police car.” McCotter Dep. at 12:8–9. According to Ms. McCotter, she heard Officer Vazquez shoot his gun at Mr. Flythe and saw Mr. Flythe step back. McCotter Dep. at 34:9–17. She testified that Mr. Flythe did not have a knife or any other weapon in his hands or waistband. McCotter Dep. at 33:16–22.

Sabrina Shapiro, a passerby in her car, testified that she was driving down Kenyon Street on the date in question. Shapiro Dep. at 6–8, ECF No. 66–6. She stated that she observed Mr. Flythe walking down the street, that Officer Vazquez got out of his police car and exchanged heated words with him, that Mr. Flythe rushed toward him and that Officer Vazquez drew his firearm and started shooting. Shapiro Dep. at 7:1–11. She testified that Mr. Flythe approached Officer Vazquez “in an aggressive manner” but with his hands open, and with no weapon. Shapiro Dep. at 33:3–16. Ms. Shapiro further testified that she later drove another block and heard more shots. Shapiro Dep. at 36:15–18. She stated that she then pulled over, called her father, an attorney, to ask if she could “call the police on the police,” and then subsequently called 911 and stated that she “had seen a police officer shooting an unarmed man.” Shapiro Dep. at 38:9–12, 39:1–2.

Janean Willard, another resident of Kenyon Street, testified that she heard a gunshot, looked out of her window, saw that Mr. Flythe was “defenseless,” and that his hands were in the air. Willard Dep. at 7:16–18, ECF No. 66–8. Ms. Willard testified that Mr. Flythe ran down the street, that Officer Vazquez continued to fire at him, and that Mr. Flythe stopped and put his hands in the air again and checked himself to see if he was hit. Willard Dep. at 8:6–9. According to Ms. Willard, Officer Vazquez was reloading his pistol during that time, Mr. Flythe grabbed his dog and continued to run, and Officer Vazquez followed him and “continued to open fire.” Willard Dep. at 8:10–15. She also stated that Mr. Flythe did not have a weapon, and that he had his hands in the air during the incident. Willard Dep. at 11:9–14.

Another eyewitness, Jonathan L. Poole, observed the scene, and saw that Mr. Flythe's hands were up, his palms were forward, and that he had no weapon before Officer Vazquez shot at him. Poole Dep. at 6:17–20, 8:4–8, ECF No. 66–9. Mr. Poole stated that after Mr. Flythe began running away, the officer ran after him, still firing as he did. Poole Dep. at 9:8–10.

Eyewitness Linda Smith testified that she saw Officer Vazquez shooting at Mr. Flythe, that Mr. Flythe backed away, and that she did not see Mr. Flythe have a knife or other weapon in his hands. Smith Dep. at 5:4–17, ECF No. 66–10. Linda Smith's daughter, Demetrius Moore testified that she saw Officer Vazquez shoot Mr. Flythe, and that during the shooting episode, she could not see whether Mr. Flythe had a weapon. Moore Dep. at 10; ECF No. 70–6. She also stated that she went to the basement out of fear for the remainder of the shooting. Moore Dep. at 10. She left the house to look at Mr. Flythe's body after he had been shot and saw no weapon on his body or near him. Moore Dep. at 15–16.

B. Officer Eagan's pursuit

Meanwhile, Officer Eagan had been patrolling the same neighborhood, accompanied by Mr. Hundal. As he was driving (and while Officer Vazquez was engaged with Mr. Flythe), Officer Eagan heard the following message come in over the police radio:

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

OFFICER: Hey (inaudible), copy.

DISPATCHER: 3206 (phonetic).

OFFICER: Drop the knife.


OFFICER: Drop the knife.

(Shot fired).


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

Def. Eagan's Mot. Summ. J., Radio Run Call 3:12–19, 4:8–9, ECF No. 62–6.

In response to this, Officer Eagan went around the block down until he was able to reach Kenyon Street, at which point he proceeded west down the street toward Georgia Avenue. Eagan Dep. at 25–26, ECF No. 63–5. When he got to Water Street, he “made eye contact with Officer Vazquez” and recalls him saying that he had been stabbed.” Eagan Dep. at 26:15–16, 28:7–9. Officer Eagan stated that he saw Officer Vazquez's “weapon out and he was pointing and saying he's running westbound, he's running westbound,” at which point Officer Eagan looked down that block and saw Mr....

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