                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
NICOLE ARMBRUSTER,                  )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )              Civil Action No. 12-1584 (ABJ)
                                    )
OFC. ERIC FROST, et al.,            )
                                    )
                  Defendants.       )
____________________________________)


                                MEMORANDUM OPINION

       Plaintiff Nicole Armbruster has brought this action against Metropolitan Police Officer

Eric Frost, in his individual capacity, and the District of Columbia. Compl. [Dkt. # 1] ¶¶ 2–3.

Her complaint alleges three causes of action arising from injuries that she allegedly suffered

during her arrest while participating in a protest. Count I asserts an assault and battery claim

against both Officer Frost and the District of Columbia. Id. ¶¶ 34–39. The two remaining counts

assert 42 U.S.C. § 1983 claims against Officer Frost on the grounds that he used excessive force

against plaintiff during the arrest in violation of the Fourth Amendment (Count II) or,

alternatively, the Fifth Amendment (Count III). Id. ¶¶ 40–48. Defendants have moved for

summary judgment under Federal Rule of Civil Procedure 56 on the grounds that the force that

Officer Frost used against plaintiff was “not clearly unreasonable.” Defs.’ Mem. in Supp. of

Defs.’ Mot. for Summ. J. (“Defs.’ Mem.”) [Dkt. # 8] at 7; Defs.’ Mot. for Summ. J. [Dkt. # 8].

The encounter was captured on videotape, and based upon its review of the tape, the Court will

grant defendants’ motion for summary judgment on all three counts.
                                         BACKGROUND

       The complaint sets out plaintiff’s account of the events of April 21, 2012, when she

participated in a protest against the World Bank and the International Monetary Fund. Compl.

¶ 7; Armbruster Decl. [Dkt. # 11-4] ¶ 3. Plaintiff alleges that after the protest, she saw that a

fellow protestor, Nancy Munoz Wolfson, had stopped walking and was standing in the street. Id.

¶¶ 7–8. Plaintiff states that she approached Ms. Munoz Wolfson, reached a hand toward her, and

said: “Come on, let’s go.” Id. ¶ 8. She goes on: “At that point, approximately seven MPD

officers surrounded the two women and pulled the two women apart.” Id. ¶ 9. According to

plaintiff, several of the police officers, including Metropolitan Police Officer Frost, “grabbed”

her and pulled her over to the side of a car. Id. ¶ 10.

       The complaint alleges that “without warning,” Officer Frost “then slammed Ms.

Armbruster’s face into the hood of the car.” Id. ¶ 11.      It claims that after she “had been bent

over the hood of the car for approximately ten second[s], not moving, Officer Frost, without

warning, assisted by one or more other officers, threw Ms. Armbruster to the ground, causing

cuts and bruises to her face and bruises to her knee.” Id. ¶ 18; see Armbruster Decl. ¶ 3. Once

plaintiff was on the ground, Officer Frost allegedly placed his knee on her torso and leaned into

her, causing plaintiff “to be unable to breathe and also causing her severe pain.” Compl. ¶ 19.

       Plaintiff asserts that when Officer Frost “slammed” her face into the hood of the car,

threw her on the ground, and placed his knee on her torso, she: (1) “was already securely within

Officer Frost’s grasp”; (2) “was not resisting”; (3) “was neither escaping nor attempting to

escape”; (4) “posed no threat to property or anyone’s safety”; (5) “was neither touching nor

attempting to touch any of the officers who were present”; and (6) “made no aggressive gestures

or words and was not in a fighting stance.” Id. ¶¶ 12–17, 20–25; see Armbruster Decl. ¶ 5.

Plaintiff also alleges that at the time of the arrest, she was particularly vulnerable to pain in her

                                                  2
pelvis and abdominal area as a result of recent surgeries, and that Ms. Munoz Wolfson

repeatedly told Officer Frost and the other officers that plaintiff was sick and that they were

treating her too roughly. Compl. ¶¶ 29–30.

       At the end of the encounter, Officer Frost arrested plaintiff. Id. ¶ 31. After her arrest,

plaintiff was taken to Sibley Memorial Hospital “due to the pain and injuries she suffered as a

result of Officer Frost’s use of force against her.” Id. ¶ 28. Plaintiff was charged with a

violation of D.C. Code § 22-405(b),1 but the charge was subsequently dismissed pursuant to a

deferred prosecution agreement. Id. ¶ 32.

       On September 24, 2012, plaintiff filed this three count complaint against Officer Frost

and the District of Columbia. Count I is an assault and battery claim against both defendants.

Id. ¶¶ 34–39. She also brings a 42 U.S.C. § 1983 claim against Officer Frost, in his individual

capacity, on the grounds that he used excessive force in effecting her arrest in violation of the

Fourth Amendment (Count II) or the Fifth Amendment (Count III). Id. ¶¶ 3, 40–48.

       On November 9, 2012, during the initial scheduling conference for this case, counsel for

plaintiff informed defendants and the Court that there were video recordings depicting the events

in question. Plaintiff provided the recordings to the defense. See Defs.’ Mem. at 3. On

February 13, 2013, defendants then moved for summary judgment in reliance upon that

evidence, and they supplied the recordings to the Court. See Defs.’ Mem. at 4; Ex. I to Defs.’

Mot. for Summ. J. [Dkt. # 9]. Plaintiff does not allege that the recordings were altered in any


1      D.C. Code § 22-405(b) (2001) provides:

              Whoever without justifiable and excusable cause, assaults, resists,
              opposes, impedes, intimidates, or interferes with a law enforcement officer
              on account of, or while that law enforcement officer is engaged in the
              performance of his or her official duties shall be guilty of a misdemeanor
              and, upon conviction, shall be imprisoned not more than 180 days or fined
              not more than the amount set forth in § 22-3571.01, or both.
                                                3
way, and she does not contend that what they depict differs from what actually happened.

Indeed, her opposition to defendants’ motion also relies on the same material. See Pl.’s Mem. in

Opp. to Defs.’ Mot. for Summ. J (“Pl.’s Opp.”) [Dkt. # 11] at 2–8.

       The video recordings quite clearly contradict plaintiff’s version of the story.       They

demonstrate that Ms. Munoz Wolfson, who plaintiff claims had merely “stopped walking and

was standing in the street,” Compl. ¶ 8, was actually being restrained by police and was

physically in their custody. Video 2 at 0:21–:22; see also Video 1 at 0:06–:12. Plaintiff walked

into the center of the street where Ms. Munoz Wolfson was being detained and began pulling

Ms. Munoz Wolfson towards her while two police officers attempted to hold on. Video 3 at

0:06–:08.   Additional officers intervened to separate the women.        Officer Frost extricated

plaintiff from the fray, and both he and plaintiff fell backwards onto the hood of the car. Video 2

at 0:27–:30. Officer Frost stood up and pulled plaintiff off the car, keeping her hands behind her

back in what appears to be an attempt to prevent her from interfering again with Ms. Munoz

Wolfson’s detention. Id. at 0:31–:32. While the complaint characterizes plaintiff as docile and

cooperative, the tapes show that she struggled with and tried to escape from Officer Frost

throughout the encounter. Once she was fully upright, plaintiff immediately jerked herself away

from Officer Frost and moved toward Ms. Munoz Wolfson. Id. at 0:32–:33; Video 1 at :20–:21.

At that point, Officer Frost pulled plaintiff completely free of Ms. Munoz Wolfson, and placed

her over the hood of the car. Video 2 at 0:33–:34.

       Further, contrary to plaintiff’s assertions, she was not lying still on the car when Officer

Frost moved her to the ground. See Armbruster Decl. ¶ 4. The videos show that after Officer

Frost secured plaintiff over the hood of the car, she reared up, raised her head and shoulders off

the car, and propped herself up on her elbows. Video 2 at 0:36. After he pressed plaintiff back



                                                4
onto the car to subdue her again, Officer Frost pulled her left arm down to her lower back and

reached his other arm around his back to retrieve his handcuffs. Video 2 at 0:38; Video 1 at

0:28–:29. Meanwhile, plaintiff used her free arm to again push herself off of the hood of the car.

Video 1 at 0:29–:31. She wrenched her other arm out of Officer Frost’s grip, turned around, and

pitched herself forward toward Ms. Munoz Wolfson and into the middle of the group of officers.

Id. at 0:32–:33. The surrounding officers, including Officer Frost, caught plaintiff’s arms while

she was propelling herself forward and then brought her to the ground. Id. at 0:35–:46. One

officer secured her right arm, and Officer Frost placed his knee over her left arm and onto her

back while using his hands to handcuff her. Video 3 at 0:44–:51. Although the videos provide

obstructed views of the handcuffing and moments following, one can observe that plaintiff was

able to stand up and walk with Officer Frost without any difficulty immediately after she was

handcuffed. Video 2 at 1:16–1:18; Video 3 at 1:03–1:10.

                                  STANDARD OF REVIEW

       Summary judgment is appropriate “if the movant shows that 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). The party seeking summary judgment bears the “initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat

summary judgment, the non-moving party must “designate specific facts showing that there is a

genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual

disagreement is insufficient to preclude summary judgment, Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247–48 (1986); a dispute is “genuine” only if a reasonable fact-finder could find for

                                                5
the non-moving party; a fact is only “material” if it is capable of affecting the outcome of the

litigation. Id. at 248; see Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In

assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the

light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550

U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam).

       But in a case where the court has the benefit of video evidence, the Supreme Court has

stated that courts deciding summary judgment motions should “view[] the facts in the light

depicted by the videotape,” and that they need not rely on “visible fiction” when the non-moving

party’s version of events is “so utterly discredited by the record that no reasonable jury could

have believed [it].” Scott, 550 U.S. at 380–81. Therefore, Court will decide defendants’ motion

for summary judgment based on the events as depicted in the video recordings.

                                          ANALYSIS

  I.   Section 1983 Claims

       A. The Court will dismiss Count III because plaintiff’s Section 1983 claims must be
          analyzed under the Fourth Amendment and not the Fifth Amendment.
       Since the Court’s jurisdiction is predicated upon the federal claims, the Court will

consider those counts first. Counts II and III both assert Section 1983 claims on the grounds that

Officer Frost used excessive force against plaintiff during her arrest. Count II alleges that

Officer Frost’s alleged use of excessive force violated the Fourth Amendment. Compl. ¶¶ 41–

44. Count III explains that “[i]f some or all of Ms. Armbruster’s injuries are not cognizable

under the Fourth Amendment because her arrest had ended and her pretrial detention had begun

at the time that Officer Frost used excessive force against her, Ms. Armbruster’s claims are

alternatively cognizable under the Fifth Amendment.” Id. ¶ 46.


                                                6
       The Fourth Amendment’s prohibition on unreasonable searches and seizures

encompasses the right to be free from the use of excessive force during an arrest, investigatory

stop, or any other seizure.     Graham v. Connor, 490 U.S. 386, 395 (1989).             The Fifth

Amendment’s Due Process Clause protects a pretrial detainee from the use of excessive force.

Id. at 395 n.10.    The Supreme Court has “not resolved the question whether the Fourth

Amendment continues to provide individuals with protection against the deliberate use of

excessive physical force beyond the point at which arrest ends and pretrial detention begins.” Id.

       Here, plaintiff’s Section 1983 claim is based upon Officer Frost’s alleged use of

excessive force during the period leading up to her arrest. See Compl. ¶¶ 11–31. “[C]laims that

law enforcement officers have used excessive force – deadly or not – in the course of an arrest,

investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’

approach.” Graham, 490 U.S. at 395. Therefore, the Court will analyze plaintiff’s Section 1983

claim under the Fourth Amendment’s “reasonableness” standard and dismiss plaintiff’s Fifth

Amendment claim (Count III).

       B. The Court will grant defendants’ motion for summary judgment on Count II because
          Officer Frost did not use excessive force against the plaintiff in violation of the
          Fourth Amendment, and he is therefore entitled to qualified immunity.
               a. The standard for qualified immunity
       In Count II, plaintiff alleges that Officer Frost violated her Fourth Amendment rights by

using excessive force in effecting her arrest, Compl. ¶¶ 40–44, and she seeks money damages

under 42 U.S.C. § 1983, id. ¶ 8. Defendants counter that Officer Frost is entitled to judgment as

a matter of law because he is protected by qualified immunity. Defs.’ Mem. at 7. Section 1983

creates a private cause of action against a person who violates an individual’s constitutional

rights while acting “under color of any statute, ordinance, regulation, custom, or usage, of any

                                                7
State . . . or the District of Columbia.” 42 U.S.C. § 1983. But a plaintiff may not recover under

Section 1983 if the defendant is entitled to qualified immunity. See Scott, 550 U.S. at 376.

       Qualified immunity is “an immunity from suit rather than a mere defense to liability.”

Hunter v. Bryant, 502 U.S. 224, 227 (1991), quoting Mitchell v. Forsyth, 472 U.S. 511, 526

(1985) (emphasis omitted). Since the immunity exists to shield government officials who act

lawfully from the rigors of suit, it should be granted or denied as early as the factual record

allows. Id. Accordingly, it is appropriate to terminate actions on the basis of immunity “on a

properly supported motion for summary judgment.” Butz v. Economou, 438 U.S. 478, 508

(1978). In light of the video recordings, the Court finds that there is no genuine dispute of

material fact in this case, and that summary judgment is the appropriate forum to resolve Officer

Frost’s qualified immunity defense as a matter of law. See Scott, 550 U.S. at 381, n.8 (“At the

summary judgment stage, however, once we have determined the relevant set of facts and drawn

all inferences in favor of the nonmoving party to the extent supportable by the record, the

reasonableness of [the police officer’s] actions . . . is a pure question of law.”) (internal cross-

reference omitted).

       The defendant bears the burden of pleading and proving the defense of qualified

immunity. Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982). “Qualified immunity shields federal

and state officials from money damages unless a plaintiff pleads facts showing (1) that the

official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’

at the time of the challenged conduct.” Ashcroft v. al-Kidd, -- U.S. --, 131 S.Ct. 2074, 2080

(2011), quoting Harlow, 457 U.S. at 818; see Saucier v. Katz, 533 U.S. 194, 200–01 (2001). In

each case, the court may decide which prong to address first. Pearson v. Callahan, 555 U.S.

223, 236 (2009). In a case where the question of whether the official violated a constitutional



                                                  8
right is easily decided, deciding that question first is the “better approach.” Scott, 550 U.S. at

377 n.4.

               b. Officer Frost is entitled to qualified immunity because he did not use excessive
                  force against plaintiff in violation of the Fourth Amendment.
       Police officers have the authority “to use some degree of physical coercion or threat

thereof” in making an arrest. Graham, 490 U.S. at 396. “‘[N]ot every push or shove, even if it

may later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth

Amendment.”     Id. at 396 (citation omitted).       The “use of force is contrary to the Fourth

Amendment if it is excessive under objective standards of reasonableness.” Saucier, 533 U.S. at

202. In determining whether an officer’s use of force was reasonable, the court must consider

various case-specific factors including: “the severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396.

       “The calculus of reasonableness must embody allowance for the fact that police officers

are often forced to make split-second judgments – in circumstances that are tense, uncertain, and

rapidly evolving – about the amount of force that is necessary in a particular situation.” Id. at

396–97. As such, the reasonableness of a particular use of force must be judged from the

viewpoint of a reasonable officer on the scene. Rogala v. District of Columbia, 161 F.3d 44, 54

(D.C. Cir. 1998) (internal quotation marks omitted).         A defendant’s motion for summary

judgment on a Section 1983 claim alleging excessive force “is to be denied only when, viewing

the facts in the record and all reasonable inferences derived therefrom in the light most favorable

to the plaintiff, a reasonable jury could conclude that the excessiveness of the force is so

apparent that no reasonable officer could have believed in the lawfulness of his actions.”

Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993), citing Martin v. Malhoyt, 830 F.2d 237,


                                                 9
253–54 (D.C. Cir. 1987); see also Oberwetter v. Hilliard, 639 F.3d 545, 555 (D.C. Cir. 2011),

quoting Wardlow, 1 F.3d at 1303.

       Plaintiff asserts that Officer Frost used excessive force when he “slammed her into the

hood of the car.” Pl.’s Opp. at 4; Compl. ¶ 41. But plaintiff’s choice of vocabulary is not borne

out by the video, and what the evidence does show is that she was actively resisting the officer’s

efforts to restrain her and to keep her from interfering with another arrest. Therefore, the limited

amount of force that was used was reasonable under the circumstances, and the force used in this

case did not exceed – or even come close to – the physical coercion contemplated in Graham.

       Plaintiff’s interaction with Officer Frost began when she interjected herself into ongoing

proceedings and attempted to pull her friend away from several police officers. Video 3 at 0:06–

:08. After Officer Frost separated plaintiff from her friend, he held her arms and attempted to

keep her from interfering with the detention of Ms. Munoz Wolfson again. Video 2 at 0:30–:33.

Plaintiff continued to struggle, attempted to escape Officer Frost’s grip, and tried to reach her

friend. Video 2 at 0:30–:33. It was only at that point that Officer Frost placed plaintiff on the

hood of the car in an attempt to maintain control over her. Video 2 at 0:33–:35. Even after

Officer Frost placed plaintiff on the car, she attempted to get up again, and he had to push her

back down. Video 2 at 0:35–:37.

       The events happened quickly; the video footage shows that approximately fourteen

seconds elapsed from the time the police first had Ms. Munoz Wolfson in their grasp – before

plaintiff began to interfere – until Officer Frost placed plaintiff on the hood of the car. Video 2

at 0:21–:35. As defendants note, plaintiff had no right to physically interfere with her friend’s

arrest, Defs.’ Mem. at 10, and even plaintiff acknowledges that such interference would have

constituted a violation of D.C. Code § 22-405(b), which was the eventual charge. See Pl.’s Opp.



                                                10
at 12. In this rapidly developing situation, where plaintiff was interfering with an arrest and

resisting police custody, it was objectively reasonable for Officer Frost to quickly and forcefully

place her on the hood of the car to maintain control over her. See Stevens v. Stover, 727 F. Supp.

668, 671 (D.D.C. 1990) (holding that an officer’s use of force against a plaintiff was objectively

reasonable considering the force the plaintiff herself exercised in resisting police custody). It

was also reasonable for Officer Frost to believe plaintiff posed a threat to officer safety or to the

safety of others. See Dormu v. District of Columbia, 795 F. Supp. 2d 7, 22 (D.D.C. 2011); see

also Robinson v. District of Columbia Nos. 03-1455, 03-1456(RCL), 2006 WL 2714913, at *4–5

(D.D.C. Sept. 22, 2006) (entering summary judgment on qualified immunity grounds even where

the plaintiff did not resist arrest or attempt to flee, the arresting officer “shoved” the plaintiff on

the hood of a car, and the handcuffs were so tight that plaintiff suffered swelling and abrasions;

the court noted that plaintiff was not beaten, shot, or permanently injured).2

       Plaintiff further alleges that once she was “completely subdued” on the hood of the car

“and could easily have been handcuffed,” Officer Frost instead decided, “for no legitimate

reason, to rough [her up] some more,” and “threw” her to the ground, causing bruises on her face

and knee. Pl.’s Opp. at 4; Compl ¶ 18. This allegation is so “blatantly contradicted by the

record, so that no reasonable jury could believe it.” Scott, 550 U.S. at 380. The video recordings


2       Although plaintiff was treated for injuries at Sibley Memorial Hospital after her arrest,
Pl.’s Opp. at 8, the only information she provides about her injuries are three photos of minor
bruising on her face and one photo of the cracked lens of her glasses. Id. at 7; Armbruster Decl.
¶ 7 (“The photographs are a fair and accurate representation of my injuries and my broken
glasses.”). While she claims that Officer Frost’s placement of his knee onto her back left her
unable to breathe, Pl.’s Opp. at 8; Armbruster Decl. ¶ 9, there is no indication that she received
medical care for any injury resulting from his doing so, or that she suffered any permanent or
ongoing injury. See Wardlaw, 1 F.3d at 1304 & n.7 (noting that while the absence of a severe
injury “is not by itself the basis for deciding whether the force used was excessive, it does
provide some indication” that the degree of force was reasonable). And the recordings show that
plaintiff was able to walk on her own power without difficulty as soon as she was back on her
feet.
                                                  11
show that after Officer Frost put plaintiff on the car, he held her with one hand and reached

around to his back, with his other hand, to get his handcuffs. Video 2 at 0:38; Video 1 at 0:28–

:29. While Officer Frost was reaching for his handcuffs, plaintiff pushed herself off the hood of

the car, freed herself from Officer Frost’s grip, turned around, and pitched herself forward

toward Ms. Munoz Wolfson. Video 1 at 0:29–:33. The surrounding officers, including Officer

Frost, caught her arms while she was propelling herself forward and brought her to the ground.

Id. at 0:35–:46. One officer secured plaintiff’s right arm, and Officer Frost placed his knee over

her left arm and onto her back while using his hands to handcuff her. Video 3 at 0:44–:51.

          By the time plaintiff was pinned to the ground, she had lunged, rotated, and jerked herself

away from Officer Frost three times. Since Officer Frost had not been able to subdue or

handcuff plaintiff by placing her on the hood of the car, it was reasonable for him to conclude

that he needed to take additional action to restrain plaintiff, such as placing her on the ground.

See Scott v. District of Columbia, 101 F.3d 748, 759 (D.C. Cir. 1996) (stating that after the

plaintiff attempted once to escape from custody, the officer “could reasonably conclude at that

point that he needed to place [the plaintiff] in restraints, to prevent him from escaping a second

time”).

          Plaintiff argues that even if she had been struggling while being placed on the ground, the

video evidence is clear that she was not resisting or even moving after being placed on the

ground, so there was no reason for Officer Frost to place his knee on her back. Pl.’s Opp. at 13.

In light of Officer Frost’s prior experience with plaintiff’s attempts to escape custody, it was

reasonable for him to believe that he needed to use some other part of his body to hold her down

while using both of his hands to handcuff her. In that context, pushing his knee over her left arm

and onto her back was not an excessive use of force. It is true that at the time Officer Frost



                                                  12
placed his knee on plaintiff’s back, she was already being restrained by two other officers. But

that does not make Officer Frost’s actions unreasonable because plaintiff had managed to escape

the grip of multiple officers earlier during the encounter. See Scott, 101 F.3d at 759–60 (holding

that officers knocking the plaintiff to the ground, rolling him over, and pinning him with their

knees on his neck, back and legs so he could be handcuffed did not constitute excessive force

and noting that the plaintiff’s offer to return to custody after his escape attempt “did not

eliminate the need for force”).

       The Court of Appeals has upheld the use of similar force – and even greater degrees of

force – in other cases. See Oberwetter, 639 F.3d at 548, 555 (no excessive force when the officer

damaged uncooperative plaintiff’s earphone, shoved her against a pillar, and violently twisted

her arm); Rogala, 161 F.3d at 54–55 (no excessive force where the officer pulled the plaintiff out

of a car, bruising her arm, hitting her head against the car, and causing a black eye); Wardlaw, 1

F.3d at 1300, 1304 (no excessive force where a marshal punched the plaintiff who was

interfering with an arrest once in the jaw and two or three times in the chest); Martin, 830 F.2d at

262 (no excessive force where the officer threw the plaintiff into a car, slammed the door on one

of his legs, and grabbed his arms and pulled them behind his back). Other decisions in this

district also support a finding of qualified immunity in this case. See Steele v. D.C. Hous. Auth.,

No. Civ.A. 02-1420 CKK, 2006 WL 335770, at *7 (D.D.C. Feb. 14, 2006) (no excessive force

where the officer twisted the plaintiff around and slammed him up against the wall); Gee v.

District of Columbia, Nos. Civ. 04-1797 RJL, Civ. 04-2042 RJL, 2005 WL 3276272, at *3

(D.D.C. Aug. 22, 2005) (no excessive force where the officers twisted the plaintiff’s arm behind

his back and bent his neck forward, causing injuries to his back, neck, genitals, arm, and head).

In light of these cases, a reasonable officer on the scene could have believed that securing



                                                13
plaintiff quickly and forcefully on the hood of the car and then the ground was reasonable and

lawful.

          Plaintiff maintains nonetheless that Officer’s Frost placement of his knee onto her back

was “very intrusive” and “vastly disproportionate to any legitimate law enforcement need”

because it caused her to be unable to breathe for twenty seconds. Pl.’s Opp. at 11, 14. She

argues that this intrusion was particularly dangerous because it could have caused her to

asphyxiate. Pl.’s Opp. at 11. The cases that plaintiff cites to support this proposition are

distinguishable. In Sanders-Burns v. City Of Plano, 594 F.3d 366, 370–71, the arrestee died of

positional asphyxia after he had been placed in a headlock with another person on top of him for

ten minutes, and then handcuffed and left on the floor face down for an additional five minutes.

In Arce v. Blackwell, 294 F. App’x 259, 260–61 (9th Cir. 2008), the arrestee died of positional

asphyxiation after police officers kept him restrained with his chest to the ground while applying

pressure to his back and ignoring pleas that he could not breathe. In Drummond v. City of

Anaheim, 343 F.3d 1052, 1055, 1061 (9th Cir. 2003), the plaintiff fell into a “permanent

vegetative state” after two officers allegedly crushed him “against the ground by pressing their

weight on his neck and torso, and continuing to do so despite his repeated cries for air, and

despite the fact that his hands were cuffed behind his back and he was offering no resistance.”

          Officer Frost’s use of force does not come close to what happened in those cases. Here,

Officer Frost had his knee on plaintiff’s back for about twenty seconds while placing her in

handcuffs. Video 2 at 0:53–1:10. Officer Frost did not keep his knee on her back a moment

longer than necessary; as soon as he handcuffed plaintiff, he immediately got up and helped

plaintiff to her feet. Video 3 at 1:04; see also Video 2 at 1:09–:16. After plaintiff got up, she

was able to walk away with the officer. Video 3 at 1:03–:10. Further, plaintiff has not alleged



                                                 14
that she told the officers that she was unable to breathe while she was being handcuffed, nor has

she alleged that she complained about respiratory issues after she was placed back on her feet.

Although plaintiff was taken to the emergency room, Pl.’s Opp. at 7, her injuries were limited to

minor bruising on her face and damaged glasses; she has not alleged that she continues to suffer

from any permanent or serious injuries as a result of the arrest.

       For the reasons stated above, plaintiff has not shown that Officer Frost violated her

Fourth Amendment rights by using excessive force during her arrest. Therefore, Officer Frost is

entitled to qualified immunity on the Section 1983 claim, and the Court will grant his motion for

summary judgment on Count II.          See Gee, 2005 WL 3276272, at *2 (“If there was no

[constitutional] violation, the plaintiff’s claim lacks merit under [Section] 1983 and should be

dismissed without further inquiry into qualified immunity.”).

 II.   Assault and Battery Claims

       A. The Court will exercise supplemental jurisdiction over plaintiff’s common law claim.
       Because the basis for federal jurisdiction has fallen away after dismissal of the Section

1983 claims, the Court must decide whether to retain supplemental jurisdiction over plaintiff’s

common law claims of assault and battery. See 28 U.S.C. § 1367. In deciding whether to

exercise supplemental jurisdiction, the “court must first determine whether the state and federal

claims derive from a common nucleus of operative fact.” Konah v. District of Columbia, 815 F.

Supp. 2d 61, 78 (D.D.C. 2011), citing Women Prisoners of the D.C. Dep’t of Corr. v. District of

Columbia, 93 F.3d 910, 920 (D.C. Cir. 1996). If so, “the court then must decide whether to

exercise its discretion to assert jurisdiction over the state claim.” Id. at 78–79. In making this

determination, the court must weigh factors of judicial economy, convenience, fairness, and

comity. Edmonson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1265–66 (D.C.



                                                 15
Cir. 1995). However, if a state claim raises a “novel or complex issue of state law,” the court

may decline to exercise its supplemental jurisdiction. Konah, 815 F. Supp. 2d at 79.

       Here, plaintiff’s federal and state claims derive from a common nucleus of operative fact:

Officer Frost’s use of force in arresting her. See Compl. ¶¶ 34–48. Moreover, judicial economy,

fairness, and convenience weigh in favor of the Court retaining jurisdiction over the assault and

battery claim because the analysis regarding whether an officer committed assault and battery is

“similar to the excessive force standard applied in the Section 1983 context.” Dormu, 795 F.

Supp. 2d at 28 (internal quotation marks and citation omitted); see also Konah, 815 F. Supp. 2d

at 79 (exercising supplemental jurisdiction over plaintiff’s assault and battery claims when all of

her claims arose from the same incident).          Hence, the Court will retain its supplemental

jurisdiction over plaintiff’s common law claims.

       B. The Court will grant defendants’ motion for summary judgment on the assault and
          battery claims because Officer Frost did not use excessive force to effect plaintiff’s
          arrest.
       Plaintiff alleges that Officer Frost assaulted and battered her when he “intentionally and

unlawfully attempt[ed] to physically harm [plaintiff] by slamming her face into the hood of a

car” and by “throw[ing plaintiff] to the ground and forc[ing] his knee into her torso.” Compl.

¶¶ 35–36. She further alleges that the District of Columbia is liable for Officer Frost’s actions

under the doctrine of respondeat superior. Id. ¶ 39.

       In the District of Columbia, an assault is “‘an intentional and unlawful attempt or threat,

either by words or by acts, to do physical harm to the victim.’” Evans-Reid v. District of

Columbia, 930 A.2d 930, 937 (D.C. 2007), quoting Etheredge v. District of Columbia, 635 A.2d

908, 916 (D.C. 1993). A battery is “‘an intentional act that causes a harmful or offensive bodily

contact.’” Id., quoting Etheredge, 635 A.2d at 916. “Under the doctrine of respondeat superior

the District of Columbia is liable for the torts of its police officers acting under the scope of their

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employment.” District of Columbia v. White, 442 A.2d 159, 162 n.7 (D.C. 1982); see Evans-

Reid, 930 A.2d at 937 (“The District is vicariously liable for the intentional and negligent acts of

its officers acting within the scope of their employment.”).

       “[A] police officer is privileged to use force so long as the ‘means employed are not in

excess of those which [he] reasonably believes [are] necessary.’” Dormu, 795 F. Supp. 2d at 27

(second and third alterations in original), quoting Etheredge, 635 A.2d at 916. In fact, “an

officer may commit what at common law would be an assault unless ‘the threatened use of force

is clearly excessive.’” Rogala, 161 F.3d at 57, quoting Jackson v. District of Columbia, 412

A.2d 948, 956 (D.C. 1980). The inquiry into whether the officer used excessive force is made

from the perspective of a reasonable officer on the scene. Dormu, 795 F. Supp. 2d at 28. Thus,

this standard for analyzing an assault and battery claim against an officer is “‘similar to the

excessive force standard applied in the Section 1983 context.’” Id., quoting Rogala, 161 F.3d at

57.

       Because the Court finds that Officer Frost did not use excessive force in effectuating

plaintiff’s arrest, it also holds that he is not liable for assault and battery. See Rogala, 161 F.3d

at 57 (dismissing an assault and battery claim because the court had found that the officer did not

use excessive force for purposes of the plaintiff’s Section 1983 claim). Since Officer Frost did

not commit a tort against plaintiff, the District of Columbia cannot be liable for assault and

battery under the doctrine of respondeat superior. Therefore, the Court will grant defendants’

motion for summary judgment on Count I.




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                                        CONCLUSION

       For the reasons stated above, the Court will grant defendants’ motion for summary

judgment on all counts. A separate order will issue.




                                            AMY BERMAN JACKSON
                                            United States District Judge

DATE: August 26, 2013




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