Early in the morning on May 5, 2015, Plaintiff Elijah Jackson struck a moped *57while driving, drunk, with two companions. After leaving the scene of the accident, Jackson was pulled over by the police. What happened next is disputed. According to the officers, Jackson resisted arrest and they used reasonable force in restraining him. According to Jackson, the officers maliciously beat him even though he tried to comply with their orders. He subsequently underwent neck surgery, and claims to suffer from post-traumatic stress disorder as a result of the incident.
Jackson has sued the District of Columbia (the "District") and seven individual police officers: John Merzig, Matthew Fogle, Kanika Bolton, Carol Smith, Antoine Braithwaite, Lorelei Hillgren, and Michael Harrison. He brings claims for violations of the Fourth and Fifth Amendments to the U.S. Constitution, assault and battery, and intentional infliction of emotional distress. Defendants have moved for partial judgment on the pleadings and partial summary judgment on Jackson's Fifth Amendment claim against all Defendants; on all claims against Defendants Bolton, Smith, Braithwaite, Hillgren and Harrison; and on Jackson's claim against the District for municipal liability under
I. Factual and Procedural Background
A. The Night of May 4-5, 2015, and its Aftermath
On the evening of May 4, 2015, Jackson met up with a friend named Jordathan Jones and Jones's "lady friend." Pl.'s Ex. 1 (Jackson Dep.) at 20:2-17, 21:13-17.
At around 1:30 in the morning, while driving along Florida Avenue in Northeast Washington, near Gallaudet University, Jackson struck a moped.
Jackson and the police officers differ on what happened next. The record before the Court is largely silent regarding the *58views of Officers Merzig and Fogle, the two officers who initially pulled Jackson over, see Compl. ¶ 13.
In Jackson's account, by contrast, the officers gratuitously beat him notwithstanding his efforts to comply with their instructions. He claims that Fogle instructed him to return to his car, but that before he could do so, Fogle and Merzig "rushed up" and grabbed him. Pl.'s Ex. 1 (Jackson Dep.) at 36:3-37:17, 46:8-11. One of the officers, Jackson testified, slammed his face into the top of the car, and the two officers began "trying to pull" him in "different directions."
At that point, Jackson testified, Merzig and Fogle began "punching and hitting" him as he stood blinded by the pepper spray. See
Sergeant Harrison performed the preliminary investigation into the officers' use of force against Jackson. See Pl.'s Ex. 7 (Harrison Dep.) at 32:10-33:13. He arrived after Jackson was already in handcuffs.
Jackson remained at the hospital for several days. See Pl.'s Ex. 1 (Jackson Dep.) at 78:19-20. He was diagnosed with a broken nose and a bulging intervertebral disc in his neck, which required surgery to replace the disc with a metal plate. See
Jackson was subsequently charged with several misdemeanors in the Superior Court of the District of Columbia. Compl. ¶ 21. He stood trial on three counts of misdemeanor assault on a police officer (specifically, Merzig, Fogle and Braithwaite) and one count of fleeing a law enforcement officer.
B. The District's Policies Regarding Use-of-Force Investigations
In addition to evidence regarding the particular facts of Jackson's case, the parties have also introduced evidence about how the District handles use-of-force investigations. Jackson engaged an expert witness on police practices, former Charlottesville, Virginia, police chief Timothy J. Longo, Sr., who was asked to provide opinions on two subjects: (1) "whether the District had a custom, practice, or policy, of excessive force that was conscious[ly] and deliberately enforced[,] and whether such a de facto policy or custom or practice was [the] moving force behind Mr. Jackson's injures;" and (2) "whether the District of Columbia and [its police department] had a custom, practice or policy of deliberately and consciously failing to investigate uses of force[,] and whether those practices, customs or policies were the moving force behind Mr. Jackson's injuries." Defs.' SoMF ¶ 15 (quoting Defs.' Ex. 2 (Longo Dep.) at 43:20-44:2, 44:18-45:2); see Pl.'s Resp. SoMF ¶ 15; Longo Supp. Rep. at 2. Longo declined to offer an opinion regarding subject (1). Defs.' SoMF
*60¶ 16; Pl.'s Resp. SoMF ¶ 16; Longo Supp. Rep. at 17. With respect to subject (2), Longo testified that "the District did in fact have a de facto policy" of "failing to ... investigate uses of force, particularly the uses of force such as that which was impacted upon Mr. Jackson." Defs.' SoMF ¶ 17 (quoting Defs.' Ex. 2 (Longo Dep.) at 45:6-10); see Pl.'s Resp. SoMF ¶ 17; Longo Supp. Rep. at 17. This policy, he concluded, "was the moving force behind Mr. Jackson's injuries." Longo Supp. Rep. at 17.
The background for Longo's analysis is a 2001 Memorandum of Agreement ("MOA") that the District entered into with the Department of Justice. See generally Hunter v. District of Columbia ,
The report, as described by Longo,
Jackson also points to two later police-department teletypes, both issued in July 2014. On July 3, 2014, the department issued a teletype listing the use-of-force incidents that the department's internal-affairs division was required to investigate. Pl.'s Ex. 15 (teletype dated July 3, 2014). Under the teletype, internal affairs was not required to investigate all incidents in which officers used force, but only certain categories of incidents, including "serious" uses of force that resulted in "admission to a hospital," "broken bones," "loss of consciousness,"
*61or risk of death or serious bodily injury. Id. at 3. Another teletype, dated July 29, 2014, restricted the circumstances requiring completion of a Use of Force Incident Report. Pl.'s Ex. 16 (teletype dated July 29, 2014). It provided that no such reports would be required for "contact controls," "unresisted handcuffing," "resisted handcuffing," or "solo or team takedowns," "unless there has been a resulting injury or complaint of pain." Id. In addition, officers were no longer required to notify their watch commanders of "contact controls or resisted handcuffing in which there was no report of injury or pain." Id.
Longo criticized these changes because uses of force like tactical takedowns always involve a "foreseeable risk someone's going to get hurt," and opined that it is important to document those incidents so that the District can "go back and make sure that those type of force decisions are being made appropriately." Defs.' Ex. 2 (Longo Dep.) at 54:13-18. In Longo's opinion, "when you adopt a policy that lessens your ability to adequately investigate things like force, that's a de facto policy that you've adopted that could lead to a foreseeable risk of harm." Id. at 63:2-7. Longo also opined that "it was generally accepted practice to at least document and do some form of investigation with respect to [tactical takedowns]." Id. at 56:18-20. However, his opinion was not that "every tactical takedown should go to [internal affairs]." Id. at 57:18-20.
Notwithstanding these criticisms, Longo concluded that the District's written "policies and procedures ... pertaining to the use of force and how such force is reported and investigated ... are consistent with generally accepted policing practices." Longo Supp. Rep. at 9. He further concluded, however, that after the MOA ended the District permitted "a de facto policy, or wide spread custom, or practice that impeded the rigorous, thorough, and timely investigation of use of force incidents." Id. at 17. He based this conclusion to a significant degree on his review of several administrative case files provided by Jackson's counsel, six of which involved use of force. See id. at 15. He identified several deficiencies:
• Only one of the case files included audio-recorded statements, which Longo believes are required by best practices in internal police investigations. Id. at 13, 15.
• In each case file "investigated by district personnel," the involved officers received "reverse Garrity " warnings. Id. at 15.4 In Longo's view, the "blanket use ... of the Garrity admonishment" where it is not required unduly delays internal police investigations. Longo Supp. Rep. at 14.
• In one case in which Sergeant Harrison was accused of kicking a suspect, the case file was "void of any statements from the involved officers or any potential witnesses." Id. at 15. The matter was referred to the U.S.
*62Attorney's Office, which declined to prosecute. Id.
• Another case involved an accusation of excessive force against Officer Smith and other officers. Id. In that case, the "only real investigation" consisted of phone interviews with two of the involved officers. Id.
In addition, Longo noted, the 2016 Bromwich report reviewed 32 use-of-force investigations and concluded that four of those cases (12.5%) should have been, but were not, investigated by internal affairs. Id. at 16; Pl.'s Ex. 13 (2016 Bromwich report) at 42. The Bromwich Group also identified other deficiencies, including a general failure to engage in "tactical analysis" or make "recommendations for remediation." Longo Supp. Rep. at 16.
Longo also heavily criticized the investigation into the use of force against Jackson, which he described as "woefully deficient." Id. at 18. In his view, internal affairs should have investigated the matter because Jackson was hospitalized. Defs.' Ex. 2 (Longo Dep.) at 63:17-22; Longo Supp. Rep. at 11. On this point, the District's Rule 30(b)(6) witness seemed to agree with Longo, testifying that any use of force that results in hospitalization or a broken bone "is an obvious [internal affairs] case." Pl.'s Ex. 17 (Power Dep.) at 73:5-11. Longo also concluded that Harrison failed to properly "canvass" the crime scene for additional witnesses, although police records indicated that a canvass did in fact occur. Longo Supp. Rep. at 12 & n.55. Harrison at least attempted to interview all the non-police witnesses known to have been on the scene of the arrest: he spoke to Jackson, Jones (who claimed to have slept through the encounter), and Jones's female companion (who declined to give a statement). See id. at 7-8. But Longo faults Harrison for failing to tape-record the statements he received and to create a "step by step" chronology of his investigation. Id. at 12-13. And while a police lieutenant did ultimately write an investigative report on the incident, Longo concluded that this investigation was inadequate because it was completed two months after the incident. See id. at 7, 12.
Based on these examples and the post-MOA policy changes, Longo concluded that the District had a de facto policy of tolerating inadequate use-of-force investigations. Id. at 17. He further opined that this de facto policy was the "moving force" behind Jackson's injuries. Id. ; Defs.' Ex. 2 (Longo Dep.) at 45:11-20. He acknowledged that this conclusion might seem counterintuitive, given that Jackson's case was in fact investigated. See Longo Supp. Rep. at 11. He nonetheless opined that deficiencies in the District's investigative practices "allow[ ] for the grave possibility that misconduct will take place with impunity" and "that officers will use force that exceeds policy, knowing that they will have sufficient time in which to formulate an account that will either justify or mitigate their actions, and further knowing that whatever account is offered[,] they may in all likelihood go unchallenged and not be subject to greater security." Id. at 18.
C. Procedural History
Jackson filed this case on December 23, 2015. His complaint contains five counts: a Fourth Amendment claim under
II. Legal Standard
With respect to Jackson's Fifth Amendment claim, Jackson has chosen to oppose the motion by relying solely on the allegations in his complaint. See Pl.'s Opp'n at 3-7. Therefore, the Court will treat this part of the motion as one for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) and exclude all matters outside the pleadings when considering it. See Fed. R. Civ. P. 12(d). "[A] Rule 12(c) motion ... is functionally equivalent to a Rule 12(b)(6) motion." Rollins v. Wackenhut Servs., Inc. ,
With respect to the other claims, the Court will treat the motion as one for summary judgment under Federal Rule of Civil Procedure 56, because discovery has closed and the parties have attached the relevant parts of the record to their motion papers. Under Rule 56, a court must grant summary judgment "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). "Summary judgment is appropriately granted when, viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor." Lopez v. Council on Am.-Islamic Relations Action Network, Inc. ,
III. Analysis
As explained below, the Court will grant Defendants' motion in part and deny it in part. The Court will dismiss Count II, the Fifth Amendment excessive-force claim, because that claim must be analyzed under the Fourth Amendment and thus is duplicative of Count I. The Court will also enter summary judgment for Harrison on all claims, for Smith and Bolton on Count IV (intentional infliction of emotional distress), and for the District on Count V (which asserts municipal liability under
A. Count II: Fifth Amendment
Defendants argue that the Fifth Amendment claim "merges" with the *64Fourth Amendment claim and thus should be dismissed. Defs.' Br. at 7-8. The Court agrees. "[A]ll claims 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 v. Connor ,
Jackson argues for a contrary result. See Pl.'s Opp'n at 3-4. But the case he principally relies on, Moore v. District of Columbia ,
B. Count I: Fourth Amendment
Jackson does not dispute that officers had probable cause to arrest him, but claims that the officers used excessive force to effect the arrest. See Compl. ¶¶ 28-33. "The Fourth Amendment's prohibition on unreasonable seizures extends to an officer's use of excessive force to conduct an arrest." Hedgpeth v. Rahim ,
Defendants seek judgment in favor of Officers Bolton, Smith, Braithwaite, Hillgren and Harrison on the Fourth Amendment Claim. Defendants argue that none of these officers participated in the alleged use of excessive force against Jackson. Defs.' Br. at 8-9. Jackson argues, however, that each of these Defendants was personally involved in the alleged constitutional violation, and alternatively that each is liable under a theory of "bystander liability." Pl.'s Opp'n at 8-11.
Based on the record before it, the Court agrees with Defendants that there is no evidence to support this claim against Harrison, but will allow the claim to proceed against the other individual Defendants.
1. Braithwaite and Hillgren
Genuine issues of material fact preclude summary judgment in favor of Braithwaite and Hillgren. Jackson testified at his deposition that both officers participated in the use of excessive force against him. According to Jackson, the officers beat him for no reason as he lay subdued *65on the ground, trying to shield himself from the blows. Pl.'s Ex. 1 (Jackson Dep.) at 50:17-51:11. Obviously, a jury could find that this constituted excessive force. See Harris v. U.S. Dep't of Veterans Affairs ,
2. Bolton and Smith
Defendants' motion is a closer call as it pertains to Bolton and Smith. The evidence against these two officers is unusual. Jackson's own testimony states that Bolton and Smith did not themselves use excessive force against him. Nonetheless, he claims in his briefing that other evidence (including Smith's testimony) establishes that these two officers did, in fact, participate in the use of excessive force. See Pl.'s Opp'n at 10. In any event, Jackson argues, they should be subject to bystander liability. See id. at 9-10. The Court concludes that the record, viewed as a whole, creates genuine issues of material fact regarding Bolton's and Smith's liability for the asserted use of excessive force.
As noted, Jackson's own testimony is relatively favorable to Bolton and Smith. Jackson testified that Bolton had not used any force against him; his claim against her is that "[s]he didn't stop the assault." Id. at 162:5-7; see id. at 161:9-162:12. Smith's only use of force in Jackson's account was to handcuff him, see id. at 45:2-18, 161:1-13, which was not excessive, given that Jackson does not allege that the handcuffs were too tight or otherwise improperly applied. Compare Garay v. Liriano ,
Other evidence, however, suggests that Bolton and Smith participated to a somewhat greater degree in the use of force against Jackson. Specifically, both Smith's testimony and Bolton's written report say that they assisted in the "tactical takedown." See Pl.'s Ex. 3 (Smith Dep.) at 39:11-18; Pl.'s Ex. 4 (Bolton report) at 3 (explaining that "collectively we utilized a team takedown"). Smith expressly denied, however, that any officer threw a punch at Jackson during the takedown. Pl.'s Ex. 3 (Smith Dep.) at 40:7-17.
It is a close question whether Bolton and Smith's involvement in the takedown, on its own, would be enough to raise a genuine *66issue of material fact about their use of excessive force. In this Circuit and elsewhere, courts have generally upheld the use of "takedowns" or "leg sweeps" as a lawful police maneuver to subdue suspects who are resisting arrest. See Huntley v. City of Owasso ,
Here, the parties dispute whether Jackson was resisting arrest: Jackson claims he consistently tried to comply with the officers' commands, see Pl.'s Ex. 1 (Jackson Dep.) at 41:18-42:16, 44:9-16, 51:22-53:22, while the officers claim that Jackson persistently resisted efforts to handcuff him, see Pl.'s Ex. 3 (Smith Dep.) at 28:8-29:5, 31:2-14, 36:16-21; Pl.'s Ex. 4 (Bolton report) at 3. This suggests a genuine issue of material fact regarding whether the takedown amounted to excessive force. To be sure, Jackson's case is made more difficult by the fact that he was subsequently convicted of assaulting a police officer and attempting to flee a police officer. Compl. ¶ 23. However, Defendants have not argued that these convictions have preclusive effect in establishing that Jackson was resisting arrest. Nor have they introduced into the record any information about the findings of fact underlying the convictions. Thus, on the record before the Court, it is unclear whether the convictions conclusively establish that Jackson was resisting the officers at the time the takedown occurred; it is possible, for instance, that those convictions are based on Jackson's conduct during his initial interaction with Merzig and Fogle, and that he became compliant later in the encounter, before the officers took him to the ground.
Regardless of whether Smith and Bolton personally used an unlawful degree of force against Jackson, the evidence more clearly raises a genuine issue of material fact about whether Smith and Bolton may be subject to "bystander liability" for the use of force that, in Jackson's account, occurred after they arrived on the scene.
*67Stevenson v. City of Seat Pleasant ,
Courts in this District have borrowed the Fourth Circuit's test for such "bystander liability," holding an officer liable "if he: (1) knows that a fellow officer is violating an individual's constitutional right; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act." Fernandors v. District of Columbia ,
3. Harrison
Jackson has failed, however, to create a genuine issue of material fact supporting Harrison's liability. By Jackson's own admission, Harrison arrived on the scene after the alleged excessive force occurred and had no contact with Jackson. See Pl.'s Opp'n at 10-11. Rather, Jackson's theory is that Harrison should be held liable because he conducted the police department's initial investigation into the officers' use of force. See id. But Jackson's theory makes no sense. His Fourth Amendment claim against the officers is for use of excessive force, not for failure to conduct a proper investigation into the use of excessive force. See Compl. ¶¶ 28-33. And Harrison cannot be held liable as a "bystander," because officers arriving on the scene after a constitutional violation has occurred obviously do not have a reasonable opportunity to prevent the violation from occurring. See, e.g., Smith v. Ray ,
*68Ibarra v. Harris Cty. ,
Jackson cites the D.C. Circuit's opinion in Wesby v. District of Columbia ,
C. Count III: Assault and Battery
Assault and battery are two related but "conceptually distinct" torts under District of Columbia law. District of Columbia v. Chinn ,
Defendants move for summary judgment on Count III, common law assault and battery, on the same ground as Count II: that Bolton, Smith, Braithwaite, Hillgren and Harrison did not participate in the alleged use of excessive force against Jackson. See Defs.' Br. at 8-9. The Court will deny the motion as to Braithwaite and Hillgren, and grant it as to Harrison, for the same reasons set forth above: there is evidence that Braithwaite and Hillgren participated in the alleged beating of Jackson, while it is undisputed that Harrison was not even present for it.
Once again, this claim is a closer call with respect to Bolton and Smith. Unlike on the § 1983 claim, Jackson can hold Bolton and Smith liable on this claim only to the extent they personally exercised force against him. To hold one defendant liable for a battery committed by another, the plaintiff must show some basis for vicarious liability under the common law, such as aiding and abetting or conspiracy. See Rawlings v. District of Columbia ,
As already explained, the record shows that Bolton and Smith personally used only two forms of force against Jackson: the handcuffing and the tactical takedown. Handcuffing a suspect during a lawful arrest, without more, is not excessive force. Garay ,
The case of Kotsch v. District of Columbia ,
The Court concludes that, as in Kotsch , the parties' radically different versions of events prevent summary judgment on this claim. As discussed above, in Jackson's account, he persistently attempted to cooperate with the officers, who nonetheless greeted him with violence. He also claims that, during the takedown, he was "slammed face-forward down towards the ground." Pl.'s Ex. 1 (Jackson Dep.) at 50:14-15. It is not the Court's role on this motion to judge Jackson's credibility. Based on Jackson's testimony, a reasonable jury could conclude that the takedown went beyond what any officer could reasonably believe was necessary and thus was not privileged. Therefore, this claim may proceed against Bolton and Smith.
*70D. Count IV: Intentional Infliction of Emotional Distress
"Establishing a prima facie case of intentional infliction of emotional distress requires a showing of (1) extreme and outrageous conduct on the part of the defendants, which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress." Amobi v. D.C. Dep't of Corr. ,
Once again, Defendants have moved to dismiss on the ground that Bolton, Smith, Braithwaite, Hillgren and Harrison did not themselves use force against Jackson. Defs.' Br. at 9-10. The Court will deny the motion as to Braithwaite and Hillgren on this claim because Jackson has testified that they beat him as he lay helpless on the ground, which if true could constitute outrageous conduct. See Harris ,
The Court will also grant Bolton and Smith summary judgment on this claim. Once again, Jackson has neither pleaded nor argued any basis for imputing the other officers' conduct to Bolton and Smith under the common law. See Compl. ¶¶ 46-51; Pl.'s Opp'n at 13-16. Nor has Jackson established that Bolton and Smith personally engaged in extreme and outrageous conduct. Only a " 'serious case of excessive force' " can amount to actionable "outrageous behavior." Harris ,
The tactical takedown the officers used does not fit the bill. As the evidence in this case shows, it is a standard police maneuver. Moreover, the Court cannot ignore that Jackson resisted the officers at some point during the encounter-he was convicted of assaulting a police officer and attempting to flee a police officer. Compl. ¶ 23. Nor can it ignore the undisputed fact that Jackson was extremely intoxicated. See Pl.'s Ex. 1 (Jackson Dep.) at 154:10-17;
*71Pl.'s Ex. 2 (medical personnel's testimony) at 53:24-54:12; Pl.'s Ex 7 (Harrison Dep.) at 38:4-39:7. Reviewed as a whole, the record simply cannot support the conclusion that the tactical takedown, in and of itself, was such a serious deviation from normal standards of decency that it could constitute extreme and outrageous conduct. Because the takedown (in addition to handcuffing) is the only force Smith and Bolton can be shown to have used themselves, the intentional infliction of emotional distress claim cannot proceed against them.
In their reply, Defendants raise another basis for dismissing this claim: that Jackson has not introduced properly authenticated medical evidence to support it. See Defs.' Reply at 7-8. "[I]t is a well-settled prudential doctrine that courts generally will not entertain new arguments first raised in a reply brief." Benton v. Laborers' Joint Training Fund ,
E. Count V: Municipal Liability
"It is well established that in a § 1983 case a city or other local governmental entity cannot be subject to liability at all unless the harm was caused in the implementation of 'official municipal policy.' " Lozman v. City of Riviera Beach , --- U.S. ----,
[1] the explicit setting of a policy by the government that violates the Constitution; [2] the action of a policy maker within the government; [3] the adoption through a knowing failure to act by a policy maker of actions by his subordinates that are so consistent that they have become "custom"; or [4] the failure of the government to respond to a need (for example, training of employees) in such a manner as to show "deliberate indifference" to the risk that not addressing the need will result in constitutional violations.
Baker v. District of Columbia ,
Jackson has tried, but failed, to invoke ways (1) through (3) to show a policy or custom regarding officers' use of excessive force in the District. His expert witness, Longo, concluded that the District's written policies on use of force comported with "generally accepted policing practices." Longo Supp. Rep. at 9. Reviewing statistical evidence in the police department's annual reports, Longo found "complaints of excessive force to be a relatively small number of the total complaints received over a given year." Id. at 16. Thus, based on the information available to him, Longo was unable to render any opinion on whether the District had a "de facto policy, wide spread custom, or practice of excessive use of force." Id. at 17.
Jackson therefore relies solely on way (4), arguing that the District had a practice *72of inadequately investigating police officers' use of force. See Pl's Opp'n at 16-23. In order for this theory to be actionable, Jackson must establish two things. First, he must show that the District's practices regarding use-of-force investigations amounted to deliberate indifference toward the risk that police officers would use excessive force. See Bd. of Cty. Comm'rs of Bryan Cty. v. Brown ,
1. Deliberate Indifference
First, Jackson has not created a genuine issue of material fact regarding deliberate indifference. " '[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action."
In cases involving an alleged failure to train or supervise employees, there are two ways to prove up deliberate indifference. The more common way is to show a "pattern of similar constitutional violations" that have gone unaddressed. Connick v. Thompson ,
In a case involving a single constitutional violation, the plaintiff must show that the municipality's oversight was so severely inadequate as to make it "obvious" that similar violations would result. Connick ,
In contrast, a city's mere failure to adopt "best practices" in use-of-force investigations is not enough to excuse plaintiffs from showing that the city recklessly ignored a pattern of constitutional violations. See Westfahl v. District of Columbia ,
The same can be said in this case. Notwithstanding its disagreement with some of the District's practices, the 2016 Bromwich report concluded that the police department's staff "remains committed to limiting and managing use of force-and to fair and constitutional policing." Pl.'s Ex. 13 at i. Longo himself concluded that the District's written policies regarding use-of-force investigations are adequate. Longo Supp. Rep. at 9. This evidence-on which Jackson himself relies-hardly shows that the District is indifferent to excessive force. It in fact establishes the opposite.
Longo tries to paint a dire picture of the District's practices based on a handful of investigations he believes were conducted improperly. But these instances are "too scattered and lacking in detail to build a case" of deliberate indifference. Carter v. District of Columbia ,
Jackson also seeks to draw an inference of deliberate indifference from the fact the District relaxed its policies regarding use-of-force investigations just after the MOA ended. Pl.'s Opp'n at 21-22. He argues that this shows a desire to return to the District's earlier, "systematically flawed" practices. Id. at 22. The undisputed evidence, however, shows that the District made these changes in order to concentrate its resources on more serious instances in which officers use force and on routine police work. See Defs.' Ex. 2 (Longo Dep.) at 53:18-54:4; Longo Supp. Rep. at 10-11. Neither Longo's report nor any other evidence suggests that this justification was pretextual. Longo describes this a "conscious and deliberate" decision-which it was, but only in the sense that the District consciously refused to maintain policies it thought unnecessary to prevent instances of excessive force. See Longo Supp. Rep. at 17. And that was entirely permissible: police departments must weigh what resources to put into investigating their own officers, knowing that those same resources could instead be put *74to use in fulfilling their primary mission of preventing crime in society at large. The Constitution does not require a perfect balance between these two objectives; municipalities can violate it only when they overlook obvious deficiencies in their practices. That simply is not the case here.
2. Causation
Jackson has also failed to meet the causation requirement for municipal liability. "A deliberately indifferent policy or custom is 'deemed to be the moving force of a constitutional injury if the conduct is a substantial factor in bringing about the harm.' " Smith v. District of Columbia ,
Jackson complains that the District, after the MOA ended, improperly restricted the circumstances requiring specialized use-of-force reports and investigation by either internal affairs or a specialized investigative team. See Pl.'s Opp'n at 17-18. But the District's policies did require those measures in his case. The police department required an internal-affairs investigation whenever the suspect suffered a broken bone or was hospitalized for his injuries. See Pl.'s Ex. 15 (teletype of July 3, 2014) at 3; Pl.'s Ex. 17 (Power Dep.) at 73:7-11. It also required a use-of-force report where a takedown resulted in "injury or complaint of pain." Pl.'s Ex. 16 (teletype of July 29, 2014). Because Jackson broke his nose and required surgery and hospitalization for his injured neck, the District's policies required the very procedures Jackson claims were necessary. These policies were followed to some extent in his case. Bolton completed a "Use of Force Incident Report." Pl.'s Ex. 4. And an investigation was performed, if imperfectly and not by internal affairs. See Longo Supp. Rep. at 11.
Longo opined that the causation requirement is satisfied on the following theory: the District tolerated "rudimentary" investigations into uses of force, which meant that officers knew that they could get away with using excessive force, which led to the beating that Jackson claims he suffered. See Longo Supp. Rep. at 17-18. On its own terms, this reasoning is far too speculative to satisfy the causation requirement for municipal liability under § 1983.
Expert testimony on causation can and should be excluded when it is based on speculation-that is, when there is an unacceptably large "gap" between the expert's data and his conclusion. See Gen. Elec. Co. v. Joiner ,
*75(holding, notwithstanding expert's testimony, that "a reasonable jury could only speculate that the lack of some unspecified training contributed to [the plaintiff's son's] death"), aff'd ,
Here, Longo has similarly failed to connect his musings to the facts of this case. The only evidence Longo cited in favor of his causation theory was the handful of investigations that, as discussed above, he believed were deficient. See Longo Supp. Rep. at 18.
For these reasons, the Court will grant summary judgment for the District on Count V.
IV. Conclusion and Order
For all of the above reasons, Defendants' Partial Motion for Judgment on the Pleadings and for Summary Judgment (ECF No. 35) is GRANTED IN PART and DENIED IN PART . Count II is DISMISSED against all Defendants. The Court GRANTS summary judgment in favor of Defendant Michael Harrison on all counts, in favor of Defendants Kanika Bolton and Carol Smith on Count IV, and in favor of the District of Columbia on Count V. The motion is otherwise DENIED . The Clerk of Court is directed to terminate Defendant Michael Harrison as a party.
SO ORDERED.
In considering the instant motion, the Court considered all relevant filings, including the following: ECF No. 1 ("Compl."); ECF No. 26-1 ("Longo Supp. Rep."); ECF No. 35 ("Defs.' Br."); ECF No. 35-1 ("Defs.' Ex. 1"); ECF No. 35-2 ("Defs.' Ex. 2"); ECF No. 35-3 ("Defs.' SoMF"); ECF No. 36 ("Pl.'s Opp'n"); ECF No. 36-1 ("Pl.'s Resp. SoMF"); ECF No. 36-2 ("Pl.'s Ex. 1"); ECF No. 36-3 (Jackson's exhibits 2 through 17, each of which is cited as "Pl.'s Ex. __"); ECF No. 39 ("Defs.' Reply"); ECF No. 39-1 ("Defs.' Reply SoMF").
The Court notes that Jackson's expert summarizes the testimony of Merzig and Fogle, as well as other witnesses, in his supplemental report. See Longo Supp. Rep. at 3-9. The Court has not relied on this hearsay summary for the truth of the matters asserted by these witnesses, but only on the testimony actually in the record. See Gilmore v. Palestinian Interim Self-Gov't Auth. ,
While Jackson has introduced a few brief excerpts of the 2016 Bromwich report into the record, see Pl.'s Ex. 13, those excerpts do not appear to include all of the conclusions that Longo relied on in crafting his own opinion.
A "Garrity warning," named for Garrity v. New Jersey ,
For whatever reason, Defendants have not raised qualified immunity in their motion.
They may not, of course, be held liable as bystanders for any use of force by Merzig and Fogle before they arrived, particularly in light of Jackson's testimony that Smith put a stop to Merzig and Fogle's mistreatment of Jackson upon arrival. See Peña v. City of Rio Grande City ,
Arguably, Smith's ability to intervene would have been affected by the fact that some of the pepper spray aimed at Jackson affected her as well. See Pl.'s Ex. 1 (Jackson Dep.) at 46:19-47:2; Pl.'s Ex. 3 (Smith Dep.) at 32:17-22. However, Smith described this as only a "light mist" that did not require medical treatment, Pl.'s Ex. 3 (Smith Dep.) at 32:20-22, and it apparently did not prevent her from participating in the tactical takedown, see id. at 39:14-18. Therefore, the Court cannot conclude on the record before it that the pepper spray deprived Smith of a reasonable opportunity to stop the alleged battery of Jackson.
There is also a suggestion in the record, not fully fleshed out, that an internal-affairs detective was contacted on the morning of May 5, 2015. See Defs.' Ex. 2 (Longo Dep.) at 65:16-20.
Only one of the case files that Longo discusses involved an officer who participated in Jackson's arrest. In it, a suspect was allegedly "thrown to the ground, handcuffed, and his back-pack cut and removed from his shoulders" by Smith and two other officers. Longo Supp. Rep. at 15. But there is no indication that the suspect sustained any injuries (much less serious injuries like the ones Jackson suffered). See id. There is also no indication whether that incident occurred before or after Jackson's arrest, see id. , which is obviously a critical question going to causation.