Plummer v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

VERE O. PLUMMER,

Plaintiff,
v. Civil Action No. 15-2147 (TJK)
DISTRICT OF COLUMBIA et al.,

Defendants.

MEMORANDUM OPINION

On July 4, 2014, Plaintiff Vere O. Plummer celebrated our Nation’s independence, as

many Americans do, by drinking alcoholic beverages at a friend’s party. In the wee hours of

July 5, Plummer decided to drive himself home. While trying to maneuver his car in the alley

behind his house, Plummer struck a neighbor’s garage. Other neighbors called the police, who

found Plummer in his own open garage, unconscious at the wheel of his car. After a protracted

encounter, the police arrested Plummer.

Plummer filed this lawsuit against Defendants the District of Columbia (the “District”),

the Metropolitan Police Department of the District of Columbia (“MPD”), and the District of

Columbia Fire Department (“DCFD”), as well as four first responders who Plummer asserts were

involved in his arrest: Officer Sandro Lukanovic, Lieutenant John Kutniewski, Officer John F.

Nelson, and Battalion Fire Chief Henry Welsh. Plummer claims, among other things, that his

arrest violated the Fourth Amendment to the U.S. Constitution and the common law of the

District of Columbia, and that the District of Columbia negligently maintained the alley behind

his house. Defendants have moved for summary judgment. ECF No. 14. For the reasons set

forth below, Defendants’ motion will be granted and judgment will be entered in their favor.
 Factual and Procedural Background

Plummer lives on Fairmont Street in the District of Columbia.1 Pl.’s Resp. SoMF ¶ 1.

Plummer’s garage, located on the rear of his lot, is detached from his home and opens onto an

alley that runs parallel to Fairmont Street. Id. ¶ 20; see also Defs.’ Ex. 9 (Plummer 911 call) at

5:25-45 (explaining that Plummer’s garage is detached from his house). His neighbors’ garages

face the same alley. Pl.’s Resp. SoMF ¶ 21. The garage directly across from Plummer’s belongs

to a neighbor named Kenneth Taylor. Id. ¶ 7.

On July 4, 2014, Plummer went to an Independence Day party at a friend’s house in

Maryland. Id. ¶ 3. While conceding that he consumed alcohol that evening, Plummer claims

that he had only “a couple of beers” (and possibly some spiked punch) and finished drinking in

the early evening. See id. ¶ 4. Early in the morning of July 5, Plummer drove himself home and

arrived sometime between 2:45 a.m. and 4:00 a.m. See id. ¶ 5; Pls.’ Opp’n at 2. In Plummer’s

telling, his car became stuck in a pothole, and while trying to “rock” the car out, he struck

Taylor’s garage. Am. Compl. ¶¶ 14-15; Defs.’ Ex. 1 (Plummer Dep.) at 43:5-22, 46:1-22; Pl.’s

Resp. SoMF ¶ 8.

Another neighbor, Scott Landrum, called 911 to report the accident. Defs.’ Ex. 5

(Landrum 911 call) at 2:08-25, 4:20-32. Landrum told the 911 operator that the car’s engine was

still running, that smoke was rising from the tires, and that a man was unconscious behind the

wheel of the car. Id. at 0:20-24, 1:28-56, 3:30-40. Landrum then relayed that the man had

woken up and managed to park in his own garage. See id. at 6:25-40; see also Defs.’ Ex. 2

1
In deciding this motion, the Court relied on the following documents: ECF No. 1-1 (“Am.
Compl.”); ECF No. 15-2 (“Defs.’ Br.”); ECF No. 14-1 (“Defs.’ SoMF”); ECF Nos. 14-3 to 14-
18 (Defendants’ exhibits 1 through 16, each of which is cited as “Defs.’ Ex. __”); ECF No. 18 at
3-22 (“Pl.’s Opp’n”); ECF No. 18 at 23-45 (“Pl.’s Resp. SoMF”); ECF No. 18 at 46-66
(Plaintiff’s exhibits 1 through 5, each of which is cited as “Pl.’s Ex. __”); ECF No. 21 (“Defs.’
Reply”).

2
(Landrum’s declaration) (confirming this account); Defs.’ Ex. 3 (declaration of a third neighbor)

(similar). The unidentified driver turned out, of course, to be Plummer, whose own deposition

testimony explains that it took him some time to back into his own garage, that he fell asleep in

the midst of that effort, and that he succeeded only after a neighbor woke him. See Defs.’ Ex. 1

(Plummer Dep.) at 60:6-61:22, 63:1-22.

Police, firemen, and paramedics subsequently arrived in the alley. Defs.’ Ex. 5 (Landrum

911 call) at 8:40-50; Defs.’ Ex. 2 ¶¶ 17-19; Defs.’ Ex. 3 ¶ 13; Defs.’ Ex. 7 (Nelson Dep.) at

13:13-14:3. Paramedics and fire officials were the first on the scene. Defs.’ Ex. 2 ¶¶ 17-19; see

Defs.’ Ex. 7 (Nelson Dep.) at 13:13-14:3. Police officers then arrived as well, including two

Defendants, Officer Lukanovic, see Defs.’ Ex. 6 (Lukanovic Dep.) at 23:3-5, and Officer Nelson,

see Defs.’ Ex. 7 (Nelson Dep.) at 13:13-17. Officer Nelson spoke with the fire officials, who

reported that Plummer appeared to be intoxicated but had refused medical assistance. Id. at

14:4-8. Officer Nelson also, at some point, interviewed Plummer’s neighbors, who informed

him—consistent with the 911 call—that they had found Plummer unconscious with the engine

running after striking Taylor’s garage, and that Plummer had been woken up and parked in his

garage, where he had lost consciousness once more. See id. at 23:18-25:10; Defs.’ Ex. 2 ¶ 19.

The police officers personally observed damage to both Taylor’s garage and Plummer’s car. See

Defs.’ Ex. 7 (Nelson Dep.) at 19:18-20:16; Defs.’ Ex. 8 (Arrington Dep.) at 31:4-12. They also

observed, through the open garage door, Plummer unconscious again behind the wheel of his car.

See Defs.’ Ex. 7 (Nelson Dep.) at 15:15-16, 17:1-4. Two officers testified that Plummer’s engine

was running at this time, see id.; Defs.’ Ex. 6 (Lukanovic Dep.) at 62:16-17, although the record

3
is not entirely clear on this point.2 Based on these facts, Officer Nelson concluded that Plummer

was intoxicated. Defs.’ Ex. 7 (Nelson Dep.) at 15:11-18, 47:1-9. Officers entered the garage and

woke Plummer by knocking on his window. Defs.’ Ex. 6 (Lukanovic Dep.) at 62:16-19.

Once awake, Plummer appeared to the officers to be confused and disoriented. See id. at

63:15-64:4; Defs.’ Ex. 7 (Nelson Dep.) at 15:10-16:3. Plummer mumbled unintelligibly and

struggled to keep his eyes open. See Defs.’ Ex. 8 (Arrington Dep.) at 119:14-20. Plummer also

occasionally “revved” or “cranked” up his engine. Id. at 119:21-120:9. At a fire official’s

request, Plummer shifted the car’s transmission into park. Defs.’ Ex. 10 (Welsh Dep.) at 16:5-

10. At some point, Plummer attempted to close the garage door, prompting officers to prevent it

from closing on top of them. See Defs.’ Ex. 7 (Nelson Dep.) at 137:1-10.

As the encounter was unfolding, Plummer called 911 to complain about the officers’

presence in his garage. See Defs.’ Ex. 9 (Plummer 911 call) at 0:01-1:00. The officers, he said,

may have damaged the garage when they prevented the door from closing. See id. at 2:34-52,

12:25-56. “I’m under siege!” he said. Id. at 13:05-11. The 911 operator—who had also taken

Landrum’s call—asked Plummer whether he had hit someone’s garage. Id. at 1:20-25. “No I

did not,” Plummer answered. Id. at 1:25-27. “I’m in my garage, no vehicle has crashed.

There’s no crash here.” Id. at 3:07-12. After speaking with the officers, Plummer told the 911

operator, “These people are lying to me, they’re telling me I hit a garage.” Id. at 7:27-7:31. The

2
While Officer Nelson initially testified that the engine was running when he arrived, he later
said that he could not specifically recall whether the engine was running then. See Defs.’ Ex. 7
(Nelson Dep.) at 101:10-15. And Officer Nelson wrote in the arrest report that Plummer
subsequently “started” his car in the officers’ presence, which may (though does not necessarily)
imply that the engine was off when the officers arrived. Defs.’ Ex. 11 at 4. Plummer apparently
disputes that his engine was running when the officers arrived, although in doing so he does not
cite to any specific portion of the record. See Pl.’s Resp. SoMF ¶¶ 56, 76. The Court will
assume that this fact is disputed, but it is immaterial: the Court’s analysis does not depend on
whether the engine was running when the officers arrived.

4
911 operator, ever helpful, told Plummer, “Just be mindful that you’re on a recorded line.” Id. at

7:45-7:52. “Just do what the police ask you to do,” the operator suggested. Id. at 9:46-49. “Are

you crazy?” Plummer responded. Id. at 9:49-52.

Officials on the scene, including Chief Welsh of the fire department (one of the

Defendants), tried to coax Plummer out of his vehicle. According to Chief Welsh, Plummer

appeared to be either intoxicated or having a medical emergency. Defs.’ Ex. 10 (Welsh Dep.) at

18:5-15. In particular, Chief Welsh was concerned that Plummer might be having a “diabetic

emergency” and felt that it was his “duty to act” for the welfare of both Plummer and, in the

event Plummer chose to drive away, others as well. Id. at 19:2-9, 20:16-21:4, 27:4-5. Chief

Welsh urged Plummer to exit the car so that officers could check his blood-sugar level. Id. at

19:18-20. At some point,3 officers did in fact test his blood sugar, which was normal. Defs.’ Ex.

10 (Welsh Dep.) at 24:5-8; Pl.’s Resp. SoMF ¶ 94.

After Plummer refused to exit the vehicle despite repeated requests, fire officials broke

the window of Plummer’s car. Id. at 27:16-28:12. Plummer then either exited or was removed

from the vehicle. See Defs.’ Ex. 6 (Lukanovic Dep.) at 57:16-58:7; Am. Compl. ¶ 30. Because

there was no officer on the scene who was certified to administer a field sobriety test, police did

not test Plummer’s sobriety there. Defs.’ Ex. 7 (Nelson Dep.) at 22:9-11, 42:11-14. Plummer

was arrested for having failed to leave identification after colliding with Taylor’s garage, in

violation of D.C. Code § 50-2201.05c, but not for driving while intoxicated. Id. at 42:15-20;

Defs.’ Ex. 11 (arrest report) at 2. Plummer subsequently failed a field sobriety test at the police

3
In his response to Defendants’ statement of material facts, Plummer does not dispute that his
blood sugar was tested after he exited the vehicle. Pl.’s Resp. SoMF ¶ 94. But in his deposition,
he testified that he allowed fire officials to test his blood sugar while still in his car, before
officials resorted to breaking his window. Pl.’s Ex. 4 (Plummer dep.) at 80:2-10. The Court
assumes this fact is disputed, but it does not alter the outcome.

5
station. See Defs.’ Ex. 12 (declaration of officer who administered sobriety test). Officer Nelson

testified that he should have also arrested Plummer for driving while intoxicated, and that his

failure to do so was a “rookie” mistake. Defs.’ Ex. 7 (Nelson Dep.) at 42:15-20, 53:12-54:3.

Nonetheless, Plummer was never charged with drunk driving. Id. at 22:12-14. All charges

against Plummer arising from the incident were ultimately dismissed just before trial. Am.

Compl. ¶ 33.

Even before he was arrested, Plummer had his heart set on litigation. “I’m gonna sue the

damn D.C. government royally,” he told the 911 operator. Defs.’ Ex. 9 (Plummer 911 call) at

6:16-20. “You all gonna pay me. . . . I think they call that false imprisonment.” Id. at 15:41-55.

And Plummer did indeed bring false imprisonment claims—as well as several others—against

the District when he filed this lawsuit in the Superior Court of the District of Columbia on July 5,

2015. ECF No. 3-1 (Superior Court record) at 99-109. After receiving two extensions of time to

serve his original complaint, and briefly having his case dismissed for failure to serve process (an

order that was later vacated), Plummer ultimately served his amended complaint (the operative

pleading). See id. at 23-40, 84-97. Defendants, asserting federal question jurisdiction, timely

removed the action to this Court in December 2015. ECF No. 1 (notice of removal). After

discovery, Defendants filed the instant motion for summary judgment. ECF No. 14.

Legal Standard

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., 826 F.3d 492, 496 (D.C. Cir. 2016). Courts “are not to

6
make credibility determinations or weigh the evidence.” Id. (quoting Holcomb v. Powell, 433

F.3d 889, 895 (D.C. Cir. 2006)). “[T]he mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Id. (alteration in original)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). “The movant bears the

initial burden of demonstrating that there is no genuine issue of material fact.” Montgomery v.

Risen, 875 F.3d 709, 713 (D.C. Cir. 2017). “In response, the non-movant must identify specific

facts in the record to demonstrate the existence of a genuine issue.” Id.

Analysis

As explained below, Defendants are entitled to judgment in their favor on all seven

counts of Plummer’s complaint.

A. Counts II, IV and VI: Trespass, Destruction of Property,
Negligence and Malicious Prosecution

Count II of Plummer’s complaint is for “Trespass and Destruction of Property/Vicarious

Liability,” and is brought against MPD and DCFD. Am. Compl. at 10. Counts IV and VI of

Plummer’s complaint, for negligence and malicious prosecution, respectively, are brought

against MPD. Id. at 11; id. ¶ 64. Defendants argue that they are entitled to summary judgment

on all claims against MPD and DCFD because those entities do not have the capacity to be sued

in their own names under District of Columbia law. Defs.’ Br. at 10-13; see, e.g., Silver v. D.C.

Metro. Police Dep’t, 939 F. Supp. 2d 20, 22 (D.D.C. 2013); Ray v. District of Columbia, 535

A.2d 868, 869 n.2 (D.C. 1987). Plummer concedes that those entities cannot be sued. See Pl.’s

Opp’n at 4. Because Counts II, IV and VI are asserted only against MPD and DCFD, these

claims fail.

7
 Plummer suggests in his briefing that his complaint should be construed liberally such

that each count is asserted against each Defendant against which he may possibly have a claim.

See id. at 11. But he is not proceeding pro se and must comply with the normal pleading

standards under Federal Rule of Civil Procedure 8(a), which requires the complaint to explain

“which defendants committed each violation.” Cheeks v. Fort Myers Constr. Corp., 71 F. Supp.

3d 163, 169 (D.D.C. 2014). And his complaint does just that. Count II asserts “separate causes

of action against MPD and DCFD for the conduct of its defendant employees.” Am. Compl. at

10. Count IV asserts “a separate cause of action against defendant MPD.” Id. at 11. And Count

VI is based on the “institution of criminal proceedings against Plaintiff by the MPD,” without

even mentioning any other Defendant. Id. ¶ 64. Even now, Plummer has not sought leave to

further amend his complaint, or identified in his opposition papers any other Defendant he thinks

was responsible for the malicious prosecution alleged in Count VI. Having clearly pleaded

Counts II, IV and VI against only MPD and DCFD, Plummer cannot avoid summary judgment

now that it is clear that those entities are not proper defendants. And in any event, in his

opposition, Plummer has failed to specifically identify any evidence sufficient to create a

genuine issue of material fact in support of these claims. Therefore, the Court will enter

judgment for Defendants on Counts II, IV and VI.

B. Count III: Deprivation of Civil Rights

Plummer brings Count III under 42 U.S.C. § 1983, claiming that MPD and three of the

individual defendants (Lukanovic, Kutniewski, and Nelson) violated his rights under the Fourth

and Fifth Amendments to the U.S. Constitution by arresting him without a warrant. See Am.

Compl. ¶ 49. As explained above, the claim against MPD must be dismissed. See, e.g., Silver,

939 F. Supp. 2d at 22. To prevail on his § 1983 claim against the individual defendants,

Plummer must establish that (1) “a person acting under color of state law” committed (2) a

8
“violation of a right secured by the Constitution and laws of the United States.” West v. Atkins,

487 U.S. 42, 48 (1988). Defendants argue that Plummer has failed to show a constitutional

violation or, alternatively, that the officers enjoy qualified immunity. See Defs.’ Br. at 16-26.

The Court agrees that Plummer has not established a constitutional violation.4

This claim must be analyzed under the Fourth Amendment, not the Fifth Amendment.

“Where a particular Amendment provides an explicit textual source of constitutional protection

against a particular sort of government behavior, that Amendment, not the more generalized

notion of substantive due process, must be the guide for analyzing these claims.” Elkins v.

District of Columbia, 690 F.3d 554, 562 (D.C. Cir. 2012) (quoting Albright v. Oliver, 510 U.S.

266, 273 (1994)) (internal quotation marks omitted). Plummer alleges an unlawful seizure of his

person, see Am. Compl. ¶ 49, and so the Fourth Amendment controls this claim. See Graham v.

Connor, 490 U.S. 386, 394-95 (1989).

“A warrantless arrest is reasonable if the officer has probable cause to believe that the

suspect committed a crime in the officer’s presence.” District of Columbia v. Wesby, 138 S. Ct.

577, 586 (2018). When determining whether an officer had probable cause, courts “examine the

events leading up to the arrest, and then decide whether these historical facts, viewed from the

standpoint of an objectively reasonable police officer, amount to probable cause.” Id. (quoting

4
The Court notes that it is typically more appropriate to address qualified immunity before
passing on a constitutional issue. Ali v. Rumsfeld, 649 F.3d 762, 772-73 (D.C. Cir. 2011) (citing
Pearson v. Callahan, 555 U.S. 223 (2009)). But the Court concludes that, in this case,
considerations of judicial economy militate in favor of addressing the underlying constitutional
violation Plummer has alleged. Plummer’s constitutional and common law claims raise similar
questions about the lawfulness of his arrest. Additionally, Plummer asserts a claim for municipal
liability in Count V based on the same underlying constitutional violations, and municipalities do
not enjoy qualified immunity. See Pearson, 555 U.S. at 242-43. Thus, deciding the
constitutional claims against the individual defendants on the basis of qualified immunity would
not avoid addressing the underlying issues concerning the lawfulness of Plummer’s arrest.

9
Maryland v. Pringle, 540 U.S. 366, 371 (2003)) (internal quotation marks omitted). Probable

cause is “‘a fluid concept’ that is ‘not readily, or even usefully, reduced to a neat set of legal

rules.’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). “It ‘requires only a probability

or substantial chance of criminal activity, not an actual showing of such activity.’” Id. (quoting

Gates, 462 U.S. at 244 n.13). The government bears the burden of showing probable cause when

seeking to justify a warrantless arrest. Carr v. District of Columbia, 587 F.3d 401, 408-09 (D.C.

Cir. 2009) (citing Dellums v. Powell, 566 F.2d 167, 175-76 (D.C. Cir. 1977)). An arrest is valid

even if probable cause existed only for a crime different than the one actually charged. See

United States v. Bookhardt, 277 F.3d 558, 564-67 (D.C. Cir. 2002).

In this case, the offense most obviously applicable to Plummer’s conduct was operating a

motor vehicle while impaired, in violation of D.C. Code § 50-2206.14: “No person shall operate

or be in physical control of any vehicle in the District while the person’s ability to operate or be

in physical control of a vehicle is impaired by the consumption of alcohol or any drug or any

combination thereof.” The statute requires only “that level of impairment at which a person is

appreciably less able, either mentally or physically or both, to exercise the clear judgment and

steady hand necessary to handle as powerful and dangerous a mechanism as a modern

automobile with safety to himself and the public.” Muir v. District of Columbia, 129 A.3d 265,

272 (D.C. 2016) (quoting Taylor v. District of Columbia, 49 A.3d 1259, 1267 (D.C. 2012)). In

addition, a person need not be actively driving to be in “physical control” of a vehicle. Rather,

courts have found such control where an unconscious defendant was “alone in his [parked] car

and behind the steering wheel” and “the ignition keys were in his pocket.” Bell v. District of

Columbia, 132 A.3d 854, 857 (D.C. 2016). “In that position and with the keys at hand, [the

defendant] was capable of starting the vehicle should he have awakened and, in his impaired

10
state, made a decision to drive.” Id. Moreover, “where the language of a motor vehicle statute

does not restrict its application to public streets and highways the statute applies throughout the

jurisdiction and extends to both public and private property.” Henig v. District of Columbia, 213

A.2d 824, 825-26 (D.C. 1965); see also Taylor v. United States, 662 A.2d 1368, 1370-71 (D.C.

1995) (holding that a statute prohibiting unlicensed drivers from being in control of a vehicle

applied on both public and private property). The statute at issue here, D.C. Code § 50-2206.14,

is not limited to public highways, and thus prohibits the impaired operation of a motor vehicle on

both public and private property.

Defendants’ evidence easily establishes that officers on the scene had probable cause to

believe that Plummer was violating D.C. Code § 50-2206.14 in their presence. One of

Plummer’s neighbors had called 911 to report that someone, after crashing into Taylor’s garage,

was unconscious in the alley in a running car, and that this person, after being awoken, backed

into his own garage. See Defs.’ Ex. 2 ¶ 12; Defs.’ Ex. 5 (Landrum 911 call). When the officers

arrived on the scene, they observed damage to both Taylor’s garage and Plummer’s car, and saw

Plummer slumped behind the wheel of his car. See Defs.’ Ex. 7 (Nelson Dep.) at 16:17-17:4,

20:1-16; Defs.’ Ex. 8 (Arrington Dep.) at 31:4-12. These facts provided probable cause to

believe that Plummer was violating D.C. Code § 50-2206.14. First, he was in physical control of

his vehicle under the law of the District of Columbia. And second, common sense suggested he

was impaired by alcohol: people in full control of their faculties generally do not nap in their cars

just after crashing into their neighbors’ garages. Indeed, fire officials reported to the officers that

Plummer appeared to be intoxicated. Defs.’ Ex. 7 (Nelson Dep.) at 14:4-8. Moreover, the

timing of the incident—in the wee hours of the night of July 4-5, a night notorious for drunk

driving—suggested as much. And after the officers entered the garage, further events reinforced

11
their suspicions. When the officers woke Plummer to speak to him, his behavior was erratic and

disoriented. See Defs.’ Ex. 6 (Lukanovic Dep.) at 63:15-64:4; Defs.’ Ex. 7 (Nelson Dep.) at

15:10-16:3; Defs.’ Ex. 8 (Arrington Dep.) at 119:2-120:12; Defs.’ Ex. 10 (Welsh Dep.) at 18:4-

17. He was also unaware of having struck Taylor’s garage, even though he had done so just a

short time earlier. See Defs.’ Ex. 9 (Plummer 911 Call) at 3:07-12, 7:10-40.

Because Defendants have made a showing that probable cause existed for the arrest,

Plummer must come forth with specific facts to show that there is a genuine issue as to the

existence of probable cause. See Montgomery v. Risen, 875 F.3d 709, 713 (D.C. Cir. 2017). To

the extent that Plummer disputes Defendants’ account, he is required, under the Local Rules of

this Court, to respond to Defendants’ statement of material facts by identifying both the facts in

dispute and the specific record evidence supporting his version of events. See Local Civil Rule

7(h); Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 136-37 (D.C. Cir. 2011) (Tatel, J.,

concurring) (citing Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145,

154 (D.C. Cir. 1996)); Lucas v. Duncan, 574 F.3d 772, 777-78 (D.C. Cir. 2009); Burke v. Gould,

286 F.3d 513, 517-18 (D.C. Cir. 2002). Plummer has failed to do so.

In addition to other deficiencies in his statement of material facts,5 in disputing

Defendants’ version of events, Plummer cites no record evidence of his own that creates a

genuine issue of material fact. See Pl.’s Resp. SoMF. That is true, for example, of the key fact

5
Plummer’s submission frequently fails to approach this litigation with the seriousness it
deserves. For example, he disputes Defendants’ recitation of his address “to the extent that the
Defendants do not indicate whether the Plaintiff lives in the state of Washington or Washington,
D.C.” Pl.’s Resp. SoMF ¶ 1. Even more distressingly, Plummer at times disputes facts that he
himself has asserted. For example, Defendants claim that Plummer “lost control of his car and
struck Mr. Taylor’s garage.” Defs.’ SoMF ¶ 8. Plummer disputes this statement “to the extent
that Plaintiff did not state that he lost control of his car.” Pl.’s Resp. SoMF ¶ 8. But Plummer’s
Verified Amended Complaint—which he signed under oath—states just that: he “lost control of
the speed of the vehicle and struck his neighbor’s garage.” Am. Compl. ¶ 15.

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that he was found slumped over the wheel of the car. See id. ¶¶ 48, 56. Plummer purports to

dispute this fact—but he does so without citing any evidence to the contrary, even his own

testimony. See id. (In fact, he has included only a single page of his own deposition transcript

among his opposition papers. See Pl.’s Ex. 4.) This is plainly insufficient to create a genuine

issue of material fact.

Plummer also makes legal arguments that are unavailing. He argues that Defendants

lacked probable cause to arrest him for leaving the scene of a collision without showing

identification, in violation of D.C. Code § 50-2201.05c. See Pl.’s Opp’n at 12-13. That—not

operating while impaired—was the crime for which he was actually arrested. See Defs.’ Ex. 7

(Nelson Dep.) at 42:11-20; Defs.’ Ex. 11 (arrest report). And he was eventually charged with

leaving while colliding, as well as operating a motor vehicle with a suspended license. Am.

Compl. ¶ 31. But all of that is of no moment. It is well established that an arrest is

constitutionally valid if there is probable cause for any charge, even one different from the

charge actually made. See Bookhardt, 277 F.3d at 564-67. Because there was probable cause to

support charging Plummer with operating while impaired, the Court need not decide whether

probable cause also supported the charge of leaving after colliding.

Plaintiff further argues that, because his garage is private property, the police were

obligated to obtain a warrant before entering and then arresting him there. See Pl.’s Opp’n at 13.

It is, of course, true that officers require a warrant in order to enter a home to effect an arrest,

absent exigent circumstances. See, e.g., In re Sealed Case 96-3167, 153 F.3d 759, 764 (D.C. Cir.

1998) (citing Payton v. New York, 445 U.S. 573 (1980)). And the Supreme Court recently

reaffirmed that a warrant is required to search the “curtilage” surrounding the home—including

13
places where cars are typically parked. See Collins v. Virginia, 138 S. Ct. 1663 (2018).6

Nonetheless, assuming that this principle applies equally to Plummer’s open garage, police did

not need a warrant to enter it, because exigent circumstances justified the officers’ presence

there. “Exigency can justify a warrantless search ‘when there is compelling need for official

action and no time to secure a warrant.’” Corrigan v. District of Columbia, 841 F.3d 1022, 1030

(D.C. Cir. 2016) (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)). Such circumstances

include “hot pursuit of a fleeing suspect” and the “‘need to protect or preserve life or avoid

serious injury.’” Id. (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). The officers

bear the “heavy burden” of justifying the intrusion by showing “reasonableness based on

particular circumstances.” Id. They must have probable cause to believe that the exigency

exists, and the intrusion must be no greater than necessary. Id.

The facts of this case, involving an impaired driver behind the wheel of his car, leave no

doubt that the officers had probable cause to believe that stepping from the alley into Plummer’s

open garage was needed “to protect or preserve life or avoid serious injury.” Id. (quoting

Brigham City, 547 U.S. at 403). The Supreme Court has recognized the government’s powerful

interest in “neutralizing the threat posed by a drunk driver who has already gotten behind the

wheel.” Birchfield v. North Dakota, 136 S. Ct. 2160, 2179 (2016). As discussed above, police

had clear grounds to believe that Plummer was impaired in some way. That alone meant it was

6
Defendants seek to justify the warrantless arrest based solely on a District of Columbia statute.
See Defs.’ Br. at 19. But it is fundamental, of course, that the “‘Constitution’s protections
concerning search and seizure’ do not vary with state arrest law.” Amobi v. D.C. Dep’t of Corr.,
755 F.3d 980, 989 (D.C. Cir. 2014) (quoting Virginia v. Moore, 553 U.S. 164, 173 (2008)). Thus,
if an arrest runs afoul of the Fourth Amendment, local law to the contrary cannot render the
arrest constitutional. See Payton, 445 U.S. at 576. The Court notes that this is only one of
several deficiencies in Defendants’ motion papers, which include other substantive and technical
errors. While the facts in the record support summary judgment for Defendants, these
deficiencies have increased the burden on the Court in deciding the motion.

14
reasonable for them to conclude that leaving Plummer at the wheel would endanger the public,

and additional facts heightened that risk. According to his neighbor’s 911 call, Plummer had

already struck Taylor’s garage, fallen unconscious, and then started driving again. See Defs.’

Ex. 5 (Landrum 911 call). Police observed, consistent with the earlier 911 call, signs that

Plummer’s car had indeed collided with his neighbor’s garage. See Defs.’ Ex. 7 (Nelson Dep.) at

20:1-16. These circumstances raised the obvious danger—noted by the officers who were

there—that Plummer might, upon regaining consciousness, return to the streets and cause more

damage, this time to people instead of property. See Defs.’ Ex. 8 (Arrington Dep.) at 62:19-63:3;

Defs.’ Ex. 10 (Welsh Dep.) at 21:2-11. Indeed, courts across the country have recognized that

a drunk person sitting behind the wheel of a car poses precisely this threat to the community,

even when the person has slipped into unconsciousness. See Bell, 132 A.3d at 857 & n.3

(collecting cases). The need to address this danger plainly justified the officers’ actions in

stepping into Plummer’s open garage. Moreover, subsequent events served to confirm the

officers’ concerns, since—even if the engine was not running when the officers first arrived—

later in the encounter, Plummer revved it up in the officers’ presence, see Defs.’ Ex. 8 (Arrington

Dep.) at 119:21-120:9.

Police also had probable cause to believe that Plummer himself was in danger. The need

“to render emergency assistance to an injured occupant or to protect an occupant from imminent

injury” justifies warrantless entry into the home. Kentucky v. King, 563 U.S. 452, 460 (2011)

(quoting Brigham City, 547 U.S. at 403). Here, the first responders were paramedics and fire

officials who attempted (without success) to offer medical assistance to Plummer. Defs.’ Ex. 2

¶ 18; Defs.’ Ex. 7 (Nelson Dep.) at 13:18-14:8. When police officers arrived they were told as

much, and personally observed Plummer slumped over the wheel of his car. See, e.g., Defs.’ Ex.

15
7 (Nelson Dep.) at 14:4-8, 16:17-17:4. Neighbors reported that Plummer had also become

unconscious earlier, after crashing into Taylor’s garage. See Defs.’ Ex. 5 (Landrum 911 call) at

1:45-2:20. While one possible inference—the most likely one, given the context—was that

Plummer was merely drunk, it was also reasonable for the officers to be concerned that he was

having a medical emergency. Indeed, the uncontroverted evidence shows that officers on the

scene reasonably feared that Plummer might be in diabetic shock and sought to measure his

blood-sugar level. See Defs.’ Ex. 7 (Nelson Dep.) at 69:4-21; Defs.’ Ex. 10 (Welsh Dep.) at

19:6-20, 27:4-5. The entry into Plummer’s garage was therefore also justified to ensure that he

received prompt medical evaluation and possible treatment.

In short, given the facts the officers encountered, which involved immediate threats to the

safety of both Plummer and the public, it was reasonable under the Fourth Amendment for the

officers to step into his open garage to respond to the exigency. Thus, their entry was lawful,

and they needed only probable cause to believe that Plummer had committed a crime in their

presence—which they had—to justify the warrantless arrest. See United States v. Winchenbach,

197 F.3d 548, 553-54 (1st Cir. 1999); Sheik-Abdi v. McClellan, 37 F.3d 1240, 1245 (7th Cir.

1994). Therefore, the Court concludes that the arrest was lawful, and will enter judgment for

Defendants on Count III.

C. Count I: False Arrest, False Imprisonment, and
Intentional Infliction of Emotional Distress (“IIED”)

Count I asserts claims of false arrest, false imprisonment, and IIED against MPD,

Lukanovic, Kutniewski, and Nelson under District of Columbia law. Like Plummer’s federal

claims, these claims rest entirely on his allegation that his arrest was unlawful. See Am. Compl.

¶¶ 35-43. As explained above, the claims against MPD have been dismissed, and so the Court

will analyze whether the individual defendants are entitled to summary judgment.

16
 All three causes of action rise and fall together. “‘False arrest’ is indistinguishable as a

practical matter from the common law tort of ‘false imprisonment.’” Enders v. District of

Columbia, 4 A.3d 457, 461 (D.C. 2010). In evaluating either claim, the key issue is whether the

arrest was lawful. See id. Under District of Columbia law, as under federal law, the government

has the burden to prove that a warrantless arrest was valid. Id. at 462. And, again as under

federal law, an officer may make a warrantless arrest for any offense committed in her presence.

See id. at 462-63; D.C. Code § 23-581(a)(1)(B). Moreover, where an arrest is legally justified,

the arrest alone cannot serve as the basis for a claim of IIED. See Smith v. United States, 843

F.3d 509, 513 (D.C. Cir. 2016) (citing Kotsch v. District of Columbia, 924 A.2d 1040, 1046

(D.C. 2007)). Nor can a claim for IIED rest on officers’ “use of reasonable force in effectuating

an arrest.” Campbell v. District of Columbia, 245 F. Supp. 3d 78, 90 (D.D.C. 2017); see

Magwood v. Giddings, 672 A.2d 1083, 1088-89 (D.C. 1996).

These claims fail for largely the same reasons as Plummer’s Fourth Amendment claim.

The police had probable cause to believe that Plummer was operating a vehicle while impaired in

their presence, and thus had valid grounds to make a warrantless arrest under District of

Columbia law.

The Court notes one relevant difference between District of Columbia and federal law,

although it does not change the outcome. As explained above, under federal law an arrest is

valid so long as there was probable cause to believe the defendant committed any offense, not

necessarily the one actually charged. District of Columbia law also recognizes this principle, but

requires an additional showing that “the consequences for the plaintiff probably would have been

substantially as unfavorable if he had been arrested on the charge on which the defense seeks to

rely after the fact.” Karriem v. District of Columbia, 717 A.2d 317, 323 (D.C. 1998) (quoting

17
Etheredge v. District of Columbia, 635 A.2d 908, 920-21 (D.C. 1993)). That is, the fact that the

accused could have been arrested for a minor offense (such as a misdemeanor weapons charge)

cannot serve as a post hoc justification if the accused was actually charged with a more serious

offense (such as a felony larceny charge). See Etheredge, 635 A.2d at 920.

This added requirement does not change the result in Plummer’s case. The crime

Plummer was charged with—leaving while colliding where the only damage is to property—

carries a maximum sentence of 30 days if the defendant is a first-time offender, or 90 days if the

person is a repeat offender. See D.C. Code § 50-2201.05c(d)(2)(A)-(B). Operating while

impaired leads to more severe penalties: a first offense carries a maximum sentence of 90 days,

and subsequent violations carry jail terms of up to a year. See D.C. Code § 50-2206.15(a)-(c).

Because the crime actually charged was less serious than operating while impaired—which, as

discussed above, the officers clearly had probable cause to believe Plummer was committing in

their presence—probable cause for operating while impaired adequately justifies the arrest.

Plummer argues in support of his IIED claim that officers “attacked his person,”

“abused” and frightened him, and unlawfully “damaged his property.” Pl.’s Opp’n at 16. As an

initial matter, Plummer’s complaint appears to plead this claim based only on the fact of the

arrest itself. See Am. Compl. ¶ 41. Because the arrest was lawful, the claim fails. Smith, 843

F.3d at 515-16 (citing Kotsch, 924 A.2d at 1046). In any event, to the extent Plummer now

asserts that police engaged in outrageous conduct over and above the arrest, he has not created a

genuine issue of material fact. The evidence in the record shows only that police instructed

Plummer to exit his vehicle, that they broke his car window after he repeatedly refused, that

(viewing the record most favorably to him) they removed him from the vehicle, and that they

18
may have damaged his garage door when they prevented it from closing on them.7 This

proportionate use of force incident to Plummer’s arrest cannot support an IIED claim. Compare

Hargraves v. District of Columbia, 134 F. Supp. 3d 68, 94 (D.D.C. 2015) (collecting cases in

which IIED claims failed where officers merely drew weapons or used a chokehold to break up a

fight), with Xingru Lin v. District of Columbia, 268 F. Supp. 3d 91, 103-04 (D.D.C. 2017)

(collecting cases in which more egregious conduct, such as slamming the plaintiff on the hood of

a car or killing his dog, sufficed to make out an IIED claim). Indeed, to support an IIED claim,

“defendant’s actions must proximately cause the plaintiff emotional distress ‘of so acute a nature

that harmful physical consequences might be not unlikely to result.’” Kotsch, 924 A.2d at 1046

(quoting Clark v. Associated Retail Credit Men of Wash., D.C., 105 F.2d 62, 65 (D.C. Cir.

1939)). Accordingly, where the plaintiff “did not seek medical assistance for physical or

psychological injury,” the District of Columbia Court of Appeals has required expert testimony

to support a claim that the conduct “caused severe emotional distress.” Id. Plummer has

introduced no such evidence, providing yet another reason why this claim fails.

Therefore, the Court will enter judgment for Defendants on Count I.

D. Count V: Negligence, Municipal Liability, and Agency

Count V, while captioned as “negligence,” in fact attempts to hold the District liable for

the individual officers’ conduct under three different theories: negligent supervision, see Am.

Compl. ¶¶ 56-57, agency, see id. ¶¶ 60-62, and municipal liability under § 1983, see id. ¶¶ 58-59.

Defendants argue, among other things, that Plummer has failed to establish evidence sufficient to

support these claims. See Defs.’ Br. at 31-32.

7
Plummer’s opposition brief cites a portion of his deposition testimony that, in his view,
supports a claim that officers used more force than their own testimony describes. See Pl.’s
Opp’n at 16. But neither party has introduced that portion of his testimony into the record, and
thus the Court cannot consider it. See Fed. R. Civ. P. 56(c)(1).

19
 All of these theories fail because each seeks to hold the District liable for the allegedly

wrongful arrest of Plummer. See Am. Compl. ¶¶ 55-62. As explained above, the arrest was

lawful. For that reason alone, the Court must enter judgment for Defendants on this count. The

Court also notes that, to the extent that Plummer asserts municipal liability under § 1983, he

must show that a “policy or custom” of the District caused his purported constitutional injury.

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); Blue v. District of Columbia, 811

F.3d 14, 18-19 (D.C. Cir. 2015). Plummer has failed to introduce sufficient evidence of such a

policy or custom. Therefore, the Court will grant summary judgment for Defendants on

Count V.

E. Count VII: Negligence

Finally, in Count VII, Plummer alleges that the District was negligent in failing to

maintain the alley behind his house, leading to the pothole that he encountered on the morning of

July 5, 2014. See Am. Compl. ¶¶ 66-68. “Before the District may be liable for failure to

maintain a roadway, it must have notice (actual or constructive) of an unsafe or dangerous

condition.” Tucci v. District of Columbia, 956 A.2d 684, 699 (D.C. 2008). “‘The existence of

prior notice,’ is not enough, however; a plaintiff must demonstrate that the street is ‘in fact

unreasonably dangerous.’” Id. (quoting District of Columbia v. Freeman, 477 A.2d 713, 718-19

(D.C. 1984)). “The plaintiff has the burden of establishing that a violation of the reasonable

standard of care is the proximate cause of the injury sustained.” Id. (quoting District of

Columbia v. Cooper, 445 A.2d 652, 655 (D.C. 1982) (en banc)). In cases involving relatively

minor defects, expert testimony is required to establish the relevant standard of care. See id. at

699-700.

Here, Defendants have introduced undisputed evidence that the District had no notice that

the alley behind Plummer’s house was in poor condition. See Pl.’s Resp. SoMF ¶¶ 110-113.

20
Indeed, Plummer himself testified that he had not observed a pothole in the alley before the

morning of July 5, 2014. Id. ¶ 16. Plummer also has not introduced any expert testimony as

would be required to make out this claim. Indeed, he has not addressed the merits of Count VII

in his opposition brief at all.8 Therefore, the Court will grant summary judgment for Defendants

on Count VII.

Conclusion

For all of the above reasons, Defendants’ Motion for Summary Judgment (ECF No. 14)

will be granted, and judgment entered for Defendants, in a separate order.

/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge

Date: June 20, 2018

8
Plummer did address Defendants’ argument that Count VII should be dismissed because he
failed to comply with the notice requirement set forth in D.C. Code § 12-309. See Pl.s’ Opp’n at
4-12. The Court finds it unnecessary to resolve that issue, because it is plain that the Court must
grant summary judgment for Defendants on the merits. The Court notes the majority view
among judges in this District that compliance with § 12-309 is not a jurisdictional requirement,
see Maldonado v. District of Columbia, 924 F. Supp. 2d 323, 332 (D.D.C. 2013), which means
that the Court is not required to address it before turning to the merits of Plummer’s claims.

21