UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AARON LOVETT,
Plaintiff,
v. Case No. 1:23-cv-02879 (TNM)
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM ORDER
Aaron Lovett alleges that, as he was returning home one night, federal agents accosted
him, tased him, and beat him. More, officers from the Metropolitan Police Department (MPD)
looked on and either stood idly by or actively participated. Defendants have moved to dismiss
the Complaint on a host of grounds. For the reasons below, several of Lovett’s claims survive,
but others cannot. He failed to state a claim for relief against the federal agents because this
constitutes a new context under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), and special factors counsel against extending that tenuous
precedent here. And though most of Lovett’s claims against the MPD agents are viable, he fails
to state a claim for municipal liability against the District of Columbia under Monell v. New York
City Department of Social Services, 436 U.S. 658 (1978).
I.
The facts below come from Lovett’s First Amended Complaint (Compl.), ECF No. 20,
and the Court accepts them “as true” for now. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Lovett is a D.C. resident who lives near the Cleveland Park neighborhood. Compl. ¶¶ 2,
14. In mid-December 2022, he was returning home in the wee hours of the morning when, after parking his car, several uniformed police officers confronted him. Id. ¶¶ 14–15, 17. As he was
getting out of his truck, several officers stopped him and claimed that he lacked license plates on
his vehicle. Id. ¶¶ 17–19. Although he told the officers that he did, they “continued to detain”
him as they “walked around the parked vehicle and then ran a check of the plate through” a
government database. Id. ¶¶ 20–21. Things went downhill from there.
That database check returned an alert that the car was stolen. Compl. ¶¶ 21. That was
correct—sort of. Id. ¶ 22. The car belonged to Lovett’s girlfriend, who allowed him to use it.
Id. He had reported the car stolen several weeks earlier but managed to recover it and failed to
notify the police. Id. Although Lovett informed the officers of this, they were unconvinced. Id.
¶¶ 22–23. Instead, they called for backup, surrounded Lovett, and began shouting orders at him.
Id. ¶¶ 21, 23.
Lovett demanded to know why he was being detained, but the officers refused to answer.
Compl. ¶ 28. Instead, they became physical. They “push[ed]” him, and then “instructed him to
turn around and put his hands over his head.” Id. ¶¶ 28–29. Lovett complied; he turned around,
faced the wall of his apartment building, and put his hands over his head as ordered. Id. ¶ 30.
But the officers did not question him, search him, or handcuff him. Instead, with his face to the
wall and his back to them, one of the officers tased Lovett in the back. Id. ¶¶ 30–31.
Lovett’s body “started spasming” from the pain. Id. ¶ 33. He “cried out and fell over,”
and was “momentarily rendered speechless.” Id. ¶¶ 32–33. Still, the officers did not relent.
Instead, as Lovett writhed in pain on the ground, an officer tased him again. Id. ¶ 34. Lovett
screamed out in pain, “writhing around on the cement.” Id. ¶ 35. Four of the officers “climbed
onto his back and body” to subdue him. Id. They again refused to explain “why he was being
detained.” Id. ¶ 36. Finally, the officers arrested Lovett and called an ambulance. Id. ¶¶ 38–39.
2 Lovett does not specify when the MPD officers arrived and began participating in this
encounter. But he does say, generally, that “he is aware that officers from both the United States
Secret Service and the Metropolitan Police Department were present at various points.” Id. ¶ 16.
II.
Defendants move to dismiss the Complaint under Federal Rule of Civil Procedure
12(b)(6). A complaint survives a Rule 12(b)(6) challenge if, and only if, it contains “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556
U.S. at 678 (cleaned up). This standard ensures that—assuming Lovett could back up everything
he pleads in his Complaint—there would be some law under which the Defendants would be
liable to him. So the Court “treat[s] the complaint’s factual allegations as true,” Sparrow v.
United Airlines, 216 F.3d 1111, 1113 (D.C. Cir. 2000), and then asks whether those allegations
give rise to “the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
III.
Lovett sues two categories of Defendants. First, the United States and a class of known
and unknown Secret Service agents. Compl. at 1–2. Call these the Federal Defendants. Second,
he sues the District of Columbia and a set of unknown MPD officers. Id. Call these the District
Defendants. The Court first addresses Lovett’s claims against the Federal Defendants and then
those against the District Defendants.
A.
The Federal Defendants have not moved to dismiss the claims against the United States,
so those endure. That means the only claims to address here are those against the Secret Service
officers. These claims, which purport to proceed under the inferred constitutional cause of action
3 identified in Bivens, 403 U.S. at 392, assert violations of Lovett’s Fourth Amendment rights.
Namely, unreasonable seizure, Compl. ¶¶ 111–20; excessive force, id. ¶¶ 121–35; failure to
intervene, id. ¶¶ 136–47; and conspiracy to commit constitutional violations, id. ¶¶ 149–59. But
each of these claims falters for the same reason: Lovett lacks a cause of action.
Lovett tries to sue the Secret Service officers directly under the Constitution. But the
Constitution “does not in so many words provide for its enforcement by an award of money
damages.” Bivens, 403 U.S. at 396. Rather, the Constitution generally establishes primary rules
regulating the conduct of state actors and leaves it to Congress to decide how and when to allow
enforcement of those rules. See Egbert v. Boule, 596 U.S. 482, 491 (2022). Congress has not
chosen to authorize suits against federal officials for all constitutional violations. Hernández v.
Mesa, 589 U.S. 93, 101 (2020).
Instead, for the first two hundred years of this nation’s history, individuals seeking
recourse for federal officers’ violations of their constitutional rights would proceed through
ordinary tort suits. That is, the aggrieved citizen would sue the federal officer in tort, asserting a
state cause of action—say, trespass to chattels or battery. See Buchanan v. Barr, 71 F.4th 1003,
1014 (D.C. Cir. 2023) (Walker, J., concurring). The federal officer would raise public authority
as a defense, arguing, essentially, that the exercise of his official duties permitted him to trespass
or to batter the plaintiff. Id. In reply, the plaintiff would then show that the officer’s conduct
violated the Constitution, and that a public authority defense was therefore unavailable to him.
Id.; see also Mesa, 589 U.S. at 115–16 (Thomas, J., concurring).
Bivens represented a novel departure from this practice. Under Bivens, plaintiffs no
longer needed to identify any cause of action to bring a claim that a federal official violated their
Fourth Amendment rights. Bivens, 403 U.S. at 392. Instead, Bivens itself supplied the cause of
4 action. Id. In quick succession, the Court extended its new inferred cause of action twice: first
to a Fifth Amendment Due Process claim, then to an Eighth Amendment Cruel and Unusual
Punishment claim. See generally Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446
U.S. 14 (1980).
But the Supreme Court has now corrected course. Ziglar v. Abbasi, 582 U.S. 120, 131–
32 (2017). Since 1980, the Court has refused on no fewer than 11 occasions to extend Bivens
any further. Boule, 596 U.S. at 486. It has refrained, though, from overruling Bivens altogether.
Id. at 491. Instead, it has left it as a kind of “law trapped in amber.” Cf. United States v. Rahimi,
144 S. Ct. 1889, 1897 (2024). Bivens thus applies to the situations at issue in Bivens, Davis, and
Carlson—and not much else. See Buchanan, 71 F.4th at 1007.
Courts being asked to invoke Bivens follow a two-step approach. First, they ask whether
the claim involves “a new Bivens context.” Boule, 596 U.S. at 492. That is, whether their case is
“different in a meaningful way” from Bivens, Davis, or Carlson. Ziglar, 582 U.S. at 139. That
may be if the defendants are of a different type than the DEA agents in Bivens. Id. at 140. Or
because the right asserted is different. Id. Or because the action is framed at a different level of
generality. Id. The list goes on. Id. The point is, if there is any meaningful deviation from the
contours of the three recognized Bivens cases, a new Bivens context is involved.
With no new context, courts treat Bivens as the controlling precedent and allow the claim
to proceed. Buchanan, 71 F.4th at 1007; see also Rodriguez de Quijas v. Shearson/Am. Exp.,
Inc., 490 U.S. 477, 484 (1989). But if the case does present a new Bivens context, courts then
ask whether there are any “special factors” that indicate “that the Judiciary is . . . less equipped
than Congress to weigh the costs and benefits of allowing a damages action to proceed.” Boule,
5 596 U.S. at 492 (cleaned up). “If there is even a single reason to pause before applying Bivens in
a new context, a court may not recognize a Bivens remedy.” Id. (cleaned up).
Now to apply those principles to this case. The Federal Defendants argue that this is a
new Bivens context, and that the Court may not recognize a Bivens remedy here. They are right.
First, this case arises in a new Bivens context. To start, at least two of the claims against
the Federal Defendants involve a novel “constitutional right at issue.” Ziglar, 582 U.S. at 140.
Bivens itself involved claims for unreasonable seizure and excessive force. Bivens, 403 U.S. at
389. But Lovett’s failure to intervene and conspiracy to commit constitutional violations claims
are foreign to Bivens. That separates this case from previously trodden soil.
It is not enough that the claims also stem from the Fourth Amendment. See Mesa, 589
U.S. at 103 (“A claim may arise in a new context even if it is based on the same constitutional
provision as a claim in a case in which a damages remedy was previously recognized.”). What
matters is whether, in recognizing the claim, the Court would be breaking new ground and
stepping on Congress’s toes in the process. Crafting relief for entirely new theories of liability is
a classic example of dabbling in “a legislative endeavor.” Boule, 596 U.S. at 491. In short, these
two claims place a novel “constitutional right at issue” and thus present an unfamiliar Bivens
context. Ziglar, 582 U.S. at 140; see also Buchanan, 71 F.4th at 1008 (declining to recognize
Bivens action for Fourth Amendment claim).
That leaves Lovett’s unreasonable seizure and excessive force claims. Bivens did involve
two such claims. Bivens, 403 U.S. at 389. But the claims here are still meaningfully different.
Bivens involved a breach of the plaintiff’s home. Law enforcement allegedly entered his house
without a warrant and arrested him there, “manacling [him] in front of his family” and “strip-
searching him” to boot. Byrd v. Lamb, 990 F.3d 879, 882 (5th Cir. 2021) (citing Bivens, 403
6 U.S. at 389–90). But Lovett alleges no such thing. He was outside his apartment when the
officers confronted him, in a parking lot. Compl. ¶¶ 15–17.
That distinction is important because the Fourth Amendment specially privileges the
home. It identifies few things it protects by name, but the home is one of them. See U.S. Const.
Amend. IV. No comparable protection exists elsewhere. See Florida v. Jardines, 569 U.S. 1, 6
(2013) (“At the [Fourth] Amendment’s very core stands the right of a man to retreat into his own
home and there be free from unreasonable government intrusion.” (cleaned up)). So Lovett is in
a different place than Bivens was—literally and metaphorically. 1 See Ziglar, 582 U.S. at 140
(describing Bivens as a claim against agents for “handcuffing a man in his own home without a
warrant.”).
The difference matters not only because the home is the Fourth Amendment’s lodestar. It
is significant because distinct contexts call for discrete sets of legal rules and principles. See
Cantú v. Moody, 933 F.3d 414, 423 (5th Cir. 2019). In other words, the factual differences
between this case and Bivens are not merely superficial: they punt Lovett into a new judicial
framework.
Take first his claim of unreasonable seizure. Lovett insists he was unlawfully seized
when he was stopped, detained, tased, tackled, and jailed “without explanation.” Compl. ¶¶ 19–
45. Say the Court considered this allegation. It would start by asking whether there was
reasonable suspicion for the initial traffic stop and detention under Terry v. Ohio, 392 U.S. 1
1 The parking deck outside Lovett’s building does not count as a “curtilage” that the Fourth Amendment would privilege equally with the home. See Oliver v. United States, 466 U.S. 170, 180 (1984) (“The curtilage is the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.”) (cleaned up); Mack v. City of Abilene, 461 F.3d 547, 554–55 (5th Cir. 2006) (“several [] courts” have determined “that a parking lot or garage is not curtilage subject to Fourth Amendment protections.”).
7 (1968). Could the Secret Service officers “point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant[ed]” approaching Lovett in
the first place? Id. at 21. Would those facts “warrant a man of reasonable caution in the belief
that the action taken was appropriate?” Id. at 21–22 (cleaned up).
Suppose reasonable suspicion covered the initial stop. Moving on, the Court would
inevitably face assertions that the stop ripened into an arrest without probable cause, an inquiry
inherently riddled with line-drawing and judgment calls. United States v. Sharpe, 470 U.S. 675,
685 (1985). When did the purported ripening occur? When Lovett was pushed up against the
wall? Compl. ¶ 30. When Lovett was tased and hit the cement? Id. ¶ 32. Or not until Lovett
was formally arrested? Id. ¶ 38. Onto the arrest itself, whenever that occurred. At that point,
was there probable cause? And so the analysis would go.
Of course, this differs markedly from what the Court would do if it were facing the facts
of Bivens itself. Because an arrest in the home generally requires a warrant, the Court would
focus on whether agents obtained such a warrant and, if not, whether one of the various
exceptions to the warrant requirement applied. See, e.g., Minnesota v. Olson, 495 U.S. 91, 100
(1990). Sure, it would need to ultimately ask whether, at bottom, probable cause supported the
arrest. Bivens, 403 U.S. at 389. But the route to get there would vary considerably.
The excessive force claim plays out similarly. Lovett alleges admittedly egregious
behavior by the federal officers. They purportedly tased Lovett such that “he was momentarily
rendered speechless from the severe pain,” although he was standing “with his hands above his
head” and “complying with the officers’ instructions.” Compl. ¶¶ 30, 33. On the other hand,
Bivens was fettered in chains and “subjected to a visual strip search.” Bivens, 403 U.S. at 389.
But judicial assessment of excessive force claims differs as the degree of force intensifies. And
8 these cases are heavily fact-specific, so contextual anomalies make a big difference. Saucier v.
Katz, 533 U.S. 194, 206 (2001); see also Oliva v. Nivar, 973 F. 3d 438, 443 (5th Cir. 2020)
(noting differing legal mandates between Bivens and allegedly unlawful arrest involving
hospital’s ID policy). In short, the applicable precedents and pertinent arguments would diverge
in kind and in counsel. Accord Robinson v. Pilgram, 2021 WL 5987016, at *12 (D.D.C. Dec.
17, 2021) (finding excessive force claim where “Plaintiff’s harm stem[med] from arrest outside
the home” was new Bivens context), aff’d, 2022 WL 3009621 (D.C. Cir. July 28, 2022) (per
curiam).
To recap: For Lovett and Bivens alike, there is unique “judicial guidance as to how an
officer should respond to the problem or emergency to be confronted.” Ziglar, 582 U.S. at 140.
In a counterfactual world, a Lovett court and a Bivens court would chart two very different legal
paths. This difference signals a new Bivens context.
Lovett’s altercation also involved a “new category of defendants.” Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 68 (2001). This being the Secret Service, rather than the DEA agents in
Bivens, the congressman in Davis, or the prison officials in Carlson. 2 The Supreme Court has
yet to sanction a Bivens remedy against the Secret Service. And the D.C. Circuit has affirmed a
refusal to “extend Bivens to a novel class of defendants—Secret Service agents.” Robinson,
2022 WL 3009621, at *1 (“Similarly, appellant cannot seek damages from appellees in their
individual capacities because he has no implied cause of action in the present context under
[Bivens].”). More, the Supreme Court and the Circuit have consistently rebuffed attempts to
extend Bivens to new classes of federal officials. Mesa, 589 U.S. at 96 (refusing to extend
2 Bivens technically involved agents from the Federal Bureau of Narcotics, but this agency was later subsumed into the modern Drug Enforcement Agency. 5 U.S.C. § App. 1 Reorg. Plan 2 1973.
9 Bivens to “new field” of excessive force claims against Customs and Border Protection Agent);
Boule, 596 U.S. at 494 (same); Buchanan, 71 F.4th at 1006–10 (U.S. Park Police).
While the agency name emblazoned on a federal officer’s badge may seem like a trivial
matter, federal agencies have different duties, jurisdictions, and authorities that could alter the
relevant legal analysis. And the rank of the law enforcement personnel can affect the analysis,
too. Ziglar, 582 U.S. at 139–40. Both distinctions matter here.
For one, the Secret Service Uniformed Division is tasked with safeguarding residences
and facilities where Secret Service protectees (think the President, Vice President, and their
families) reside and work. 3 See United States v. Griffin, 549 F. Supp. 3d 49, 54 (D.D.C. 2021)
(describing Secret Service mission and protectees). This “permanent police force” is governed
by a unique statutory framework and subject to the authority of the Secretary of Homeland
Security. 18 U.S.C. § 3056A. It is a specialized agency with a narrowly limited mission and
geographic jurisdiction.
On the other hand, the DEA enforces controlled substances laws and cracks down on
drug traffickers nationwide. 4 The DEA operates under a slew of federal regulations and statutes,
such as the Controlled Substances Act, and falls under the purview of the Attorney General. See
21 U.S.C. § 811 et seq.; 28 C.F.R. § 0.100. So “the legal mandate under which the [Secret
3 See Uniformed Division Officer, U.S. Secret Serv., https://perma.cc/TJ3B-4RSR. When “determining whether a complaint fails to state a claim, the court may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which the court may take judicial notice.” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (cleaned up). And “[c]ourts in this jurisdiction have frequently taken judicial notice of information on official public websites of government agencies.” Pharm. Research & Mfrs. of Am. v. Dep’t of Health & Hum. Servs., 43 F. Supp. 3d 28, 33 (D.D.C. 2014). 4 What We Do, U.S. Drug Enf’t Admin., https://perma.cc/YT5P-FT4A.
10 Service] officials were operating is different from the ones in Bivens,” indicating a new context.
Loumiet v. United States, 948 F.3d 376, 382 (D.C. Cir. 2020).
Secret Service officers also have different duties than DEA agents. Cf. Oliva, 973 F.3d at
443 (contrasting duties of VA hospital officers and DEA agents). Federal law enforcement
officers concentrate on patrol and arrest functions; they are on the ground keeping the public
safe, responding to calls for service. Meanwhile, federal agents usually specialize in a criminal
field and engage in complex investigations involving sprawling cases. Compare 18 U.S.C.A.
§ 3056A(b)(2) (noting that the Secret Service Uniformed Division “shall possess privileges and
powers similar to those of the members of the Metropolitan Police of the District of Columbia”)
with 5 U.S.C. § App. 1 Reorg. Plan 2 1973 (recognizing the Attorney General and the agents
under him may “make investigations . . . including activities relating to the suppression of illegal
traffic in narcotics.”). So the everyday work of these officials is contextually distinct. See
Ziglar, 582 U.S. at 140.
In short, Lovett’s claims have unique “legal and factual components” that place them in a
new Bivens context. Meshal v. Higgenbotham, 804 F.3d 417, 424 (D.C. Cir. 2015). This Court
heeds the prevailing wariness to permit even incremental extensions of Bivens. Ziglar, 582 U.S.
at 147 (“[E]ven a modest extension is still an extension.”).
For his part, Lovett depends on Hicks v. Ferreyra to insist that he is right at home in
Bivens. 64 F.4th 156, 164 (4th Cir. 2023). There, the Fourth Circuit held that an unlawful
seizure claim stemming from traffic stops by the U.S. Park Police was not “meaningfully
different from the claim asserted in Bivens.” Id. at 162. Specifically, it found that “[b]oth cases
involved allegations of unjustified, warrantless seizures in violation of the Fourth Amendment
committed by federal ‘line’ officers conducting routine police work.” Id. Of course, this Court
11 is not bound by that precedent. Nor does the holding there follow from the Supreme Court’s
admonition to resist “superficial similarities” when asking whether a case presents a new context.
Boule, 596 U.S. at 495. Notwithstanding Hicks, Lovett’s claims fall comfortably within the
Supreme Court’s “broad” conception of a “new context.” Mesa, 589 U.S. at 102.
That brings the Court to the second step in the inquiry: whether there are special reasons
to hesitate before extending a Bivens remedy to Lovett. Ziglar, 582 U.S. at 136. Several
considerations show that Congress should be calling the shots here.
To start, Lovett has alternative remedial schemes under which he could proceed. Boule,
596 U.S. at 498 (“So long as Congress or the Executive has created a remedial process that it
finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that
calibration by superimposing a Bivens remedy.”). He is already invoking one of these schemes
by bringing FTCA claims against the United States. Compl. ¶ 63, 25–27. The FTCA, though
not displacing Bivens actions altogether, is “the exclusive remedy for most claims against
Government employees arising out of their official conduct.” Hui v. Castaneda, 559 U.S. 799,
806 (2010); Mesa, 589 U.S. at 111 n.9. So the availability of FTCA claims, while maybe not
dispositive, cuts against extending Bivens here. See K.O. by & through E.O. v. Sessions, 41
F.4th 664, 665 (D.C. Cir. 2022) (Silberman, J., concurring) (“[P]laintiffs in this case had an
alternative remedy for damages under the [FTCA] . . . which makes their appeal for a Bivens
action seem wholly superfluous.”); Edwards v. Gizzi, 2022 WL 309393, at *8–10 (S.D.N.Y. Feb.
2, 2022) (noting the FTCA is an alternative remedy to Bivens and special factor counselling
hesitation and collecting cases), aff’d, 107 F.4th 81 (2d Cir. 2024).
More, Lovett can file complaints through internal grievance processes. Compare Boule,
596 U.S. at 497 (finding administrative remedies “independently foreclose[d]” a possible Bivens
12 extension). Secret Service officers are subject to the authority of the Department of Homeland
Security, which is authorized to “proscribe regulations for . . . the conduct of its employees.” 5
U.S.C. § 301. And Congress designated an Inspector General to investigate and report
misconduct by Homeland Security employees, including Secret Service members. 5 U.S.C. app.
3 §§ 2, 3, 4(d). Individuals can tee up these investigations by reporting abuses with the
Department’s Office of Inspector General or the Secret Service’s Office of Professional
Responsibility Inspection Division. 5 These probes can even lead to criminal prosecutions.
U.S.C. app. 3 § 4(d); 18 U.S.C. § 242.
Clearly, “the Government has put in place safeguards to prevent constitutional violations
from recurring,” and it is not the role of this Court to trump them. Boule, 596 U.S. at 498
(cleaned up). Even if these remedies fail to replicate a Bivens claim or fully ameliorate the
alleged harm, they counsel against judicial meddling. See Storms v. Shinseki, 319 F. Supp. 3d
348, 357-358 (D.D.C. 2018) (noting that even if the specific wrong may go unredressed, a
congressionally-mandated scheme counsels against a Bivens extension).
Finally, the national security concerns present here also counsel against an extension of
Bivens. Ziglar, 582 U.S. at 142–43 (noting “[n]ational-security policy is the prerogative of the
Congress and the President.”). While the Court recognizes that “national security” should not be
invoked as a “talisman used to ward off inconvenient claims,” the unique role of the Secret
Service in protecting the nation’s top-ranking leaders cannot be ignored. Id. at 143. Permitting a
private monetary remedy against these officials may “bog[] down” otherwise swift
decisionmaking with “considerations of future liability and damages.” Robinson, 2021 WL
5 See Hotline: Report Corruption, Fraud, Waste, Abuse, Mismanagement, or Misconduct, Off. Inspector Gen., https://perma.cc/3WRB-FYDE; Report Employee Misconduct, U.S. Secret Serv., https://perma.cc/Z23W-XTBB.
13 5987016, at *14. But “[g]iven the nation’s overwhelming interest in protecting the safety of its
Chief Executive, officers responsible for the protection of the President and other high-ranking
officials must be able to act without hesitation.” Jones v. U.S. Secret Serv., 701 F. Supp. 3d 4, 13
(D.D.C. 2023) (cleaned up). In short, the Secret Service’s distinctive role in promoting national
security, and the judiciary’s relative illiteracy in that subject, signal that Congress is best
equipped to discern a proper framework for deterrence. The Court declines to throw a punch
when it is ill-suited for the match.
Thus, Lovett has failed to plead a viable cause of action against the Secret Service
agents.
B.
Now for the § 1983 claims against the District Defendants. Lovett brings four claims
against the District of Columbia and a cluster of unidentified MPD officers: unreasonable
seizure; excessive force; failure to intervene; and conspiracy to commit constitutional violations.
He has adequately pled claims against the officers. But the District is not liable for their actions.
1.
Consider first the claims as raised against the individual officers. The first two counts
assert that they violated Lovett’s Fourth Amendment rights to be free from unreasonable seizures
and excessive force “when they yelled, confined, shoved, intimidated, jostled, and tased [him]
repeatedly for a ‘traffic stop,’ and continued to do so even when he was incapacitated.” Compl.
¶ 78.
The District Defendants do not dispute that these facts, taken as true, establish a
constitutional infringement. Instead, their sole defense boils down to a claim of “we weren’t
there.” The District Defendants insist that Lovett’s Complaint “makes clear that this conduct
14 was allegedly perpetrated by Secret Service officers, not any MPD officer.” Mot. Dismiss by
D.C., ECF No. 25, at 5. According to the District Defendants, “[b]ecause there is no allegation
that any MPD officers had physical contact with Plaintiff, Counts I and II cannot establish an
underlying constitutional violation.” Id.
But the Court reads the Complaint differently. True, Lovett alleges that the very early
stages of the encounter involved only three Secret Service officers. Compl. ¶¶ 17–25. But very
quickly, Lovett asserts that multiple officers surrounded him, some of whom may have been
MPD. Id. ¶¶ 27–29 (noting that “another officer” joined the Secret Service officers while Lovett
queried why he was being detained). It is only after unidentified officers joined the pack that
Lovett was tased repeatedly, tackled, and arrested. Id. ¶¶ 31–38. And Lovett alleges that
“officers from both the United States Secret Service and the Metropolitan Police Department
were present at various points throughout the interaction.” Id. ¶ 16. So construing the facts in
the light most favorable to Lovett, the Court finds it plausible that an MPD officer was one of the
aggressors. Sparrow, 216 F.3d at 1113.
The District Defendants contend that a Secret Service Arrest Report proves that no MPD
officer was present on the scene at all. D.C.’s Mot. Dismiss 6. But the Court does not read the
Arrest Report so broadly. 6 That document does not establish that MPD officers were not present
on the scene. It merely omits any mention of MPD. D.C.’s Mot. Dismiss Ex. A. Without more
6 The Secret Service Arrest Report is incorporated into the Complaint. See Compl. ¶ 169 (“Based on the recently provided United States Secret Service Arrest Report, it appears that the officer who tased Plaintiff was Defendant Lineberger.”). So the Court will take judicial notice of its contents. Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004) (considering public records appended to Defendants’ motion to dismiss because they were referred to in the complaint); Martin v. District of Columbia, 720 F. Supp. 2d 19, 25 (D.D.C. 2010) (treating police report as incorporated into the complaint when it was referenced therein).
15 context, it is plausible that the Arrest Report excludes MPD officers because it focused solely on
the Secret Service—not because MPD was absent. The Arrest Report, then, is not the
masterstroke the District Defendants think it is.
In sum, the Court finds it plausible that MPD officers were present during the incident.
Because the District Defendants do not contest that the Complaint makes out a constitutional
violation, these claims can go forward.
Consider now Count Three, the Failure to Intervene claim. Courts in this district have
held an officer liable for a failure to intervene “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.” Jackson v. District of Columbia, 327 F. Supp. 3d 52, 67 (D.D.C. 2018).
Again, the District Defendants hang their hats on Lovett’s failure to “allege any MPD officer was
on the scene before or during the alleged Secret Service assault or that they had an opportunity to
respond, or chose not to act.” D.C.’s Mot. Dismiss 6. But having rejected that defense for now,
the Court infers that the officers could have stopped the incident by intervening. Or, worse, that
the officers “approved of the other officers’ alleged use of force.” Jackson, 327 F. Supp. 3d at
67. So taking Lovett at his word, he has plausibly pled a failure-to-intervene claim.
Finally, Lovett’s claim of conspiracy. He asserts that “Defendants conspired amongst
themselves to deprive [him] of his constitutional rights.” Compl. ¶ 102. He insists that the
District Defendants “conspired with each other” and with the Secret Service agents to “pursu[e]
an unlawful traffic stop”; “detain Plaintiff without reason while trying to find a way to charge
Plaintiff”; “refus[e] . . . to fully investigate Plaintiff’s responses to each attempted accusation”;
“exhibit[] excessive force”; “omit[] material facts relating to the stop and arrest in the police
report”; and “jail[] Plaintiff without cause.” Id. ¶ 106. He “believes that the Defendants formed
16 their conspiracy at the scene of the incident, upon the realization that the Defendants had no
legitimate reason or probabl[e] cause to stop or detain” him. Id. ¶ 103.
To make out a case for civil conspiracy under § 1983, Lovett must plausibly allege that
“the defendants acted jointly in concert and that some overt act was done in furtherance of the
conspiracy which resulted in [the] deprivation of a constitutional right.” Austin v. District of
Columbia, 2007 WL 1404444, at *11 (D.D.C. May 11, 2007) (cleaned up). The linchpin of an
adequate conspiracy claim is the allegation of an agreement. Mattiaccio v. DHA Grp., Inc., 20 F.
Supp. 3d 220, 230 (D.D.C. 2014). And the allegation must “reasonably lead to the inference that
the defendants positively or tacitly came to a mutual understanding to try and accomplish a
common and unlawful plan.” Austin, 2007 WL 1404444, at *11 (cleaned up).
But Lovett does not offer any specific contentions about “when or how such an
agreement was brokered,” nor does he “allege the existence of any events, conversations, or
documents indicating that there was ever an agreement or meeting of the minds between any of
the defendants.” Acosta Orellana v. CropLife Int’l, 711 F. Supp. 2d 81, 113 (D.D.C. 2010);
McCreary v. Heath, 2005 WL 3276257, at *5 (D.D.C. Sept. 26, 2005) (cleaned up). Instead, he
presents unbuttressed hypotheses about scheming and concealing. This is not enough; “[t]he
mere repetition of a conclusory statement that a conspiracy exists and that all the alleged events
occurred as a result of a conspiracy are insufficient as a matter of law.” Bush v. Butler, 521 F.
Supp. 2d 63, 69 (D.D.C. 2007). The conspiracy claims must be dismissed.
2.
Now consider the District of Columbia’s municipal liability. To recap: Except for the
conspiracy claims, all the claims against the MPD officers survive. So Lovett has established the
first element of municipal liability—an underlying constitutional violation at the hands of local
17 officials. Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003). But a locality is
not liable for every constitutional violation committed by its employees. That is, neither
respondeat superior nor vicarious liability is a viable theory against localities under § 1983. City
of Canton v. Harris, 489 U.S. 378, 385 (1989); Monell, 436 U.S. at 694–95. Instead, the
municipality itself must be at fault. Harris, 489 U.S. at 385. And fault attaches only when a
policy or custom of the city directly causes the predicate constitutional deprivation. Id.
This can play out in a few different ways. For instance, the government could set a
formal unconstitutional policy. Baker, 326 F.3d at 1306; Monell, 436 U.S. at 694–95. Or a
policymaker could consciously violate a person’s rights. City of St. Louis v. Praprotnik, 485
U.S. 112, 123–30 (1998). Maybe some subordinates are engaging in a pattern of wrongdoing,
and their boss’s acquiescence led to the adoption of a custom. Id. at 130. Perhaps still the
government has failed to address an obvious demand—say, the training of its employees—such
that it has shown deliberate indifference to likely constitutional deprivations. Harris, 489 U.S. at
390; Daskalea v. District of Columbia, 227 F.3d 433, 441 (D.C. Cir. 2000). Regardless of the
precise factual setup, one core element must exist: a policy or custom of the municipality that
was a “moving force” behind the constitutional harm. Harris, 489 U.S. at 389.
Lovett proceeds against the District under a couple of theories. He first claims that
deficient training by the District amounts to deliberate indifference. He posits that “the District
of Columbia failed to properly train its police officers” on various tactics, including “the
reasonableness of seizures,” “de-escalation polic[ies],” and “intervention.” Compl. ¶¶ 69, 82, 93.
But Lovett’s assertions are unsubstantiated. He does not enlighten the Court on the
education that officers receive or the academic program that the District executes. Instead, he
tenders mere suspicions that the coursework is lacking. Without allegations of corroborating
18 evidence, the Court cannot deduce the curriculum’s inadequacy; one-off constitutional violations
by individual officers do not suffice. Harris, 489 U.S. at 390–91. To be sure, a gross pattern of
official wrongdoing can serve as evidence of deficient instruction. Connick v. Thompson, 563
U.S. 51, 62 (2011). But Lovett has not alleged that MPD consistently flouts Fourth Amendment
rights. Or that the District “knew or should have known” about it. Baker, 326 F.3d at 1307; cf.
Daskalea, 227 F.3d at 441 (finding municipality was “deliberately indifferent to the repeated
sexual abuse and harassment of women prisoners by D.C. correctional officers” where it had
received complaints and been subject to a prior court order demanding the District “take all steps
necessary to prevent sexual harassment of female prisoners, including the institution of
mandatory training” but failed to do so).
With a bit more specificity, Lovett asserts that the District was “deliberately indifferent”
to the harm posed in classifying both pepper spray and tasers as “Less Lethal Weapons.” Compl.
¶ 81. According to Lovett, “[b]y categorizing an irritant such as pepper spray with weapons like
tasers, the policy maker is condoning use of one in place of the other, even though tasers are far
more violent.” Id. As an alleged consequence, “the force used against [Lovett] quickly
escalated, violating his Fourth Amendment right to be free from excessive force.” Id.
But this argument falters. The purported “inadequacy” of the guideline was not “so
likely to result in the violation of constitutional rights that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the need” to revise it. Harris, 489
U.S. at 390. Again, Lovett offers no claim leading to the inference that the guideline caused a
pattern of constitutional violations. This is likely because the notion that the guideline could lead
to escalations of force is tenuous at best. And the mere grouping of tasers with pepper spray
does not privilege the use of the former above the latter, contrary to Lovett’s assertions. Plus, the
19 Less Lethal Weapons guidelines is not the final word on the matter: The District provides more
information to officers about when each weapon is proper to use. 7 So a reasonable policymaker
would not see the guidelines as begetting unreasonable uses of force. Farmer v. Brennan, 511
U.S. 825, 841 (1994).
Next, Lovett brings claims under a custom-by-acquiescence theory. He insists that the
District “failed to properly investigate and/or discipline officers for unreasonable seizures” and
“properly screen officers’ use of weapons such as tasers.” Compl. ¶ 70. These oversights,
according to him, “manifested a . . . custom . . . of allowing officers to violate the constitutional
rights of citizens without fear of repercussions” and “encourage[ed] officers to engage in
unlawful conduct.” Id. ¶¶ 70, 83. But again: what custom? The Court searches in vain for
allegations of a pattern of violations. Lovett himself may have suffered constitutional insult at
the hands of D.C. officers. But, without more, a single incident is only anecdotal. The Court
cannot ignore elementary rules of statistics based on one plaintiff’s experience. See Ivo Dinov et
al., Law of Large Numbers, 17 J. Stat. Educ. 1 (2009) (describing a sample of one as inherently
variant and unreliable). So without anything beyond conclusory assertions, the claims against
the District must be dismissed.
C.
Finally, Lovett’s state-law claim. He brings an action for Negligent Infliction of
Emotional Distress (NIED) against all the District Defendants. Compl. 27. This Court applies
D.C. law when adjudicating state-law claims under diversity jurisdiction. Erie R. Co. v.
Tompkins, 304 U.S. 64 (1938).
7 See General Order: Less Lethal Weapons, MPD (Mar. 28, 2024), https://perma.cc/7NPF-G24Y.
20 To state a claim of NIED in the District of Columbia, a plaintiff must show that “(1) the
plaintiff was in the zone of physical danger, which was (2) created by the defendant’s
negligence, (3) the plaintiff feared for his own safety, and (4) the emotional distress so caused
was serious and verifiable.” Harris v. U.S. Dep’t of Veterans Affs., 776 F.3d 907, 915 (D.C. Cir.
2015). 8 “Serious and verifiable means that the distress must have manifested in an external
condition or physical symptoms.” Rice v. District of Columbia, 774 F. Supp. 2d 25, 33 (D.D.C.
2011).
Lovett does not state a plausible NIED claim. For one, he does not allege any specific
negligent conduct by the MPD officers. Instead, he posits the officers “recklessly used excessive
force to unreasonably restrain, assault, batter, tase, and seize Plaintiff.” Compl. ¶ 177. But
general assertions of reckless and intentional conduct cannot make out a claim for negligent
behavior. So for that reason alone, his NIED claim against the officers must fail. See Rice, 774
F. Supp. 2d at 33–34 (dismissing NIED claim because it failed to “distinguish between negligent
and intentional acts” or “identify any specific act that was allegedly negligent”).
Plus, Lovett fails to back up his naked claims of physical and emotional harm. Instead,
he baldly asserts “psychological trauma,” “emotional distress,” and “physical and mental injury”
as bases for relief. Compl. ¶¶ 178–80. But “entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up). Perhaps Lovett has suffered severe
distress. But the Court cannot go hunting between the lines of the Complaint in search of clues.
8 A slightly different standard applies for NIED claims brought against defendants with a special relationship to the plaintiff. See Kowalevicz v. United States, 302 F. Supp. 3d 68, 78 (D.D.C. 2018). But Lovett has alleged no special relationship here, nor would the caselaw support such a claim. Id. (explaining that officers have no special relationship with an arrestee).
21 Because Lovett has failed to establish a predicate violation here, he cannot state a claim
for municipal liability, either. Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992). His
NIED claim against all District Defendants is accordingly dismissed.
IV.
After Defendants moved to dismiss, Lovett sought leave to file a Second Amended
Complaint. In the proposed amended complaint, Lovett makes three small changes to the facts
section. Pl.’s Mot. Leave File Second Amend. Compl. Ex. B at 6–8. The net effect is to slightly
alter the alleged timeline. In the First Amended Complaint, the officers informed Lovett they
believed his vehicle was stolen at the very beginning of the encounter. Id. But now Lovett
alleges he was unaware of that suspicion until being placed in the ambulance. Id. at 6–8.
Typically, a plaintiff may amend his complaint with leave of court “when justice so
requires.” Fed. R. Civ. P. 15(a)(2). But a court may deny leave to amend where a motion was
unduly delayed or is futile. Foman v. Davis, 371 U.S. 178, 182 (1962). Here, granting leave to
amend would be futile because it would not resurrect any of Lovett’s failed claims. Tweaking
the chronology does not affect Lovett’s lack of a Bivens claim against the federal officers. Nor
does it address the deficiencies in his claims of municipal liability. Finally, it does not make it
more plausible that the MPD officers engaged in a conspiracy or negligently inflicted emotional
distress upon Lovett, as it does not go to ameliorating those claims’ shortcomings. Because the
updated complaint would not save Lovett’s implausible claims, the motion to amend is denied as
futile. See Hall & Assocs. v. Env’t Prot. Agency, 956 F.3d 621, 630 (D.C. Cir. 2020).
V.
In sum, the claims against the Secret Service officers fail for want of a cause of action.
Most of the claims against the MPD officers survive, except for the conspiracy and NIED claims.
22 All the claims against the District of Columbia are dismissed. And the United States did not
move to dismiss the claims against it, so those claims proceed.
The Court ORDERS that the Motion to Dismiss by the Federal Officers is GRANTED.
The Motion to Dismiss by the District of Columbia is GRANTED IN PART and DENIED IN
PART. The Motion for Leave to File a Second Amended Complaint is DENIED.
SO ORDERED.
2024.09.25 10:37:35 -04'00' Dated: September 25, 2024 TREVOR N. McFADDEN, U.S.D.J.