UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
TAPIWA MUSONZA, Plaintiff, Case No. 19-cv-2779 (JMC)
v.
JONATHAN E. COSTANZO, et al., Defendants.
MEMORANDUM OPINION AND ORDER Tapiwa Musonza witnessed two police officers arrest a kid at a D.C. Metro station. After Musonza saw the arrest, he approached the officers and the kid and began interacting with them. Although the situation initially seemed under control, things took a turn when a third officer arrived. That officer immediately made physical contact with Musonza while ordering him to step back from the scene. Musonza did not follow that order, and, after a brief physical struggle, this third officer fired his taser at Musonza twice. The struggle then continued on the ground, where the officer again used his taser. The officers eventually gained control of Musonza and handcuffed him. Musonza was charged with assaulting a police officer, resisting arrest, and obstruction of justice, but the charges were almost immediately dropped. Musonza then brought this lawsuit, alleging the officers unlawfully arrested him and used excessive force, in violation of the Fourth Amendment, and committed several torts under D.C. law. The officers are entitled to summary judgment on nearly all of the claims, but Musonza’s assault and battery claim against one of the officers—officer Costanzo—survives. 1
1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to
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I. BACKGROUND The Court recounts the facts in the light most favorable to Musonza, drawing all reasonable inferences in his favor.
On a Saturday in June 2019, Tapiwa Musonza was standing on the platform at a D.C. Metro station when an incident involving a group of kids and two Metro Transit Police Department officers began. See ECF 41, USTR 6-22-19 1740-1840 HRS DL_C-EO3-PW-037_Saturday June 22 2019231820 4228132 (hereinafter Video PW-037), at 6:07–7:12 (Musonza wearing patterned collared shirt and jeans standing next to column). 2 Those two officers—officers Ottmer and Ditrick—were on patrol together when they say they received a call about kids who were supposedly assaulting people at the metro station with sticks. See ECF 40-9 at 3. 3 According to Ottmer, when they got to the station the station manager told them that two of the kids had tried to “steal someone’s motorized scooter” but had run away, and a passerby allegedly told the officers that the kids “had fireworks and were threatening patrons with them.” Id. Ottmer and Ditrick then approached the kids. See id.; ECF 41, USTR 6-22-19 1740-1840 HRS DL_C-EO3-PW- 040_Saturday June 22 2019231820 9e07ecc (hereinafter Video PW-040), at 6:40–7:00. Some of the kids moved away from the officers. See Video PW-037 at 6:58–7:02. Ottmer grabbed one of
documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page. 2 The parties made use of different time stamps when citing the same videos. See ECF 46 at 11 n.3 (explaining the difference in citation conventions). Consistent with how Musonza formatted his citations, the Court uses the time elapsed on the cited video to provide pinpoint citations. So here, for instance, the Court is citing the portion of this video that begins six minutes and seven seconds after the video starts. The Court uses this citation style throughout. 3 In his response to the officers’ statement of undisputed facts, Musonza did not identify this fact as either disputed or undisputed. See ECF 45-3 ¶¶ 6–7. Instead, he responded that he could not “admit or deny” this fact. Id. That response is inadequate to create a genuine dispute of fact at summary judgment. See Fed. R. Civ. P. 56(c)(1). To the extent Musonza was trying to convey that he needed additional “facts essential to justify [his] opposition,” this approach was still inadequate. Fed. R. Civ. P. 56(d). To justify that response, Musonza needed to file an “affidavit or declaration” that “specified” the “reasons” he could not yet present the necessary facts. Id. Ultimately, the Court resolves the motion for summary judgment based on the facts that the parties did present—principally, the video evidence—so need not decide whether to treat these facts as undisputed or not.
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those kids who was attempting to leave and, with Ditrick’s help, wrestled him to the ground. See id. at 7:00–7:15.
Musonza was standing close to the spot where Ottmer and Ditrick took the kid to the ground. See Video PW-037 at 7:10–16 (Musonza leaning on column). Musonza turned to watch the officers and the kid and, around 30 seconds after they all hit the ground, took a few steps towards them. See id. at 7:15–55. Musonza says he then talked briefly with some of the other kids from the group who were still standing on the platform and, when the officers were “nearing the completion of . . . securing” the now-detained kid, “asked” the officers “to please refrain from treating the young boy in a manner that appeared to [Musonza] to be inhumane.” ECF 45-4 at 18 ¶ 4; see Video PW-037 at 7:55–8:19. According to Musonza, he was concerned because one of the officer’s “leg[s]” was “on the young boy’s back for an extended period” of time and the “boy was laying on his stomach[] in a prone position with the weight of two grown men” on top of him. ECF 45-4 at 18 ¶ 4. As Musonza was speaking to the officers, one of them put their hand out towards Musonza. See Video PW-037 at 8:18. The video that shows this portion of the interaction does not, however, have audio, and neither party has cited anything in the record that indicates what the officers told Musonza at this moment.
What is clear is that, around 40 seconds after Musonza first turned to speak to Ottmer and Ditrick, the officers picked the kid—who was now in handcuffs—up from the ground and walked him to a nearby bench. See Video PW-037 at 8:15–9:00. Musonza followed Ottmer and Ditrick to the bench as they made that move. See id. at 8:55–9:03. Ottmer and Ditrick sat the kid on the bench and stood in front of him. See id. at 9:03. Musonza went to the other side of the bench, standing behind the kid’s back and on the opposite side from Ottmer and Ditrick. See id.
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Musonza, Ottmer, and Ditrick remained basically in that arrangement for the next two-and-
a-half minutes. See Video PW-037 at 9:03–11:39. During that time, another bystander who was also on the platform when the incident began stood next to Musonza. See id. Musonza, for his part, seemingly consoled the detained kid by patting him on the shoulder and helped to “calm[] the crowd” by telling the kid’s friends to stay back. See id.; ECF 45-4 at 19 ¶ 8. Ottmer and Ditrick “at no point” told Musonza that he was “interfering or . . . obstructing in any way,” nor did they “ask [him] to leave or treat [him] as if [he] was a threat.” ECF 45-4 at 18 ¶¶ 7–8. In fact, the scene appears to have become calm, with Musonza talking to the other bystander—who can be seen laughing—and going back and forth conversationally with Ottmer and Ditrick. See Video PW-037 at 10:40–11:39; see also Video PW-040 at 9:40–11:40.
But at some point, according to Ottmer and Ditrick, they called for backup. See ECF 40-9 at 3–4. And when that backup arrived in the form of officer Costanzo, things very quickly took a turn. Costanzo arrived and, immediately upon arriving on the scene, “screamed at [Musonza] to ‘step back.’” ECF 45-4 at 19 ¶ 10; see also ECF 45-3 ¶ 44 (Musonza acknowledging Costanzo ordered people to “back up”). Costanzo then put his right hand on Musonza’s chest and his left hand on Musonza’s right arm and seemingly pushed Musonza backwards. See Video PW-037 at 11:51–54; Video PW-040 at 11:51–54. Just before Costanzo made physical contact with Musonza, Ottmer pointed at Musonza. See Video PW-040 at 11:45–51.
When Costanzo initially pushed Musonza, Musonza grabbed onto the back of the bench with his left arm. See Video PW-040 at 11:51–55. Musonza says he did that “to maintain stability and footing” and because there “was no room” for him to step backwards in the direction Costanzo was pushing him. ECF 45-2 ¶ 27; see ECF 45-4 at 19 ¶ 11. At the same time, with his right hand, Musonza was pointing a finger towards the ceiling in front of Costanzo’s face. See Video PW-037
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at 11:50–55. Almost immediately—within about five seconds of him making initial contact with Musonza—Costanzo pushed himself away from Musonza and stepped back. See id. at 11:55. As Costanzo stepped backward, he took out his taser. See ECF 41, Def. Ex. 10 at 0:48–50 (taser in Costanzo’s left hand). At the same time, Musonza stepped towards Costanzo with his arms spread open wide and his palms facing upward. See id. It is clear in the video that Musonza had nothing in his hands. See Video PW-037 at 11:54–56. According to Musonza, as he spread his arms he asked Costanzo, “[a]re you really gonna tase me?” ECF 45-4 at 19 ¶ 11; see also Video PW-037 at 11:54–57. Costanzo then used his right arm—the taser was still in his left hand—to push Musonza again. See ECF 41, Def. Ex. 10 at 0:50–58. Musonza stumbled backwards a couple of steps this time but then managed to regain his balance. See id. As Musonza did so, he used his left arm to push Costanzo’s right arm off his chest. See Video PW-037 at 11:55–12:02. Musonza did that several times. See id. At the same time, Musonza pointed towards the ground and said to Costanzo “this is public space.” ECF 45-4 at 19 ¶ 11; see ECF 41, Def. Ex. 10 at 0:55–59; ECF 45-3 ¶ 47. At that point, Costanzo stepped backwards, pointed his taser at Musonza, and fired. See Video PW-037 at 12:00–07.
Citing both the video footage and records from medical personnel that later examined Musonza, the officers say the probes from the taser did not attach to Musonza when Costanzo fired it. See ECF 40-3 ¶¶ 65–66, 70, 79. Musonza says he cannot “admit or deny” that fact. ECF 45- 3 ¶¶ 65–66, 70, 79. The Court need not decide if there is a genuine dispute about this, see supra 2 n.3, because it ultimately makes no difference to the outcome of the pending motion. What is clear from the video is that after Costanzo fired the taser, Musonza remained on his feet and stood still, while once more pointing towards the ground and seemingly saying again that “this is public space.” See Video PW-037 at 12:06–08. Costanzo then fired his taser at Musonza again. See id. at
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12:08–10; ECF 40-3 ¶ 71; ECF 45-3 ¶ 71. As with the first shot, it is unclear if the probes from the taser attached after the second shot. The video does show that Musonza stood still after Costanzo’s second attempt to tase him. See Video PW-037 at 12:08–10.
At this point, Ditrick came from the other side of the bench to the side that Musonza and Costanzo were on. See Video PW-037 at 12:08–10. Ditrick grabbed Musonza’s right arm and, with Costanzo’s help, took Musonza down to the ground. See id. at 12:10–14. Musonza landed on his butt in a seated position and, with Ditrick still holding Musonza’s right arm behind Musonza’s back, Ditrick and Costanzo wrestled and pushed Musonza onto his side. See id. at 12:14–22. As they did so, Costanzo again used his taser on Musonza. See id. This time, Costanzo used the taser in what he calls “drive-stun” mode. ECF 40-3 ¶¶ 75–76; see Video PW-037 at 12:20–22 (Costanzo placing his taser directly on Musonza’s body). According to the officers, in “[d]rive stun mode,” the taser is “plac[ed] . . . directly on the subject, causing electrical energy to enter the subject without the use of probes.” ECF 40-14 ¶ 47. Musonza claims that he cannot admit or deny this fact, see supra 2 n.3, but regardless of what the mode of operation is called, it is apparent from the video that Costanzo places the taser on Musonza at this point, rather than firing it at him from distance. See Video PW-037 at 12:20–22. It is not clear how many times Costanzo tased Musonza using drive stun mode while Musonza was on the ground—in his brief Musonza says Costanzo “deployed [the] taser four times,” ECF 45 at 26, though it is not clear if this includes the first two deployments—but the video suggests Costanzo used it more than once. See Video PW-037 at 12:14–25. Among those appears to be at least one instance where Costanzo used the taser after Musonza was lying face down. See ECF 41, Def. Ex. 10 at 1:17–24.
As Costanzo held the taser to Musonza’s leg on that occasion, Musonza squirmed again and managed to separate himself from both Ditrick and Costanzo. See ECF 41, Def. Ex. 10 at
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1:17–30. Musonza rolled over onto his back and then immediately put his arms up and lied still. See id. at 1:20–30. Ditrick and Costanzo then each grabbed one of Musonza’s arms, flipped Musonza into a kneeling position, and put him in handcuffs. See id. at 1:30–1:44; Video PW-037 at 12:45–13:00. Musonza was charged with assaulting a police officer, resisting arrest, and obstruction of justice. See ECF 46-1 ¶ 44. The charges were dropped by the prosecutor when Musonza appeared in court. See id. ¶ 45; ECF 45-3 ¶ 88.
Musonza then filed this lawsuit. See ECF 1. He sued Costanzo, Ditrick, and Ottmer, but later voluntarily dismissed his claims against Ottmer. See ECF 8. Musonza brings five claims against Constanzo and Ditrick. First and second are claims under the Fourth Amendment: one for unlawful seizure—arguing that he was arrested without probable cause—and one for excessive force. See ECF 1 ¶¶ 48–50. And third, fourth, and fifth are claims under D.C. law for false arrest, assault and battery, and malicious prosecution. See id. ¶¶ 51–53. After the parties completed some discovery, the officers requested a stay and a briefing schedule so that they could raise their qualified immunity (and, for the D.C. law claims, qualified privilege) defense before the case proceeded any further. See ECF 32-1 at 2. The Court granted that request, stayed discovery, and set a briefing schedule. See Feb. 17, 2023 Min. Order; Feb. 23, 2023 Min. Order. The officers then filed their motion for summary judgment. See ECF 40. II. LEGAL STANDARD The Court will grant a motion for summary judgment only “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). In evaluating a motion for summary judgment, “[t]he evidence is to be viewed in the light most favorable to the nonmoving party and the court must draw all reasonable inferences” in that party’s favor. Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).
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III. ANALYSIS Musonza’s constitutional claims challenge the lawfulness of his arrest and the force used by Costanzo during the incident. The state law claims likewise address the arrest and force used, as well as the officers’ role in initiating Musonza’s prosecution. Based on the undisputed record and viewing the evidence in the light most favorable to Musonza, both officers are entitled to judgment on the constitutional claims, Ditrick is entitled to judgment on all the state law claims, and Costanzo is entitled to judgment on the state law false arrest and malicious prosecution claims. One of the state law claims against Costanzo does, however, survive: Based on the record before the Court at this stage of proceedings, a reasonable jury could conclude that Costanzo exceeded his qualified privilege and is liable for assault and battery.
A. The officers did not violate the Fourth Amendment when they arrested Musonza.
Musonza’s first claim is that the officers arrested him without probable cause, thereby violating the Fourth Amendment’s prohibition on “unreasonable . . . seizures.” U.S. Const. amend. IV. The officers argue this claim fails because they had probable cause to believe that Musonza committed two crimes under D.C. law: resisting arrest and assault on a police officer. See ECF 40- 1 at 8. The Court agrees with the officers that their seizure of Musonza was supported by, at first, reasonable suspicion and then, by the time it became an arrest, probable cause.
The Court begins by identifying when Musonza was seized for Fourth Amendment purposes. Although the parties hardly engage with this question, it is the necessary starting point. That is because “[w]hether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (emphasis added). There is here the additional wrinkle that the officers argue Costanzo’s initial interaction with Musonza amounted to a Terry stop, such that it need only have been supported by reasonable suspicion. See ECF 40-1 at 14–15. So the Court considers first
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at what point Musonza was seized, before turning its attention to the question of whether the seizure initially constituted “an investigative stop” that later “bec[a]me[] an arrest.” Hall v. District of Columbia, 867 F.3d 138, 153 (D.C. Cir. 2017).
The “application of physical force to the body of a person with intent to restrain is a seizure.” Torres v. Madrid, 592 U.S. 306, 325 (2021). When Costanzo arrived on the scene, he immediately touched Musonza. See Video PW-037 at 11:51–54. Whether that touch “objectively manifest[ed] an intent to restrain” strikes the Court as a somewhat close call. Torres, 592 U.S. at 317. The parties agree that Costanzo was telling Musonza to “step back” while pushing him backwards during this first touch. ECF 45-4 at 19 ¶¶ 10–11; ECF 45-3 ¶ 44. That could be understood to “manifest[]” the opposite of an “intent to restrain”—an intent to have Musonza leave. Torres, 592 U.S. at 317. And because Costanzo was telling Musonza to move away from the scene, it is not at all apparent that “a reasonable person” in Musonza’s shoes “would have believed that he was not free to leave.” United States v. Gross, 784 F.3d 784, 787 (D.C. Cir. 2015). Nevertheless, the Court will assume without deciding that Musonza was seized when Costanzo first touched him.
That leads to the next question—was Musonza arrested at that moment, or was the seizure some lesser form of seizure? A “stop that is unduly prolonged or intrusive transforms from an investigative stop into an arrest requiring probable cause.” Hall, 867 F.3d at 153. When Costanzo first touched Musonza and ordered him to step back, the stop had not yet crossed that line. At that point, Costanzo’s interaction with Musonza had lasted a mere number of seconds, and Costanzo had only pushed Musonza. That “physical contact does not, in and of itself, convert” the stop “into an arrest.” United States v. Leake, No. 19-cr-194, 2020 WL 3489523, at *10 (D.D.C. June 26, 2020) (K.B. Jackson, J.) (collecting cases). When Costanzo “brandished his weapon” and pointed
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his taser at Musonza, however, the stop likely became “an arrest,” and the Court will proceed on that assumption in its analysis. United States v. Williams, 507 F. Supp. 3d 181, 199 (D.D.C. 2020). But before that point, the stop was justified so long as there was reasonable suspicion.
The Court now finally turns to answering the question that the parties trained their attention on—what level of suspicion did the officers have? Based on the undisputed facts, and drawing all inferences in Musonza’s favor, when Costanza entered the platform he: approached the scene of an arrest; saw Musonza leaning over the bench with his hand on the detained kid while talking somewhat animatedly to the officers, see ECF 41, Def. Ex. 10 at 0:30–43; and saw Ottmer point towards Musonza with his left hand and then make a small sweeping gesture with the same hand, see Video PW-040 at 11:45–50. 4 That was sufficient to create a “reasonable, articulable suspicion” on Costanzo’s behalf that Musonza may have been interfering with the officers’ arrest of the kid, in contravention of D.C.’s resisting arrest statute. United States v. Gamble, 77 F.4th 1041, 1046 (D.C. Cir. 2023); see D.C. Code § 22-405.01(b). Costanzo’s reasonable suspicion allowed him “to stop” Musonza and “take additional steps to investigate further” whether he was, in fact, interfering with the arrest. Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 185 (2004).
4 Musonza tries to create a genuine dispute about the meaning of that last bit of objective evidence—Ottmer’s hand gesture—claiming the video “clearly shows [Ottmer] telling [Costanzo] to stand down as the situation was already under control.” ECF 45-3 ¶ 45. But Musonza’s counsel does not cite any record evidence that suggests Ottmer said that to Costanzo. The video that most clearly shows the hand gesture has no audio, see Video PW-040 at 11:45–50, and you cannot hear Ottmer say anything at this moment in the video that does have audio, see ECF 41, Def. Ex. 10 at 0:40–45. Musonza’s declaration does not say anything about what Ottmer told Costanzo at this point, either. See ECF 45-4 at 18–20. To be clear, the Court does not infer that Ottmer told Costanzo to arrest or even remove Musonza from the scene. Instead, it relies only on the undisputed fact that Ottmer made the gesture, and the lack of any evidence suggesting that while Ottmer did so he told Costanzo that Musonza was “no threat.” ECF 45-3 ¶ 45. Nor does the Court draw any inference about Ottmer’s “subjective motivations” in making the gesture or Costanzo’s subjective interpretation of the gesture, facts that are both “irrelevant.” Williams, 507 F. Supp. 3d at 196–97. All that matters is the fact that a reasonable office in Costanzo’s position would have seen the gesture in the moment before he seized Musonza.
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And Costanzo’s reasonable suspicion ripened into probable cause by the time Costanzo pointed his taser at Musonza. By that point, Musonza had used his own hand to push Costanzo’s right arm. See Video PW-037 at 11:55–12:00. That gave rise to probable cause to believe that Musonza “assault[ed]” Costanzo while Costanzo was “engaged in the performance of his . . . official duties.” D.C. Code § 22-405(b). “[P]ush[ing],” “shov[ing],” and “tugging” an officer’s arms and chest are the kind of conduct that can constitute assaulting a police officer under D.C. law. Gatlin v. United States, 833 A.2d 995, 1000–01, 1011–12 (D.C. 2003). 5 Costanzo therefore had probable cause to believe Musonza committed this offense at the time Costanzo pointed the taser at Musonza and arrested him. Nothing that happened after this point obviated that probable cause. If anything, the officers only acquired more objective reasons to believe Musonza committed the additional offense of resisting his own arrest when he squirmed on the ground while Ditrick and Costanzo wrestled with him. See D.C. Code § 22-405.01(b).
B. Costanzo did not violate any clearly established right when he pushed and then tased Musonza.
Musonza’s next claim is that the officers used excessive force in violation of the Fourth Amendment. The Court starts by quickly dispensing with this claim against Ditrick. Although Musonza names Ditrick as a defendant to this count of his complaint, see ECF 1 ¶¶ 48–50, the actions that Musonza says were excessive were taken by Costanzo, not Ditrick. “Costanzo,” Musonza says, “violated [his] Fourth Amendment rights when he violently shoved” and “tase[d]” him. ECF 45 at 25. And although Musonza alludes to Ditrick’s alleged “assist[ance]” of Costanzo in his response to the officers’ statement of facts, ECF 45-3 ¶ 73, Musonza has not articulated any
5 The assaulting a police officer statute was amended in 2016, but it still criminalizes “assault” and there is no reason to think that the 2016 amendments changed what constitutes an assault under D.C. law. Accord Jones v. District of Columbia, No. 21-cv-836, 2024 WL 1328438, at *9–11 (D.D.C. Mar. 28, 2024) (discussing amendment and looking to pre-2016 cases to understand what constitutes “assault” under amended law).
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theory under which Ditrick could be held liable for Costanzo’s actions. It is not the Court’s role to develop an argument that Musonza failed to make, so the Court concludes that Musonza has failed to create a genuine dispute about Ditrick’s actions. See Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019) (“A party forfeits an argument by mentioning it only in the most skeletal way, leaving the court to do counsel’s work.”).
As for Costanzo shoving and tasing Musonza, the Court concludes that Costanzo violated no clearly established right in taking those actions. In reaching that conclusion, the Court exercises its discretion to start with the second of the “two prongs of the qualified immunity analysis”: “decid[ing] whether the right at issue was clearly established at the time of [Costanzo’s] alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009). It opts for that path in large part because an on-point D.C. Circuit decision—Lash v. Lemke, 786 F.3d 1 (D.C. Cir. 2015)—did the same, and the Court thinks it best to apply that decision here.
The officers in Lash were posting notices in a tent encampment when the plaintiff “emerged from his tent[,] . . . confronted the police officers, challenged their presence . . . in the park, shouted profanities, and tore down some of the notices they had posted.” 786 F.3d at 3. “The officers ordered” the plaintiff “to stop removing the notices, and he complied.” Id. at 3–4. “But as he walked away,” the plaintiff “again shouted profanities at the police.” Id. at 4. With officers then following him, the plaintiff “began to retreat through a group of tents, insisting with increasing agitation that he had ‘done nothing wrong’ and demanding to know why they were ‘coming at’ him.” Id. One of the officers who was following the plaintiff then caught up to him “and seized his arms from the rear.” Id. The plaintiff “pulled his arms away and held them in front of his body, continuing to walk away as he insisted that he was innocent.” Id. The officer tried “to restrain” the plaintiff again, and he “again pulled his arms away.” Id. That officer and another then got hold of
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the plaintiff’s arms, while a third approached and “drew her Taser from its holster, holding it ready.” Id. “Though [the plaintiff’s] arms were now held by two different officers,” the plaintiff “continued to struggle to keep his feet” while those officers “worked for several moments to gain control of him.” Id. The officer holding her taser then “fired” it into the plaintiff’s “lower back.” Id. The plaintiff “fell to the ground, and the officers handcuffed him.” Id.
The plaintiff in Lash sued alleging that the “use of the Taser constituted excessive force,”
but the Circuit held that his claim failed because it was not “clearly established that the single use of a Taser by arresting officers violated the Fourth Amendment rights of a person actively resisting arrest.” 786 F.3d at 4, 7. Surveying the state of the law in 2015—when this case was decided—the court explained that although “there [was] no case from the Supreme Court or [the D.C. Circuit] that is on point,” decisions from the other circuits “reveal[ed] a telling pattern”: while the “use of a Taser against a person who is not resisting arrest or merely passively resisting may violate that person’s rights,” “there is no clearly established right for a suspect who actively resists and refuses to be handcuffed to be free from a Taser application.” Id. at 7.
Those rules resolve this excessive force claim, too. Much like in Lash, “it is plain from multiple video[s],” 786 F.3d at 6, that Musonza: did not step back when Costanzo ordered him to do so; stepped forward towards Costanzo while asking Costanzo if he was “really gonna tase me”; and pushed Costanzo’s arm while Costanzo was trying to push Musonza backwards. ECF 45-4 at 19 ¶ 11; see Video PW-037 at 11:54–12:00; Video PW-040 at 11:51–12:00. Although Musonza insists that he did not intend to and was not resisting when he took these actions—for instance, claiming he merely “removed . . . Costanzo’s hands from his chest each time he was aggressively shoved,” ECF 45 at 26—the “test” is “objective,” focusing on what “a reasonable officer would have known at the scene.” Lash, 786 F.3d at 7. And, again like Lash, Costanzo would have seen
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that Musonza “evaded” Costanzo’s “effort[] to seize him” by “twice” pushing Costanzo’s hand away from his chest and “fighting against” Costanzo’s “efforts to force him” to move back. Id. at 9; Video PW-037 at 11:50–12:05.
Musonza attempts to distinguish Lash on a few grounds. First, he says that Costanzo “was the first aggressor,” unlike in Lash. ECF 45 at 21. Musonza is right that Costanzo escalated what appeared to be an in-control situation. But this distinction is a thin one, at best. The plaintiff in Lash was “insisting” that he “had done nothing wrong,” much like Musonza’s insistence that he was in a “public space.” 786 F.3d at 4; ECF 45-4 at 19 ¶ 11. And the officers in Lash approached the plaintiff and made the first physical contact by “seiz[ing] [the plaintiff’s] arms from the rear,” much like Costanzo made the first physical contact by pushing Musonza. 786 F.3d at 4. Despite these facts the court concluded in Lash that, because of the plaintiff’s resistance after the officers initiated contact, the tasing violated no clearly established right.
Musonza next points to the fact that the plaintiff in Lash was tased only once. See ECF 45 at 21. It is true that the court decided there only that “the single use of” a taser against a “resisting” plaintiff did not violate clearly established rights. Lash, 786 F.3d at 7. And this Court has no doubt that in some cases where a taser is used more than once Lash will not be on point. The panel in Lash acknowledged as much, noting that the “use of a Taser may also violate an individual’s rights even in the face of resistance if the officer uses the Taser to excess, such as firing multiple times after the officers have gained control of the scene.” Id. But Musonza has not created a genuine dispute about whether Costanzo used the taser after he “gained control of the scene.” Id. Musonza argues only that Costanzo “continue[d] tasing [him] while Ditrick [was] holding him as he is writhing on the ground in pain.” ECF 45-2 ¶ 41. But at that point, the video evidence makes clear that Ditrick and Costanzo still lacked control of Musonza, so Costanzo’s use of the taser was no
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different than the use of the taser during the struggle in Lash. Compare Lash, 786 F.3d at 4 (discussing plaintiff’s “continued . . . struggle” even after officers were holding his arms), with Video PW-037 at 12:10–35 and ECF 41, Def. Ex. 10 at 1:07–28 (Musonza still moving on ground even though Ditrick has a hold of his arm).
In rejecting this argument, the Court notes an argument Musonza has not made. In one of the videos, it appears that Costanzo might have used, or at least attempted to use, the taser again after Musonza is on his back with his hands held up in the air. See ECF 41, Def. Ex. 10 at 1:28– 32. In that video, it sounds like the taser is deployed, and the blue light on Musonza’s chest suggests the taser may have been used at that moment. See id. Were that what happened, the qualified immunity analysis could well be different. See, e.g., Meyers v. Baltimore Cnty., 713 F.3d 723, 735 (4th Cir. 2013) (administering “seven additional taser shocks” after a plaintiff “was unarmed and effectively . . . secured” violates a clearly established right). But Musonza nowhere suggests that Costanzo tased him at this point. In his statement of facts, Musonza goes straight from Costanzo “tasing” him “while Ditrick is holding him as he is writhing on the ground in pain”—in other words, while they are still struggling—to the officers “handcuff[ing] and arrest[ing]” him. ECF 45-2 ¶¶ 41–42. That sequence skips right over the moment when Musonza was on his back with his hands up. Nor does Musonza anywhere argue that even if Costanzo’s use of the taser was initially justified it became unlawful because Costanzo continued administering taser shocks after Musonza was secured. Because Musonza failed to make any factual or legal argument that would support this theory of liability, the Court will not address it. See Clark v. Sweeney, 607 U.S. 7, 9 (2025) (“The parties frame the issues for decision, while the court serves as a neutral arbiter of matters the parties present.”).
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That leaves only Musonza’s suggestion that Lash is distinguishable because the plaintiff there “committed an actual offense of disorderly conduct.” ECF 45 at 21. It is not clear from the decision in Lash whether the plaintiff there was convicted of that offense, but it is true that he was “charged with” it. 786 F.3d at 4. But that hardly distinguishes this case. As already explained, by the time Costanzo used the taser he had probable cause to believe that Musonza had committed the offense of assaulting a police officer. See supra 11. From the perspective of “a reasonable officer” on the scene—the perspective that matters—the plaintiff in Lash and Musonza were therefore similarly situated on this front: Officers on both scenes would have known that there was probable cause to arrest the individual they were about to tase. Lash, 786 F.3d at 7.
Of course, the question is what rights were clearly established “at the time” Costanzo tased Musonza—which happened more than four years after Lash was decided. Daugherty v. Sheer, 891 F.3d 386, 390 (D.C. Cir. 2018). But Musonza has not cited any decision post-dating Lash but pre-dating the incident that changed the “consensus view” regarding the use of tasers. Lash, 786 F.3d at 7. Musonza does cite two Fourth Circuit decisions from 2016 that lend some support to his position. See ECF 45 at 25–26. In those cases, the Fourth Circuit held that a taser “may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser.” Est. of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 909 (4th Cir. 2016). “The subject of a seizure,” the Fourth Circuit went on, “does not create such a risk simply because he is doing something that can be characterized as resistance—even when that resistance includes physically preventing an officer’s manipulation.” Id.; see also Yates v. Terry, 817 F.3d 877, 886 (4th Cir. 2016) (applying same rule). Were that rule clearly established in this jurisdiction as of June 2019, Musonza’s excessive force claim might survive summary judgment.
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But in light of Lash, the Court cannot conclude that these two decisions from a single circuit clearly established Musonza’s right to be free from the force he experienced. In Lash, the D.C. Circuit held that the “consensus view” at that time in 2015 was that “[n]o clearly established right is violated when an officer uses a Taser a single time against in individual actively resisting arrest.” 786 F.3d at 9. And it applied that rule in a case involving resistance that very closely resembles Musonza’s resistance here. A pair of decisions from another circuit—decisions that, based on the D.C. Circuit’s read of the cases, were “outlier[s]” when they were decided—were not sufficient to give an officer notice that the state of the law in this jurisdiction had changed. Lash, 786 F.3d at 9. The Court therefore reaches the same conclusion that the Circuit reached in Lash: Costanzo did not violate any clearly established right when he tased Musonza in the face of Musonza’s resistance. 6
C. Musonza’s assault and battery claim against Costanzo survives summary judgment, but the false arrest and malicious prosecution claims fail.
That leaves only Musonza’s three state law claims. Although the “basis for federal jurisdiction has fallen away,” the Court will “retain supplemental jurisdiction over” those state law claims. Armbruster v. Frost, 962 F. Supp. 2d 105, 116 (D.D.C. 2013); see 28 U.S.C. § 1367(c)(3). The “state and federal claims derive from a common nucleus of operative fact”—the incident at the Metro stop—and, because the parties have already engaged in some discovery and the state law claims do not raise “novel or complex issue[s] of state law,” “judicial economy, convenience, fairness, and comity” all favor retaining jurisdiction. Armbruster, 962 F. Supp. 2d at 116.
6 It is not entirely clear whether Musonza is also alleging that Costanzo’s shove, standing alone, amounted to excessive force. But if he is, that claim fails too. Musonza cited no case that suggests an officer who pushes someone away from a crime scene during a Terry stop—recall that this interaction started as a Terry stop—has used excessive force. It is Musonza’s “burden to show that the particular right in question . . . was clearly established.” Dukore v. District of Columbia, 799 F.3d 1137, 1145 (D.C. Cir. 2015). Musonza made no effort to meet that burden as it relates to the push.
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The false arrest claim fails because the officers have shown that based on the undisputed facts they “had probable cause, in the constitutional sense, to make the arrest.” Bradshaw v. District of Columbia, 43 A.3d 318, 323 (D.C. 2012). “The existence of probable cause . . . likewise defeat[s] [the] claim for malicious prosecution.” DeWitt v. District of Columbia, 43 A.3d 291, 295 (D.C. 2012). That resolves those two claims.
But unlike the relationship between the Court’s analysis of probable cause on the constitutional claim and those two failed state law claims, the Court’s decision about the constitutional excessive force claim does not resolve the assault and battery claim. That is because the Court resolved the excessive force claim on the clearly established prong of the qualified immunity analysis. While the officers’ “qualified privilege” defense to the assault and battery claim is “closely related” to their qualified immunity defense to the constitutional claim, the two defenses are nevertheless “theoretically different.” Kotsch v. District of Columbia, 924 A.2d 1040, 1047 n.7 (D.C. 2007). Crucially, the qualified privilege defense does not ask whether an officer violated a clearly established right. Instead, “the test for the qualified privilege in an assault and battery suit is both subjective and objective: the officer must subjectively believe that he or she used no more force than necessary, but the officer’s judgment is compared to that of a hypothetical reasonable police officer placed in the same situation.” Scales v. District of Columbia, 973 A.2d 722, 730 (D.C. 2009). An officer might, therefore, be entitled to qualified immunity because they did not violate a clearly established right, but nevertheless not be entitled to the qualified privilege because their use of “force was not objectively reasonable.” Johnson v. District of Columbia, No. 22-cv-3167, 2025 WL 2996189, at *8 (D.D.C. Oct. 24, 2025); see, e.g., id. at *6–8 (granting summary judgment to officer on constitutional claim based on clearly established prong of
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qualified immunity analysis but denying summary judgment on assault and battery claim premised on same use of force). 7 As with the constitutional excessive force claim, Musonza focuses entirely on Costanzo’s actions in arguing against summary judgment on the assault and battery claim. See ECF 45 at 31 (“Costanzo engaged in actions that would constitute battery.”); see also id. at 32 (“[A] reasonable jury could conclude that Defendant Costanzo did not have a subjective belief that his actions were reasonable.”). Like with the constitutional claim, this claim therefore fails against Ditrick. But there is a genuine dispute about whether a “reasonable police officer” in Costanzo’s position would have believed he was using “no more force than necessary,” so the Court cannot grant summary judgment in favor of Costanzo at this juncture. Scales, 973 A.2d at 730. The standard for deciding this objective portion of the qualified privilege analysis “is similar to the excessive force standard” articulated in Graham v. Connor, 490 U.S. 386 (1989). Rogala v. District of Columbia, 161 F.3d 44, 57 (D.C. Cir. 1998). Application of the factors articulated there leads to the conclusion that a jury could find Costanzo’s use of force went beyond his qualified privilege.
As for the “severity of the crime” leading to Musonza’s arrest, Graham, 490 U.S. at 396, assaulting a police officer is of course a serious offense. But “the nature of the crime” in the abstract is not the whole story, and the “facts and circumstances of” Musonza’s “particular case” lessened
7 The D.C. Circuit has articulated the qualified privilege standard in terms that, at first blush, make it sound like it rises or falls with the clearly established analysis, writing that “a defendant’s motion for summary judgment” based on the privilege “is to be denied only when a reasonable jury could conclude that the excessiveness of the force is so apparent that no reasonable officer could have believed in the lawfulness of his actions.” Harris v. U.S. Dep’t of Veterans Affs., 776 F.3d 907, 913 (D.C. Cir. 2015). That sounds a lot like asking whether the right was clearly established. But the court’s analysis in that case dispels that view. After articulating the standard, the court went on to reverse the grant of summary judgment to the defendants based on an application of the Graham v. Connor factors and an inquiry into whether the officers’ “use of force . . . was reasonable.” Id. at 914. That maps onto the first prong of the qualified immunity inquiry—whether there was “a constitutional violation”—not the “clearly established” prong. Pearson, 555 U.S. at 236. Tellingly, the D.C. Circuit in that decision did not look to any prior judicial decisions, instead focusing its attention squarely on the facts of that case, confirming that it was not suggesting the clearly established inquiry maps onto the qualified privilege analysis. See Harris, 776 F.3d at 913–15.
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the need for the use of force. Johnson, 2025 WL 2996189, at *6. Musonza pushed Costanzo only in response to Costanzo’s initiation of physical contact. What’s more, a reasonable officer in Costanzo’s position would have seen upon arriving that Musonza was standing unrestrained, very close to Ditrick and Ottmer, yet—and there is a dispute about this, but a jury could resolve that dispute in Musonza’s favor—neither officer appeared concerned about Musonza. Plus, a jury could find that when Musonza stepped towards Costanzo, he showed Costanzo that his hands were empty and he was not holding a weapon. If a jury resolves these factual disputes in Musonza’s favor, a reasonable officer would have had little reason to think Musonza “pose[d] an immediate threat to the safety of the officer[] or others.” Graham, 490 U.S. at 396.
Finally, a jury might find that Musonza was offering little resistance when he was on the ground and being held by both Costanzo and Ditrick. See ECF 41, Def. Ex. 10 at 1:17–24. While Musonza was undisputably still moving at that point—which is why the Court took note of the undisputed fact that the officers had not yet “gained control of the scene” in its clearly established analysis, supra 14—a jury could find that he was merely squirming in pain. Although the question is of course what a reasonable officer would have understood based on objective facts, if a jury makes that finding it could lead to the conclusion that a reasonable officer would have recognized that Musonza’s movement did not in fact reflect much resistance at all. That, in turn, would mean that “the nature of [Musonza’s] resistance” did not justify Costanzo’s continued use of the taser. Johnson, 2025 WL 2996189, at *5. Add that unresolved factual dispute to open questions about what Musonza said to Costanzo and when he said it, and vice versa, and “there are factual disputes that could affect the outcome” of the assault and battery claim. Harris, 776 F.3d at 915.
The Court therefore denies summary judgment to Costanzo—but not to Ditrick—on the assault and battery claim and that claim only. Although Costanzo’s conduct in tasing Musonza
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“did not violate clearly established law,” a jury could find the facts such that Costanzo cannot satisfy “the objective-reasonableness prong” of the qualified privilege standard under D.C. law based on the record currently before the Court. Johnson, 2025 WL 2996189, at *7–8.
* * *
The officers’ motion for summary judgment, ECF 40, is GRANTED in part and DENIED in part. Officer Ditrick is granted summary judgment on all claims against him. Officer Costanzo is granted summary judgment on all claims except for the assault and battery claim.
SO ORDERED.
__________________________
JIA M. COBB
United States District Judge
Date: August 26, 2026