United States Court of Appeals, District of Columbia Circuit
BETTY S. FLYTHE, PERSONALLY, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF TREMAYNE G. FLYTHE, APPELLANT
DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL., APPELLEES
Argued: March 20, 2015.
Appeal from the United States District Court for the District of Columbia. (No. 1:10-cv-02021).
Gregory L. Lattimer argued the cause for appellant. With him on the briefs was Ernest W. McIntosh, Jr.
Carl J. Schifferle, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees District of Columbia. With him on the brief were Eugene A. Adams, Interim Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.
Robert E. Deso argued the cause and filed the brief for appellee Travis Eagan.
Before: TATEL, KAVANAUGH, and PILLARD, Circuit Judges. OPINION filed by Circuit Judge TATEL.
Tatel, Circuit Judge :
In this civil action against two police officers and the District of Columbia, appellant Betty S. Flythe alleges that in violation of the Fourth Amendment and D.C. law, each officer assaulted her son and one killed him. Accepting as true the account of the officer who killed appellant's son, the district court found that the officer's actions were objectively reasonable and thus granted summary judgment dismissing all claims against him. The claims against the District and the other officer went to trial, and the jury returned a verdict for Ms. Flythe. For the reasons set forth in this opinion, we affirm the jury's verdict. But because the record reveals genuine issues of material fact with respect to the actions of the officer who fired the fatal shots--thus making himself the only surviving eyewitness to the actual killing--we reverse the district court's grant of summary judgment in his favor.
On Christmas Day in 2009, an unknown assailant threw a brick through the window of a liquor store located on Georgia Avenue in Northwest Washington, setting in motion a chain of events that led to the death of Tremayne G. Flythe. The store's owner, Balbir Singh Hundal, reported the vandalism to the District of Columbia Metropolitan Police Department and then called again the next day to report that the same assailant had tossed an empty bottle at a different window. Early in the afternoon of December 26, Officers Angel Vazquez and Travis Eagan arrived at the store and, acting on Hundal's description of the alleged vandal as a " black male wearing a black jacket walking a dog," they set off in separate cars to canvass the neighborhood.
Officer Vazquez soon encountered Tremayne Flythe, an African-American man walking a dog. In his deposition, Vazquez testified that he parked his cruiser, approached Flythe, and informed him that the police were doing an investigation and wanted to ask him a few questions. Angel Vazquez Dep. 25, Feb. 29, 2012. As directed by Vazquez, Flythe tied the dog to a fence and began accompanying the officer
to the rear of the cruiser. Id. at 24. Vazquez testified that as they approached the cruiser, Flythe's " demeanor started changing" and he " put his right hand on his black jacket," prompting the officer to ask " do you have anything on you that I should know[?]" Id. at 25, 22. According to Vazquez, Flythe, standing less than a foot away, responded, " yes, I got a knife," " pulled out a knife," and attempted to stab the officer. Id. at 44, 41, 22. Vazquez testified that he then " pushed or kicked" Flythe, drew his gun, ordered Flythe to drop the knife, and fired two shots, at which point his gun jammed. Id. at 46, 47. After clearing the jam, Vazquez fired two additional shots, both of which missed. Id. at 49-50. Flythe then untied the dog and ran away. Id. at 50.
Meanwhile, Officer Eagan, accompanied by store owner Hundal, was patrolling the same neighborhood and heard the following over the police radio:
OFFICER [VAZQUEZ]: Eagan. Four hundred block of Kenyon.
OFFICER [VAZQUEZ]: Hey, (inaudible), copy.
DISPATCHER: 3206 (phonetic).
OFFICER [VAZQUEZ]: Drop the knife.
OFFICER [VAZQUEZ]: Shot.
OFFICER [VAZQUEZ]: Drop ...