Wesby v. District of Columbia , 841 F. Supp. 2d 20 ( 2012 )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THEODORE WESBY, et al., )
)
Plaintiffs, )
)
vs. ) Civil Action No. 9-cv-501 (RLW)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
In the present action, sixteen Plaintiffs bring claims against the District of Columbia and
five officers (Edwin Espinosa, Jason Newman, Anthony Campanale, Andre Parker and Faraz
Khan) of the District of Columbia Metropolitan Police Department (“MPD”). (Doc. 1, Compl.
¶¶ 19-24.) In Count I of the complaint, Plaintiffs bring a civil rights false arrest claim pursuant
to 42 U.S.C. § 1983 (“Section 1983") against the five officers in their individual capacities.1 In
Count II, Plaintiffs assert a state common law claim for false arrest against the five officers, and
also against the District of Columbia (“District”) on the basis of respondeat superior. Count III
alleges negligent supervision solely against the District.
Presently before the Court are cross motions for summary judgment. The Defendants
seek summary judgment on all claims. (Doc. 31.) Plaintiffs likewise seek summary judgment on
1
Plaintiffs originally brought the Section 1983 claim against the officers in their official
capacities as well, but Plaintiffs have now clarified that they are proceeding against the officers
solely in their individual capacities. (Doc. 33, Pls.’ Summ. J. Response 4.) Therefore, all of
Plaintiffs’ Section 1983 official capacity claims will be dismissed with prejudice.
1
all claims. (Doc. 25.) 2
For the reasons set forth below, the Court finds that both motions are due to be granted in
part and denied in part.
I. FACTS
A. Overview
The overall facts are generally undisputed. In the early morning hours of Saturday,
March 15, 2008, Plaintiffs were attending a gathering at 115 Anacostia Avenue, N.E., in
Washington, D.C. 3 At approximately 1:30 a.m., officers from the D.C. Metropolitan Police
Department (MPD) arrived at the house in response to a call about the property. The officers
entered the residence and spoke to the Plaintiffs, an assortment of twenty-one men and women
(sixteen of whom are Plaintiffs in this action). Several of the women were scantily dressed and
had currency tucked into their garments. None of the Plaintiffs owned the home, but one or
more of the Plaintiffs informed one or more of the police officers that a woman named
2
The electronic docket entries for Plaintiffs’ pleadings in opposition to Defendants’
motion and in support of Plaintiffs’ motion specifically list some, but not all, of the sixteen
Plaintiffs. (See Doc. 25, 32.) Defendants therefore seek dismissal of all claims asserted by the
Plaintiffs who were not listed on the electronic docket. While it would have been preferable if
Plaintiffs had addressed this issue in their briefs, the Court is not willing to dismiss the claims
asserted by some Plaintiffs based solely on notations that appear on the electronic docket,
particularly since the text of Plaintiffs’ pleadings indicate that they were filed on behalf of all
Plaintiffs, Plaintiffs’ arguments are not specifically tailored to each individual Plaintiff, and the
Defendants cite no rule or precedent indicating that the failure to list every Plaintiff in the text of
the electronic docket entry justifies such drastic relief.
3
Although the complaint, (Compl. ¶ 25), and Defendants’ undisputed facts, (Defs’
Statement of Facts #8), indicate that the property was located on “Anacostia Road,” the police
report and property records indicate that the property is located on “Anacostia Avenue.” (Defs.’
Exs. A, E.)
2
“Peaches”4 had invited the Plaintiffs to the house for a bachelor party. When an officer spoke to
Peaches via telephone, she indicated she had given the Plaintiffs permission to hold a bachelor
party at the house. However, the officer later spoke to the purported owner of the home and he
indicated that, while he had discussed leasing the property to Peaches, she did not have a lease
for the property and that the Plaintiffs did not have his permission to be in the house.
At some point during the investigation, Sergeant Suber arrived at the house and took
control of the situation. Upon learning that Peaches did not have permission from the owner to
occupy the property, Sgt. Suber made the decision to arrest the Plaintiffs for unlawful entry.5
Suber is not a defendant in this action.
After Plaintiffs were taken to the police station, they were eventually released at the
direction of the watch commander, Lieutenant Netter, who disagreed with Suber’s decision
regarding the unlawful entry arrests. Before the Plaintiffs could depart, however, Netter ordered
the arrest of Plaintiffs for disorderly conduct6 for using “loud voices,” based on advice or
direction from a representative of the District of Columbia Office of the Attorney General
(“Attorney General” or “OAG”). Neither Lieutenant Netter nor the attorney from the OAG have
been named as Defendants in this action.
Although Suber objected and informed Netter that the disorderly conduct charge was not
appropriate, Netter failed to reverse his decision. Suber and the other officers who were at the
scene have since testified that they did not observe any activities consistent with a disorderly
4
Apparently Peaches also goes by the name “Tasty.” (See Doc. 31, Defs.’ Summ. J. Br.
6; Hunt Dep. 8-9; Chittams Dep. 11-12.)
5
See D.C. Code § 22-3302.
6
See D.C. Code § 22-1321.
3
conduct charge. Between the time spent detained at the house, at the police station, and in lock
up on the disorderly conduct charges, each Plaintiff was in police custody a total of several
hours. The disorderly conduct charges were later dropped as to each Plaintiff.
That was a summary. Because the role of each officer, the reasonableness of each
officers’ actions, the state of the collective knowledge of the officers, and other particularized
issues have been raised, set forth below are more detailed descriptions of the evidence from the
accounts of several key police officer witnesses and an arrest report.
B. Sergeant Andre Suber
Sergeant Suber admits he made the decision to arrest the Plaintiffs for unlawful entry on
the night in question. (Suber Dep. 24.) After some of the officers had already entered the
property, Sergeant Suber arrived at the scene and entered the house, which had working
electricity. (Suber Dep. 11.) In the course of his debriefing, he asked the officers if the owner of
the property was on the scene and they said no. (Suber Dep. 17.) He then asked those present if
someone was renting the house and “they” began to tell him about Peaches who “claimed to be
renting the house,” but no one present could provide proof of such rental and Peaches was not on
the scene. (Id. 17.) Suber then asked who gave the Plaintiffs permission to entertain at the
house and “no one at the location could provide [him] a name or number of an owner. They only
gave a name of . . . Peaches.” (Id. 18.) Suber further testified:
A: We called Peaches several times on the phone, a female. We asked her,
“Who gave you permission to be inside this house?” She said no one. She
said she was possibly renting the house from the owner who was fixing the
house up for her. And that she gave the people who were inside the place,
told them they could have the bachelor party.
4
. . . .
I asked her again who gave her permission to give them permission to come
into an establishment or house that’s not under her control. The [sic] she
became evasive and hung up the phone.
. . . .
I called her back. She again began yelling and saying she had permission - -
she didn’t know the owner’s name, but she had permission to be inside the
residence because she was going to rent the place out. Then she hung up. .
. . [We got her on the telephone again and] she stated that she didn’t have
permission to be inside the location. At that time they all were there
unlawfully.
Q. So she told them that they could be there right?
A. Yes.
Q. Okay. And then you all determined that she didn’t have the right to tell them
that they could be there right?
A. Yes, sir.
Q. And then because she told them - - gave them misinformation, you then
arrested the people who thought they had a legal right to be there?
A. If a person comes to a location, it’s upon them, their responsibility, to find
out if they can in fact be at the residence lawfully.
. . . .
Q. And it did not matter whether or not they believed, based on what Peaches
told them, that they had a right to be there?
A. Peaches nor the other individuals occupying that location did not have the
right to be there.
(Id. 18-19, 39) (emphasis added).
Around the time of the arrests Suber apparently informed the night watch commander,
who was at another location, about the course of events and she was “okay” with his “decision”
to arrest Plaintiffs for unlawful entry. (Suber Dep. 31.) Around 5:00 a.m., the next watch
commander, Lieutenant Netter, came on duty at the precinct. (Id. 28, 31.) While the order of
5
events is somewhat unclear, Netter consulted with other upper level officers and decided he was
going to release the Plaintiffs, to which Suber responded by providing Netter with the unlawful
entry statute. (Id. 28-29.) Netter decided “he didn’t care, and that he was going to release these
people,” to which Suber responded “You’re the watch commander, I’m a sergeant, you have that
authority and I don’t.” (Id. 28-29, 39-40.)
At some juncture, Netter again consulted with two other upper level officers and they
telephoned the Attorney General’s office. (Suber Dep. 40-41.) As the Plaintiffs were being
released and were getting their belongings from the front counter, Suber is told that someone
from the Attorney General’s office said “Lock them up for disorderly conduct, loud voices.” (Id.
29-30, 41.)
Suber, however, was of the opinion that the disorderly conduct charge did not fit the
circumstances because “you can’t be disorderly inside of a house” and there was no evidence
that the Plaintiffs had become loud or boisterous causing people to wake up, turn on their lights,
and/or come outside to investigate a commotion. (Id. 42-43.) Although the details of the entire
conversation are not in the record, Suber testified he told Netter that the disorderly conduct
charge was not “an appropriate charge,” but Netter indicated that as watch commander he was
going to charge the Plaintiffs. (Id. 42-43.) Suber walked out and the Plaintiffs were then
gathered and processed for disorderly conduct. (Id. 43, 30.)
C. Defendant Officer Andre Parker
At one point in Officer Parker’s deposition, he testified that prior to his arrival at the
scene a call went out for assistance at the house because “there was some unlawful people inside
6
of this home.” (Parker Dep. 10.) At another point he testified
there was a call. The call that came out was for a loud party at the location. And
there had been like previous calls to that house that there were some - - I mean,
I’ve heard officers have talked about that there was some - - a lot of partying
going on at this particular location over course of time [sic].
(Parker Dep. 11.) Parker further testified that the person who called the precinct indicated there
was illegal activity going on at the house and this information was passed on to the officers.
(Parker Dep. 17.) At some point, he was told the “house was due to be vacant. It was a vacant
home. And no one had permission to be there.” (Id. 11.)
Once he entered the house, he observed individuals holding cups and he went upstairs
where he observed women dressed “provocatively” with money in their garters. (Parker Dep.
14.) He also smelled marijuana and searched for illegal narcotics, but did not find any illegal
narcotics and observed no illegal activity. (Parker Dep. 14-15, 17, 20.) Inside the house Parker
observed a mattress, along with lighted candles, but testified he did not see “any furniture.”
(Parker Dep. 14-15.)
While the officers were investigating the scene, all of the “individuals were asked who
the owner of the house was and where the owner was.” (Parker Interrog. 2.) One of the Plaintiffs
told Parker “that her friend Peaches had allowed her - - Peaches was throwing the party,” but
Peaches was not at the residence. (Parker Dep. 15-16.) Either this same Plaintiff or one of the
other Plaintiffs also told Parker that Peaches was renting the house from the grandson of the
owner, who had recently passed away, and that the grandson had given permission for the
individuals to entertain in the house. (Parker Interrog. 2.)
Parker asked one of the Plaintiffs to get Peaches on the telephone and to ask her to come
back to the house to clear things up by bringing “a lease or something.” (Parker Dep. 15-16.)
7
Eventually, Parker spoke to Peaches and she told him that she had just left the house and that she
would not return because she was afraid of being arrested. (Parker Interrog. 3.) Peaches did
indicate that the grandson of the owner had given her permission to occupy the property and that
Parker could confirm this. (Parker Interrog. 3.) Parker then spoke to “Hughes,”7 who told
Parker nobody had permission to be in the house. (Parker Dep. 17-18; Parker Interrog. 2.)
Hughes indicated he and Peaches were in the process of working out a leasing arrangement, but
they never reached an agreement. (Parker Dep. 17-18.)
Upon learning of this information, Sergeant Suber made the decision to arrest Plaintiffs
for unlawful entry. (Parker Dep. 18-19.) When asked if he was familiar with the law regarding
unlawful entry at the time of the arrests, Parker responded “Yes.” (Parker Dep. 31.) He testified
the arrests were made because Peaches was reluctant to come back and “[b]ecause one person
said they didn’t have the right, and one person said they did have the right.” (Parker Dep. 19,
31-32.) “It was stated that because it was not clear who the owner of the house was and whether
or not permission was given to the individuals to be in the house at the time of the occurrence
Sergeant Suber ordered that all the individuals be arrested.” (Parker Interrog. 2.)
Parker testified that he did not place anyone under arrest or complete any of the
paperwork. (Parker Dep. 20.) He did, however, provide the information he obtained from
Peaches and Hughes “to the officers that took [the] arrest.” (Parker Dep. 20.) In one of his
7
Defendants have introduced property records indicating that a Henry Hughes Jr. owned
the house until his death in April 2007, about one year prior to the arrests. (Defs.’ Ex. E.)
Damion Hughes was the personal representative of the decedent at the time of the arrests, and he
sold the property about six months after the arrests. Id.8
interrogatory responses he indicates he does not know who arrested the Plaintiffs, but in another
interrogatory response he recalls that Officers Khan and Newman made arrests. (Parker
Interrog. 12, 20.) There were other officers at the scene, but he does not recall all of their names.
(Parker Interrog. 5, 12; Parker Dep. 13.)
Parker did not observe anything at the scene that constituted disorderly conduct. (Parker
Dep. 32, 34.)
D. Defendant Officer Anthony Campanale
Officer Anthony Campanale and Officer Parker were on patrol the night of the arrests
when they received a call from Officer Jarboe who indicated “there were people in a house at
115 Anacostia Avenue, NE.” (Defs. Ex. P, Campanale Interrog. 2.) Upon arriving at the house,
Officer Jarboe told Campanale and Parker that “the people in the house should not be there. He
also told [them] that he had received information from neighbors that this was an ongoing
problem. Officer Jarboe further stated that the neighbors had advised him that the house was
abandoned and nobody should be in it.” (Id.) After entering the house, Campanale observed
some individuals holding cups of liquor and beer and he could smell marijuana. (Id.) He “also
observed female [sic] provocatively dressed with dollar bills in a garter belt around their leg.”
(Id.)
Campanale began taking pictures, during which time Sergeant Suber arrived.
(Campanale Interrog. 2.) When the occupants were asked who gave them permission to be in the
house, plaintiff Natasha Chittams indicated “Peaches” gave them permission. (Id.) Later,
Campanale was informed by Officer Parker that he spoke to Peaches. (Campanale Dep. 35;
9
Campanale Interrog. 2.) Officer Parker told Campanale that, although Peaches allegedly had
permission to use the residence, she could not return to the scene and could not identify the
owner. (Campanale Dep. 35; Campanale Interrog. 2.) Further, Campanale observed that none of
the other occupants “could say who gave them permission to be in the house.” (Campanale
Interrog. 2.) Instead, they said they were present at the “invitation of somebody else.”
(Campanale Interrog. 9.)
In his interrogatory responses, Campanale explains that “individuals were handcuffed
and arrested for unlawful entry,” but he does not know who did so. (Campanale Interrog. 19-
20.) In his deposition, however, he says he arrested someone for unlawful entry because they
did not have permission to be inside the residence, but he does not remember who he arrested or
whether the individual was male or female. (Campanale Dep. 35, 37.) When asked how he
made the unlawful entry determination, Campanale testified that Officer Parker told Campanale
and Sergeant Suber about Parker’s conversation with Peaches. (Campanale Dep. 35.) Based on
that information, “we believed we had probable cause to place the individuals under arrest for
unlawful entry. Nobody could determine who was supposed to be inside the residence.” (Id.)
When asked his understanding of what constitutes unlawful entry, he replied “you’re present
inside of a location that you do not have permission to be in.” (Id. 35.) Later, he gave his arrest
reports to Officer Phifer because the officers “were at check-off point,” and the supervisors were
not allowing the officers to “stay past [their] tour.” (Id. 41.)
Campanale did not observe any conduct that would support a charge of disorderly
conduct. (Campanale Dep. 41-42.) According to Campanale, the other four defendants were at
the scene along with other officers. (Campanale Interrog. 5.)
10
E. Defendant Officer Edwin Espinosa
On the night of the arrests, Espinosa was partnered with his training officer, Master
Patrol Officer Gregory Phifer, who had a conversation with Officer David Jarboe. (Espinosa
Interrog. 2.) Espinosa does not know the substance of the conversation, but he and Phifer left the
precinct and drove to the house. (Id.) Although the arrest report indicates Espinosa heard “loud
music” prior to entering the house, when asked to give a statement of facts surrounding the arrest
of Plaintiffs, Espinosa’s interrogatory responses make no mention of hearing music, much less
loud music. (Espinosa Interrog. 2.) Upon entering the house, he did not observe any illegal
activity. (Espinosa Dep. 11.) The Plaintiffs were asked “if there was an owner to the apartment
or to that residence,” and when that question was not answered, Officers Phifer and Jarboe tried
to determine if anyone knew the owner and the Plaintiffs “came up with no answer.” (Espinosa
Dep. 11-12.) Espinosa does not know who made the decision to arrest the Plaintiffs or who
actually arrested them, but he did not question, search, detain or handcuff any of the individuals
or tell them they were under arrest. (Espinosa Dep. 12; Espinosa Interrog. 2, 16, 20.)
He and Officer Phifer later returned to the precinct where Espinosa completed three
arrest forms “by copying the individuals [sic] information from the MPD form 256.” (Espinosa
Dep. 12.) He also signed the forms, but he did not complete the narrative and he did not obtain
any information from any of the officers prior to handling the paperwork. (Espinosa Interrog. 2;
Espinosa Dep. 12, 21.) Phifer gave Espinosa the assignment for completing the forms.
(Espinosa Interrog. 19.)
In addition to Officer Phifer, Espinosa recalls seeing Officers Khan and Jarboe at the
scene, but he does not recall which other officers were present. (Espinosa Interrog. 4, 12.) He
11
did not observe any activity that would support a charge of disorderly conduct. (Espinosa Dep.
22.)
F. Defendant Officer Faraz Khan
Khan was riding with training Officer Jarboe on the night of the arrests. (Khan Interrog.
2.) Jarboe and Phifer had a conversation about going to the house, but Khan does not recall the
particulars of that conversation. (Id.) Once at the house, he saw “females dressed only in their
bra and thong with money hanging out their garter belts.” (Id.) Khan stayed in the living room.
(Id.) At no point did he observe any drugs or illegal conduct. (Khan Dep. 12.)
He does not recall who made the decision to arrest the Plaintiffs, but he did not detain or
arrest any of the Plaintiffs. (Khan Interrog. 2, 19.) Later he returned to the precinct and began to
“process” the Plaintiffs by completing six or seven arrest forms. (Khan Interrog. 2; Khan Dep.
12.) Although Officer Phifer wrote the narrative, Khan completed the front page and signed the
forms, but he does not remember who told him to sign. (Khan Interrog. 2, 7, 19.) Khan testified
that because he was in training, his training officer “gave” him the arrests, but at the time he
began completing the paper work he did not know the basis of the arrest charge. (Khan Dep. 12-
13, 15.) Later, prior to signing the form, he found out from Jarboe that the Plaintiffs “did not
have permission, right to be in that house and they’re going to be charged with unlawful entry.”
(Khan Dep. 15.) Other than the information from Jarboe, Khan did not have any information
that would substantiate a charge for unlawful entry and he does not know how the decision was
reached. (Khan Dep. 13, 15-17.) Indeed, he did not observe anything that led him to believe
that Plaintiffs did not have the right to be there. (Khan Dep. 17.)
12
In addition to Defendants Campanale, Newman, and Espinosa, Khan recalls seeing other
officers on the scene, but he does not know who assisted with the arrests of Plaintiffs. (Khan
Interrog. 5, 12.)
He did not observe anything at the scene that would support a disorderly conduct charge.
(Khan Dep. 16.)
G. Defendant Officer Jason Newman
When Officer Newman entered the property, he observed officers speaking to individuals
on the first floor. (Newman Interrog. 2.) Newman went upstairs and found a male “hiding in a
closet, one female may have been in the bathroom and another female was just standing in the
bedroom.” (Id.) These persons went downstairs at the direction of the officers and, at some
point, Sergeant Suber arrived and someone explained to him “what was going on.” (Id.)
Newman remembers officers asking who lived in the house, but the individuals were unable to
answer the questions, at which time Suber made the decision to arrest the individuals for
unlawful entry. (Id.)
In addition to Suber and the other four Defendants, Newman remembers seeing several
other officers on the scene, but he does not know if any assisted with the arrest of Plaintiffs.
(Newman Interrog. 5, 12.) Sgt. Suber ordered Newman to make an arrest. (Newman Interrog.
19.) Newman believes the person he arrested was Ethelebert Louis. (See Newman Dep. 15-16.)
Newman testified that Louis
was an individual I basically attached my name to with an arrest. There were a lot
of people being arrested. So at this point you just, “This is your guy you’re arresting;
Officer this is your guy you’re arresting.” . . . You just - - arrest this person, next
person is this officer’s. Because there’s so many people, one officer can’t take all
13
[of the Plaintiffs].
(Newman Dep. 16.) When asked the basis for the arrest, Newman responded “no one knew who
the owner was. . . . [Louis] did not know who the owner was.” (Newman Dep. 20.) Newman
did not observe anything at the scene that would justify a disorderly conduct charge. Indeed, he
did not observe any illegal conduct. (Newman Dep. 12, 24.)
H. The Arrest Form
Defendants admit one or more of them are listed as the “Arresting Officer” on each of the
Plaintiffs’ arrest forms. (Doc. 31, Defs.’ Summ. J. Brief 8.) However, the record contains only
one of those “Arrest/ Prosecution Report” forms and it lists Cory Bonds as the arresting officer
and Newman as an assisting officer. (Defs.’ Ex. A.) The name of the arrestee is blacked out on
the arrest form filed with the Court. (Id.)
The narrative on the second page explains that the police responded to the house to
“investigate a complaint of illegal activities which generated from inside of the event location.
The information came from a former ANC commissioner, W-1. W-1 also stated, the listed
property has been vacant for several months.” (Id.) Although the form lists “Foster” as
complainant/witness 1, there is no statement in the record from “Foster.”
“Keck” is listed as complainant/witness 2. The record contains a declaration from Randy
Keck, who lives three doors down from the house at issue. (Defs.’ Ex. O, Keck Decl. ¶ 1.) Keck
declares in his undated statement that he “thought” the house was vacant and that about one
month prior to the arrests he began to notice many cars parked outside the residence, as well as
along the block. (Id. ¶¶ 3-4.) However, he does not indicate what information he provided to the
14
police prior to the arrests about what occurred on the night in question. 8
The narrative on the form indicates that Officer Phifer and Defendant Espinosa heard
loud music coming from inside the house upon arrival, although Espinosa did not mention
hearing any music when asked via interrogatory to explain the facts surrounding the arrest of the
Plaintiffs. (Defs.’ Ex. A; Espinosa Interrog. 2.) According to the arrest report, once inside the
house, Defendant Parker found marijuana. (Id.) However, there is nothing in the record
indicating the officers found illegal drugs at the scene. Moreover, Officer Parker testified that,
while he smelled marijuana in the air, no drugs were found in the home. (Parker Dep. 14-15.)
The report indicates that the home
was in disarray which is also consistent with it being a vacant property. Further
investigation revealed no one could be located as having given permissing [sic] to
occupy the listed property.
(Def.’s Ex. A.) Finally, the report lists the charge as unlawful entry in typeface, but that charge
is crossed out and disorderly conduct was handwritten onto the form. (Id.)
In addition to the non-defendant officers, the arrest report notes the involvement of
Defendants Newman, Espinosa, Khan and Parker in the investigation at the scene. (Id.)
II. STANDARD OF REVIEW
Summary judgment is appropriate when the moving party demonstrates that there is no
8
The record also contains a “Complaint/Witness Statement” from an individual with an
unidentified first name and the last name of Waters. (Defs.’ Ex. C.) This individual observed “a
lot of people going into the house next door,” people being searched prior to entering the house,
and ladies with overnight bags. (Defs.’ Ex. C.) This unsigned and undated statement does not
indicate that the house was vacant, that police were informed it was vacant or when the witness
shared her observations with the police. (See id.)
15
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law. See Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citing Fed. R. Civ. P. 56(c));
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A genuine issue of material fact
exists if the evidence, viewed in the light most favorable to the non-movant, “is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. A
non-moving party, however, must provide more than “a scintilla of evidence” in support of its
position; the quantum of evidence must be such that a jury could reasonably find for the non-
moving party. Id. at 252.
Here, both parties have moved for summary judgment. Thus, the Court must analyze the
Defendants’ motion (including the qualified immunity defenses) while viewing the facts in the
light most favorable to the Plaintiffs, and, alternatively, analyze the Plaintiffs’ motion while
viewing the facts in the light most favorable to the Defendants. See Johnson v. District of
Columbia, 528 F.3d 969, 973-78 (D.C. Cir. 2008).
III. PROBABLE CAUSE
In this case, each of the Plaintiffs’ three claims is predicated upon the allegation that the
Plaintiffs were arrested without probable cause. If the police had probable cause to arrest the
Plaintiffs, then all three claims fail. Thus, the Court will review this question first.
When the Plaintiffs were arrested at the Anacostia Road house, the basis for the arrest
was their alleged violation of the unlawful entry statute. Sometime after the Plaintiffs were
taken to the police station, the basis for the arrest changed to their alleged violation of the
disorderly conduct statute. Accordingly, the Court will review each of the two grounds for arrest
16
separately.
A. Unlawful Entry
In the instant case, even when considering the facts in the light most favorable to the
Defendants, it is clear that Plaintiffs were arrested for unlawful entry without probable cause.
Under District of Columbia law, a Plaintiff violates the unlawful entry statute when she enters
private property “without lawful authority” and “against the will of the lawful occupant or of the
person lawfully in charge.” D.C. Code § 22-3302 (a)(1). It is well settled that “[t]o be against
the will of the lawful occupant the entry must be against the expressed will, that is, after warning
to keep off.” Bowman v. United States, 212 A.2d 610, 611 (D.C. 1965); see also Darab v.
United States, 623 A.2d 127, 136 (D.C. 1993) (“When a person enters a place with a good
purpose and a bona fide belief in his or her right to enter, that person lacks the requisite criminal
intent for unlawful entry. . . . ”); Barbara E. Bergman, Criminal Jury Instructions for the District
of Columbia § 5.401 (Matthew Bender, Rev. Ed.) (unlawful entry requires proof that the accused
“knew or should have known that s/he was entering against the person’s will”).
In the instant case, the evidence is undisputed that the Plaintiffs were expressly or
impliedly invited onto the property by a woman named “Peaches” and that several of the police
officers were aware of this invitation. Most importantly, it is undisputed that Sergeant Suber
made the decision and gave the order to arrest the Plaintiffs for unlawful entry and that he did so
even though he was aware that the Plaintiffs were on the property at the invitation of Peaches.
While it turns out that Peaches may not have had the authority to invite guests to the house,
nothing about what the police learned at the scene suggests that the Plaintiffs “knew or should
17
have known that [they were] entering against the [owner’s] will.” See Criminal Jury Instructions
§ 5.401.
Even though there is evidence that one or more neighbors told the officers that the
property was supposed to be vacant, this is not a case where the property was boarded up, door
latches were broken, no trespassing signs were posted or the manner of securing the property
indicated that the owner wanted others to keep out. See D.C. Code § 22-3302 (a)(1).9 Indeed,
although the house was in disarray, it is undisputed that the electricity was working, the property
contained a mattress, candles, chairs, food, and the bathrooms were functional. (Suber Dep. 11;
Parker Dep. 14-15; Louis Dep. 28; Chittams Dep. 27-28, 30-33.) Thus, the neighbors’
statements, that the property was “supposed to be” vacant, were insufficient under the
circumstances to establish probable cause to believe that the Plaintiffs had been told not to enter
by the owner or that the Plaintiffs knew or should have known that they had entered the property
against the owner’s will. Compare Jones v. United States, 282 A.2d 561, 562-63 (D.C. 1971)
(defendant lawfully arrested inside vacant apartment building where police discovered broken
latch and an opened door with a damaged door panel upon arrival); Culp v. United States, 486
A.2d 1174, 1175-77 (D.C. 1985) (officers had probable cause to believe intruders had entered
against the express will of the owner where at least some windows on the property were boarded
9
“The presence of a person in any private dwelling, building, or other property that is
otherwise vacant and boarded-up or otherwise secured in a manner that conveys that it is vacant
and not to be entered, or displays a no trespassing sign, shall be prima facie evidence that any
person found in such property has entered against the will of the person in legal possession of the
property.” D.C. Code § 22-3302 (a)(1) (2007) (emphasis added). Thus, mere presence in a
supposedly vacant building, if the building is not boarded up or displaying a “no trespassing”
sign, is not prima facie evidence that the entry into the building was against the will of the
owner.
18
up, the property owner had diligently attempted to keep the windows boarded and the intruder
had no explanation for his presence on the property); Best v. United States, 237 A.2d 825 (D.C.
1968) (officer had probable cause where intruder could not provide a logical explanation for his
presence in building and the building manager told the officers at the scene that the building was
generally kept locked and the public was not invited to enter).
Finally, while Officer Parker’s conversation with “Hughes” may have provided evidence
that the Plaintiffs did not have permission to remain on the property, the conversation did not
provide evidence that Plaintiffs had been warned to stay off of the property or should have
known they were not welcome at the time of their entry onto the property. Such evidence is
essential to establish probable cause for unlawful entry. See District of Columbia v. Murphy,
631 A.2d 34, 38 (D.C. 1993) (finding no evidence of probable cause to arrest for unlawful entry
where it was undisputed that the apartment owner told the responding officers she wanted her
boyfriend to leave, but she never told the officers that she “actually had asked [the boyfriend] to
leave [prior to the officers’ arrival] and that he had refused.”) (emphasis in original), aff’d on
rehearing, 635 A.2d 929 (1993).
Accordingly, the officers did not have probable cause to support the unlawful entry
arrest. Indeed, Suber and three of the defendants erroneously believed that proof of intent to
enter the property against the owner’s will was unnecessary, contrary to the long-established
precedent described above. (See Suber Dep. 39; Parker Dep. 19, 31-32; Parker Interrog. 2;
Campanale Dep. 35; Newman Dep. 20.)
19
B. Disorderly Conduct
Similarly, even considering the evidence in the light most favorable to the District, the
Court finds that the arrests for disorderly conduct were made without probable cause.
Indeed, the District made no serious attempt in its pleadings to explain how the
determination was made that probable cause existed for the offense of disorderly conduct,
effectively conceding the issue.10 The testimony placed into the record by every single police
officer who was present on the scene indicated that they did not witness any conduct that
justified the disorderly conduct arrests. (Pls’ Statement of Undisputed Facts ¶ 1; Defs.’ Resp. to
Pls.’ Statement of Undisp. Facts ¶ 1.) The Defendants have not presented any evidence from Lt.
Netter, who ordered the arrests, or from the unidentified representative from the Office of the
Attorney General, who advised Netter that the arrests were proper. Despite six rounds of
briefings on the two motions for summary judgment, the Defendants have made no substantive
effort to set forth what specific facts were relied upon by Netter or the Attorney General’s
representative and how any such facts established probable cause to arrest each of the Plaintiffs
for disorderly conduct.
The only evidence presented about how or why the decision was made to arrest the
Plaintiffs for disorderly conduct came from Sgt. Suber, who testified that Lt. Netter said he was
told by the OAG representative that he could arrest the Plaintiffs for disorderly conduct based on
“loud voices.” (Suber Dep. 29-30, 41.) While there was evidence in the record that the police
were told of reports of a loud party or loud music and some officers heard loud music upon
10
As described below, the District instead relied upon absolute immunity and other
arguments to defend against liability for the disorderly conduct arrests.
20
arrival, there was no evidence that the police were told of “loud voices” or of noise that was so
unreasonably loud or sustained for such a lengthy period of time as to justify the arrests for
disorderly conduct based on then-existing D.C. Code § 22-1321(3).11 See In re T.L., 996 A.2d
805, 814 (D.C. 2010) (to find a violation under § 22-1321(3), prohibiting a “breach of the peace”
by “shout[ing] or mak[ing] a noise either outside or inside a building during the nighttime to the
annoyance or disturbance of any considerable number of persons,” the court “stress[es] the
government’s burden of showing that the noise was unreasonably loud under the circumstances”)
(emphasis in original). While their testimony indicates that some of the officers operated under
the erroneous belief that “a person cannot be disorderly inside a house,” none of them testified
that they observed “unreasonably loud,” sustained noise that “disturbed a considerable number
of persons” when they arrived on the scene.
Furthermore, following a request by the Court for copies of the disorderly conduct
charging documents, the record was supplemented with copies of the judicial summonses filed
against Plaintiffs Taylor, Chittams, Richardson, Davis, and Louis. (Doc. 37.) Based on those
summonses, it appears that Defendants did not even rely upon then existing D.C. Code § 22-
1321(3) to make the arrests. Rather, each summons cited D.C. Code § 22-1321(1) as the basis
for the disorderly conduct charge. (Id.) Pursuant to the then-existing version of D.C. Code § 22-
1321(1), which prohibited a “breach of peace” by “act[ing] in such a manner as to annoy,
disturb, interfere with, obstruct, or be offensive to others,” an arrest would have required
evidence that each of the Plaintiffs used words likely to produce violence. See Shepherd v.
District of Columbia, 929 A.2d 417, 418-19 (D.C. 2007). Defendants have offered no such
11
Effective 2011, the disorderly conduct statute was significantly amended.
21
evidence here.
Additionally, whether viewed pursuant to § 22-1321(1) or § 22-1321(3), Defendants have
made no attempt to proffer evidence that probable cause existed that would justify the arrest of
each individual Plaintiff for disorderly conduct, as required by the Fourth Amendment. See
Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“[A] person's mere propinquity to others
independently suspected of criminal activity does not, without more, give rise to probable cause .
. . . [A] search or seizure of a person must be supported by probable cause particularized with
respect to that person. This requirement cannot be undercut or avoided by simply pointing to the
fact that coincidentally there exists probable cause to search or seize another . . . .”) (citations
omitted); Barham v. Ramsey, 434 F.3d 565, 573 (D.C. Cir. 2006) (“Even assuming that
Newsham had probable cause to believe that some people present that morning had committed
arrestable offenses, he nonetheless lacked probable cause for detaining everyone who happened
to be in the park. It is firmly established that, to comport with the Fourth Amendment, a
warrantless search or seizure must be predicated on particularized probable cause.”) (citing
Ybarra, 444 U.S. at 91). 12
12
Moreover, there is no evidence or credible suggestion in this case that the police were
confronted by a riotous mob or any other exigency that could justify these arrests based on less
than particularized probable cause. Compare Washington Mobilization Committee v. Cullinane,
566 F.2d 107, 116, 120 (D.C. Cir. 1977) (where Plaintiffs’ who were arrested for disorderly
conduct challenged their mass arrests because some demonstrators were not guilty of violence
and some Plaintiffs were not demonstrators, the Court explained that “the police cannot be
expected to single out individuals; they may deal with the crowd as a unit” when “confronted
with a mob”); Carr v. District of Columbia, 587 F.3d 401, 408 (D.C. Cir. 2009) (rejecting the
lower court’s finding that the police lacked particularized probable cause to arrest all of the
protestors, the appellate court reasoned that “A requirement that the officers verify that each and
every member of a crowd engaged in a specific riotous act would be practically impossible in
any situation involving a large riot, particularly when it is on the move-at night.”).
22
Thus, the Court finds that the undisputed facts compel a finding that Plaintiffs were
arrested without probable cause for unlawful entry and disorderly conduct. We now turn to an
analysis of each of the three causes of action, and the defenses applicable to each.
IV. SECTION 1983 - FOURTH AMENDMENT CLAIMS
To establish a claim against the police officers under 42 U.S.C. § 1983, Plaintiffs must
demonstrate that the officers, while acting under color of state law, deprived the Plaintiffs of
“rights, privileges, or immunities secured by the Constitutions and laws” of the United States.
42 U.S.C. § 1983. The complaint alleges that the police officers violated Plaintiffs’ Fourth
Amendment rights by arresting them without probable cause to believe that they had committed
a crime. As shown above, the Plaintiffs have proven that they were arrested without probable
cause. Thus, the Plaintiffs have proven the basic elements of their Section 1983 claim.
In response to Plaintiffs’ Section 1983 claim against the officers in their individual
capacities, the Defendant officers assert a qualified immunity defense. “Although government
officials may be sued in their individual capacities for damages under § 1983 . . ., qualified
immunity protects officials from liability insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Atherton v. District of Columbia Office of Mayor, 567 F.3d 672, 689 (D.C. Cir. 2009) (internal
citation marks omitted) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). While the
question is not entirely free from doubt, it appears that the burden of proving qualified immunity
rests with the Defendants. See Reuber v. United States, 750 F.2d 1039, 1058 n.25 (D.C. Cir.
1984). Thus, as to the defense motion for summary judgment, the Court must first determine
23
whether the facts, construed in the light most favorable to the injured parties, show that the
officers violated a constitutional right, and second, whether that constitutional right was clearly
established at the time of the incident. See Barham v. Salazar, 556 F.3d 844, 847 (D.C. Cir.
2009). If the answer to either of these questions is no, then the defense motion for summary
judgment must be granted because the officers are entitled to qualified immunity.13
As to answering the second question, our Circuit Court has recently explained:
In a suit alleging arrest or prosecution in violation of the Fourth Amendment, a
defendant who mistakenly concludes that probable cause is present is nonetheless
entitled to qualified immunity if a reasonable officer could have believed the arrest
to be lawful, in light of clearly established law and the information the arresting
officers possessed. Such a reasonable if mistaken belief that probable cause exists
is sometimes termed “arguable probable cause.”
Moore v. Hartman, 644 F.3d 415, 422 (D.C. Cir. 2011) (citations and some quotation marks
omitted); see also Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of
Section 1983 § 8.24 (4th ed.). When considering Plaintiffs’ motion for summary judgment, the
Court will review the evidence in the light most favorable to the Defendants.
A. Unlawful Entry Arrests & Defendants’ Qualified Immunity Defense
With these principles in mind, the Court turns to the Section 1983 claim based on the
arrest of the Plaintiffs for unlawful entry. Subsequently, the Court will consider the Section
1983 claim based on the arrest of the Plaintiffs for disorderly conduct.
13
This Court may exercise its discretion to decline determining whether the officers
violated a constitutional right if it appears doubtful that any such right, even if it existed, was
clearly established at the time of the incident. See, e.g. Jones v. Horne, 634 F.3d 588, 597 (D.C.
Cir. 2001) (citing Pearson v. Callahan, 555 U.S. 223, 236-37 (2009)). Here, the Court deems it
appropriate to address both questions.
24
1. Plaintiffs’ Constitutional Rights Were Violated
As stated above, the Court finds that the Plaintiffs were arrested for unlawful entry
without probable cause, which violated their rights under the Fourth Amendment.
2. The Constitutional Rights At Issue Were Clearly Established
Having established that Plaintiffs’ constitutional rights were violated, this Court “must
determine ‘whether the right was clearly established’ at the time of the alleged violation.” Bame
v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011) (citations omitted). When determining whether a
given constitutional right was “clearly established” for the purposes of establishing qualified
immunity,
“we look to cases from the Supreme Court and [the United States Court of Appeals
for the District of Columbia], as well as to cases from other courts exhibiting a
consensus view,” Johnson v. District of Columbia, 528 F.3d 969, 976 (D.C. Cir.
2008)—if there is one. The facts of such cases need not be “ materially similar . . . but
have only to show that the state of the law at the time of the incident gave the officer
fair warning that his alleged misconduct . . . was unconstitutional.” Id. (quoting Hope
v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 153 L.Ed.2d 666 (2002)).
Bame, 637 F.3d at 384 (internal quotation marks omitted); see Pearson v. Callahan, 555 U.S.
223, 243-44 (2009) (citing to state and federal court cases when discussing clearly established
law).
Applying these principles to the present facts, there is no question that the law was clearly
established at the time of the arrests. For many decades preceding these arrests, District of
Columbia law has consistently provided that probable cause to arrest for unlawful entry requires
evidence that the alleged intruder knew or should have known, upon entry, that such entry was
against the will of the owner or authorized agent. Bowman, 212 A.2d at 611; Jones, 282 A.2d at
562-63; Culp, 486 A.2d at 1175-55; Artisst v. United States, 554 A.2d 327, 329-30 (D.C. 1989).
25
This is not a case where the parameters of the unlawful entry statute were so muddled that the
officers were unable to “‘reasonably . . . anticipate when their conduct may give rise to liability
for damages.’” See Butera v. District of Columbia, 235 F.3d 637, 652 (D.C. Cir. 2001) (citing
Anderson v. Creighton, 483 U.S. 635, 646 (1987)).
The Defendants posit several theories about why the law was not really clearly established
in these circumstances. None of them have merit.
First, Defendants argue no clearly established law actually protected these Plaintiffs on
that evening. Under the “community caretaker” and/or “exigent circumstances” exceptions to the
warrant requirement, the Defendants contend they had authority to enter the property where
Plaintiffs, as social guests, had no reasonable expectation of privacy. This argument is irrelevant
because Plaintiffs do not challenge the lawfulness of the officers’ warrantless entry onto the
property or the initial detention of Plaintiffs during the on-scene investigation. (See Doc. 33, Pls.’
Summ. J. Resp. 12.)
Defendants boldly proceed to argue that social guests do not have the right to challenge
Constitutional violations relating to seizures of their persons. (Doc. 36, Defs.’ Reply Br. 2.)
However, Defendants are unable to direct the Court to any legal authority that social guests lack
Constitutional protection from unreasonable seizures of their persons, as opposed to a reduced
expectation of privacy with respect to searches or seizures of their property. Thus,
notwithstanding any purported diminished expectation of privacy as social guests, Plaintiffs most
certainly retained their expectation that probable cause was necessary to effectuate each of their
26
arrests; Defendants’ argument misses the mark. 14
Defendants also suggest that their mistaken understanding of the law of unlawful entry
supports their claim of qualified immunity. However, “[i]f the law was clearly established, the
[qualified] immunity defense ordinarily should fail, since a reasonably competent public official
should know the law governing his conduct.” Harlow, 457 U.S. at 818-19. A police officer
cannot escape liability “if he failed to observe obvious statutory or constitutional limitations on
his powers or if his conduct was a manifestly erroneous application of the statute.” Butz v.
Economou, 438 U.S. 478, 493-94 (1978). Thus, “obvious” or “manifestly erroneous” mistakes of
law cannot serve as the basis of a qualified immunity claim. Nonetheless, the officers can still
prevail if they claim “extraordinary circumstances and can prove that [they] neither knew nor
should have known of the relevant legal standard. But . . . the defense would turn primarily on
objective factors.” Harlow, 457 U.S. at 819; accord, Hobson v. Wilson, 737 F.2d 1, 25 (D.C. Cir.
1984).
Here, the Defendants have not cited to any extraordinary circumstances which might have
justified their failure to know the relevant law, and the Court is aware of no such circumstances.
The unlawful entry statute is not a complicated one, and it is a law that is fundamental to policing
14
Although the Court will not address them all in this opinion, the Defendants have
made a number of other near-frivolous and marginally relevant arguments in their briefs, For
instance, the Defendants argue that the Plaintiffs could be arrested on a showing less than
probable cause because they were social guests on the property and because the police officers
were undertaking a “community caretaker” function, even though they have cited no authority,
and this Court knows of none, that permits a traditional arrest on less than probable cause in such
circumstances. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“we confirm today
what our prior cases have intimated: the standard of probable cause applies to all arrests, without
the need to ‘balance’ the interests and circumstances involved in particular situations.”) (some
internal quotation marks omitted) (quoting Dunaway v. New York, 442 U.S. 200, 208 (1979)).
27
because it must be applied daily in various commercial and residential contexts. All police
officers, whether veteran or trainee, should be expected to know what it means. Accordingly,
Defendants’ mistake about the law was not immunized, and the Court finds that no genuine issues
of disputed fact exist with respect to whether the officers violated Plaintiffs’ clearly established
constitutional rights. 15
3. Defendants’ Additional Qualified Immunity Arguments
The Defendants make two further arguments in support of summary judgment based on
qualified immunity: reliance on the probable cause determination of fellow police officers (aka
collective knowledge) and acting at the direction of supervisors.
(a) The Collective Knowledge Doctrine and/or Fellow Officer Rule
The Defendants argue that they are entitled to qualified immunity because they
collectively had sufficient information to support the arrests. (See Doc. 31, Defs.’ Summ. J. Brief
24-27.) As this Circuit has recognized, “probable cause may emanate from the collective
knowledge of the police, though the officer who performs the act of arresting or searching may be
far less informed.” United States v. Hawkins, 595 F.2d 751, 752 n.2 (D.C. Cir. 1978); accord
Smith v. United States, 358 F.2d 833, 835 (D.C. Cir. 1966). In the present case, however, even
considering all of the knowledge collectively held by all of the police officers, there was not
15
Defendants also contend they are protected by qualified immunity because “officers of
reasonable competence” could disagree about whether there was probable cause to arrest the
Plaintiffs. (Doc. 30, Defs.’ Response to Pls’ Summ. J Mot. 5); see Malley v. Briggs, 475 U.S.
335, 341 (1986) (noting that immunity should be recognized if officers of “reasonable
competence” could disagree). However, officers of “reasonable competence” are expected to
know the law. Harlow, 457 U.S. at 818-19. Because these officers erroneously believed that the
question of whether Plaintiffs had been invited onto the property was irrelevant, there was no
disagreement between “reasonably competent” officers.
28
sufficient information to establish probable cause.
Alternatively, the individual officers submit that pursuant to the “fellow officer rule,” they
are entitled to qualified immunity even in the absence of collective knowledge of probable cause
because it was objectively reasonable for each of them to rely upon the probable cause
determination of one or more of their fellow officers. See Barham v. Ramsey, 434 F.3d 565, 577
(D.C. Cir. 2006); Bolger v. District of Columbia, 608 F. Supp.2d 10, 24 (2009) (citing Barham,
556 F.3d at 850); cf., Wayne R. LaFave, Search & Seizure: A Treatise on the 4th Amendment § 3.5
n.16 (4th ed.) (where police officer conveys some facts that indicate probable cause to a fellow
officer, but non-conveyed facts would have defeated probable cause, the officer relying upon the
conveyed facts may be immune from tort liability) (citing Row v. Holt, 864 N.E.2d 1011 (Ind.
2007)).
In the case at bar, the Court finds that Defendants Parker and Campanale have failed to
show, by undisputed facts, that it was objectively reasonable for these officers to rely on the
information communicated by others at the scene to support the arrests. While Parker was aware
from other officers that the house was supposedly abandoned and there were people inside who
should not be there, he knew first-hand that Peaches had given the Plaintiffs permission to enter
the house. (Parker Dep. 15-18; Parker Interrog. 2,3.) Although he was informed by the purported
owner that Plaintiffs did not have permission to occupy the property, Parker had no evidence that
the owner had warned Plaintiffs not to enter or that Plaintiffs should have known entry was
forbidden. (Parker Dep. 17-18; Parker Interrog. 2.)
Campanale was also aware from other officers that the house was supposedly abandoned
and that there were people inside who should not be there, but he also knew that Peaches had
29
given the Plaintiffs permission to entertain at the house. (Campanale Dep. 35; Campanale
Interrog. 2.) He also knew first-hand that some of the Plaintiffs were present at the “invitation” of
someone else. (Campanale Interrog. 9.)
Thus, even considering the evidence in the light most favorable to the Defendants, the
Court finds that Parker and Campanale are not entitled to qualified immunity on the Section 1983
claims arising out the unlawful entry arrests and, furthermore, that Plaintiffs are entitled to
summary judgment with respect to these two officers.
As to Defendants Espinosa, Newman and Khan, it is less clear from this record whether
they each specifically knew that the Plaintiffs had been invited onto the property. While these
three officers did not make such admissions in the sworn documents found in the record, the
Defendants’ own Statement of Undisputed Facts admits that “MPD Officers were told by some
social guests at 115 Anacostia Road, N.E. that a woman named ‘Tasty’ or ‘Peaches’ owned or
rented 115 Anacostia Road, N.E., and that she had given permission to hold a bachelor party on
site that night.” (SOF ¶ 27.) Given this admission, these remaining three Defendants are not
entitled to summary judgment on the theory that they were solely relying upon the judgment of
their fellow officers and did not know themselves that probable cause was lacking due to the fact
that Peaches had invited Plaintiffs onto the property. Likewise, the Plaintiffs are not entitled to
summary judgment, given the dispute in the evidence. Therefore, the jury will have to decide
whether Espinosa, Newman and Khan were aware of the invitation, and that factual finding will
dictate whether those Defendants are entitled to qualified immunity based on the fellow officer
defense.
30
(b) Acting at the Direction of Supervisory Officers
Similar to their contention based upon the fellow officer rule, Defendants assert that they
are protected by qualified immunity because they were ordered by superior officers to arrest
Plaintiffs.
However, our Circuit has specifically rejected the argument that immunity automatically
attaches were public officials violate a citizen’s rights at the direction of higher authority. In
Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984), FBI agents argued that they were protected by
qualified immunity because they had acted in compliance with the agency’s approved policy
when they conducted counter-intelligence operations in violation of plaintiffs’ First Amendment
rights. Rejecting this argument, the Court reasoned “[i]n its most extreme form, this argument
amounts to the contention that obedience to higher authority should excuse disobedience to law,
no matter how central the law is to the preservation of citizens' rights. We have no hesitation in
rejecting this new argument.” Id. at 67. Our Circuit is not alone. See, e.g. Kennedy v. City Of
Cincinnati, 595 F.3d 327, 336 (6th Cir. 2010) (“[S]ince World War II, the just following orders
defense has not occupied a respected position in our jurisprudence, and officers in such cases may
be held liable under § 1983 if there is a reason why any of them should question the validity of
that order.” ) (citing O'Rourke v. Hayes, 378 F.3d 1201, 1210 n.5 (11th Cir. 2004) (internal
quotation marks omitted)); Brent v. Ashley, 247 F.3d 1294, 1305 (11th Cir. 2001) (“following
orders does not immunize government agents from civil rights liability); Leonard v. Compton,
No. 1:03CV1838, 2005 WL 1460165, at *6 (N.D. Ohio June 17, 2005) (“Just as an official policy
does ‘not make reasonable a belief that was contrary to a decided body of case law,’ . . . police
officers cannot obtain a license to violate clearly established constitutional rights from their
31
superior officers.”) (citing Wilson v. Layne, 526 U.S. 603, 617 (1999)).
Some courts, however, have permitted a “just following orders” defense in limited,
specific, circumstances. “While it is typically no defense for an officer to claim he was simply
‘following orders,’ plausible instructions from a superior or fellow officer can support qualified
immunity where, viewed objectively in light of the surrounding circumstances, they could lead a
reasonable officer to conclude that the necessary legal justification for his actions exists.” Harvey
v. Plains Twp. Police Dept., 421 F.3d 185, 199 (3d Cir. 2005) (citing Bilida v. McCleod, 211 F.3d
166, 174-75 (1st Cir. 2000)).
In the present case, however, the only way that the superior officer’s order to arrest the
Plaintiffs could have been “plausible” and could have given the subordinate officer a reasonable
basis to conclude that legal justification existed to arrest Plaintiffs for unlawful entry would have
been if the subordinate officer was not aware of the invitation for Plaintiffs to enter the property.
Consequently, the Court finds that any of the Defendants, including the two trainees (Espinosa
and Khan), who were aware of the Plaintiffs’ invitation to enter the property failed to act
reasonably given the circumstances, despite Sgt. Suber’s orders. See Leonard, 2005 WL
1460165, at *6 (finding both training officer and rookie officer could not “avoid liability by
simply arguing” they were “following orders.”). Accordingly, in this case, the final analysis of
qualified immunity based upon the “following orders” argument is identical to that under the
“fellow officer” rule. The argument does not prevent liability for Defendants Parker and
Campanale, but Defendants Espinosa, Newman and Khan could prevail depending upon the
jury’s factual finding at trial.
32
4. Defendants’ Claim That They Did Not Personally Arrest Plaintiffs for
Unlawful Entry Is Unavailing
Although Defendants admit their names appeared on Plaintiffs’ arrests reports, (Doc. 31,
Defs.’ Summ. J. Br. 8), Defendants claim there is no evidence they personally arrested the
Plaintiffs and, therefore, they are not liable for the Section 1983 claim. The Court is unpersuaded
by this argument. As an initial matter, two of the officers (Campanale and Newman) admit that
they each arrested one of the Plaintiffs. (Campanale Dep. 35, 37; Newman Dep. 15-16.)
With respect to the three remaining officers, Khan, Espinosa and Parker, they cannot
avoid liability simply by pointing a finger at the other officers on the scene. “One who directs or
assists an unlawful arrest may be liable.” Gordon v. Degelmann, 29 F.3d 295, 298 (7th Cir. 1994)
(citing Kibourn v. Thompson, 103 U.S. 168, 200 (1880)). As explained by the Seventh Circuit:
Federal common law principles of tort and damages govern recovery under section
1983. It is axiomatic that where several independent actors concurrently or
consecutively produce a single, indivisible injury, each actor will be held jointly and
severally liable for the entire injury. Restatement (Second) of Torts, §§ 875, 879. In
such a case the injured party may proceed to judgment against any or all of the
responsible actors in a single or in several different actions. See Restatement
(Second) of Torts, § 882.
Watts v. Laurent, 774 F.2d 168, 179 (7th Cir. 1985) (citations to cases omitted); see also Burns v.
Reed, 500 U.S. 478, 484 (1991) (Section 1983 “is to be read in harmony with general principles
of tort immunities and defenses rather than in derogation of them.”) (citations and internal
quotation marks omitted); Michael Avery, David Rudovsky & Karen M. Blum, Police
Misconduct Law and Litigation § 12.36 (3d ed.) (explaining joint and several liability in the
context of Section 1983 claims).
The Court finds that Officers Khan, Espinosa and Parker are subject to liability as joint
tortfeasors. It is undisputed that all three officers were present on the scene, all three were present
33
in the house during at least some portion of the investigation, and all three were actively involved
in the matter at some juncture. Parker admittedly spoke with Peaches and Hughes, as well as one
or more Plaintiffs who told the officers that Peaches had given Plaintiffs permission to occupy the
property. (Parker Dep. 15-18: Parker Interrog. 2, 3.) Parker also provided Sgt. Suber with the
results of the investigation, observed officers making arrests, and provided investigative
information to the officers who “took” the arrests. (Parker Dep. 20.) Khan admitted signing and
completing a portion of six or seven arrest forms, while Espinosa admitted signing and
completing a portion of three forms. (Khan Dep. 12; Khan Interrog. 2, 7, 9; Espinosa Interrog. 2;
Espinosa Dep. 12, 21.) 16 Thus, the officers’ own testimony establishes that they “actively
participate[ed] in a wrongful act, by cooperation or request, or . . . lend[ed] aid” to the arresting
officers. See Police Misconduct § 12.36; see also James by James v. Sadler, 909 F.2d 834 837
(5th Cir. 1990) (reversing summary judgment for local police officers who provided back-up
during illegal search by narcotics agents because role of the local officers was “integral to the
search”). As such, Khan, Espinosa and Parker are jointly and severally liable with whomever
actually placed the Plaintiffs in handcuffs and transported them to the police station.
Defendant’s reliance on Fernandors v. District of Columbia, 382 F. Supp.2d 63 (D.D.C.
2005) is misplaced. In Fernandors, the District of Columbia conceded that the two officers who
first arrived on the scene and apprehended the plaintiff were not entitled to qualified immunity
because of disputed factual issues. Id. at 71. The Court held that a third officer was entitled to
qualified immunity on a false arrest claim because he arrived at the scene after the apprehending
16
The Court notes that although Khan claims he did not physically arrest any of the
Plaintiffs, (Khan Interrog. 2, 19), Parker testified that he saw Khan make an arrest. (Parker
Interrog. 12, 20.)
34
officers and it was undisputed that he did not make the determination to arrest the plaintiff. Id. at
71-74. Indeed, he possessed no information about the circumstances that supported the arrest.
See id. at 72-73.
In contrast, Khan, Espinosa and Parker saw the events unfold and observed the results of
the investigation on the scene. As such, either they had first-hand knowledge that probable cause
did not exist to arrest Plaintiffs or they had enough information to question whether probable
cause existed. Thus, the facts of the present case are vastly different from the facts in
Fernandors.
Rather, the instant case is more like Dubner v. City and County of San Francisco, 266
F.3d 959 (9th Cir. 2001). In Dubner, one of the officers on the scene signed the plaintiff’s arrest
form and admitted making arrests during a mass protest, but could not remember whether she had
arrested the plaintiff. Id. at 964. At the end of trial, the court dismissed plaintiff’s unlawful arrest
claim because she had no evidence that the officer who signed the arrest form had actually made
the arrest. Id. at 964-65. The Ninth Circuit Court of Appeals reversed, explaining that while
plaintiff bore the burden of proving the unlawful arrest, the burden of production then shifted to
the defendant to provide evidence that the arresting officers had probable cause. Id. at 965 “This
minimal burden shifting forces the police department, which is in the better position to gather
information about the arrest, to come forward with some evidence of probable cause.” Id. The
Court reasoned that shifting the burden of production to the defendants, prevented “this exact
scenario where police officers can hide behind a shield of anonymity and force plaintiffs to
produce evidence that they cannot possibly acquire.” Id. The Ninth Circuit’s application of this
burden shifting approach in Section 1983 false arrest cases is consistent with the law of the
35
United States Court of Appeals for the District of Columbia. See Dellums v. Powell, 566 F.2d
167, 175 (D.C. Cir. 1977) (explaining that once a plaintiff establishes that she was arrested
“without process,” the “burden then shifts to the defendant to justify the arrest.”)
Finally, given the unique circumstances presented in the instant case, it would not be in
the interest of justice to grant summary judgment to police officers who signed the arrest forms
but are now unwilling to take responsibility for the arrests. See Rauen v. City of Miami, No. 06-
21182-CIV, 2007 WL 686609, at *4-5 (S.D. Fla. March 2, 2007) (denying motion to dismiss
where plaintiffs could not identify individual officers involved in arrest of protestors because the
officers at the scene wore identical riot gear, their faces were covered by shields and their
uniforms had no identifying information). Accordingly, Defendants’ assertion that they did not
arrest Plaintiffs does not justify dismissal of Plaintiffs’ claims.
B. Disorderly Conduct Arrests & Defendants’ Absolute and Qualified Immunity
Defenses
As noted above, the Section 1983 unlawful arrest claim has been brought against five
police officers, Edwin Espinosa, Jason Newman, Anthony Campanale, Andre Parker and Faraz
Khan. This claim was not brought against the City, Lieutenant Netter (who ordered the arrests),
or the representatives within the office of the Attorney General who advised Netter to order the
arrests. The five police officer Defendants contend they are entitled to summary judgment on the
Section 1983 claim based upon the disorderly conduct arrests because the Attorney General’s
office made the decision to “charge” the Plaintiffs and, because charging is a discretionary
function of the executive branch, the arrests are therefore protected by absolute immunity. This
argument is without merit.
36
The Supreme Court held over twenty years ago that a prosecutor does not enjoy absolute
immunity from a Section 1983 action challenging her erroneous advice to the police that there
was probable cause to arrest the plaintiff, because “the prosecutorial function of giving legal
advice to the police” is not the type of adversarial prosecutorial activity that merits absolute
immunity protection. Burns v. Reed, 500 U.S. 478, 496 (1991). Thus, the fact that in the instant
case a prosecutor advised the police that there was probable cause to arrest the Plaintiffs for
disorderly conduct does not clothe the police officers with absolute immunity because they relied
upon such advice. See id.; see also Atherton v. District of Columbia Office of Mayor, 567 F.3d
672, 683 (D.C. Cir. 2009) (citing Burns, 500 U.S. at 492-96).17 Accordingly, reliance by police
officers upon the advice of a representative from the Attorney General does not provide absolute
immunity, but it does factor into the qualified immunity analysis, along with all of the other facts
and circumstances. Id.; see also Kelly v. Borough of Carlisle, 622 F.3d 248, 254-55 (3d Cir.
2010) (applying qualified immunity standard and rejecting argument that seeking advice of
prosecutor makes action by police officer per se objectively reasonable) (citing Cox v. Hainey,
391 F.3d 25, 34 (1st Cir. 2004)).
Apparently because the Defendants placed complete reliance on their absolute immunity
argument, they have failed to argue or brief how they are entitled to qualified immunity for the
Section 1983 claim based on the unlawful disorderly conduct arrests. Thus, the Defendants,
17
The cases cited by Defendants in support of the proposition that absolute immunity
protects prosecutorial “charging decisions” are inapposite, because the plaintiffs here are
challenging their arrests, rather than their charges, and charging is the act of lodging of a
criminal complaint. See Marrow v. United States, 592 A.2d 1042, 1046 (D.C. 1991) (“an
individual is ‘charged’ . . . when a criminal complaint . . . and warrant . . . are signed by a judge
and filed . . .”); accord Burns, 500 U.S. at 494 (“absolute prosecutorial immunity [is justified]
only for actions that are connected with the prosecutor's role in judicial proceedings”).
37
despite six rounds of briefings on the two motions for summary judgment, have made no effort to
set forth what specific facts were relied upon by the police officers or the Attorney General’s
representative in deciding to arrest the Plaintiffs for disorderly conduct, how any such facts
established probable cause to arrest the Plaintiffs for disorderly conduct, or why the Defendants’
actions were objectively reasonable. Therefore, even if the Court were to construe the
Defendants’ motion for summary judgment as including a qualified immunity argument as to this
claim, the Court is without any basis to grant judgment for Defendants. Accordingly, the defense
motion for summary judgment on the Section 1983 disorderly conduct arrests is denied.18
Indeed, the Court finds that Plaintiffs’ motion for summary judgment is due be to granted,
in part, because qualified immunity does not apply to any officers who participated in the
disorderly conduct arrests. The advice of the prosecutor’s office does not make these arrests
objectively reasonable and there is no evidence in the record that Netter or the OAG
representative attempted to ascertain any specific information about the level, type, or duration of
noise at the house or who was responsible for creating the “loud voices” before ordering the mass
arrest of every single person who happened to be in the house when the police arrived.
Furthermore, Defendants have made no attempt to proffer evidence that probable cause
existed as to each Plaintiff, as required by the Fourth Amendment. See Barham, 434 F.3d at 573(“No reasonable officer in Newsham's position could have believed that probable cause existed to
order the sudden arrest of every individual in Pershing Park. Even assuming that Newsham had
18
The Defendants assert that none of them participated in the disorderly conduct arrests.
However, each of the collateral/bond receipts submitted for the record list one of the five
Defendant officers as the arresting officers on the disorderly conduct charges, thereby precluding
summary judgment against the Plaintiffs on this ground. (See Doc. 38 at 5-9.)
38
probable cause to believe that some people present that morning had committed arrestable
offenses, he nonetheless lacked probable cause for detaining everyone who happened to be in the
park.”). It will be up to the jury to determine which Defendant officers, if any, are liable for
having participated in the disorderly conduct arrests.
V. STATE LAW FALSE ARREST CLAIMS
The District of Columbia is liable, as respondeat superior, for the tort of false arrest, if an
MPD officer commits the tort of false arrest while acting within the scope of his employment.
See generally Wade v. District of Columbia, 310 A.2d 857, 863 (D.C. 1973) (en banc); see also
Dellums v. Powell, 566 F.2d 216, 223 (D.C. Cir. 1977) (citing Wade, 310 A.2d at 857). As
discussed above, the Court finds that each of the Plaintiffs was arrested without probable cause.
However, because the liability of the City is derivative of the liability of the police officer, any
individual defenses available to the police officer will also preclude judgment against the City. 19
See Minch v. District of Columbia, 952 A.2d 929, 938 (D.C. 2008).
“Under District of Columbia law, a police officer may justify an arrest by demonstrating
that “(1) he or she believed, in good faith, that his or her conduct was lawful, and (2) this belief
was reasonable.” Scott v. District of Columbia, 101 F.3d 748, 754-55 (D.C. Cir. 1996) (citing
District of Columbia v. Murphy, 631 A.2d 34, 36 (citations and internal quotation marks omitted),
19
In their brief, the Plaintiffs clarify that they are asserting Count II against the District
of Columbia, as well as against the officers in both their official and individual capacities. (Doc.
33, Pls.’ Summ. J. Response 4.)
The Court will dismiss the state law claims asserted against the officers in their official
capacities because such claims are duplicative of the claims asserted against the District of
Columbia. See Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996).
39
on reh'g, 635 A.2d 929 (D.C. 1993)); see Stevens, Ed., Standardized Civil Jury Instructions for
the District of Columbia § 18.03 (2011 Rev. Edition). Thus, even if an arrest is unlawful, a
defendant may avoid liability if he can show that he had a subjective good faith belief that his
conduct was justified and that subjective belief was reasonable. See Scott, 101 F.3d at 753-55
(reversing jury verdict against two arresting officers who had a reasonable, good faith belief that
Plaintiff was properly in their custody and who could not have known from their observations that
the arrest was not authorized under District of Columbia law) (citing Murphy, 631 A.2d at 36);
Lisner v. Smith, 254 F. Supp.2d 89, 96-100 (D.D.C. 2003) (granting summary judgment for
defendant officers where officers arrested plaintiff based on an ATM video recording time-stamp
because the AUSA had made the final probable cause determination and the officers had a good
faith reasonable belief that the time-stamp was accurate, although they later discovered it was
not); see also Weishapl v. Sowers, 771 A.2d 1014, 1020-21 (D.C. 2001); Minch v. District of
Columbia, 952 A.2d 929, 937-38 (D.C. 2008). In deciding whether the officer acted in good
faith, the evidence must be viewed from the perspective of the officer, not from the plaintiff’s
perspective. Civil Jury Instructions § 18.03.
A. Unlawful Entry
Defendants argue that they are entitled to summary judgment on the state law unlawful
entry claim because a reasonable officer could have believed, in good-faith, that the arrests were
appropriate given the statements by the purported owner that he had not given the Plaintiffs or
Peaches permission to occupy the premises. (Doc. 31, Defs.’ Summ. J. Brief 29.) If the unlawful
entry statute justified arrest solely based upon evidence that Plaintiffs were discovered on the
40
property without permission from the owner, then all of Defendants could rely upon the good-
faith defense. However, as set forth above, the statute requires more.
It is well settled that where a police officer acts on the basis of an erroneous understanding
of the statute, the officers’ subjective beliefs are not reasonable. See Dellums v. Powell, 566 F.2d
167, 176-77 (D.C. Cir. 1977) ( stating, while applying the subjective, good-faith belief test, that
“an arrest may not be ‘justified by ignorance or disregard of settled, indisputable law.’”) 20
Accordingly, Plaintiffs are entitled to summary judgment on the common law false arrest claim
based upon unlawful entry as to the Defendant District of Columbia and as to those individual
Defendant officers, Parker and Campanale, who knew or should have known prior to the arrest
that the Plaintiffs had been invited to enter the property, but failed to recognize the relevance of
that information. Where the officers knew of the invitation to the Plaintiffs, the Court finds that
their belief that the unlawful entry arrests were proper was neither bona fide nor reasonable.
Compare, District of Columbia v. Tulin, 994 A.2d 788, 800 (D.C. 2010) (court found that where
the defendant police officer had a bona fide, but mistaken, belief that the arrest was proper, she
was the lowest ranking person on the scene, and she was directly advised to arrest the plaintiff by
a higher ranking officer, she had a reasonable, subjective good-faith belief that entitled her to the
defense).
20
Although the Court in Dellums v. Powell, 566 F.2d 167, 176-77 (D.C. Cir. 1977),
reached this holding in a Section 1983 false arrest case, the analysis is still applicable to a
common law false arrest claim. Dellums was handed down under prior Section 1983 law which
provided that officers were entitled to qualified immunity where their conduct was objectively
reasonable or where they had a subjective good faith belief that their conduct was lawful. See
Harlow v. Fitzgerald, 457 U.S. 800, 815-20 (1982). In 1982, five years after Dellums, the
United States Supreme Court rejected the subjective portion of the qualified immunity test for
federal claims. Harlow, 457 U.S. at 820.
41
As with the § 1983 unlawful entry claim, the jury must decide the extent to which Officers
Newman, Khan and Espinosa knew Plaintiffs had been invited to the house.
B. Disorderly Conduct
With respect to the disorderly conduct charge, as discussed above, the Court finds that the
Plaintiffs were arrested without probable cause. Because there is a factual dispute regarding
whether the defendant officers were involved in the arrests for that charge, both motions for
summary judgment as to the claims against the individual Defendants must be denied. It will be
up to the jury to determine which individual police officer Defendants participated in the
disorderly conduct arrests.
The District of Columbia was named as a Defendant to this claim, and the city is
potentially liable under respondeat superior even if none of the named Defendant police officers
are held liable because a city employee, Lt. Netter, ordered the arrest of the Plaintiffs. Thus, the
District is liable for false arrest unless it can show that Netter had a subjective belief that the
arrest was justified and that such a belief was reasonable. However, the District failed in its
pleadings supporting its summary judgment motion or in opposition to Plaintiffs’s motion to
submit a declaration, deposition testimony, or any other direct evidence about the state of mind of
Netter or those with whom he consulted. Thus, the District has failed to create a disputed issue of
fact as to whether Netter’s order to arrest the Plaintiffs was subjectively reasonable and in good
faith, as the undisputed evidence in the record indicates instead that it was “the product of the
government’s willful ignorance, investigative negligence, or [was] otherwise unreasonable.”
Liser v. Smith, 254 F. Supp.2d 89, 97 (D.D.C. 2003). Therefore, the Court grants the Plaintiffs’
42
motion for summary judgment on the disorderly conduct false arrest claim as asserted against the
District of Columbia.
VI. NEGLIGENT SUPERVISION CLAIM
The negligent supervision claim has been brought solely against Defendant District of
Columbia. (Doc. 33, Pls.’ Summ. J. Response 4.) The District of Columbia courts have adopted
the following Restatement of Agency provision with respect to employer liability for negligent
supervision:
A person conducting an activity through servants or other agents is subject to
liability for harm resulting from his conduct if he is negligent or reckless:
(a) in giving improper or ambiguous orders o[r] in failing to make proper
regulations; or
(b) in the employment of improper persons or instrumentalities in work involving
risk of harm to others;
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by
persons, whether or not his servants or agents, upon premises or with
instrumentalities under his control.
Restatement (Second) of Agency § 213 (1958), cited in District of Columbia v. Tulin, 994 A.2d
788, 795 (D.C. 2010) (false arrest case involving liability of the City for conduct of supervisory
police officer).
Applying the Restatement to the facts in the instant case and viewing those facts in the
light most favorable to the District, the Court finds that the Plaintiffs have proven their claim for
negligent supervision. For the reasons outlined above, the Court finds that the undisputed
evidence shows that both Netter and Suber gave “improper or ambiguous orders,” and each
43
supervisor “permitt[ed] or faile[ed] to prevent” negligent conduct by their subordinate officers.
See Restatement (Second) of Agency § 213(a), (d).
The District proffers two arguments in support of its defense, neither of which is
persuasive. First, the District argues it cannot be held liable for negligent supervision in the
absence of some antecedent act that put the District on notice that its employees had previously
committed torts or acted in an incompetent manner. See DaKa v. McCrae, 839 A.2d 682, 693
(D.C. 2003) (liability for negligent supervision requires antecedent proof of a tort committed by
the supervised employee); Brown v. Argenbright Sec., Inc., 782 A.2d 752, 760 (D.C. 2001). ( “To
invoke this theory of liability it is incumbent upon a party to show that an employer knew or
should have known its employee behaved in a dangerous or otherwise incompetent manner, and
that the employer, armed with that actual or constructive knowledge, failed to adequately
supervise the employee.”) (citation omitted). This antecedent act requirement is not absolute,
however.
In District of Columbia v. Tulin, 994 A.2d 788, 793-97 (D.C. 2010), plaintiff obtained a
negligent supervision jury verdict based on the conduct of two supervisory police officers, not
based upon evidence of an antecedent act by the subordinate officer. The two supervisors in
Tulin authorized an arrest without obtaining “critical” information needed to establish whether the
arrest was lawful. Id. at 797. Relying on the Restatement, the Court upheld the jury verdict for
the plaintiff and explained that “supervisors can surely be negligent by not informing themselves
properly and by thus authorizing or failing to prevent an unlawful arrest.” Tulin, 994 A.2d at
793-97.
Tulin clearly allows for a negligent supervision claim without an antecedent act. This
44
approach makes perfect sense in cases such as this one, where a supervisory official directs a
subordinate employee to act in the supervisor’s presence. For this tort, the focus is on the
supervisor’s ability and responsibility to manage or control the subordinate employee. Compare
Brown, 782 A.2d at 759-60 (upholding summary judgment for defendant supermarket on a claim
of negligent supervision, in part, because no person with supervisory authority saw the incident at
issue or had an opportunity to stop it). Indeed in Tulin, the Court explained that a
jury could reasonably find that the District, through [the two Sergeants], was
negligent in its duty to supervise [the arresting officer] and to protect Mr. Tulin from
a wrongful arrest. . . . [T]he jury could [have] conclude[d] that . . . the sergeants at
the scene should have recognized that the investigation was inadequate and that the
arrest was unlawful, but that they nevertheless failed to prevent Officer McKoy from
making it.
994 A.2d at 800. Applying the Restatement provision and the reasoning from Tulin to the facts of
the case at bar, the Court finds that the District is not entitled to summary judgment for negligent
supervision because the unlawful arrests were ordered by high level officials who knew or should
have known that probable cause was lacking for these arrests.
The District next argues Plaintiffs’ negligent supervision claim fails because Plaintiffs do
not have expert testimony to establish the requisite standard of care. Defendant cites three cases
for the proposition that expert testimony is essential where negligent operations, supervision, and
training of police officers are at issue. See Linares v. Jones, 551 F. Supp.2d 12, 20 (D.D.C.
2008); Cotton v. District of Columbia, 541 F. Supp.2d 195, 207 (D.D.C. 2008); Parker v. Grand
Hyatt Hotel, 124 F. Supp.2d 79, 90 (D.D.C. 2000). These cases do not, however, hold that expert
testimony is required in all police negligent supervision cases.
District of Columbia law provides that “[e]xpert testimony is required . . . where the
subject presented is ‘so distinctly related to some science, profession or occupation as to be
45
beyond the ken of the average layperson.’” Beard v. Goodyear Tire & Rubber Co., 587 A.2d
195, 200 (D.C. 1991) (citation omitted). On the other hand, “[w]here negligent conduct is alleged
in a context which is within the realm of common knowledge and everyday experience, the
plaintiff is not required to adduce expert testimony . . . .” Id. (citations omitted). As this Circuit
has recognized, “the factual context matter[s],” when determining the need for expert testimony
under District of Columbia law. Godfrey, 559 F.3d at 573.
The decision in Tulin supports a finding that expert testimony is not required in this case.
994 A.2d at 794-97. As noted above, Tulin involved supervising officers whose failure to obtain
“critical” information at an accident scene led to an unlawful arrest. Id. at 796-97. For example,
they failed to obtain information regarding the speed of two vehicles and the distance between the
vehicles prior to a rear end collision. Id. at 795-96. Citing the simple road safety laws relevant to
the accident, the Court held that the case was not one where “lay jurors would be unable to grasp
the issues without expert assistance.” Tulin, 994 A.2d at 795.
Similarly, the instant Court finds that an impartial trier of fact can determine, without the
aid of an expert, whether Suber, Netter and the OAG breached the standard of care by directing
the defendant officers to arrest Plaintiffs. See Godfrey, 559 F.3d at 573 (upholding finding that
expert testimony was not required where the supervisor was present when the act was committed
and the supervisor had both the authority and ability to “supervise or control [the subordinate’s]
behavior”). As in Tulin, the statutes here are not complicated and the duty to conduct a proper
investigation, as well as the duty to uphold that law, are not “distinctly related to some science,
profession or occupation as to be beyond the ken of the average layperson.” See Beard, 587 A.2d
at 200.
46
Accordingly, Plaintiffs’ failure to proffer expert testimony is not fatal to their negligent
supervision claim. Indeed, Plaintiffs’ motion for summary judgment will be granted on said
claim and Defendants’ motion for summary judgment must be denied.
VII. CONCLUSION
For the reasons set forth above, the Court finds that:
Count I: Section 1983 False Arrest Claims for Unlawful Entry and Disorderly Conduct
a) Defendants’ Motion for Summary Judgment will be granted as it relates to
Plaintiffs’ Section 1983 claims asserted against the officers in their official
capacities. Said claims against defendants Espinosa, Newman, Campanale, Parker
and Khan in their official capacities will be dismissed with prejudice.
b) Plaintiffs’ Motion for Summary Judgment will be granted with respect to
Plaintiffs’ Section 1983 unlawful entry false arrest claims asserted against
Defendants Anthony Campanale and Andre Parker in their individual capacities.
c) In all other respects, the parties’ Motions for Summary Judgment with respect to
Count I will be denied.
Count II: State Law False Arrest Claims for Unlawful Entry and Disorderly Conduct
a) Defendants’ Motion for Summary Judgment will be granted as it relates to the
state law false arrest claims asserted against the individual officers in their official
capacities. Said claims against Defendants Espinosa, Newman, Campanale, Parker
and Khan in their official capacities will be dismissed with prejudice.
47
b) Plaintiffs’ Motion for Summary Judgment will be granted with respect to the state
law unlawful entry false arrest claims asserted against the Defendants District of
Columbia, Campanale and Parker.
c) Plaintiffs’ Motion for Summary Judgment will be granted with respect to the state
law disorderly conduct false arrest claim asserted against the Defendant District of
Columbia.
d) In all other respects, the parties’ Motions for Summary Judgment with respect to
Count II will be denied.
Count III: State Law Negligent Supervision Claim
Plaintiffs’ Motion for Summary Judgment will be granted with respect to the state law
negligent supervision claim against Defendant District of Columbia The District of Columbia’s
Motion for Summary Judgment on Count III will be denied.
SO ORDERED.
January 18, 2012
Digitally signed by Judge Robert
L. Wilkins
DN: cn=Judge Robert L. Wilkins,
o=U.S. District Court,
ou=Chambers of Honorable
Robert L. Wilkins,
email=RW@dc.uscourt.gov, c=US
Date: 2012.01.18 16:46:20 -05'00'
___________________________
Robert L. Wilkins
United States District Judge
48