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Wesby v. District of Columbia

United States Court of Appeals, District of Columbia Circuit

September 2, 2014


Argued March 27, 2014.

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Appeal from the United States District Court for the District of Columbia. (No. 1:09-cv-00501).

Carl J. Schifferle, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellants. With him on the briefs were Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, at the time the briefs were filed. Loren L. AliKhan, Deputy Solicitor General, entered an appearance.

Gregory L. Lattimer argued the cause and filed the brief for appellees.

Before: BROWN and PILLARD, Circuit Judges, and EDWARDS, Senior Circuit Judge.


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Pillard, Circuit Judge:

A group of late-night partygoers responded to a friend's invitation to gather at a home in the District of Columbia. The host had told some friends she was moving into a new place and they should come by for a party. Some of them informally extended the invitation to their own friends, resulting in a group of twenty-one people convening at the house. With the festivities well underway, Metropolitan Police Department (" MPD" ) officers responded to a neighbor's complaint of illegal activity. When the police arrived, the host was not there. The officers reached her by phone, and then called the person she identified as the property owner, only to discover that the putative host had not finalized any rental agreement and so lacked the right to authorize the soiree. The officers arrested everyone present for unlawful entry. But because it was undisputed that the arresting officers knew the Plaintiffs had been invited to the house by a woman that they reasonably believed to be its lawful occupant, the officers lacked probable cause for the arrest. Nor was there probable cause to arrest for disorderly conduct because the evidence failed

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to show any disturbance of sufficient magnitude to violate local law. We accordingly affirm the district court's grant of summary judgment to Plaintiffs on the ground that the arrests violated their clearly established Fourth Amendment rights and District of Columbia law against false arrest. Because the supervising police sergeant at the scene also overstepped clear law in directing the arrests, the district court also correctly held the District of Columbia liable for negligent supervision.


The District of Columbia and two police officers in their individual capacities appeal the district court's liability determinations resulting from the grant of partial summary judgment against them. The court granted partial summary judgment in Plaintiffs' favor because, given the uncontroverted evidence of record regarding the information known to the sergeant and two of the officers at the time of the arrests, no reasonable officer in their shoes could have found probable cause to arrest any of the Plaintiffs. The court's grant of summary judgment was only partial, however, in several ways: First, the court denied Plaintiffs' motion for summary judgment against several other officers in the face of factual disputes about what they knew at the scene; the Plaintiffs then abandoned those claims and the court dismissed them with prejudice. Second, the court granted the Defendants' cross-motion for summary judgment on claims against all of the officers in their official capacities, dismissing those claims, too, with prejudice. Finally, the Plaintiffs' summary judgment motion was limited to liability, leaving remedial determinations to the jury. At a trial on damages, the jury awarded each Plaintiff between $35,000 and $50,000 in compensatory damages. The only questions on this appeal address the validity of the partial summary judgment liability holding.

For purposes of appeal of a grant of a plaintiff's motion for summary judgment, we view the facts in the light most favorable to defendants. In the early morning hours of March 16, 2008, the MPD dispatched officers to investigate a complaint of illegal activities taking place at a house in Washington, D.C. The officers heard loud music as they approached the house and, upon entering, saw people acting in a way they viewed as consistent " with activity being conducted in strip clubs for profit" --several scantily clad women with money tucked into garter belts, in addition to " spectators . . . drinking alcoholic beverages and holding [U.S.] currency in their hands." Some of the guests scattered into other rooms when the police arrived. The parties dispute how fully the house was " furnished," but the police observed at least some folding chairs, a mattress, and working electricity and plumbing.[1]

One of the Defendants-Appellants, Officer Anthony Campanale, took photographs of the scene and, along with other officers, interviewed everyone present to find out what they were doing at the house. The partygoers gave conflicting responses, with some saying they were there for a birthday party and others that the occasion was a bachelor party. Someone told Officer Campanale that a woman referred to as " Peaches" had given them permission to be in the house; others said that they had been invited to the party by another guest.

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Peaches was not at the house. Nobody who was present claimed to live there or could identify who owned the house.

Another Defendant-Appellant, Officer Andre Parker, spoke to a woman who told him 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 all individuals to be in the house." The woman then used her cell phone to call Peaches. Officer Parker spoke to Peaches, who refused to return to the house because she said she would be arrested if she did. When Officer Parker asked who gave her permission to be at the house, Peaches told Officer Parker that he could " confirm it with the grandson." Officer Parker then used the same phone to call the apparent owner, identified in the record only as Mr. Hughes, who told Officer Parker that he was trying to work out a lease arrangement with Peaches but had yet to do so.[2] Hughes also told Officer Parker that the people in the house did not have his permission to be there that evening.

Sergeant Andre Suber, an MPD supervisor who was acting as the watch commander that night, arrived on the scene after the officers had begun their investigation. The officers briefed Sergeant Suber, including telling him about Parker's conversations with Peaches and Hughes. Sergeant Suber also spoke to Peaches directly by phone. According to Sergeant Suber, Peaches told him that " 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." As the police continued to talk to Peaches, she acknowledged that she did not have permission to use the house. On that basis--and notwithstanding the undisputed statements of both the guests and Peaches that she had given them permission to be at the house--Sergeant Suber ordered the officers to arrest everyone for unlawful entry.

After the police arrested and transported the partygoers to the police station, Sergeant Suber and the lieutenant taking over as watch commander discussed the appropriate charges for the Plaintiffs. According to Sergeant Suber, the lieutenant decided to change the charge to disorderly conduct after speaking with a representative from the District of Columbia Attorney General's office. Sergeant Suber disagreed, but the lieutenant overruled him. The officers who had been at the house, including Sergeant Suber, each testified that they had neither seen nor heard anything to justify a disorderly conduct charge.

Sixteen of the arrestees sued five officers for false arrest under 42 U.S.C. § 1983, the officers and the District for false arrest under common law, and the District for negligent supervision. On cross-motions for partial summary judgment as to liability, the district court granted the parties' motions in part and denied both motions on some issues. The court ruled in favor of the Plaintiffs on their claims of false arrest against Officers Parker and Campanale in their individual capacities, and on the common law false arrest and negligent supervision claims against the District. Defendants appeal these liability determinations.


We review de novo a district court's summary judgment ruling, " apply[ing] the

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same standard of review applicable to the underlying claims in the district court." Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 918, 382 U.S.App.D.C. 312 (D.C. Cir. 2008). A party is entitled to summary judgment where, " viewing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in the nonmoving party's favor," Ne. Hosp. Corp. v. Sebelius, 657 F.3d 1, 4, 398 U.S.App.D.C. 43 (D.C. Cir. 2011), this Court determines that " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

We begin with Plaintiffs' entitlement to summary judgment on their Section 1983 and common-law false arrest claims. Because " [t]he elements of a constitutional claim for false arrest are substantially identical to the elements of a common-law false arrest claim," we address the merits of those claims together. See Scott v. District of Columbia, 101 F.3d 748, 753-54, 322 U.S.App.D.C. 75 (D.C. Cir. 1996) (citing Dellums v. Powell, 566 F.2d 167, 175, 184 U.S.App.D.C. 275 (D.C. Cir. 1977)). As with most false arrest claims, Plaintiffs' claims " turn on the issue of whether the arresting officer[s] had probable cause to believe that [Plaintiffs] committed a crime." Id. at 754. Defendants argue that the district court erred in finding the arrests unsupported by probable cause because, in their view, the officers had objectively valid bases to arrest the Plaintiffs both for unlawful entry and disorderly conduct. In the alternative, Defendants contend that, even if probable cause were lacking, the officers are shielded from liability by qualified immunity and a common-law privilege. We address these contentions in turn.


The assessment of probable cause is an objective one. An arrest is supported by probable cause if, " at the moment the arrest was made, . . . the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing" that the suspect has committed or is committing a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

Based on the undisputed facts relevant to the knowledge the police had at the time of the arrests, and " giv[ing] due weight to inferences drawn" by the officers, we consider de novo whether those facts support a determination of probable cause to arrest. Ornelas v. United States, 517 U.S. 690, 697, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Defendants contend that they were justified in arresting Plaintiffs for unlawful entry and disorderly conduct. To determine whether they had probable cause to believe that Plaintiffs were violating District of Columbia law, we look to District law to identify the elements of each of those offenses. See Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Upon examination of the relevant statutes and case law, we conclude that no reasonable officer could have concluded that there was probable cause to arrest Plaintiffs for either crime.

Unlawful Entry.

At the time of Plaintiffs' arrests, District of Columbia law made it a misdemeanor for a person to, " without lawful authority, . . . enter, or attempt to enter, any public or private dwelling, building, or other property, or part of such dwelling, building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof." D.C. Code § 22-3302 (2008).[3] To sustain a conviction for unlawful

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entry, the government must prove that " (1) the accused entered or attempted to enter public or private premises or property; (2) he did so without lawful authority; (3) he did so against the express will of the lawful occupant or owner; and (4) general intent to enter." Culp v. United States, 486 A.2d 1174, 1176 (D.C. 1985).

The probable-cause inquiry in this case centers on the third and fourth elements, which together identify the culpable mental state for unlawful entry. See Ortberg v. United States, 81 A.3d 303, 305 (D.C. 2013). Specifically, the question is whether a reasonable officer with the information that the officers had at the time of the arrests could have concluded that Plaintiffs knew or should have known they had entered the house " against the will of the lawful occupant or of the person lawfully in charge thereof," and intended to act in the face of that knowledge. D.C. Code § 22-3302; see Ortberg, 81 A.3d at 305; Artisst v. United States, 554 A.2d 327, 330 (D.C. 1989).

Probable cause " does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction." Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). But the police cannot establish probable cause without at least some evidence supporting the elements of a particular offense, including the requisite mental state. United States v. Christian, 187 F.3d 663, 667, 337 U.S.App.D.C. 402 (D.C. Cir. 1999). Because the offense of parading without a permit, for example, requires knowledge that no permit issued, " officers who make such an arrest must have reasonable grounds to believe" that the suspects knew no permit had been granted. Carr v. District of Columbia, 587 F.3d 401, 410-11, 388 U.S.App.D.C. 332 (D.C. Cir. 2009).

In this case, the officers on the scene had three pieces of information that could bear on whether the Plaintiffs knew or should have known that they had entered a house against the owner's express will. First, the officers had Plaintiffs' statements that they had been invited to some kind of party at the house, with inconsistent and conflicting statements about the type of party. Second, the officers had explicit, uncontroverted statements from Peaches and a guest at the scene that Peaches had told the people inside the house that they could be there. Finally, the officers had a statement by the claimed owner of the house that he had been trying unsuccessfully to arrange a lease with Peaches and that he had not given the people in the house permission to be there.

As a preliminary matter, Defendants argue that Peaches' invitation is irrelevant to the determination of probable cause, because whether the Plaintiffs had a bona fide belief in their right to enter the house " simply raises a defense for the criminal trial." That argument misses the mark. The District of Columbia Court of Appeals recently reiterated that " the existence of a reasonable, good faith belief [in permission to enter] is a valid defense precisely because it precludes the government from proving what it must --that a defendant knew or should have known that his entry was against the will of the lawful occupant." Ortberg, 81 A.3d at 309 (emphasis added).

It is true that, if prosecuted for unlawful entry, a defendant may raise as a defense that he ...

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