AMY BERMAN JACKSON, District Judge.
Plaintiff Joshua Michael Branham, a participant in the 2012 Occupy DC protest at McPherson Square ("the Square"), brings this action against United States Park Police Officer Seth Cox, in his individual capacity. Branham alleges that Officer Cox violated his Fourth Amendment rights by arresting him without probable cause. He seeks monetary damages and declaratory relief under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Officer Cox has filed a motion to dismiss or, in the alternative, for summary judgment on the grounds that he is entitled to qualified immunity. Since the Court finds that a reasonable officer in Officer Cox's position could have believed that Branham had violated the regulation prohibiting camping on national park land, 36 C.F.R. § 7.96(i), Officer Cox is protected by qualified immunity, and the Court will grant his motion for summary judgment.
The facts of this case are largely undisputed. McPherson Square is a park within the National Park System. 36 C.F.R. § 7.96(g)(2)(ii)(B). For several months in 2011 and 2012, the Occupy DC protesters physically "occupied" McPherson Square. Def.'s St. of Material Facts as to which there is no Genuine Dispute ("Def.'s St. of Facts") [Dkt. #11] ¶¶ 1-3;
On February 22, 2012, at approximately 3:40 a.m., Officer Cox observed Branham and Hunter Williamson, another participant in the Occupy DC protest, asleep in a zipped up tent in McPherson Square. Def.'s St. of Facts ¶ 17, citing Supplemental Criminal Incident R., Ex. 3 to Def.'s Mot. [Dkt. #11-1].
On May 3, 2012, Branham sued Officer Cox in his individual capacity alleging that Officer Cox violated his Fourth Amendment rights by arresting him without probable cause to believe he had committed
"To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." 556 U.S. at 678, 129 S.Ct. 1937. And "[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679, 129 S.Ct. 1937.
A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id., quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed liberally in plaintiff's favor, and the Court should grant plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is only "material" if it is capable of affecting the outcome of the litigation. Id. at 248, 106 S.Ct. 2505; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987). In assessing a party's motion, the court must "view the facts and draw reasonable inferences `in the light most favorable to the party opposing the summary judgment motion.'" Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam).
A motion to dismiss must be treated as a motion for summary judgment if "matters outside the pleadings are presented to and not excluded by the court." Fed.R.Civ.P. 12(d); see also Yates v. District of Columbia, 324 F.3d 724, 725 (D.C.Cir.2003) (holding that district court's consideration of matters outside the pleadings converted the defendant's Rule 12 motion into one for summary judgment). Because both parties have submitted matters outside of the pleadings, and the Court will consider them in the resolution of defendant's motion, the Court will treat the motion as one for summary judgment.
Officer Cox contends that he is entitled to judgment as a matter of law on Branham's Bivens claim because he is protected by qualified immunity. Def.'s Mem. at 1-2; see also Iqbal, 556 U.S. at 672, 677, 129 S.Ct. 1937 (stating that a plaintiff may not recover under Bivens if the defendant is entitled to qualified immunity). Qualified immunity is "an immunity from suit rather than a mere defense to liability." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991), quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis omitted). Since the immunity exists to shield government officials who act lawfully from the rigors of suit, it should be granted or denied as early as the factual record allows. Id. Accordingly, it is appropriate to terminate actions on the basis of immunity "on a properly supported motion for summary judgment." Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Since the Court finds that there is no genuine dispute of material fact in this case, summary judgment is the appropriate forum to resolve Officer
The defendant bears the burden of pleading and proving the defense of qualified immunity. Harlow, 457 U.S. at 815, 102 S.Ct. 2727. "Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was `clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). In each case, the court may decide which prong to address first. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
The qualified immunity analysis "`turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.'" Youngbey v. March, 676 F.3d 1114, 1117 (D.C.Cir.2012), quoting Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). In other words, "the protection of qualified immunity is available if a reasonable officer could have believed that his or her actions were lawful, in light of clearly established law and the information the officers possessed." Id. (quotation marks, citations and alterations omitted). This standard, "[w]hen properly applied ... protects `all but the plainly incompetent or those who knowingly violate the law.'" al-Kidd, 131 S.Ct. at 2085 (citation omitted).
Branham alleges that Officer Cox violated his Fourth Amendment rights by arresting him without probable cause. Compl. ¶ 17. "[A]n officer retains qualified immunity from suit if he had an objectively reasonable basis for believing that the facts and circumstances surrounding the arrest were sufficient to establish probable cause." Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C.Cir.1993), citing Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Thus, even if the Court ultimately concludes that an arrest was not supported by probable cause, the arresting officer will still be immune from suit if a reasonable officer in his position "could have believed that probable cause existed to arrest [the plaintiff]." Hunter, 502 U.S. at 228, 112 S.Ct. 534.
Police officers have probable to make an arrest if "at the moment the arrest was made ... the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrestee] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). The offense in this case involved camping in violation of a National Park Service regulation, which prohibits:
36 C.F.R. § 7.96(i)(1) (1987) (emphasis added). Branham does not dispute that at the time of the arrest, he was asleep in a tent in McPherson Square. See Compl. ¶ 7; Pl.'s Opp. at 1. These facts provide a sufficient basis for an officer to reasonably believe that Branham was "using any tent[] or shelter or other structure ... for sleeping" within the meaning of 36 C.F.R. § 7.96(i)(1).
But Branham points out that using a tent for sleeping "is not the sine qua non of `camping' under the regulation; the sine qua non is, rather, the use of the park for living purposes." United States v. Thomas, 864 F.2d 188, 193 (D.C.Cir. 1988);
Branham asserts that Officer Cox did not have "even arguable probable cause" to believe that he was using the Square for living purposes because the evidence in this case shows only that he was casually sleeping at the time of the arrest. Pl.'s Opp. at 5. This argument is identical to the one that the D.C. Circuit rejected in Musser. In Musser, the defendant was convicted for violating the camping regulation based on evidence that he was "stretched out on a wooden pallet with bedding material under him and over him, covered by plastic, a makeshift pillow under his head, and his belongings around him, asleep for at least two hours" in Lafayette Park. 873 F.2d at 1519. He challenged his conviction on the grounds that the evidence proved at most that he had taken a "two-hour snooze," which constituted permitted casual sleeping. Id. at 1518. In rejecting this argument, the D.C. Circuit explained that "the camping regulation is not limited to long-term living accommodations. Overnight,
Branham argues that unlike in Thomas and Musser, the totality of the circumstances of this case do not support a reasonable conclusion that he was using the Square for living purposes: (1) he was sleeping upright in a chair in an information booth, not stretched out or lying down on or in bedding material; (2) he did not have a blanket on his lap or near him; (3) he was not storing any of his belongings nearby; and (4) he had alternative locations where he could sleep. Pl.'s Opp. at 5; Branham Decl., Ex. 2 to Pl.'s Opp. [Dkt. #15-2] ¶¶ 2-5; Tr. of Mots. Hr'g ("Tr.") at 13:20-14:10.
The Court considers the fourth factor to be entirely irrelevant to the reasonableness of the officer's belief; having a residence elsewhere is not in any way inconsistent with camping. And, even though some of the factors that were relevant in Thomas and Musser are not as strong here because the young men in the tent were more vertical than horizontal, and they were sleeping in chairs and eschewing more comfortable bedding material, this case does not require the Court to find what was needed in those cases: evidence supporting a criminal conviction beyond a reasonable doubt. See Musser, 873 F.2d at 1519; Thomas, 864 F.2d at 191, 193. As a defendant in a civil action, Officer Cox does not have to prove "beyond a reasonable doubt" that Branham used the Square for living purposes. To prevail on his qualified immunity defense, he need only show that his conclusion that Branham was camping at the time of the arrest was objectively reasonable.
The Court is satisfied that Officer Cox has met this lower standard because, viewing the evidence in the light most favorable to Branham, a reasonable person could conclude that a person who was asleep, in a tent that was zipped, at 3:40 in the morning appeared to be using McPherson Square for living purposes at least for that single night. See Def.'s Statement of Facts ¶¶ 12, 17, 20; see also Supplemental Criminal Incident R.
Branham nonetheless contends that summary judgment is not appropriate in this case because there is a genuine dispute as to whether he was sleeping overnight. Pl.'s St. of Issues as to which there is a Genuine Dispute [Dkt. #15-1] ¶ 4. He notes that at the time of the arrest, he was sitting behind the table in the Occupy DC Information Booth, which "is not where one would expect a person to be sleeping if they were going to be deliberately sleeping in the park." Tr. at 14:5-:6; see also Compl. ¶ 7; Branham Decl. ¶ 2. This argument fails for several reasons. The Supreme Court has interpreted the camping regulation to include a ban on "overnight sleeping." Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 295, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). However, an individual is not required to complete a full night's sleep to violate the regulation. See 36 C.F.R. § 7.96(i)(1) (prohibiting making preparations to sleep); United States v. Semple, 702 F.Supp. 295, 300 (D.D.C.1988) (explaining that the Clark Court's reference to overnight sleeping may excise "mere napping on a sunny afternoon" from the regulation's purview, but that language does not require a person to sleep "from sunset to sunrise without interruption" to violate the regulation). Second, the plaintiff and his colleague had closed themselves off to others, sealing the tent with a zipper.
Accordingly, the Court will grant Officer Cox's motion for summary judgment because it was reasonable for him to believe that he had probable cause to arrest Branham for camping in McPherson Square, and he is thus entitled to qualified immunity. A separate order will issue.
