REGGIE B. WALTON, District Judge.
The plaintiff, David Olabayo Olaniyi, alleges that he was subjected to constitutional and common-law violations arising from his arrest in the United States Capitol Building in March of 2003, and from a separate incident involving a vehicle stop in the District of Columbia in January of 2004. See generally Second Amended Complaint ("Am. Compl."); Complaint ("United States Compl.").
The facts that give rise to this case were set forth fully in the Court's prior opinion in this case. See Olaniyi v. District of Columbia, 416 F.Supp.2d 43, 46-48 (D.D.C.2006). The Court largely repeats those facts here, updating the internal citations to incorporate the Second Amended Complaint ("Am. Compl."), and providing more detail with respect to the search of the plaintiff's van.
The plaintiff, a native of Nigeria, describes himself as "an artist, philosopher, scholar, performer, and director." Am. Compl. ¶ 3. According to the plaintiff, on March 6, 2003, he and his current wife, Reena Patel Olaniyi, then residents of Michigan, visited the United States Capitol Building to tour and conduct research for the plaintiff's stage play. Id. ¶¶ 3, 65-66. The plaintiff contends that the play "would illustrate to audiences across the United States the way in which objects in one's physical space tend to shade one's views of different experiences." Id. ¶ 3.
In preparation for his visit, the plaintiff constructed and wore a costume consisting of "various materials from the [District of Columbia] environment, including newspapers, shampoo bottles, [and] empty honey jars ... wrapped in duct tape which was formed into a harness shape over [the plaintiff's] chest." Id. ¶ 66.
Clad in his costume, the plaintiff passed through several security checkpoints, including checkpoints equipped with a magnetometer, x-ray machine, and explosive detectors, before gaining entry into the Capitol Building. See id. ¶ 68. When asked about his costume, the plaintiff "explained to the guards that he was an artist doing research for an upcoming performance." Id. Also, once inside the Capitol Building, the plaintiff "performed for tourists by dancing and singing," and he took photos with them. Id. ¶ 69. The plaintiff also described his stage play "David/Dafidi," and his artistic philosophy as "Life is a Performance." Id.
The plaintiff alleges that while he was in the Crypt area of the Capitol Building, he was approached by Officer Preston Nutwell of the Capitol Police. Id. ¶ 70. Officer Nutwell asked what the plaintiff was holding, and the plaintiff identified the object as a hand-carved mask sculpture. Id. After instructing the plaintiff to drop the object, Officer Nutwell allegedly "grabbed the piece and shattered it on the ground." Id. The plaintiff was then handcuffed. Id. ¶ 71.
After the plaintiff was handcuffed, "[t]hirty to forty more" officers, including members of the Capitol Police Hazardous Device Unit, the Federal Bureau of Investigation's ("FBI") Joint Terrorism Task Force, and Detective Joseph DePalma, arrived in the Crypt area of the Capitol Building. Id. When asked if there were wires or explosives in his costume, the plaintiff responded in the negative, stating that he was wearing the costume for artistic purposes. Id. The plaintiff's costume was then cut from his body and x-rayed. Id. It was determined that the plaintiff was unarmed, and preliminary testing conducted on the costume was negative for explosives, chemical agents, and radiation.
In a post-arrest search of the plaintiff's person, the officers discovered a set of car keys, which the plaintiff explained were for the use of his vehicle, a black 2002 GMC Savanna van. Id. ¶ 73. The police subsequently located the van in the 300 block of 3rd Street, NE, approximately four blocks from the Capitol Building. Id.; Olaniyi, 416 F.Supp.2d at 47. According to the federal defendants, because the plaintiff's costume resembled a vest associated with suicide bombers, there was concern that there may be explosives inside the van or that the plaintiff may have been engaging in a "Dry Run" to test security or observe response procedures and capabilities at the
A canine search of the van's exterior did not reveal any traces of explosives, Am. Compl. ¶ 73, but while conducting the search the Capitol Police canine officers observed large containers in the rear of the van covered by blankets and clothing, Fed. Defs.' Mem., Ex. 2 (King Decl.) at 7; id., Ex. 2 (Decl. of John Dineen) at 4-5.
During their inspection of the van's exterior, agents King and Bracci confirmed that several large containers were present in the back of the van and also noticed three large unmarked glass jars containing an unknown liquid located between the van's front seats. Id., Ex. 2 (Bracci Decl.) at 2; id., Ex. 2 (King Decl.) at 7. The bottom portions of the glass jars, however, could not be seen by agents King and Bracci from their vantage points. Id., Ex. 2 (King. Decl.) at 7. After donning protective equipment to safeguard themselves from exposure to any hazardous chemicals, agents King and Bracci entered the van. Id., Ex. 2 (Bracci Decl.) at 2. The containers were examined as if they contained potential explosive, chemical, or incendiary hazards, and agents King and Bracci handled the items in the van with proper care. Id., Ex. 2 (Bracci Decl.) at 3; id., Ex. 2 (King Decl.) at 8. They determined that the containers had no wires attached to them, and that the liquid inside the containers was urine. Fed. Defs.' Mem., Ex. 4 (Decl. of Kevin D. Finnerty) ("Finnerty Decl.") at 1-4 ¶ 5. The containers were then packed in HAZMAT-approved containers
After the search of the van, FBI Special Agents Doug Edmonson and Kevin Finnerty discussed the incident with members of the Capitol Police. See Fed. Defs.' Mem., Ex. 3 (Decl. of Douglas R. Edmonson) ("Edmonson Decl.") at 7-9 ¶ 3; id., Ex. 4 (Finnerty Decl.) ¶ 6. These officials were concerned that the plaintiff "might have been intentionally probing security at the Capitol [Building] in advance of an actual attack, or may have been [an] unwitting `pats[y]' being used by terrorists to probe security at the Capitol," and that the van would contain evidence in this regard. Id., Ex. 4 (Finnerty Decl.) ¶ 6. Both agents also noted that because "Mr. Olaniyi and Ms. Patel had been arrested, [they] did not want to leave [the] van on the street and run the risk that it would be vandalized, stolen, [or] towed because of a parking violation, or perhaps driven away by an unknown third party involved in the incident." Id.; see also id., Ex. 3 (Edmonson Decl.) ¶ 3. In consultation with a supervisor at the FBI's Washington Field Office, agents Finnerty and Edmonson ordered that the van be impounded and towed to an FBI storage facility. Id., Ex. 4 (Finnerty Decl.) ¶ 6; id., Ex. 3 (Edmonson Decl.) ¶ 3. Agent Finnerty then requested that an inventory search of the van be conducted. Id., Ex. 4 (Finnerty Decl.) ¶ 6. Analysis of the liquids retrieved from the van during the inventory search determined that they were non-hazardous. See Fed. Defs.' Mem., Ex. 3 (Decl. of Melissa R. Godbold) at 20-23 ¶ 2. The plaintiff alleges that the conduct of the Capitol Police and FBI resulted in the destruction of "numerous pieces of original artwork" that were inside the van. Am. Compl. ¶ 73.
Following his arrest, the plaintiff was detained overnight in a holding cell and, after a clinician assessment indicated that he had "delusions of grandeur," id. ¶¶ 74-75, was later transferred to the Mental Health Unit of the District of Columbia Jail (the "Mental Health Unit"), where he remained for approximately three nights, id. ¶¶ 74-77. During his stay in the Mental Health Unit, clinicians informed the plaintiff that, according to test results, he was diabetic and that they would administer medication to treat the condition. Id. The plaintiff denied having diabetes and refused the medication, but claims that "he was told `you can either cooperate or be physically restrained while we inject you[ ],'" at which point he purports to have cooperated with the clinicians while under duress. Id. The plaintiff alleges that he was then "forcibly administered a medication which caused him to lose consciousness until the following morning." Id. He believes the "medication was an antipsychotic drug because it caused [him] to lose consciousness for several hours and... was administered through a shot into [his] upper arm rather than a typical finger prick for diabetes testing." Id. Records the plaintiff later obtained from the Mental Health Unit "indicate that [he] was `cooperative' and `consistent,' and that he had no history of diabetes." Id.
On March 10, 2003, after his release from the Mental Health Unit, the plaintiff and Ms. Patel were charged in this Court with (1) demonstrating in the Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(G) (2006);
In January of 2004, the plaintiff, along with his children and Patel, returned to the District of Columbia to retrieve several pieces of artwork that were confiscated by the Capitol Police after the events of the previous March. United States Compl. ¶ 34. While driving near the Capitol Building in the same van discussed earlier in describing the events of the previous March, the plaintiff was pulled over by the Capitol Police. Id. According to the plaintiff, Detective Joseph DePalma, one of the officers present during the plaintiff's arrest in March of 2003, although not involved in the initial stop, subsequently arrived on the scene and appeared to be supervising the activities. Id. ¶ 35. Detective DePalma informed the plaintiff that his vehicle was pulled over "because there was snow on the van and because the Michigan tags made [him] `suspicious.'" Id. The plaintiff claims that Detective DePalma made "several inappropriate comments" and "other intimidating remarks" to the plaintiff. Id. ¶ 36. These remarks included questions about "why [the plaintiff] and [his family] were back in [Washington] D.C.; why they had the children with them; whether [the plaintiff] had custody of the children; whether he had the authority to remove them from Michigan; and whether he had papers on his person authorizing their transportation." Id. The plaintiff also states that Detective DePalma "had dogs search the van while the children were in it." Id. ¶ 37.
After the January 2004 vehicle stop, the plaintiff alleges a pattern of ongoing harassment and intimidation by Detective DePalma and other members of the federal government, culminating in a visit to the plaintiff's home in Iowa by Secret Service agents. See id. ¶¶ 38-41. According to the plaintiff, the Secret Service agents' visit was prompted by an allegation made by the plaintiff's ex-wife, who had gone to "authorities in Michigan and said [the plaintiff] was going to kill the President." Id. ¶ 40. During the meeting with the Secret Service agents, the plaintiff was questioned about "his life, his parents, his arrest, his travel destinations, and his immigration status," and his son was asked whether the plaintiff ever said he was going to kill the President. Id. The plaintiff also claims that Secret Service Agent Hull threatened him by asking what would happen if the plaintiff's immigration papers were confiscated. Id.
On March 3, 2005, the plaintiff initiated this action against the District of Columbia, Capitol Police officers Joseph DePalma and Preston Nutwell, a John Doe Capitol Police defendant, and a John Doe FBI defendant. See Olaniyi, 416 F.Supp.2d at 48-49 & n. 6. The plaintiff alleged violations of the First, Fourth, and Fifth Amendments of the Constitution stemming from his arrest and detention in the Capitol Building and the warrantless search of his van, and constitutional and common law tort violations by the District of Columbia for conduct that allegedly transpired during the plaintiff's confinement in the Mental Health Unit. Id. at 48-49.
On February 17, 2006, 416 F.Supp.2d 43 (D.D.C.2006), the Court issued a Memorandum
On October 31, 2006, the plaintiff filed his Second Amended Complaint. With the exception of naming additional federal defendants, see Am. Compl. at 1-11,
On December 20, 2006, the plaintiff filed a separate complaint against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (2006) (the "FTCA"), alleging the following six common law violations committed
On March 20, 2007, the plaintiff voluntarily dismissed his claims against all members of the District of Columbia Department of Corrections except defendants Darius Mills and Gwendolyn Gibson. See Docket Entry 94, Notice of Voluntary Dismissal of Certain Defendants ¶ 4. Defendant Mills, proceeding pro se, then filed an "Answer to and Request for Dismissal Based on Lack of Merit," Docket Entry 139, which the Court ultimately construed as an answer. Docket Entry 140.
As noted at the outset of this opinion, the United States, the District of Columbia, and the individual federal defendants have filed either motions to dismiss or, alternatively, motions for summary judgment. The defendants assert a number of arguments in support of their respective motions, and the Court will examine each defendant's arguments in turn.
A motion for dismissal under Rule 12(b)(1) "presents a threshold challenge to the court's jurisdiction...." Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987); see also Grand Lodge Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001) (noting that a Rule 12(b)(1) motion imposes an affirmative obligation on the court to ensure it is acting within its jurisdictional authority). Specifically, the Court may dismiss a claim if the Court "lack[s] ... subject matter jurisdiction" to entertain it. Fed.R.Civ.P. 12(b)(1). Under Rule 12(b)(1), "it is presumed that a cause lies outside [the federal courts'] limited jurisdiction," Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), and the plaintiff bears the burden of establishing the Court's jurisdiction by a preponderance of the evidence, see, e.g., Moore v. Bush, 535 F.Supp.2d 46, 47 (D.D.C.2008). In deciding a motion to dismiss based upon lack of subject matter jurisdiction, a Court is not limited to the allegations set forth in the complaint, but "may consider materials outside the pleadings." Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005). However, when reviewing a motion to dismiss pursuant to Rule 12(b)(1), the Court is required to accept as true all factual allegations contained in the complaint. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993).
On the other hand, a motion to dismiss under Rule 12(b)(6) tests whether a complaint has properly stated a claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193
In evaluating a Rule 12(b)(6) motion under this framework, "[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979) (internal quotation marks and citations omitted), and the Court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint, and matters of which [the Court] may take judicial notice," E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir. 1997) (footnote omitted). Although the Court must accept the plaintiffs' factual allegations as true, conclusory allegations are not entitled to an assumption of truth, and even those allegations pleaded with factual support need only be accepted to the extent that "they plausibly give rise to an entitlement to relief." Iqbal, ___ U.S. at ___, 129 S.Ct. at 1950. Furthermore, where "more likely explanations" than those alleged by the plaintiff exist, the Court should be reluctant to find that the plaintiff's allegations have sufficiently nudged his claims into the realm of plausibility. See id. at 1951-52. If "the [C]ourt finds that the plaintiffs have failed to allege all the material elements of their cause of action," then the Court may dismiss the complaint without prejudice, Taylor v. FDIC, 132 F.3d 753, 761 (D.C.Cir. 1997), or with prejudice, provided that the Court "determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency," Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996) (internal quotation marks and citations omitted).
Courts will grant a motion for summary judgment if "the pleadings, depositions, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, courts must view the evidence in the light most favorable to the
The United States moves to dismiss the plaintiff's six FTCA claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See generally United States Mot. at 8-20. For the reasons explained below, Counts One, Three, Four, and Five will be dismissed for lack of subject matter jurisdiction, part of Count Six will also be dismissed for lack of subject matter jurisdiction and the remainder of this Count will be dismissed for failure to state a claim, and the United States' motion to dismiss Count Two will be denied.
The United States argues that the plaintiff's false arrest and imprisonment claim associated with his March 2003 arrest (Count One), the intentional infliction of emotional distress claim (Count Four), the conversion of property claim (Count Five), and the loss of future earnings, humiliation and damage to reputation claim (Count Six) should be dismissed for lack of subject matter jurisdiction because these claims are time-barred. See United States Mot. at 8-9. More specifically, the United States contends that because these Counts arise out of events that occurred between March 6 and 10, 2003, in accordance with the FTCA's two-year limitations, they had to be presented in writing to the appropriate federal agency by March 10, 2005. See id. at 7-10. However the United States represents that the Capitol Police, the appropriate federal agency for most of the claims asserted by the plaintiff, did not receive the plaintiff's administrative claim until March 17, 2005, approximately one week after the limitations period expired. See id., Ex. 1 (Decl. of Cecelia E. Barrios) ¶ 4; id., Ex. 4 (Decl. of William H. Emory) ¶ 3.
For his part, the plaintiff asserts that his administrative claim was mailed on February 25, 2005, from the District of Columbia offices of his attorneys to the address listed for the Capitol Police, which was in accordance with instructions provided by that agency's General Counsel's Office. Pl.'s Opp'n to United States Mot. at 14-15; id., Ex. 1 (Decl. of Lory C. Stone), Ex. A (Instructions for Filing a Tort Claim with the United States Capitol Police). Unbeknownst to the plaintiff, however, because this address has the same zip code
It is well settled that the United States is immune from suit unless Congress has expressly provided consent to be sued; that is, when Congress has waived the United States' sovereign immunity. E.g., FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. Sovereign immunity is jurisdictional in nature." (internal citations omitted)). "The FTCA operates as a limited waiver of sovereign immunity, rendering the United States amenable to suit for certain, but not all, tort claims." Rashad v. D.C. Central Detention Facility, 570 F.Supp.2d 20, 23 (D.D.C.2008) (citing Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962)).
The date the plaintiff's administrative claim was received is important because a party asserting jurisdiction under the FTCA must satisfy administrative exhaustion requirements by "present[ing] the claim to the appropriate federal agency." 28 U.S.C. § 2675(a); see McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). In fact, the United States Code makes clear that a "tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues," 28 U.S.C. § 2401(b), and the associated regulations explain that a claim is deemed presented when it is received by the agency, 28 C.F.R. § 14.2(a) (2005); id. § 14.2(b)(1).
In this case, however, the Court need not resolve whether the plaintiff's claim was timely presented to the Capitol Police or whether equitable tolling applies to the FTCA's statute of limitations. Norman v. United States, 467 F.3d 773, 776 (D.C.Cir.2006) (declining to decide whether equitable tolling applies to the FTCA). These determinations are unnecessary because even if the administrative claim was timely presented, the Court concludes that the plaintiff's related judicial claims would still have to be dismissed for lack of subject matter jurisdiction due to the fact that they fall within the FTCA exemptions of 28 U.S.C. § 2680, and are therefore barred by sovereign immunity. Edmonds v. United States, 436 F.Supp.2d 28, 35 (D.D.C.2006) (citing Sloan v. United States Dep't of Housing & Urban Dev., 236 F.3d 756, 759 (D.C.Cir.2001)); cf. NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C.Cir. 2008) ("It is axiomatic that subject matter jurisdiction may not be waived, and that courts may raise the issue sua sponte." (citation omitted)).
To begin with, the plaintiff's detention and false arrest claim (Count One) fails because it is barred by the discretionary function exemption to the FTCA. See 28 U.S.C. § 2680(a). In relevant part, that provision shields the United States from liability from "[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Id. This exemption "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals," Shuler v. United States, 531 F.3d 930, 933 (D.C.Cir. 2008) (quoting United States v. Varig Airlines, 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)), and its purpose is to "prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort," United States v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755).
The Supreme Court has established a two-part test to determine whether the conduct alleged by the plaintiff falls under the discretionary function exemption. See id. at 322-23, 111 S.Ct. 1267. First, the act at issue must "involv[e] an element of judgment or choice," meaning that no federal statute, regulation, or policy specifically prescribes a course of action for the employee to follow. See Sloan, 236 F.3d at 759 (quoting Gaubert, 499 U.S. at 322, 111 S.Ct. 1267). Second, assuming that an element of judgment is involved, it must be determined whether the judgment is of a kind that the discretionary function
In this case, the decision to detain and then arrest the plaintiff in the Capitol Building falls well within the scope of the discretionary function. Capitol Police officers are empowered by federal law "to make arrests within the United States Capitol Buildings ... for any violations of any law of the United States," 2 U.S.C. § 1961(a) (2006), and based on his appearance that day, the Court previously determined that it was "entirely reasonable" for the Capitol Police to believe that the plaintiff was, at a minimum, engaged in an unlawful demonstration in the Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(G). See Olaniyi, 416 F.Supp.2d at 54. "Making an arrest is a discretionary function," Bailey v. United States Marshal Serv., 584 F.Supp.2d 128, 132 (D.D.C.2008), and "[d]ecisions regarding the timing of arrests are the kind of discretionary government decisions, rife with considerations of public policy, that Congress did not want the judiciary `second guessing.'" Shuler, 531 F.3d at 934 (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755); see Deuser v. Vecera, 139 F.3d 1190, 1195 (8th Cir.1998) ("Law enforcement decisions of the kind involved in making or terminating an arrest must be within the discretion and judgment of enforcing officers."). Accordingly, the detention and false arrest components of Count One of the Complaint is barred by the discretionary function exemption of the FTCA.
As to the conversion of property claim (Count Five), the Court concludes that this claim fails based on 28 U.S.C. § 2680(c), which exempts the United States from liability for "[a]ny claim arising in respect of ... the detention of any goods, merchandise, or other property by any officer or customs or excise or any other law enforcement officer." Id. The Supreme Court has interpreted this exemption broadly, explaining that it includes claims "resulting from the negligent handling or storage of detained property," Kosak v. United States, 465 U.S. 848, 854, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984), and recently held that the phrase "any other law enforcement officer" includes "law enforcement officers of whatever kind," Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 220, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008). Although the Supreme Court did not delineate what constitutes "detention" in this context, id. at 218 n. 2, 128 S.Ct. 831, the Sixth Circuit has observed that "[a] detention is generally associated with a period of temporary custody or delay.... It is a term often associated with an ongoing investigation." Kurinsky v. United States, 33 F.3d 594, 597 (6th Cir.1994); see Chapa v. United States Dep't of Justice, 339 F.3d 388, 390-91 (5th Cir.2003) (agreeing with this interpretation of detention). Indeed, in the legal sense of the word, detention consists of "[t]he act or fact of holding a person [or property] in custody," Black's Law Dictionary 514 (9th ed.2004), and "custody," in turn, is "[t]he care and control of a thing or person for inspection, preservation, or security," id. at 441.
Applying that understanding of "detention" here, the Court concludes that 28 U.S.C. § 2680(c) encompasses the plaintiff's conversion of property claim. At the point in time when the bomb technicians
With respect to Count Six, it fails because the United States has not waived its sovereign immunity for claims "arising out of" alleged acts of libel or slander. 28 U.S.C. § 2680(h). Although this Count is styled as one for loss of future earnings, humiliation, and damage to reputation, United States Compl. ¶¶ 68-72, the "label which a plaintiff applies to a pleading does not determine the nature of the cause of action which he states," Edmonds, 436 F.Supp.2d at 35 (quoting Johnson v. United States, 547 F.2d 688, 691 (D.C.Cir. 1976)). Instead, the Court must scrutinize the alleged cause of the plaintiff's injury in assessing the nature of his claim. Kugel v. United States, 947 F.2d 1504, 1507 (D.C.Cir.1991).
Kugel is illustrative in this regard. The plaintiff in Kugel alleged that the FBI conducted an investigation into his business practices and, even though he was later exonerated, he was injured when reports of the investigation appeared in the media. See id. at 1506. The plaintiff brought suit under the FTCA claiming that several municipalities canceled their contracts or refused to do business with him, that he was forced to file for bankruptcy, and that he suffered public ridicule and humiliation resulting from the cancellations. Id. The District of Columbia Circuit examined the nature of the claims and determined that the cause of the injury was not the FBI investigation, but was instead the "dissemination of information associated with the investigation." Id. at 1507. The Circuit thus concluded that the plaintiff's claim sounded in defamation and was therefore barred under 28 U.S.C. § 2680(h). Id.
The same rationale applies here. Upon scrutinizing the alleged cause of his injury, it becomes clear that Count Six is essentially a defamation claim. In particular, the plaintiff alleges that because of his arrest, his supporters withdrew funding from future productions of his play, resulting in humiliation and damage to his reputation, and that some of his "best patrons stopped purchasing [his] artwork." See United States Compl. ¶¶ 70-72. Significantly,
The claim for intentional infliction of emotional distress (Count Four) is somewhat more difficult to resolve because it is based on four different events: (1) the plaintiff's arrest in the Capitol Building; (2) Detective DePalma's purported actions during the traffic stop in January 2004; (3) ongoing harassment and intimidation allegedly committed by Detective DePalma and other members of the federal government; and (4) Secret Service Agent Hull's alleged threat to confiscate the plaintiff's immigration papers. See United States Compl. ¶¶ 57-61. The last three of these events are obviously timely, each having occurred within two years of March 17, 2005, the date the United States acknowledges receiving the plaintiff's administrative claim. United States Mot. at 10.
To the extent that this Count concerns the arrest by the Capitol Police officers, even though 28 U.S.C. § 2680(h) waives the United States' sovereign immunity for certain intentional torts committed by law enforcement officers, "claims of intentional torts under § 2680(h) must clear the § 2680(a) discretionary function hurdle." Medina v. United States, 259 F.3d 220, 226 (4th Cir.2001); Gray v. Bell, 712 F.2d 490, 508 (D.C.Cir.1983). Because the Court has already found that the decision to arrest the plaintiff fell under the discretionary function exemption, insofar as this Count is brought against the Capitol Police for their conduct in arresting the plaintiff, the Court lacks subject matter jurisdiction to consider it. That component of the claim must therefore be dismissed, and the remaining components of the claim will be addressed later in this opinion.
Count Three of the United States Complaint contends that the Capitol Police and the FBI "maliciously [instituted] proceedings against [the plaintiff] by detaining and arresting him, and by initiating proceedings against him despite having determined on the scene that [he] possessed no explosives and that there was insufficient evidence to sustain [the] charges." United States Comp. ¶ 52. The United States argues that the plaintiff's malicious prosecution claim is also barred by the discretionary function exception of the FTCA because the plaintiff is essentially challenging the government's decision to prosecute him. See United States Mot. at 10-13.
The plaintiff concedes that the discretionary function exception of the FTCA generally prohibits malicious prosecution claims brought against prosecutors, Pl.'s Opp'n to United States Mot. at 29, but argues that the exception should not apply to the Capitol Police in this case because malicious prosecution claims against law
As noted in connection with the plaintiff's intentional infliction of emotional distress claim, the District of Columbia Circuit has made it clear that "the plain language of 28 U.S.C. § 2680(a) states that the FTCA's general waiver of sovereign immunity is inapplicable to `any claim' based on a discretionary function." Gray, 712 F.2d at 507. Consequently, a plaintiff "must clear the discretionary function hurdle" in order to sustain a malicious prosecution claim. Id. at 508 (internal quotations omitted); see Medina, 259 F.3d at 226. Because prosecutorial decisions "as to whether, when, and against whom to initiate prosecution are quintessential examples of governmental discretion," Gray, 712 F.2d at 513, this Court has previously concluded that a "decision to prosecute ... generally having been the byproduct of an investigation, logically calls for the investigation itself also being treated as a discretionary function." Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 199 (D.D.C.2002) (Walton, J.); see Bragdon v. United States, 537 F.Supp.2d 157, 159-60 (D.D.C.2008) (determining that a negligent investigation claim brought against an FBI agent was barred by the discretionary function exemption); Wright v. United States, 963 F.Supp. 7, 17 (D.D.C.1997) ("If the function of identifying what evidence to submit to a judicial tribunal is discretionary for prosecutors ... it should be similarly discretionary for police officers.").
Here, the acts forming the basis for Count Three are the arrest of the plaintiff in the Capitol Building and the decision by the Capitol Police to continue his detention despite having determined that he did not possess any explosives or other hazardous materials. United States Compl. ¶ 52. The Court cannot grasp a meaningful way in which the acts of the Capitol Police can be considered separate and apart from the decision of whether to prosecute, as there likely would have been no prosecution had there been no arrest. And where conduct "during an investigation is `inextricably tied' to the overall discretionary decision to investigate and then prosecute a plaintiff, such actions are included within the discretionary function exemption to FTCA jurisdiction." Tabman v. F.B.I., 718 F.Supp.2d 98, 105 (D.D.C.2010) (quoting Gustave-Schmidt, 226 F.Supp.2d at 199). That being the situation here, even if the Capitol Police acted in an "improper, tortious, [or] constitutionally defective manner" in conducting the investigation, their actions nonetheless fall within the discretionary function exemption. Gustave-Schmidt, 226 F.Supp.2d at 199 (citing Gray v. Bell, 712 F.2d at 515-16); see also Shuler, 531 F.3d at 935 ("[T]he discretionary function immunizes even government abuses of discretion."). Accordingly, the plaintiff's malicious prosecution claim is dismissed for lack of subject matter jurisdiction.
The United States moves to dismiss the plaintiff's false arrest and imprisonment claim based on the January 2004 vehicle stop for failure to state a claim upon which relief may be granted. United States Mot. at 14-16. In its opening motion, the United States does not attempt to justify the initial traffic stop, but claims that Detective DePalma, who arrived after the stop, was aware of the plaintiff's child custody dispute with his ex-wife and on that basis had probable cause to question the plaintiff about the custody status of the children.
The Court finds that Count Two adequately states a claim for false arrest. To support a claim of false arrest under District of Columbia law,
The factual record in this case may ultimately clarify the circumstances surrounding the January 2004 stop of the plaintiff's van, such as the reason the plaintiff's van was pulled over, the duration of the encounter, and the scope of the canine search. To survive a motion to dismiss, however, a complaint need only "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, ___ U.S. at ___, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Applying that minimal standard of review here, the Court concludes that the plaintiff has adequately alleged that he was falsely imprisoned during the vehicle stop in January 2004. Accordingly, the United States' motion to dismiss Count Two for failure to state a claim is denied.
The remaining components of the plaintiff's intentional infliction of emotional distress claim that remain alive are based on Detective DePalma's purported actions during the vehicle stop in January 2004, the alleged ongoing harassment of the plaintiff by members of the federal government, and the statement allegedly made by Secret Service Agent Hull threatening to have the plaintiff deported "for no legal reason." See United States Compl. ¶¶ 58-61. The United States has also moved to dismiss this Count of the complaint for failure to state a claim upon which relief can be granted, contending that none of the allegations rise to the level of legally actionable conduct. United States Mot. at 19. The plaintiff responds that the "year-long
Under District of Columbia law, a claim of intentional infliction of emotional distress requires that the plaintiff show "(1) extreme and outrageous conduct on the part of the defendant which (2) either intentionally or recklessly (3) causes the plaintiff severe emotional distress." Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 255 (D.C.Cir.2008) (quoting Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002)). As the District of Columbia Circuit has explained, "a case of intentional infliction of emotional distress is made out only if the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim `Outrageous!'" Larijani, 791 A.2d at 44 (quoting Restatement (Second) of Torts § 46 (1965)); see Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.1982) (explaining that liability will be found where the conduct is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.") (quoting Restatement (Second) of Torts § 46 cmt. 73 (1965)). This standard "is not an easy one to meet," Drejza v. Vaccaro, 650 A.2d 1308, 1312 (D.C.1994), and "[l]iability will not be imposed for mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities," District of Columbia v. Tulin, 994 A.2d 788, 800 (D.C. 2010) (quoting Homan v. Goyal, 711 A.2d 812, 818 (D.C.1998)).
Here, the Court concludes that none of the plaintiff's allegations asserted in support of Count Four state a claim for intentional infliction of emotional distress. To begin with, having a police officer inquire about the custody status of children he knows have been the subject of a custody dispute during the course of a vehicle stop is just not the type of behavior that would cause an average member of the District of Columbia community to exclaim "Outrageous!" Larijani, 791 A.2d at 44. This is especially so in the circumstances of this case, given the plaintiff's admission that Detective DePalma was aware of the plaintiff's divorce and child custody proceedings. United States Compl. ¶ 36. Even if Detective DePalma's statements could be construed as demeaning, it is clear that "insults, indignities, threats, annoyances, petty oppressions, or other trivialities" are insufficient to support a claim for intentional infliction of emotional distress under District of Columbia law. Tulin, 994 A.2d at 801.
The complaint also fails to state a claim for intentional infliction of emotional distress for events arising out of the alleged pattern of harassment and the investigation by the Secret Service agents. The plaintiff admits that the investigation commenced after his ex-wife apparently contacted authorities in Michigan and reported that the plaintiff was going to kill the President. United States Compl. ¶ 40. Given the gravity of this allegation, the investigation and questioning by the Secret Service, including the associated threat allegedly made by Agent Hull's to have the plaintiff deported, was not so unreasonable to be considered extreme or dangerous. Cf. United States v. Kosma, 951 F.2d 549, 557 (3rd Cir.1991) ("[A] threat [against the President] sets in motion an entire army of Secret Service agents and law enforcement officials who must investigate the threat, take additional safety precautions to protect the President, and extreme cases, alter the President's schedule."); see also United States
The role of the plaintiff's ex-wife in reporting the threat explains why members of the federal government were purportedly harassing the plaintiff and were in "communications" with her. United States Compl. ¶¶ 59-60. Even if the threat was completely baseless, neither the follow-up investigation by the Secret Service nor the fact that the prosecutors were in contact with the plaintiff's ex-wife is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Tulin, 994 A.2d at 800 (quoting Larijani, 791 A.2d at 44). And this is so even regarding the alleged threat to have the plaintiff deported, which if made may have been improper. Accordingly, the plaintiff's claim for intentional infliction of emotional distress is dismissed for failure to state a claim upon which relief can be granted.
The plaintiff seeks to impose liability on the District of Columbia pursuant to 42 U.S.C. § 1983 for events that that allegedly transpired during his confinement in the Mental Health Unit. Am. Compl. ¶¶ 107-1 11.
The District of Columbia has moved to dismiss the plaintiff's § 1983 claim, asserting, among other things, that there is no respondeat superior liability under § 1983, that the complaint does not point to a formal or informal policy of the District of Columbia that caused the plaintiff's injury, and that no custom or policy was the moving force behind the alleged constitutional wrongs inflicted on the plaintiff. See District of Columbia Mot. at 14.
In this case, the plaintiff has adequately pled a predicate constitutional violation arising from the alleged forcible administration of antipsychotic medication, Am. Compl. ¶¶ 75, 108, which if proven at trial would constitute a violation of the due process clause of the Fifth Amendment. See United States v. Weston, 134 F.Supp.2d 115, 120 (D.D.C.2001) (Sullivan, J.) (citing Riggins v. Nevada, 504 U.S. 127, 133-35, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992)). The next question then becomes whether the complaint alleges an affirmative link such that a custom or policy of the District of Columbia was the moving force behind this alleged violation. Baker, 326 F.3d at 1306.
There are a number of ways in which a "policy" can be created by a municipality resulting in its liability under § 1983. Id. One way this can occur is from the government's failure "to respond to a need (for example, training of employees) in such a manner as to show `deliberate indifference' to the risk that not addressing the need will result in constitutional violations." Id.; see also Daskalea v. District of Columbia, 227 F.3d 433, 441
Upon reviewing the complaint, the Court concludes that it adequately alleges that a policy of the District of Columbia resulted in the constitutional violations asserted by the plaintiff. Although it speaks in general terms, the complaint alleges that the District of Columbia designed and implemented a program at the D.C. Jail that allowed "for the use of force, including the use of anti-psychotic drugs, when disciplining inmates and pre-trial detainees," Am. Compl. ¶ 88, and that these policies "resulted in conduct in violation of the constitutional rights of the plaintiff," id. ¶ 87. The complaint also states that the District of Columbia failed to train the personnel at the Mental Health Unit, which "resulted in a pattern or practice of excessive disciplinary measures, wrongful administration of drugs, and failure to intervene and/or punish such conduct." Id. ¶ 92. It further claims that the District of Columbia's policies "allowed [personnel at the jail] to hide unconstitutional or otherwise unlawful conduct without fear of appropriate discipline, reprisal or conduct," id. ¶ 89, and that the failure to document the plaintiff's injection in the Jail's medical records is indicative of these policies, id. ¶¶ 75, 90. The complaint adds that these policies were the "moving force" behind the conduct he was subjected to, id. ¶ 91, and constituted deliberate indifference to his constitutional rights, id. ¶ 111. Although the allegations raised by the plaintiff present a close call, the Court concludes he has adequately alleged that the District of Columbia's purported policy of deliberate indifference resulted in his injuries and therefore he has "nudged [his] claim[ ] across the line from conceivable to plausible." Twombly 550 U.S. at 570, 127 S.Ct. 1955. Accordingly, the District of Columbia's motion to dismiss the plaintiff's § 1983 claim for failure to state a claim must be denied.
The District of Columbia also moves for summary judgment on the plaintiff's § 1983 claim, asserting that the medical records fail to demonstrate that he received medication of any kind while confined in the Mental Health Unit, and that the allegations in the complaint are bald assertions unsupported by factual evidence. District of Columbia Mot. at 6, 15. The plaintiff responds that not only are genuine factual issues in dispute, Pl.'s Opp'n to District of Columbia Mot. at 19-23, but that the motion for summary judgment is premature on the existing record. In this regard, the plaintiff emphasizes that the record is "especially slim," and thus moves pursuant to Federal Rule of Civil Procedure 56(f) for additional discovery. Id. at 23-25; see id., Ex. G. (Decl. of Jennafer B. Neufeld) ("Neufeld Decl."). The District of Columbia apparently does not oppose the motion for additional discovery. See District of Columbia Reply.
In support of the Rule 56(f) motion, the plaintiff points to the stay of discovery ordered in this case, Docket Entry 95, and explains that the District of Columbia's responses to his interrogatories and document requests are incomplete and that the District of Columbia has failed to respond to his requests for clarification. Pl.'s Opp'n to District of Columbia Mot. at 24. As to whether any records have not been produced by the District of Columbia, it appears that the plaintiff may not have complete records concerning the events of March 7, 2003, the day the plaintiff was first committed to the Mental Health Unit, or documents concerning any treatment
While ultimately "[p]roving a failure-to-train claim is no easy task[,]" Atchinson v. District of Columbia, 73 F.3d 418, 421 (D.C.Cir.1996) (citing to City of Canton v. Harris, 489 U.S. 378, 388-92, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) and City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)), in the context of what is alleged in this case, the Court agrees that the plaintiff could benefit from at least some further discovery before responding to the District of Columbia's arguments. "Summary judgment is premised on the notion that parties will have had `adequate time for discovery' to establish whether a genuine issue of material fact exists." Breen v. Peters, 474 F.Supp.2d 1, 7 (D.D.C.2007) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548). A grant of summary judgment is therefore appropriate only if both parties have "had a full opportunity to conduct discovery," Anderson, 477 U.S. at 257, 106 S.Ct. 2505, and it is "the general rule that `decision[s] by summary judgment [are] disfavored when additional development of facts might illuminate the issues of law requiring decision,'" Barnes v. District of Columbia, 242 F.R.D. 113, 116 (D.D.C. 2007) (citing Nixon v. Freeman, 670 F.2d 346, 362 (D.C.Cir.1982)). Accordingly, the District of Columbia's motion for summary judgment is denied without prejudice at this time so that the plaintiff can conduct limited discovery into the matters identified in his opposition and Rule 56(f) motion. Once that process is complete, the District of Columbia is free to file a renewed motion for summary judgment.
The plaintiff brings Bivens claims against the federal defendants alleging Fourth Amendment violations resulting from the search of his van. Am. Compl. ¶¶ 97-98. The federal defendants have moved to dismiss all of the claims, or in the alternative, seek summary judgment, asserting that the claims are barred by qualified immunity. Fed. Defs.' Mot. at 8-26.
"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (internal quotation marks omitted). "Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, ___, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). Qualified immunity is an "entitlement not to stand trial or face the other burdens of litigation" and it "is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The protection of qualified immunity "applies regardless of whether the government official's error is `a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.'" Pearson, 555 U.S. at ___, 129 S.Ct. at 815 (quoting Groh v. Ramirez, 540 U.S. 551, 567, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (Kennedy, J., dissenting)). The "qualified immunity standard `gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law.'" Hunter, 502 U.S. at 229, 112 S.Ct. 534 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
Courts had been required to approach in chronological order the qualified immunity analysis through the two-step inquiry mandated in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), assessing first, whether the facts alleged show that the government official's conduct violated a "constitutional right," and then second, whether that right was "clearly established" at the time of the incident. Id. at 200, 121 S.Ct. 2151. With respect to the second step, the "relevant, dispositive inquiry ... is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151; see Malley, 475 U.S. at 341, 106 S.Ct. 1092 (noting that "if officers of reasonable competence could disagree on the issue, immunity should be recognized"). This analysis "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201, 121 S.Ct. 2151. However, the Supreme Court recently announced that the "sequence set the forth" in Saucier "should no longer be regarded as mandatory." Pearson, 555 U.S at ___, 129 S.Ct. at 818. Accordingly, now courts are "permitted to exercise their broad discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. With these principles as its guidepost, the Court examines the plaintiff's allegations regarding the initial search of his van, the impoundment of the van, and the subsequent inventory search of the van.
At the outset, the Court notes that the plaintiff has alleged that only some of the thirty-seven federal defendants identified
In sworn declarations, however, twenty Capitol Police officers and bomb technicians represent that while they may have been present during the events on March 6, 2003, they had no individual involvement in the actual search of the van.
At the time period relevant to this case, defendant Gillman G. Udell Jr., a Commander of the Hazardous Incident Response Division of the Capitol Police, see Fed. Defs.' Mem., Ex. 2 (Udell Decl.), authorized two bomb technicians, defendants John King and Donald Bracci, to enter the plaintiff's van without a warrant, see id., Ex. 2, (King Decl.); id., Ex. 2, (Bracci Decl.). In addressing the constitutionality of the defendants' actions, the Court begins its analysis "with the basic rule that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.'" Arizona v. Gant, ___ U.S. ___, ___, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Two of the exceptions that the federal defendants rely upon are the "exigent circumstances" exception, which allows police to conduct a search where immediate action is required to protect life, avoid serious injury, or prevent significant damage to property, e.g., Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Wayne v. U.S., 318 F.2d 205, 212 (D.C.Cir.1963), and the "automobile exception," which authorizes police to conduct a search "`[i]f a car is readily mobile and probable cause exists to believe it contains contraband,'" Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (quoting Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996)). As the Court discusses below, both of these exceptions justified the warrantless search of the plaintiff's vehicle.
As to the "exigent circumstances" exception, the test for the presence of such circumstances is "whether the police had `an urgent need' or `an immediate major crisis in the performance of duty affording neither time nor opportunity to apply to a magistrate.'" United States v. Johnson, 802 F.2d 1459, 1461 (D.C.Cir.1986) (quoting Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970) (en banc)). This is an objective standard, focusing on "what a reasonable, experienced police officer would believe," and this assessment is made according to the totality of the circumstances. United States v. Goree, 365 F.3d 1086, 1090 (D.C.Cir.2004) (citation omitted). And, the government must have had probable cause for their actions to rely on the exigent circumstances exception. United States v. Halliman, 923 F.2d 873, 878 (D.C.Cir.1991).
Here, looking at the totality of the circumstances, the Court concludes that there was an urgent need to search the plaintiff's van and that there was probable cause to do so. Especially persuasive in this regard are the unmarked containers of liquid observed inside the van, which could have given the impression that there were explosives or other dangerous chemicals inside. From their vantage points when they looked into the van, the officers could not see the bottom of the glass jars, and thus could not tell whether wires or other devices might be connected to them. Fed. Defs.' Mem., Ex. 2 (King Decl.); see also United States v. Duran, 884 F.Supp. 552, 556 (D.D.C.1995) (quoting United States v. Lindsey, 877 F.2d 777, 781 (9th Cir.1989)) ("`Exigent circumstances are frequently found when dangerous explosives are involved.'"). Compounding the officers' concerns was the fact that the search took place in the aftermath of the events of September 11, 2001 (when the Capitol Building was believed to also have been
The "automobile exception" also provided the officers justification to conduct a warrantless search of the van. Under this exception, the police may conduct a warrantless search of a car if it is "`readily mobile, and probable cause exists to believe it contains contraband.'" Dyson, 527 U.S. at 467, 119 S.Ct. 2013 (quoting Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996)). As stated above, the facts known to the officers at the time of the initial search support a finding of probable cause. Moreover, while the car was not "immediately mobile" because the plaintiff and Patel were in custody at the time of the search, and the plaintiff turned over the keys to his vehicle while in custody, the applicability of the exception nonetheless applies because
In March 2003, defendant Douglas Edmonson was a bomb technician for the FBI and was present during the initial search of the plaintiff's van, Fed. Defs.' Mem., Ex. 3 (Edmonson Decl.) ¶ 1, and defendant Kevin Finnerty was a member of the FBI's Joint Terrorism Task Force/National Capitol Response Squad and stationed in the Washington Field office of the FBI, id., Ex. 4 (Finnerty Decl.) ¶ 1. After King and Bracci completed their search of the van, Edmonson and Finnerty discussed the situation and on advice from an official of the FBI, made the decision to impound the van. Id., Ex. 3 (Edmonson Decl.) ¶ 3; id., Finnerty Decl. ¶ 6. The Court addresses their respective situations in turn.
The federal defendants advance two arguments as to why the impoundment of the van was reasonable. First, they argue that because the plaintiff may have been attempting to probe the level and effectiveness of the security at the Capitol Building, there was probable cause to believe that the van contained evidence related to the plaintiff's actions or intentions, or the actions or intentions of third parties. Fed. Defs.' Mot. at 24-25. Second, the federal defendants contend that the decision to impound the van was permissible under the "community caretaking" exception to the warrant requirement. Id. at 25 (citing South Dakota v. Opperman, 428 U.S. 364, 368-69, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)). In response, the plaintiff contends that the federal defendants lacked probable cause to seize his van, and further asserts that they did so only to obtain evidence to "justify their arrest and seizure of his person." Pl.'s Opp'n to Fed. Defs.' Mot. at 25-26. Furthermore, the plaintiff argues that even if the community caretaking exception applied, the impoundment should have been carried out by the Capitol Police or the Metropolitan Police Department and not the FBI. Id. at 26.
The decision to impound a vehicle is a seizure subject to the Fourth Amendment, and must be analyzed distinctly from a concomitant inventory search. United States v. Proctor, 489 F.3d 1348, 1352 (D.C.Cir.2007). An impoundment of a car without a warrant is "`per se unreasonable under the Fourth Amendment—subject to only several specifically established and well delineated exceptions.'" Id. (citing Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). One exception recognizes that "[i]n the interests of public safety and as part of what the [Supreme] Court has called `community caretaking functions,' automobiles are frequently taken into police custody." Opperman, 428 U.S. at 368, 96 S.Ct. 3092 (citing Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523,
As a starting point, the Court finds that the impoundment of the van in this case was reasonable under the circumstances. When that decision was made, both the plaintiff and Ms. Patel were in custody and were likely to be detained for an indefinite period of time. Indeed, the plaintiff was later indicted for making a false bomb threat, a charge that carries up to a ten-year term in prison. See 18 U.S.C. § 844(e). Consequently, there was nobody available to take possession or look after the van, thus increasing the chances it would be towed or vandalized. Fed. Defs.' Mem., Ex. 3 (Edmonson Decl.) ¶ 3; id., Ex. 4 (Finnerty Decl.) ¶ 6. In fact, the van's out-of-state registration and parking ticket received earlier that day for parking in a restricted area, Pl.'s Opp'n to Fed. Defs.' Mot., Ex. B and C, would have reasonably caused the officers to assume that it would accumulate additional parking tickets or even be towed in the event the plaintiff and Ms. Patel were confined for an extended period of time. "Case law supports the view that where a driver is arrested and there is no one immediately on hand to take possession, the officials have a legitimate non-investigatory reason for impounding the car." Vega-Encarnacion v. Babilonia, 344 F.3d 37, 41 (1st Cir.2003); United States v. Brown, 787 F.2d 929, 932 (4th Cir.1986) (finding impoundment reasonable in part because no known individual was immediately available to take custody of the car); United States v. Goodrich, 183 F.Supp.2d 135, 141 (D.Mass.2001) ("[W]hether an appropriate person is available to move the car is central to an evaluation of the reasonableness of any decision to seize a vehicle.").
Even if the impoundment was unlawful because it was not made pursuant to standard police procedure, that requirement was not clearly established in this jurisdiction in March of 2003 and thus it would not have been clear to a reasonable officer that the decision to impound the van was unlawful. In Proctor, decided in 2007, the District of Columbia Circuit discussed vehicle impoundments in detail and, relying on Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), concluded that decisions to impound vehicles should be governed by a reasonable standard police procedure. See 489 F.3d at 1352-54. Importantly, the circuit court acknowledged that its pre-Bertine precedent held that decisions to impound should be reasonable, see id. at 1354 n. 3 (citing United States v. Reese, 561 F.2d 894, 903 n. 17 (D.C.Cir.1977)), and added that "[i]t appears that we have not addressed the issue again until now." Id. The District of Columbia Circuit also made clear that it disagreed with the First Circuit, which has held that "an impoundment is reasonable so long as it `serves the government's `community caretaking' interest.'" Id. at 1354.
In any event, because the decision to impound the van was reasonable, and because it would not have been clear to a
In addition to being involved in the decision to impound the van, defendant Finnerty made the decision to conduct the inventory search of the van. Fed. Defs.' Mem., Ex. 4 (Finnerty Decl.) ¶ 6. The Court analyzes the inventory search separately from the impoundment. Proctor, 489 F.3d at 1353.
The Second Circuit Court has offered the following overview of inventory searches:
United States v. Lopez, 547 F.3d 364, 369 (2d Cir.2008) (citing Illinois v. Lafayette, 462 U.S. 640, 643, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983)). "A proper inventory search is merely `an incidental administrative step following arrest and preceding incarceration,'" United States v. Banks, 482 F.3d 733, 739 (4th Cir.2007) (quoting Lafayette, 462 U.S. at 644, 103 S.Ct. 2605), and is not performed "to detect crime or serve criminal prosecutions ... [but] (1) to serve to protect an owner's property while it is in police custody; (2) to protect the police against spurious claims of lost or stolen property; and (3) to protect the police from potential danger," Lopez, 547 F.3d at 369 (citing Opperman, 428 U.S. at 369, 96 S.Ct. 3092). A condition precedent to an inventory search is lawful possession of the vehicle. United States v. Holly, 219 F.Supp.2d 117, 129 (D.D.C.2002).
Moreover, an inventory search must "`be conducted according to standardized criteria,'" Proctor, 489 F.3d at 1355 (quoting Bertine, 479 U.S. at 374, 107 S.Ct. 738), to prevent it from becoming "a ruse for a general rummaging in order to discover incriminating evidence," Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990). Thus, "[t]he Fourth Amendment requires ... that an inventory search be reasonable and, if a standard procedure for conducting the inventory search is in effect, it must be followed." Proctor, 489 F.3d at 1355; see also United States v. Matthews, 591 F.3d 230, 235 (4th Cir.2009) ("For the inventory search exception to apply, the search must have been conducted according to standardized criteria ... and performed in good faith.") (internal citations and alteration omitted); United States v. Kennedy, 427 F.3d 1136, 1143 (8th Cir.2005) ("The central question in evaluating the propriety of an inventory search is whether, in the totality of the circumstances, the search was reasonable.").
Here, the Court concludes that Agent Finnerty's decision to order the inventory search was reasonable. At that point, because the officers were in possession of the keys to the van, and because there was no one available to take custody of the van, the FBI could have reasonably believed that they had lawful possession of the van. See Vega-Encarnacion, 344 F.3d at 41; Brown, 787 F.2d at 932; Goodrich, 183 F.Supp.2d at 140-41. Moreover, in light of the concern that the van may have contained evidence concerning the plaintiff and Patel's actions in probing the level and effectiveness of security at the Capitol Building, or evidence related to a bomb
Once the decision to impound the van was made, the next logical step would be to order an inventory search of the vehicle. E.g., Banks, 482 F.3d at 739 (explaining that a proper inventory search is merely an incidental administrative step following arrest and preceding incarceration). Indeed, Agent Finnerty represents that he made the decision to inventory the van pursuant to FBI policy, Fed. Defs.' Mem., Ex. 4 (Finnerty Decl.) ¶ 6, which provides that "[u]pon seizing personal property, a prompt thorough search of the contents of the property, whether locked or unlocked, including any containers located therein whether locked or unlocked, should be conducted and an FD-302 prepared showing the results of the inventory," Fed. Defs.' Mot., Ex 3., at 52 (Section 5-8.1 of the Legal Handbook for Special Agents). Accordingly, once the decision to impound the van was made, it was a logical and reasonable consequence that an inventory search be conducted. Agent Finnerty is therefore also entitled to qualified immunity concerning the inventory conducted of the van.
The plaintiff alleges that FBI defendants "Cejpeck, Chinchilla, Collins-Morton, Rankin, Sidener, [and] Udell ... violated [his] Fourth Amendment rights by searching his van." Am. Compl. ¶ 97. The plaintiff also claims that "FBI Defendants Arseni, Edmonson, Garten, and Godbold also violated [the plaintiff's] Fourth Amendment rights by directing, supervising, participating in, and/or otherwise assisting with the search of the van." Id.
Similar to the Capitol Police officers who had no personal involvement in the search of the van, see supra pp. 100-01, four FBI defendants declared under oath that they did not participate in the inventory search of the van either.
In addition, the remaining FBI defendants represent that they carried out the inventory search pursuant to FBI policy or upon the instructions from Agent Finnerty.
For the foregoing reasons, the Court dismisses five of the six Counts against the United States, but concludes that the plaintiff has adequately stated a claim for false imprisonment arising out of the stopping of his van in January of 2004. The Court also denies the District of Columbia's motion to dismiss, and denies its motion for summary judgment without prejudice pending further discovery being provided to the plaintiff. Finally, summary judgment is awarded to the thirty-seven individual Federal Defendants on the plaintiff's Bivens claims.
