ELLEN SEGAL HUVELLE, District Judge.
Plaintiffs Leola Smith and Dion `Franklin have sued the District of Columbia and various Metropolitan Police Department ("MPD") officers,
At all times relevant to this case, Smith and Franklin lived at 1812 9th Street, NW (the "Property"). (Defs.' Statement of Uncontested Material Facts ["SOMF"] ¶¶ 4-5.) Franklin rented an apartment from Smith, who owned the Property. (Defs.' Mot., Ex. 14, Smith's Resps. To Defs.' Interrogs. ["Smith Resps."], at 3.) The Property is a three-story, red brick building on the corner of 9th Street and Westminster Street. (Pls.' Opp'n to Defs.' Mot. ["Pls.' Opp'n"], Ex. 13, Photos of the Property ["Photos"], at 1.) Three gas meters are in the backyard of the Property, behind a fence. (Pls.' Opp'n, Ex. 8, Dep. of Leola Smith ["Smith Dep."], at 145.) At the time of the search, there were three occupied apartments in the building. (Pls.' Opp'n at 2.) Smith's apartment occupied the first floor of the Property and the floors above; the other two apartments were in the basement. (Smith Dep. at 131; Pls.' Opp'n, Ex. 3, Dep. of Officer Thomas Ellingsworth ["Ellingsworth Dep."], at 106.)
The basement apartments — one occupied by Franklin, the other by a pair of Russian students — were separated from the street by a gate with a bolt lock. (Smith Resps. at 3.) Behind the gate was a short hall that ended with doors to the left and right. (Pls.' Opp'n, Ex. 7, Dep. of Dion Franklin ["Franklin Dep."], at 76.) The doors both had locks. (Smith Resps. At 3.) According to Franklin, his door was painted with a "2," indicating his apartment number. (Franklin Dep. at 81.) The façade of the building did not list separate addresses for each apartment and the apartments did not have separate doorbells. (SOMF ¶¶ 7, 9.) Whether Franklin's apartment had a separate mailbox is disputed, but plaintiffs assert that he had a "separate mailbox outside his apartment door accessible to the letter carrier." (Compare Pls.' Statement of Genuine Issues of Material Fact ¶ 2.G with SOMF ¶ 7.) According to Franklin, his apartment had a "totally different kitchen, bathroom, bedroom, living room than upstairs." (Franklin Dep. at 114.)
On July 13, 2007, Officer Thomas Ellingsworth, a six-year veteran of the MPD, submitted an affidavit to a D.C. Superior Court judge as part of an application for a warrant to search the Property. (Defs.' Mot., Ex. E, Search Warrant ["Search Warrant"], at 2.) The affidavit described the Property as a "reddish brick single family house with the numerals `1812' posted
According to Ellingsworth's affidavit, an MPD Confidential Informant ("CI") contacted him and told him that individuals were selling crack cocaine from within the house. (Id.) Ellingsworth traveled with the CI to the house and watched "it" enter from an unmarked vehicle that was parked within eyesight of the front door and the entire house. (Ellingsworth Dep., at 31, 44.) According to Ellingsworth, once the CI was "inside the building" (and presumably out of view), "it" knocked on the "house door." (Search Warrant, at 2.) The CI entered Smith's apartment; Ellingsworth described the first floor entrance as a "wrought-iron gate" at the top of a stairway with a set of brown, "French-style" doors behind it. (Ellingsworth Dep., at 35.) After returning to the car, the CI told Ellingsworth that an unknown person let "it" enter the Property and sold "it" crack cocaine. (Search Warrant, at 2.) Ellingsworth testified that after finishing his conversation with the CI, he took another drive by the house "to get a good look at it" before returning to the office to type up his affidavit. (Ellingsworth Dep. at 66-67.) Ellingsworth testified that he only saw the gate and French-style doors at the top of the staircase and did not see any other door into the house. (Id.)
Ellingsworth testified that as part of the review of his affidavit, he had a paralegal in the U.S. Attorney's Office check the records on the property. (Id. at 78 ("you go to a paralegal. She does a records check. . .").) The paralegal determined that a search warrant had been executed at the property and informed Ellingsworth of this fact. (Id.) A review of the warrant, which was issued in 1995, reveals the target of the search as 1812 9th St., NW, apartment number two. (Pls.' Opp'n, Ex. 9, History of Search Warrants Issued.) It is unclear whether Ellingsworth personally examined this file, or if he was even told of the reference to "apartment number two."
On July 13, Judge Robert Tignor approved the warrant for a search of the Property. (SOMF ¶ 2.)
On July 14, Sergeants Petz and Moye and Officers Ellingsworth, Pepperman, Yammine, Harris, and Baker arrived at the Property to conduct the search. (Pls.' Opp'n at 2.) Smith was not in her apartment at the time, although her nephew, Robert Jones, was present. (Smith Resps. at 2.) Franklin was in his basement apartment. (Id.)
At about 6:55 p.m., the officers broke down the doors to Smith's first floor apartment, breaking the locks and splitting the doors. (Smith Resps. ¶ 5.) Smith testified that during their search of her apartment, they crushed her antique vases, figurines and jewelry and destroyed approximately twenty-five pairs of shoes. (Pls.' Opp'n at 32-34.) The officers then "went back outside and destroyed the door jambs and locks" of the basement apartments. (Am. Compl. ¶ 40. See also Franklin Dep. at 81.) It is unclear how long the officers were in Franklin's apartment, although Franklin estimated that they stayed "about two hours" from 6:45 to 8:45.
On May 9, 2008, Smith filed a complaint against the District of Columbia, Cathy Lanier and the named officers. The District and Lanier filed a motion to dismiss, which the Court denied. Smith v. Lanier, 573 F.Supp.2d 6 (D.D.C.2008). Defendants submitted a motion for reconsideration, along with various photographs of the Property, which the Court also denied. Smith v. Lanier, Civ. No. 08-cv-808, Mem. Op. filed Oct. 27, 2008 [Dkt. No. 35].
Smith then filed an amended complaint that added Franklin as a plaintiff and included allegations that Officer Ellingsworth had either lied or acted with reckless disregard to the truth in preparing his affidavit. (Am. Compl. ¶¶ 65-76.) The amended complaint included eight causes of action. Counts I-III allege that the named officers violated 42 U.S.C. § 1983 by executing a warrant based on a facially deficient affidavit (Count I), by executing a warrant that was facially deficient (Count II), and by conducting an unreasonable search (Count III). Count IV alleges a civil conspiracy on the part of the officers to violate § 1983. Count V alleges that the officers committed "intentional tortious destruction of property" during their search. Count VI alleges negligence against the officers. Count VII alleges that the District was liable for the claims under respondeat superior; Count VIII alleges that Lanier and the District were liable for negligently training and supervising the officers.
Defendants filed a new motion to dismiss the amended complaint, which the Court denied in part, declining to dismiss plaintiffs' intentional tort and negligence claims and holding that further factual development was necessary to resolve the constitutional and conspiracy claims. (Dkt. No. 35.) The Court did, however, dismiss Count VII in its entirety and Count VIII as to Lanier. (Id.) Discovery closed on January 15, 2011, and defendants now move for summary judgment.
Summary judgment is appropriate only if the "pleadings, depositions, answers to interrogatories, admissions, and affidavits filed pursuant to discovery show that, first, `there is no genuine issue as to any material fact' and, second, `the moving party is entitled to a judgment as a matter of law.'" Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C.Cir.2010) (quoting Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir. 2006) and Fed.R.Civ.P. 56(c)); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "A fact is `material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are `irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "An issue is `genuine' if the `evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. (quoting Anderson, 477 U.S. at
The individually-named police officers will not be liable for damages if they are entitled to qualified immunity, which shields "government officials performing discretionary functions . . . 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). To determine whether qualified immunity applies, the Court asks (1) whether plaintiffs' allegations, if taken as true, show that the defendants' conduct violated a constitutional right, and (2) whether that right was "clearly established"
Although the issue of whether defendants are entitled to qualified immunity is "a pure question of law to be decided by the Court," pretrial "resolution of the qualified immunity defense . . . may be thwarted by a factual dispute." Halcomb v. WMATA, 526 F.Supp.2d 20, 22 (D.D.C. 2007) (quoting Warren v. Dwyer, 906 F.2d 70, 74 (2d Cir.1990)) (internal alterations omitted). Thus, "legitimate and material factual disputes" about what Officer Ellingsworth and the other police officers actually did will prevent the Court from determining whether they are entitled to qualified immunity. Id. at 23 (holding that questions as to what transpired between police officer and plaintiff were "unavoidably" questions of fact that "prevent[ed] the Court from deciding the legal questions before trial"). See also Johnson v. District of Columbia, 528 F.3d 969, 977-78 (D.C.Cir.2008) (summary judgment on qualified immunity was "premature" where testimony of plaintiff and police officers conflicted, creating genuine issue of material fact as to whether police acted reasonably).
Defendants argue that the officers are entitled to qualified immunity as to Count I because the Court has already held that
However, the only "evidence" plaintiffs have introduced to support this claim is based on speculation and innuendo. They have submitted no affirmative evidence that Ellingsworth concocted a fake informant, but have argued only that the absence of police records relating to the informant creates a genuine question as to whether the informant ever existed.
Defendants argue that the Court should grant summary judgment on Count II because plaintiffs have "failed to establish" that the officers violated an actual constitutional right when they executed the warrant. (Defs.' Mot. at 5.) However, as plaintiffs note (Pls.' Opp'n at 10), the "general rule" is that a warrant that authorizes the search of a multi-unit dwelling without noting the "precise unit" to be searched is invalid. United States v. Perez,
Defendants next argue that the Officer Ellingsworth reasonably believed that the Property was a single family home, and therefore the warrant did not violate the Fourth Amendment.
Defendants argue that Ellingsworth observed the exterior of the property prior to preparing his affidavit and, based on these observations, he could reasonably believe it was a single family dwelling. (Defs.' Mot. at 9.) Plaintiffs argue that he should have done more than observe the exterior of the Property, such as checking utility records. (Id. at 17.) The Seventh Circuit has held that surveillance of a property, combined with observations of a controlled buy by a CI and an interview of the CI, constitute a reasonable inquiry. See United States v. White, 416 F.3d 634, 638-39 (7th Cir.2005). It is undisputed that Ellingsworth observed the Property several times and asked the U.S. Attorney's office to locate any records of past searches or complaints relating to the Property. Moreover, Ellingsworth spoke to a CI, who did not tell him that the Property contained multiple units. Under these facts, no further inquiry was required to meet the particularity requirement.
Plaintiffs also argue that Ellingsworth either knew or should have known that the Property was a multi-unit structure because the U.S. Attorney's office had files stating that the police had executed a search warrant on "Apartment 2" on the Property in 1995. (Pls.' Opp'n at 16.) There is no specific "checklist that must be adhered to in all investigations;" rather, the "reasonableness of law enforcement's total inquiry is at issue" here. United
Defendants' motion for summary judgment on Count III presents two separate issues: whether the officers should have realized that the dwelling was not a single family unit at some point before or during their search and, if so, whether the officers appropriately limited their search in light of this realization. "That the warrant be properly issued . . . is only half of what the Fourth Amendment requires." Guzman v. City of Chicago, 565 F.3d 393, 397 (7th Cir.2009). Once the officers knew or should have known "of the error in what they encountered versus what was authorized by the warrant, they were obligated" to limit their search to areas "clearly covered" in the warrant or to discontinue the search entirely. Ritter, 416 F.3d at 266. See also Garrison, 480 U.S. at 87, 107 S.Ct. 1013 ("as the officers recognized, they were required to discontinue the search . . . as soon as they . . . were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant"). Because the officers should arguably have realized that the warrant was overbroad when they entered the basement area, the Court will grant defendants' motion for summary judgment as to Smith's claim under Count III but deny defendants' motion as to Franklin's claim.
Plaintiffs argue that the police should have realized that the warrant was invalid before they even began their search. They suggest that the officers should have known that the Property was a multi-unit building because there were three gas meters in the backyard (id. at 21), and because the house had two mailboxes and two separate entrances. (Id. at 22.) "Indicia of a separate residence include separate entrances, separate doorbells, separate house numbers, name plates, and mail boxes." Fennell, 496
Plaintiffs also argue that the police officers should have known that the Property was a multi-unit dwelling because they were familiar with the location. (Pls.' Opp'n at 19.) However, simple familiarity with or prior visits to a building do not necessarily put an officer on notice that the building is a multi-unit dwelling. See Mena v. City of Simi Valley, 226 F.3d 1031, 1037 (9th Cir.2000) (evidence of prior visits insufficient to create issue of material fact that officers should have known that dwelling was multi-unit). Although some of the officers admit to knowing of the house or to visiting the house (Pls.' Opp'n at 18-20), plaintiffs have presented no evidence to refute the officers' sworn testimony that they believed the property was a single family home. Plaintiffs' conclusory allegations cannot overcome the competent evidence presented by the defendants.
The Court thus finds that there is insufficient evidence that the police knew or should have known that the warrant was unconstitutionally broad before or during their search of Smith's apartment. "The officers' conduct and the limits of the search [are] based on the information available as the search proceed[s]." Garrison, 480 U.S. at 87, 107 S.Ct. 1013.
Franklin's claim, however, survives. Even if the officers reasonably believed that the warrant was valid when they began the search and during their search of Smith's apartment, they were required to stop searching "as soon as" they were "on notice" of the risk that they might be in a unit "erroneously included within the terms of the warrant." Garrison, 480 U.S. at 87, 107 S.Ct. 1013. Officer Ellingsworth states that after entering the basement area, the police discovered it contained two separate apartments. (Ellingsworth Dep. at 106.) Thus, it appears that upon entering the basement area, the officers should have been on actual notice that the search warrant was overbroad. If so, they should have stopped searching immediately; their failure to do so strips them of qualified immunity. Simmons v. City of Paris, 378 F.3d 476, 481 (5th Cir.2004) ("[q]ualified immunity does not provide a safe harbor for police to remain in a residence after they are aware that they have entered the wrong residence by mistake").
There is also an issue of material fact as to whether the police should have realized that their warrant was overbroad when they encountered locked and numbered doors in the basement hallway.
Because Franklin has shown genuine issues of material fact, it will be "for the trier of fact to determine, based on the credibility of the evidence before it, at what point the officers knew or reasonably should have known" that the search warrant was overbroad, and "to determine what searches and seizures occurred after that." Pray, 49 F.3d at 1160 (trier of fact to determine whether officers continued securing residence for four to five minutes after realizing they were in the wrong apartment). See also Harman v. Pollock, 446 F.3d 1069, 1085 (10th Cir.2006) (dispute as to reasonableness of officers' failure to realize that they were in a separate residence would be resolved by trier of fact); Cooper v. Dailey, No. 07-cv-2144, 2010 WL 1415986, at *5 (N.D.Ill. Mar. 31, 2010) ("A number [of] courts of appeals have concluded in analogous cases that the reasonableness of police officers' failure to realize that they were at a residence not anticipated in a search warrant is a question for the trier of fact."). The trier of fact will evaluate the evidence and determine which of the searches and seizures, if any, took place after the officers "discovered or reasonably should have discovered that" the search warrant was overbroad. Any searches and seizures that took place after that point violated plaintiffs' Fourth Amendment rights. Id. at *5 n. 4. The Court will therefore deny defendants' motion for summary judgment on Franklin's claim under Count III.
Defendants argue that Smith and Franklin have failed to sufficiently support their conspiracy claim with facts.
Plaintiffs argue that the police officers are liable for "intentional tortious destruction of property" based on the damage to their apartments that occurred during the execution of the search warrant.
Plaintiffs have introduced extensive testimony to support their claim that their property was destroyed. (Smith Resps. at 2-3; Smith Dep. at 327, 375; Franklin Dep. at 81, 116.) Moreover, plaintiffs have introduced photographic evidence of the Property in the aftermath of the search. (Pls.' Opp'n, Ex. 13, at 8-10.) Plaintiffs have therefore submitted sufficient evidence to create a genuine issue of material fact as to the existence of damage.
Plaintiffs further argue that expert testimony is unnecessary and that a jury should decide whether the officers acted reasonably. (Pls.' Opp'n at 36.) "Officers executing a search warrant may damage property if it is reasonable under the circumstances to do so." Youngbey, 766 F.Supp.2d at 220, 2011 WL 697158, at *18 (citing Dalia v. United States, 441 U.S. 238, 258, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979)). In Youngbey, a case involving alleged trespass to chattels and conversion by police officers executing a search warrant, the Court denied the District's motion for summary judgment because the District's only offered justification for the property damage was that the police "thought a homicide suspect lived in the
Defendants move for summary judgment on Count VI because plaintiffs have produced no expert testimony to support their claim that the police officers negligently prepared the affidavit and conducted the search. (Defs.' Mot. at 16-17.). To show negligence, plaintiffs must show an "applicable standard of care," a "deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff's injury." Scales v. District of Columbia, 973 A.2d 722, 730 (D.C.2009). In this case, the standard of care is "that of a reasonably prudent police officer." Id. To prove this standard of care, plaintiffs were required to submit expert testimony, because the standard is "beyond the ken" of the average juror. Id. (quoting Etheredge v. District of Columbia, 635 A.2d 908, 917 (D.C.1993)). Plaintiffs have failed to produce any expert testimony to establish a standard of care, and therefore, Count VI will be dismissed.
Plaintiffs fail to respond to the District of Columbia's argument that it cannot be liable for negligent training and supervision resulting in a Fourth Amendment violation because plaintiffs have failed to produce evidence of a policy or custom resulting in the constitutional violation. "It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded." Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003). The Court will therefore treat Count VIII as conceded and grant defendants' motion for summary judgment.
Defendants finally argue that plaintiffs have failed to plead or demonstrate the "evil motive" or malice required to justify an award of punitive damages against the police officers under Count V. (Defs.' Mot. at 20.) Under District of Columbia law, "punitive damages are warranted only when the defendant commits a tortious act accompanied with fraud, ill will, recklessness, wantonness, oppressiveness, willful disregard of the plaintiff's rights, or other circumstances tending to aggravate the injury."
For the foregoing reasons, defendants' motion for summary judgment (Dkt. No. 92) is granted in part and denied in part. The Court grants defendants' motion as to plaintiffs' claims under Counts I, II, IV, VI, and VIII. The Court denies defendants' motion as to plaintiffs' claims under Count V and as to plaintiffs' request for punitive damages. The Court will grant defendants' motion as to Smith's claim under Count III, but will deny defendants' motion as to Franklin's claim under Count III. The District will be dismissed with prejudice. An Order consistent with this