RICHARD W. ROBERTS, Chief Judge.
Plaintiffs Samuel Dukore and Kelly Canavan bring damages claims under 42 U.S.C. § 1983 against Metropolitan Police Department ("MPD") Officers Michael O'Dea, Robert Reese, and Hashim Zrien, and Lieutenant Allan Thomas, and Department of Commerce and Regulatory Affairs ("DCRA") Inspector Gilbert Davidson (collectively, the "individual defendants"), alleging that they violated the First, Fourth, and Fifth Amendments of the U.S. Constitution and engaged in a civil conspiracy. The plaintiffs also bring common law claims against the individual defendants and the District of Columbia, the MPD, and the DCRA. The defendants move to dismiss the plaintiffs' second amended complaint or, in the alternative, for summary judgment. Because the individual defendants are entitled to qualified immunity from the plaintiffs' First and Fourth Amendment claims, and because the plaintiffs failed to state claims of civil conspiracy, false arrest, false imprisonment, and procedural due process violations, the defendants'
Plaintiffs are members of the Occupy D.C. movement.
The plaintiffs' second amended complaint seeks damages from all of the defendants for false arrest and false imprisonment and conversion of their tent. The complaint also brings damages claims under 42 U.S.C. § 1983 against the individual defendants alleging that the defendants violated the plaintiffs' rights under the First, Fourth, and Fifth Amendments. The complaint also alleges that the individual defendants violated § 1983 by engaging in a civil conspiracy to violate the plaintiffs' First and Fourth Amendment rights.
The defendants move to dismiss the second amended complaint or, in the alternative, for summary judgment, arguing, in part, that the individual defendants are entitled to qualified immunity from the plaintiffs' constitutional claims. The defendants also argue that the second amended complaint fails to allege sufficient facts to state Fifth Amendment and D.C. common law claims. The plaintiffs oppose.
A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) when a plaintiff fails to state a claim under which relief can be granted. See Fed. R.Civ.P. 12(b)(6).
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
When considering a Rule 12(b)(6) motion, a court construes the complaint "in the light most favorable to the plaintiff and `the court must assume the truth of all well-pleaded allegations.'" Bonaccorsy v. District of Columbia, 685 F.Supp.2d 18, 22 (D.D.C.2010) (quoting Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.Cir. 2004)). In deciding a motion to dismiss, a court may consider "only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [it] may take judicial notice." EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997).
The defendants move to dismiss the plaintiffs' § 1983 damages claims arguing that the individual defendants are entitled to qualified immunity. Defs.' Mot., Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss or, in the Alternative, for Summ. J. ("Defs.' Mem.") at 6-18. The defendants also argue that the plaintiffs did not state a procedural due process claim under the Fifth Amendment. Id. at 18-21.
"The doctrine of qualified immunity protects government officials `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.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "[T]he defense of qualified immunity challenges the complaint for failure to state a claim upon which relief may be granted." Bailey v. U.S. Marshal Serv., 584 F.Supp.2d 128, 131 (D.D.C.2008); see also Ford v. Mitchell, 890 F.Supp.2d 24, 32 (D.D.C.2012).
To resolve a government official's qualified immunity claim, "a court must decide [(1)] whether the facts that a plaintiff has alleged ... or shown ... make out a violation of a constitutional right [and (2)] whether the right at issue was `clearly established' at the time of the defendant's alleged misconduct." Pearson, 555 U.S. at 232, 129 S.Ct. 808 (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). In analyzing the first issue, courts determine whether "facts alleged show the officer's conduct violated a constitutional right." Saucier, 533 U.S. at 201, 121 S.Ct. 2151. "The relevant, dispositive inquiry in determining whether a right is clearly established 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. Courts may exercise their discretion as to which of these prongs to address first, because if a constitutional right is not clearly established, defendants are entitled to qualified immunity whether or not that right was violated. See Pearson, 555 U.S. at 236, 129 S.Ct. 808; Jones v. Horne, 634 F.3d 588, 597 (D.C.Cir.2011).
The First Amendment guarantees the right to free speech. U.S. Const. amend. I. The plaintiffs allege that the defendants violated their clearly established right to
The individual defendants allege that the MPD defendants arrested the plaintiffs for violating title 24, section 121.1 of the D.C. Municipal Regulations. Section 121.1 provides that "[n]o person or persons shall set up, maintain, or establish any camp or temporary place of abode in any tent ... on public or private property, without the consent of the Mayor of the District of Columbia." D.C. Mun. Regs. tit. 24, § 121.1.
Generally, an officer is entitled to assume that a regulation enacted by a state legislature is valid. See Lederman v. United States, 291 F.3d 36, 47 (D.C.Cir. 2002); cf. Grossman v. City of Portland, 33 F.3d 1200, 1210 (9th Cir.1994) ("[A]n officer who reasonably relies on the legislature's determination that a statute is constitutional should be shielded from personal liability."). This is because "`[t]he enactment of a law forecloses speculation by enforcement officers concerning its constitutionality — with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.'" Lederman, 291 F.3d at 47 (quoting Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979)). Thus, an officer who relies on a duly enacted regulation is entitled to qualified immunity unless the regulation is grossly and flagrantly unconstitutional. See Kroll v. U.S. Capitol Police, 847 F.2d 899, 902 (D.C.Cir.1988) (explaining that "defendant's entitlement to qualified immunity raises only a narrow question").
In their second amended complaint, the plaintiffs argue that the defendants should have known that § 121.1 was "plainly unconstitutional on its face and as applied to the Plaintiffs' conduct" under the First Amendment because the regulation grants "completely unfettered discretion to the Mayor, without any standards or guidelines, to determine which protesters are allowed to establish abodes in tents as expressive activity, or activity facilitative of speech, and which ones are not." 2d Am. Compl. ¶ 30. However, the plaintiffs do not further argue that the regulation was so grossly unconstitutional that a reasonable person should have known that it was unconstitutional.
Because the individual defendants were entitled to believe that § 121.1 was valid, the individual defendants' "assertion of qualified immunity to the [plaintiffs'] First Amendment claim thus hinges on whether a reasonable officer, possessing the same information as the [individual] defendants, could have viewed the [plaintiffs'] behavior" as a violation of § 121.1. See Olaniyi, 416 F.Supp.2d at 54 (internal quotation marks omitted); see also Pearson, 555 U.S. at 244, 129 S.Ct. 808 (explaining that whether an officer's actions violated a clearly established law 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'" (quoting Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999))).
An officer must have probable cause to support making an arrest. See U.S. Const. amend. IV. Thus, the individual defendants are immune from suit if "reasonable officers in their positions `could have believed that probable cause existed to arrest [the plaintiffs].'" Reiver v. District of Columbia, 925 F.Supp.2d 1, 7 (D.D.C.2013) (quoting Hunter v. Bryant, 502 U.S. 224, 228-29, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). A police officer has probable cause for an arrest if the officer "ha[s] enough information to warrant a man of reasonable caution in the belief that a crime has been committed and that the person arrested has committed it." Barham v. Ramsey, 434 F.3d 565, 572 (D.C.Cir.2006) (internal quotation marks omitted).
The plaintiffs allege that the individual MPD defendants did not have probable cause to arrest them for violating § 121.1. See Pls.' Opp'n at 7-12. The defendants counter that the plaintiffs have not shown that it would have been clear to a reasonable
The defendants argue that the individual MPD defendants had probable cause to arrest the plaintiffs because the plaintiffs set up a tent on a public sidewalk and were inside the tent after 10:00 p.m. They contend that a tent is a "traditional `temporary place of abode'" and the officers had reasonable cause to believe that a tent occupied late at night was a "temporary place of abode." See id. at 13-14; see also Reply to Pls.' Opp'n to Defs.' Mot. to Dismiss or, in the Alternative, for Summ. J. ("Defs.' Reply") at 17. Because the tent was set up on a public sidewalk at a time when most people sleep, tents are commonly used as temporary abodes, and the plaintiffs did not have a permit, say the defendants, it was reasonable for the individual defendants to believe that the plaintiffs were violating § 121.1.
The plaintiffs admit that they set up a tent on the sidewalk, see 2d Am. Compl. ¶ 16, but they argue that the defendants did not have probable cause to believe that the tent was an "abode" for at least two reasons. First, they argue that "there was no visible sleeping/living equipment inside or around the tents." Id. ¶ 28. Second, they argue that the tent was not an abode because signs and messages on the tent demarcated it as "clearly part of a protest," id., and that evidence that the tent was part of a protest negates any presumption that the tent was being used as an abode, see Pls.' Opp'n at 9.
The plaintiffs have not shown that it was unreasonable for an officer to believe, even mistakenly, that a tent occupied late at night was a temporary abode under § 121.1 because there was no visible sleeping and living equipment. For instance, the plaintiffs have not shown that it was unreasonable for an officer to believe that they could have temporarily resided in the tent without additional equipment or that the plaintiffs could reside in a sparsely populated tent. Moreover, § 121.1 does not require that all "abodes" contain sleeping and living materials.
Similarly, that the plaintiffs' tent had signs and messages on it did not make the officers' conduct unreasonable. The plaintiffs admit that other Occupy D.C. protestors were using tents as both instruments of protest and abodes several blocks away. See Pls.' Opp'n at 9-10. The plaintiffs identified themselves to the officers as part of the Occupy movement. See 2d Am. Compl. ¶ 20. It was not unreasonable for the individual defendants to believe that the plaintiffs' tent was being used both as a sign of protest and an abode.
"[W]hile the general rule under the Fourth Amendment is that any and all
Here, the plaintiffs assume without explanation that Fort Wayne Books applies to this case. However, Fort Wayne Books was an obscenity case and the plaintiffs have not established that their case is entitled to the same additional protections. Cf. Boggs v. Rubin, 161 F.3d 37, 41 (D.C.Cir.1998) (noting that Fort Wayne Books is an obscenity case "where significant judgment was needed to determine if the seized materials violated community standards" and distinguishing the seizure of counterfeit currency an artist created because "[t]he important First Amendment concerns advanced by the Supreme Court in the obscenity cases [were] not present to the same extent" in the counterfeit currency case). Even if Fort Wayne Books could apply to the seizure of all tents of Occupy D.C. protestors, the plaintiffs complain only that it was unconstitutional for the officers to take their one tent. Taking the plaintiffs' single tent is more similar to seizing a single copy of a book — which the Fort Wayne Books Court allowed on a finding of probable cause — than to taking all copies of a publication completely out of circulation, which requires a greater showing. Because the plaintiffs have not shown that taking their tent requires more than a showing of probable cause, seizing the plaintiffs' tent after a valid arrest did not violate the plaintiffs' First Amendment rights. Thus, the individual defendants are entitled to qualified immunity from the plaintiffs' claim that taking their tent violated the First Amendment.
The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV. The plaintiffs allege that the defendants violated this clearly established right. The defendants counter that the officers had probable cause to arrest the plaintiffs and thus did not violate the plaintiffs' Fourth Amendment rights.
An officer making an arrest is entitled to qualified immunity where clearly established law does not show that the seizure violates the Fourth Amendment. "It is well settled that an arrest without probable cause violates the [F]ourth [A]mendment." Martin v. Malhoyt, 830 F.2d 237, 262 (D.C.Cir.1987) (citing Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). As is discussed above, it was reasonable for the individual defendants to believe that probable cause existed to arrest the plaintiffs for violating § 121.1. Thus, the defendants are entitled to qualified immunity from the plaintiffs' claim that their arrest violated the Fourth Amendment because the facts alleged do not show that the defendants' conduct violated the plaintiffs' Fourth Amendment rights.
The plaintiffs also claim that taking their tent without a warrant violated their Fourth Amendment rights. 2d Am. Compl. ¶ 51. Seizure incident to arrest is justified "when used to seize the fruits, implements or evidence of the crime for which the arrestee is seized in order to prevent its destruction." United States v. Green, 465 F.2d 620, 621-22 (D.C.Cir.1972). Here, the plaintiffs were reasonably arrested for violating § 121.1. During their arrest, the defendants seized the plaintiffs' tent which the officers could reasonably believe was a temporary abode. Because § 121.1 makes setting up a temporary abode in a tent in a public place illegal, it was reasonable for the officers to believe that the tent was evidence that the plaintiffs violated § 121.1.
"The Fifth Amendment Due Process Clause protects individuals from deprivations of `life, liberty, or property, without due process of law.'" Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 689 (D.C.Cir.2009) (quoting U.S. Const. amend. V). The plaintiffs allege that the defendants took their tent without notice or a hearing, and without providing the plaintiffs "an opportunity to present their claim of entitlement to recover the property," in violation of the Fifth Amendment's procedural due process guarantee. See 2d Am. Compl. ¶¶ 58-59. The defendants argue that the plaintiffs have not stated a procedural due process claim.
"In general, a procedural due process violation consists of a(1) deprivation by the government, (2) of life, liberty, or property, (3) without due process of law." Spadone v. McHugh, 864 F.Supp.2d 181, 188 (D.D.C.2012); see also Propert v. District of Columbia, 948 F.2d 1327, 1331 (D.C.Cir.1991). Where adequate post-deprivation state remedies are available, no cognizable constitutional claim for procedural due process can be stated. Crawford v. Parron, 709 F.Supp. 234, 237 (D.D.C.1986) (citing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)).
D.C. law provides that confiscated property may be returned to the owner "[u]pon satisfactory evidence of the ownership of property." D.C.Code § 5-119.06(a). "Seizure or impoundment of property by the Metropolitan Police Department from an individual is prima facie evidence of that person's ownership of the property." D.C.Code § 5-119.06(a-1). Because this adequate post-deprivation remedy exists, see Dickson v. Mattera, 38 Fed.Appx. 21, 22 (D.C.Cir.2002), the plaintiffs cannot state a procedural due process claim.
The plaintiffs allege that the individual defendants conspired to violate the plaintiffs' First and Fourth Amendment rights. To state a civil conspiracy claim, a plaintiff must demonstrate
Bush v. Butler, 521 F.Supp.2d 63, 68 (D.D.C.2007) (citing Halberstam v. Welch, 705 F.2d 472, 477 (D.C.Cir.1983)). To recover under 42 U.S.C. § 1983, plaintiffs must additionally show "that the purpose of the alleged conspiracy was to deprive the plaintiffs of their constitutional rights." Parker v. Grand Hyatt Hotel, 124 F.Supp.2d 79, 88 (D.D.C.2000).
The defendants argue that the plaintiffs have not stated a § 1983 civil conspiracy claim, in part, because the plaintiffs have not alleged sufficient facts to show that the defendants agreed to take part in unlawful conduct. Defs.' Mem. at 24-25. In their opposition, the plaintiffs did not respond to this argument. Thus, the defendants' argument will be deemed conceded. See Iweala v. Operational Tech. Servs., Inc., 634 F.Supp.2d 73, 80 (D.D.C.2009) ("It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded." (internal quotation marks omitted)). Accordingly, the defendants' motion to dismiss the plaintiffs' civil conspiracy claim will be granted.
"The focal point of [a false arrest or false imprisonment] action is the question whether the arresting officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the arresting officer is privileged and the action fails." Dellums v. Powell, 566 F.2d 167, 175 (D.C.Cir.1977).
Id. (citations omitted); see also Reiver, 925 F.Supp.2d at 7 ("To succeed under a claim for common law [false arrest or] false imprisonment, a plaintiff must demonstrate that the police acted without probable cause, in an objective constitutional sense, to effectuate his arrest." (internal quotation marks omitted)). As is discussed above, it was reasonable for the individual defendants to believe that there was probable cause to arrest the plaintiffs. Thus, the plaintiffs' false arrest and false imprisonment claims will be dismissed.
The plaintiffs allege that the defendants "dispossessed" the plaintiffs of their tent or "disposed" of their tent and "wrongfully destroyed" their tent.2d Am. Compl. ¶ 41. Under D.C. law, conversion is "an unlawful exercise of ownership, dominion and control over the personalty of another in denial or repudiation of his right to such property." Blanken v. Harris, Upham & Co., Inc., 359 A.2d 281, 283 (D.C.1976). Thus, "[a] defendant will be liable for conversion if the plaintiff shows that the defendant participated in (1) an unlawful exercise, (2) of ownership, dominion, or control, (3) over the personal property of another, (4) in denial or repudiation of that person's rights thereto." Gov't of Rwanda v. Rwanda Working Grp., 227 F.Supp.2d 45, 62 (D.D.C.2002). The defendants argue that the plaintiffs have not pled facts sufficient to show that the defendants unlawfully exercised ownership of the plaintiffs' tent.
In their second amended complaint, the plaintiffs allege that they were unlawfully arrested by the individual defendants, see 2d Am. Compl. ¶ 28, that the plaintiffs were in rightful possession of the tent, id. ¶ 42, and that after they were arrested, the individual defendants took and destroyed the tent, id. ¶ 27. Thus, the plaintiffs have sufficiently stated a claim of conversion by alleging that their arrest was improper and thus the subsequent taking and dominion over their tent was unlawful. Accordingly, the defendants' motion to dismiss this claim will be denied.
The individual defendants are entitled to qualified immunity from the plaintiffs' First and Fourth Amendment claims. The plaintiffs did not state a claim for violation of the Fifth Amendment, civil conspiracy, and false arrest and false imprisonment. The plaintiffs have stated a claim for conversion. However, at the plaintiffs' request, their conversion claim will be dismissed without prejudice. A separate Order accompanies this Memorandum Opinion.
2d Am. Compl. ¶ 11.
