Narce v. Mervilus
Civil Action No. 2023-0200
D.D.C.Oct 30, 2023Background
- Plaintiff Magale Narce, an unhoused street performer in D.C., was performing on a public sidewalk near the Walter E. Washington Convention Center on January 24, 2022; he alleges he remained stopped on his bike, did not impede entrance, and engaged non‑aggressively with a crowd that voluntarily gave money.
- A Special Police Officer asked Narce to move; after Narce refused, MPD Officers Mervilus, Dobbins, and Christian seized, handcuffed, arrested, searched him, and confiscated property (bike, speaker, microphone, ID, backpack, money).
- Narce was detained ~3 hours; District declined to prosecute the aggressive‑panhandling charge; his property was returned damaged; he stopped performing for months and later limited locations, reducing income.
- Narce filed a 10‑count Amended Complaint asserting § 1983 claims for unlawful seizure/search (Fourth Amendment), First Amendment facial and as‑applied challenges to D.C.’s Panhandling Control Act, First Amendment retaliation claims, and state common‑law false arrest claims against officers and the District.
- Defendants moved to dismiss under Rule 12(b)(6) and asserted qualified immunity; the court denied the motion in full, holding Narce plausibly alleged lack of probable cause, viable First Amendment challenges, and retaliatory arrest causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for arrest/search (Counts 1–6) | Narce alleges he was lawfully performing and not "aggressive" under the Act, so officers lacked probable cause. | Officers say Narce’s proximity to crowd, loud music, and soliciting fit the Act’s prohibitions and provided probable cause. | Court: Accepting complaint facts, officers lacked probable cause; §1983 and common‑law false arrest and search claims survive. |
| Bystander liability / Officer Christian’s involvement | Narce alleges all three officers observed and participated; alternatively pleads bystander liability. | Defendants say Narce fails to identify Christian’s specific acts and that some officers arrived only after Mervilus called for backup. | Court: Detail not required at pleading stage; direct and bystander theories plausible; claims against Christian survive. |
| First Amendment challenge to Panhandling Control Act (Counts 7–8) | The Act targets "immediate requests for money" and therefore is content‑based; strict scrutiny applies; Act is not narrowly tailored. | Defendants contend solicitation rules are content‑neutral time/place/manner regulations (citing pre‑Reed precedent). | Court: Plausible that Reed and City of Austin undermine prior D.C. Circuit treatment; plaintiff’s facial and as‑applied challenges survive dismissal pending fuller record. |
| Retaliatory arrest causation (Counts 9–10) | Narce alleges protected speech (performance); arrest followed his refusal to move; absence of probable cause supports retaliatory motive as but‑for cause. | Defendants note officers could permissibly consider the performance when deciding arrest; probable cause would defeat causation. | Court: Because alleged lack of probable cause and temporal facts permit inference of retaliation, retaliation claims survive the motion to dismiss. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must state plausible claim to survive Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (legal conclusions must be supported by factual allegations)
- Reed v. Town of Gilbert, 576 U.S. 155 (content‑based speech restrictions trigger strict scrutiny)
- City of Austin v. Reagan Nat'l Advertising of Austin, LLC, 596 U.S. 61 (facially content‑neutral rules may be content based in purpose/effect)
- Nieves v. Bartlett, 139 S. Ct. 1715 (probable cause bears on causation in retaliatory‑arrest claims)
- Maryland v. Pringle, 540 U.S. 366 (probable cause standard for warrantless arrest)
- Riley v. California, 573 U.S. 373 (scope of search incident to arrest tied to lawfulness of arrest)
- Chimel v. California, 395 U.S. 752 (search incident to arrest doctrine)
- Wesby v. District of Columbia, 583 U.S. 48 (definition of "clearly established" law for qualified immunity analysis)
- ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949 (D.C. Cir. pre‑Reed treatment of solicitation regulation as content neutral)