Scott v. United States
952 F. Supp. 2d 13
D.D.C.2013Background
- On Jan. 20, 2012, Fitzgerald Scott entered the Supreme Court building wearing a jacket reading “Occupy Everything/Everywhere.”
- Deputy Chief Timothy Dolan (Supreme Court Police) told Scott the jacket functioned as a sign/display and ordered him to remove it or leave; Scott refused.
- Dolan (in uniform) instructed officers to arrest Scott for unlawful entry; Scott was released the same day and charges later dropped.
- Scott filed an FTCA claim for false arrest/false imprisonment against the United States after an administrative claim was denied.
- The United States moved to dismiss or for summary judgment arguing the arrest was supported by probable cause under D.C. unlawful-entry law and by 40 U.S.C. § 6135 (display/assemblage ban); Scott argued First Amendment protection (Cohen) and moved for summary judgment.
- The Court treated the motion as one for summary judgment and found probable cause—or at minimum a reasonable good-faith belief in probable cause—so it granted defendant summary judgment and denied Scott’s cross-motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Scott's detention was unlawful (false arrest/imprisonment under D.C. law) | Scott: Arrest violated First Amendment (Cohen); jacket was protected expression so detention unlawful. | U.S.: Officers had probable cause to arrest for unlawful entry because Scott violated 40 U.S.C. § 6135 (display clause); even if not, officers had reasonable good-faith belief. | Court: Arrest lawful—probable cause existed; alternatively, officers reasonably and in good faith believed probable cause existed. |
| Applicability of 40 U.S.C. § 6135 to jacket/display | Scott: Cohen controls; content-protective First Amendment precedent prevents arrest for expressive jacket. | U.S.: § 6135 lawfully bans displays designed to bring notice to movements in the Supreme Court building; prior D.C. appellate decisions upheld its application. | Court: § 6135 applies to clothing-as-device; existing case law supported officers’ belief that arrest under § 6135 was lawful. |
| Standard for officer defense to false arrest claim | Scott: Good-faith defenses are factual and often for a jury; summary judgment inappropriate. | U.S.: Even under the partially subjective (good-faith) test, affidavit evidence shows reasonable belief—no genuine dispute. | Court: Where evidence shows no reasonable dispute on good faith, summary judgment is appropriate; officers met that standard. |
| Whether settled constitutional law (Cohen) made the arrest clearly unlawful | Scott: Cohen and progeny clearly protect his expression so arrest was indisputably unconstitutional. | U.S.: Cohen differs materially; § 6135 is place- and activity-specific and had been upheld as constitutional in similar contexts. | Court: Officers were not ignoring settled law; existing D.C. precedent (Potts, Kinane) meant they were not required to predict future constitutional shifts. |
Key Cases Cited
- Cohen v. California, 403 U.S. 15 (1971) (First Amendment protection for offensive but nonobscene speech displayed in public areas)
- United States v. Grace, 461 U.S. 171 (1983) (limitations on regulations of speech on public sidewalks around the Supreme Court)
- Potts v. United States, 919 A.2d 1127 (D.C. 2007) (upholding application of display clause to protestors on Supreme Court grounds; not facially invalid)
- Kinane v. United States, 12 A.3d 23 (D.C. 2011) (affirming convictions under display clause for clothing that brought attention to a movement inside the Court)
- Scales v. District of Columbia, 973 A.2d 722 (D.C. 2009) (describing probable-cause and partially subjective good-faith tests for false-arrest defense)
- District of Columbia v. Murphy, 635 A.2d 929 (D.C. 1993) (probable cause objective standard in D.C. unlawful-entry context)
- Munn v. United States, 283 A.2d 28 (D.C. 1971) (probable cause assessed by what a reasonable officer could believe)
- Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977) (officers cannot rely on ignorance of settled law but are not required to foresee changes in constitutional interpretation)