Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________
)
FITZGERALD SCOTT )
)
Plaintiff, )
) v. ) Civil Action No. 12-1696 (ABJ) )
UNITED STATES )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
On October 17, 2012, plaintiff Fitzgerald Scott filed this lawsuit against the United States alleging that the United States Supreme Court Police violated clearly established First Amendment principles when they arrested him for unlawful entry while he was wearing a jacket bearing the message “Occupy Everywhere” in the Supreme Court building. Compl. [Dkt. # 1] ¶¶ 8, 13, 17 18. The complaint consists of one count under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), alleging false arrest and imprisonment, and it seeks compensatory damages and the expungement of all records of Scott’s arrest. Id. ¶¶ 23 25, Prayer for Relief.
The United States has moved to dismiss the case or, in the alternative, for summary judgment under Federal Rules of Civil Procedure 12(b)(6) and 56. Def.’s Mot. to Dismiss or , in the alternative, for Summ. J. (“Def.’s Mot .”) [Dkt. # 6]. Scott opposes defendant’s motion and has filed a cross-motion for summary judgment. Pl.’s Cross -Mot. for Summ. J. [Dkt. # 10]. Because Scott’s arrest was supported by probable cause or, at a minimum, a reasonable good *2 faith belief on the part of the arresting officers that they had probable cause, the Court will grant defendant ’ s motion for summary judgment and deny Scott’s cross -motion.
BACKGROUND
The following facts are undisputed except where noted. On January 20, 2012, Scott entered the interior of the Supreme Court wearing a jacket that had the words “Occupy Everything” or “Occupy Everywhere” painted on it. Pl.’s Statement of Issues as to which there is a Genuine Dispute (“Pl.’s Statement”), Ex. 2 to Pl.’s Mem. in Opp. to Def.’s Mot. [Dkt. # 8 -2] ¶ 1 ; Def.’s Resp. to Pl.’ s Statement of Undisputed Facts (“Def.’s Resp.”), Ex . 1 to Def.’s Reply in Supp. of Def.’s Mot. and Opp. to Pl.’s Cross -Mot. [Dkt. # 14-1] ¶ 1. According to Timothy Dolan, Deputy Chief of the Supreme Court of the United States Police (“ Supreme Court Police”) , there had been a significant protest outside of the Court that day organized by the “Occupy” movement. Dolan Decl., Ex. 2 to Def.’s Mot. [Dkt. # 6-2] ¶ 5. While Scott was inside the building looking at exhibits on display, Deputy Chief Dolan approached him and told him that he could not wear the jacket while in the building, but that he could do so on the public sidewalk outside. Pl.’s Statement ¶ ¶ 2 –3; Def.’s Resp. ¶ 4.
In the course of their interaction, Deputy Chief Dolan who was wearing his uniform identified himself as the authority at the Supreme Court. Compl. ¶ 15; Dolan Decl. ¶ 6. He also informed Scott that his jacket was comparable to a sign or demonstration, and that Scott would be arrested if he did not either remove the jacket or leave the building. Pl.’s Statement ¶ 4; Def.’s Resp. ¶¶ 2, 4. When Scott did neither, Deputy Chief Dolan instructed another officer to place Scott under arrest for unlawful entry. Pl.’s Statement ¶ 5; Dolan Decl. ¶ 6. Scott was Plaintiff has also provided the Court with a video recording of these events, which corroborates this account. See Ex. A to Pl.’s Cross -Mot. [Dkt. # 10-4].
released from custody the same day, and the charges against him were ultimately dropped. Compl. ¶ 20; Dolan Decl. ¶ 6.
Scott filed an administrative tort claim with the Supreme Court that was denied on
September 20, 2012. Compl. ¶ 22. On October 17, 2012, he filed this suit under the FTCA
asserting that the “United States is liable for the false arrest and imprisonment of Mr. Scott
because Pfc. Freeman arrested Mr. Scott without probable cause.” Compl. ¶ 23. The defendant
has moved to dismiss or, in the alternative, for summary judgment under Rules 12(b)(6) and 56
on the grounds that the Supreme Court Police had probable cause to arrest Scott for violating
D.C.’s unlawful entry statute, D.C. Code § 22-3302(b), as well as the federal statute banning the
display within the Supreme Court building of items designed to bring notice to organizations or
movements. 40 U.S.C. § 6135 (2012). Def.’s Mem . in Supp. of Def.’s Mot. (“Def.’s Mem.”)
[Dkt. # 6] at 7. Scott opposes the motion, and he has filed a cross-motion for summary
judgment, asserting that his actions were protected by the First Amendment under
Cohen v.
California
,
STANDARD OF REVIEW
I. Motion to Dismiss
“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient
factual matter, accepted as tr ue, to state a claim to relief that is plausible on its face.”
Ashcroft v.
Iqbal
, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);
accord Bell Atl. Corp. v.
Twombly
,
A claim is facially plausible when the pleaded factual content “allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Id
. at 678.
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.”
Id
., quoting
Twombly
,
When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed
liberally in plaintiff’s favor, and the Court should grant plaintiff “the benefit of all inferences that
can be derived from the fac ts alleged.”
Kowal v. MCI Commc’ns Corp.
, 16 F.3d 1271, 1276
(D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if
those inferences are unsupported by facts alleged in the complaint, nor must the Court accept
plai ntiff’s legal conclusions.
See id.
;
Browning v. Clinton
,
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
*5
56(a). The party seeking summary judgment bears the “initial respons ibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the a bsence of a genuine issue of material fact.”
Celotex
Corp. v. Catrett
, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat
summary judgment, the non- moving party must “designate specific facts showing there is a
genuine issue for trial .”
Id.
at 324 (internal quotation marks omitted). The existence of a factual
dispute is insufficient to preclude summary judgment.
Anderson v. Liberty Lobby, Inc.
, 477 U.S.
242, 247 –48 (1986). A dispute is “genuine” only if a reasonable fact -finder could find for the
non- moving party; a fact is only “material” if it is capable of affecting the outcome of the
litigation.
Id.
at 248;
Laningham v. U.S. Navy
, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In
assessing a party’s motion, the court must “eschew making credibility determinations or
weighing the evidence. ”
Czekalski v. Peters
, 475 F.3d 360, 363 (D.C. Cir. 2007) (citations
omitted). All underlying facts and inferences must be analyzed in the light most favorable to the
non-moving party.
Anderson
,
A motion to dismiss must be treated as a motion for summary judgment if “matters
outside the pleadings are presented to and not excluded by the court.” Fed. R. Civ. P. 12(d);
see
also Yates v. District of Columbia
,
ANALYSIS
The FTCA enables individuals to bring claims against the United States government for injuries caused by government employees acting within the scope of their employment, “ under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act . . . occurred.” 28 U.S.C. § 1346(b)(1). It is undisputed that the Supreme Court Police officers were acting within the scope of their employment when they arrested Scott. See Compl. ¶ 2. So, the United States could be held liable if the officers committed the torts of false arrest and imprisonment under District of Columbia law when they arrested Scott.
In the District of Columbia, “ [f]alse arrest is indistinguishable as a practical matter from
the common law tort of false imprisonment. ”
Enders v. District of Columbia
,
District of Columbia courts recognize two means to advance an affirmative defense to a
false arrest claim: (1) the probable cause test; and (2) the “partially subjective test . ”
Scales v.
District of Columbia
,
entitled to assert any defense that would otherwise be available to the employee whose act gave rise to the claim).
Under the probable cause test, “ if a police officer has so-called constitutional probable
cause to arrest, determined by reference to the objective standard used to determine probable
cause in a criminal proceeding, the arrest will be lawful, and the officer accordingly will have a
complete defense to a false arrest claim .”
Murphy
,
The partially subjective test is less stringent than the probable cause test. See Scales , 973 A.2d at 729 (describing the partially subjective test as “usually easier -to- meet”) . To meet this test, the officer must show: (1) that he believed in good faith that his conduct was lawful; and (2) that his belief was reasonable. Id. Under this approach, the Court need not find that the arrest was actually supported by probable cause; the officer could be wrong as long as he was acting reasonably and in good faith. Id.
The Court finds that Scott’s arrest was supported by probable cause, but even if it was not, it was justified under the partially subjective test; therefore, the United States is not liable for false arrest and imprisonment.
4
Courts will apply the partially subjective test only where, as here, the defendant has
affirmatively argued that the arresting officer had a reasonable good faith belief that there was
probable cause for the arrest.
Scales
,
I. The Supreme Court Police had probable cause – or a reasonable good faith belief that
there was probable cause – to arrest Scott.
The District of Columbia’s unlawful entry statute is somewhat broader than its name
would suggest, and it covers more than merely entering onto certain premises without
authorization. The statute also makes it illegal for any person without authority to
remain
on
property against the will of the person lawfully in charge of it. D.C. Code § 22-3302(b). The
c ourts have interpreted this statute to require “some additional specific facto r establishing the
party’s lack of a legal right to remain.”
Wheelock v. United States
, 552 A.2d 503, 505 (D.C.
1988), quoting
O’Brien v. United States
,
Under section 6135 “[ i]t is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, Under 40 U.S.C. §§ 6121(a)(1) and (3), it is the Supreme Court Police that is authorized to protect the Supreme Court Building, and to make arrests for violations of federal or state law in connection with that duty. In his complaint, Scott suggests that his arrest was improper because the officer who directed him to either remove his jacket or leave to avoid arrest was a member of the U.S. Capitol Police, who was not lawfully in charge of the property. Compl. ¶¶ 11 17. But Deputy Chief Dolan has averred that he was the one who provided the warnings to Scott, and that no U.S. Capitol police officers were on the scene or involved in the arrest. Dolan Decl. ¶¶ 6 7. The videotape submitted to the Court as an exhibit by Scott does not provide any clear indication that any of the officers on the scene were members of the U.S. Capitol Police. See Ex. A to Pl.’s C ross-Mot. [Dkt. # 10-4]. Indeed, it shows Deputy Chief Dolan giving orders to the other officers, which would suggest that the officers were in fact Dolan’s Supreme Court Police subordinates. Id. Most important, Scott’s own statement of facts as to which there is no genuine dispute attributes the actions that prompted this lawsuit to Dolan; it states that it was Deputy Chief Dolan who issued the warnings that are challenged in this case. Dkt. # 10-3 ¶ 4. So it appears that Scott has abandoned this contention.
organization, or movement. ” 40 U.S.C. § 6135. The first part of the statute is known as the “assemblages c lause, ” and the second part is the “display clause.”
The Supreme Court Police had probable cause to arrest Scott for violating section 6135
because Scott’s actions fell squarely within the plain language of the display clause: he was
displaying a device (his jacket) in the building which had been adapted to bring public attention
to the “Occupy” movement.
See Kinane v. United States
, 12 A.3d 23, 25 26 (D.C. 2011)
(affirming the conviction of protestors for violating the display clause of section 6135 where the
protestors entered the Court with shirts that read, “Shut Down Guantanamo”);
Potts v. United
States
,
Moreover, even if the Supreme Court Police officers did not have probable cause to arrest Scott for unlawful entry, they are still not liable for false arrest because they meet the “partially subjective test.” In his affidavit, Deputy Chief Dolan averred that he determined Scott’s jacket violated the display clause of section 6135. Dolan Decl. ¶ 6. This determination was reasonable because, as previously mentioned, Scott’s actions could reasonably be viewed to fall squarely within the display clause. Deputy Chief Dolan gave Scott a choice: he informed him that he had to remove the jacket or leave the building, and that he would be arrested if he continued to wear the jacket in the building. Dolan Decl. ¶ 6. When Scott did not leave the building or remove his *10 jacket, [6] Deputy Chief Dolan’s subjective belief that Scott was in violation of the unlawful entry statute was reasonable since Dolan was in a position of authority at the time and Scott’s violation of section 6135 provided the additional specific factor needed for a violation of the unlawful entry statute.
II. Settled constitutional law does not alter the Court’s analysis .
Scott contends that his arrest was not reasonable under the objective probable cause test
or the partially subjective test because it violated well-settled First Amendment law.
See
Pl. ’ s
Mem. at 1, 9 10. Specifically, Scott argues that at the time of his arrest, the Supreme Court’s
decision in
Cohen v. California
,
Scott alleges that he did not “refuse” to leave or take off his jacket, but that he was arrested as he was asking questions because he did not understand the officers’ orders. Pl.’s Statement ¶ 5. D.C. Code § 22-3302 makes it unlawful for an individual to be in a building “without lawful authority to remain therein.” Here, Scott did not have lawful authority to remain in the building clearly after the Supreme Court Police asked him to leave because he was advertising a “movement” in violation of section 6135. The fact that he “did not leave the building or remove his jacket” after he was ordered to do so by Supreme Court Police, Pl.’s Reply at 1, constituted a violation of the unlawful entry statute.
7
Relying on
Shifrin v. Wilson
,
An arresting police officer may not justify an arrest by “ ignorance or disregard of settled,
indisputable law .”
Dellums v. Powell,
566 F.2d 167, 176 (D.C. Cir. 1977), quoting
Wood v.
Strickland
,
Scott argues that his arrest violated well-settled constitutional law as set forth in Cohen . In Cohen , the plaintiff was convicted of violating a California statute that prohibited “ maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct, ” for wearing a jacket bearing the words “ Fuck the Draft ” in a corridor of the Los Angeles courthouse. 403 U.S. at 16. The Supreme Court overturned the conviction because: (1) the statute could not be justified on the grounds that it sought to preserve appropriate decorum in the courthouse since it applied everywhere throughout the state, and it did not explain what kind of speech was “offensive” ; (2) Cohen’s message did not involve obscene or fighting words; (3) those who were offended by the jacket could avert their eyes; (4) the message was not inherently likely to cause a violent reaction; and (5) “ the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. ” Id. at 20 23; 26.
Scott asserts that Cohen applies to his case because it involves “strikingly similar facts , ” and the sole difference “of even arguable constitutional significance” between his case and Cohen is that “the statute involved in Cohen was not limited to the courthouse grounds or *12 building, as is 40 U.S.C. § 6135.” Pl.’s Mem. at 3. But the difference between the two statutes is significant. Cohen involved a broad statute proscribing malicious and disruptive conduct, and what offended the Court was the officers’ unguided conclusion – based on the content of Cohen’s speech alone – that his act of pure expression violated the statute. But the statute here is specifically directed to particular types of displays in a very particular place, and it applies regardless of the content of the display. Therefore, the appropriate analysis in this case is whether well-established law indicated at the time that an arrest for unlawful entry based on a violation of section 6135 was unconstitutional.
A t the time of Scott’s arrest, the application of section 6135 – and its predecessor 40
U.S.C. § 13k
[8]
– to individuals in the Supreme Court building and plaza had been upheld as
constitutional.
See Kinane v. United States
, 12 A.3d 23, 25 – 26 (D.C. 2011) (affirming the
conviction of protestors for violating the display clause of section 6135 when the protestors
entered the Court with shirts that read, “Shut Down Guantanamo”);
Potts v. United States
, 919
A.2d 1127, 1129 31 (D.C. 2007) ( holding that “ 40 U.S.C. § 6135 does not violate the First
Amendment, either on its face or as applied to appellants ” who were arrested for wearing orange
jumpsuits with black hoods and holding a sign that read “no taxes for war or torture” on the plaza
in front of the Supreme Court);
cf United States v. Grace,
461 U.S. 171, 178 79, 183 (1983)
(finding section 13k to be unconstitutional as applied to the public sidewalks around the Court
8
The wording of section 13k is substantially similar to that of section 6135.
Lawler v.
United States
,
overbroad.
but leaving the statute intact with respect to the Supreme Court plaza and building). The fact that long after Cohen , this statute had been upheld as constitutional on its face and as applied to individuals in similar situations defeats Scott’s assertion that his arrest violated clear constitutional law.
To avoid this conclusion, Scott attempts to distinguish his case from
Potts
and
Kinane.
Pl.’s Reply at 4– 5. He notes that
Kinane
involved a facial challenge to the display clause, which
was raised for the first time on appeal and was therefore subject to plain error review. Pl.’s
Reply at 4 – 5. He notes that, unlike the plaintiff in
Kinane
, he is not raising a facial challenge to
any statute, and his case is thus not subject to the strict standard of plai n error review. Pl.’s
Reply at 5. But the kind of review applied in
Kinane
is not relevant. What matters is that the
Kinane
court upheld the application of section 6135 to individuals displaying devices – in
particular, clothing intended to bring public attention to a “ movement ” while in the Supreme
Court building,
Similarly, Scott argues that defendant’s reliance on
Potts
is misplaced because that case
involved a “small group protest” rather than “pure speech.” Pl.’s Reply at 5. But the arrests in
Potts
were not dependent upon the number of people involved; the protestors were convicted
10 On June 11, 2013, a judge on this court held that section 6135 was “ plainly
unconstitutional on its face as unreasonable and overbroad. ”
Hodge v. Talkin
, No. 12-00104,
2013 WL 2523794, at *17 & n.24 (D.D.C. June 11, 2013). This opinion does not alter the
Court’s analysis because at the time of Scott’ s arrest, section 6135 had been upheld by the D.C.
Court of Appeals on numerous occasions, and officers are not “ charged with predicting the
future course of constitutional law .”
Dellums
,
under the display clause because they were wearing orange jumpsuits and black hoods and
carrying a sign on Supreme Court grounds.
See Potts
,
CONCLUSION
For the foregoing reasons, this Court will grant the defendant’s motion for summary judgment and deny plaintiff’s cross -motion. A separate order will issue.
AMY BERMAN JACKSON United States District Judge DATE: July 2, 2013