Memorandum Opinion and Order
STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE.
This case comes before the court, after the parties have completed extensive discovery and fully briefed several issues, on defendants' motion to dismiss or in the alternative for summary judgment.
This civil lawsuit arises out of a criminal investigation of the plaintiff, Earl Washington, Walter Anthony Paige ("Lucky") and the premises of the Quincy Market. That investigation culminated in the execution of a search warrant for the Market on June 17, 1986. At the conclusion of their search, the police officers determined they had probable cause to arrest plaintiff Washington; they placed him under arrest and charged him with running an illegal gambling operation. The criminal charges against plaintiff were dropped soon thereafter.
In his nine count complaint, the plaintiff raises two principal claims. First, he charges the defendant police officers with wrongfully withholding material information from the Superior Court Judge from whom they obtained the search warrant to search his store; and second, he contends that he was searched and arrested without probable cause for possession of numbers slips and maintaining a gambling premises. Plaintiff has alleged federal claims against the defendant officers in the form of search and arrest without probable cause pursuant to 42 U.S.C. § 1983.
He sues the individual defendants in both their individual and their official capacities. He also has lodged common law false arrest, false imprisonment, malicious prosecution and negligence claims against the individual police officers. He also sues the District of Columbia directly under section 1983 for its allegedly negligent supervision of the individual defendants and vicariously under a common law theory of respondeat superior for the actions of the police officers. Plaintiff seeks compensatory money damages of $ 500,000 and punitive damages of $ 1,000,000.
The individual defendants have moved to dismiss the section 1983 claims on the basis of their qualified immunity. They also argue that the common law claims should be dismissed because probable cause existed to support the search and arrest. In turn, defendant District of Columbia contends that the existence of probable cause to search the Market and arrest the plaintiff precludes its liability for the common law claims.
Because this case comes before the court on defendants' motion for summary judgment, I have decided this case based on the facts that I find not in dispute and the reasonable inferences to be drawn from them. See F.R.Civ.P. 56. See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986) (plaintiff's burden when confronted with a summary judgment motion is to "set forth specific facts showing that there is a genuine issue for trial"); Martin v. D.C. Metropolitan Police Dept., 259 U.S. App. D.C. 31, 812 F.2d 1425, 1434 (D.C. Cir. 1987) (when evaluating a motion for summary judgment, particularly one based on a claim of qualified immunity, a district court must keep in mind that "it is not the moving party's burden to disprove unsupported claims of his opponent") (citing Liberty Lobby).
At the time their investigation of Quincy Market began, Detectives Roy V. Brannan and Beverly Randall, the investigating officers in this case, had been members of the Metropolitan Police Department for approximately twenty years combined. They were assigned to the Gambling Branch of the Morals Division and had received extensive formal and on the job training in the basics of conducting investigations concerning illegal gambling activities.
Their investigation was touched off in May, 1986, when Detective Brannan received information from a reliable Confidential Source, who "in the past supplied information resulting in the execution of arrest and search warrants for gambling related offenses which further resulted in the seizure of gambling paraphernalia and the arrest and conviction of numerous offenders."
The Confidential Source informed Detective Brannan that an illegal lottery was being conducted at the Quincy Market, 114 Quincy Place. The Confidential Source also provided the license plate numbers for two cars that belonged to individuals who were involved in the illegal gambling operation. Those cars belonged to Mr. Walter Anthony Paige ("Lucky") and plaintiff Earl Washington, respectively. Detectives Brannan and Randall determined that the owner of the Market was Washington.
The Detectives first took action during the week of May 19, 1986, when Brannan met with the Confidential Source and provided him with advanced confidential funds. Brannan observed the Confidential Source enter and depart from the Quincy Market. The Confidential Source later relayed to Brannan that he had placed a bet with Washington in the Market. The Confidential Source also told Brannan that Washington dropped the numbers bets and monies inside a box located near the freezer. According to the Confidential Source, Paige would pick up the bets later and take them to Maryland. On May 21, the Confidential Source told Brannan that Washington had told him that he only took bets on the Maryland numbers, and not the illegal street number.
Randall and Brannan thereafter observed "Lucky" make several trips between his home, located down the block at 104 Quincy Street, and the Quincy Market during prime gambling hours. The Detectives observed Paige constantly trooping back and forth between the two locations, but consistently staying inside the Market for only short periods of time.
On several occasions during the next three weeks, the Confidential Source reported to Detectives Brannan and Randall that he had placed bets at the Market. In addition, the Detectives again provided the Confidential Source with advanced funds and watched him enter and exit the Market. He later confirmed that he had placed an illegal bet with Washington.
Sometime in the course of their initial background investigation of the Quincy Market, Detective Brannan contacted Detective John Betts to determine whether a 1979 arrest for possession of illegal gambling slips that Betts made in front of the Market involved the so-called numbers business they now suspected was being carried out in the Quincy Market. Detective Betts told Brannan that the 1979 arrest was not in any way related to the alleged contemporary numbers business. In addition, plaintiff contends, Betts volunteered to Brannan his view that no illegal activities were ongoing at the Quincy Market at that time and that he thought plaintiff Washington was a fine and upstanding member of the community.
Detective Betts, at the time he spoke with Brannan, was neither assigned to the Gambling and Morals Division nor engaged in any official investigation of the activities of the Quincy Market. According to Betts and Washington, however, Betts paid fairly frequent visits to the Market -- in the range of three or four visits per month. Detective Brannan did not find the information provided by Betts to be contrary to or inconsistent with the information obtained from the Confidential Source and his and Detective Randall's personal observations of the Market.
Based on these events, Detectives Brannan and Randall concluded that they had probable cause to believe that an illegal gambling operation was being conducted inside the Quincy Market. They completed an affidavit for a warrant to search the Market and the person of Paige. The affidavit outlined the detectives' personal observations and the information they had obtained from the Confidential Source. It did not include a report of the conversation with Betts. The affidavit was reviewed by Assistant United States Attorney David Cisen, and submitted to District of Columbia Superior Court Judge Paul Webber. Judge Webber found probable cause and approved the search warrant on June 11, 1986.
The search warrant was executed on June 17, 1986, at approximately Noon. After informing plaintiff Washington of the purpose of their visit, the defendant officers, along with several other police officers, sealed the Market and searched it for gambling paraphernalia. The search lasted approximately an hour. The officers found a registered handgun, a green ledger book which contained notations about a lottery, a listing of past D.C. and Maryland winning legal lottery numbers, and a listing of past illegal lottery numbers.
The officers either asked or ordered Washington to empty out the contents of his pockets. Among the contents were lottery tickets or slips -- it is contested whether they were legal or illegal.
The officers arrested Washington for the felony crime of operating an illegal lottery
and the misdemeanor crime of possession of illegal lottery tickets.
They handcuffed Washington and escorted him to the police station.
The next day the United States Attorney's Office charged Washington with two misdemeanors -- illegal possession of numbers slips and maintaining a gambling premises. On July 9, 1986, the criminal prosecution of Washington was dismissed by the United States Attorney's Office.
I. The Section 1983 Claims
Plaintiff's section 1983 claims are predicated on three separate contentions: 1) plaintiff asserts that the defendant police officers lacked probable cause to obtain a search warrant and to search the Quincy Market; 2) he contends the defendant police officers were without probable cause to search and arrest him; and 3) he claims defendant District of Columbia's negligent supervision of the individual defendants establishes the District's legal responsibility for both his purportedly false arrest and the alleged physical injuries he sustained from being handcuffed.
A. The Search Warrant
Plaintiff concedes that the affidavit for the search warrant and the search warrant itself satisfy, on their face, the fourth amendment standard of probable cause.
Nevertheless, based on a subfacial challenge to the affidavit, plaintiff claims that defendants lacked probable cause to search the Quincy Market when they applied for a search warrant. Plaintiff further contends that the defendants' application for a search warrant was unreasonable and fell short of the standard for asserting qualified immunity established in Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987).
Plaintiff's challenge is predicated on two separate bases. First, plaintiff argues that it was objectively unreasonable for defendants to exclude the information provided by Detective Betts from the affidavit submitted to the Superior Court Judge. Plaintiff claims that the inclusion of this information in the warrant would have negated probable cause. Second, plaintiff contests both the existence and the reliability of defendants' "alleged paid informant."
Defendants argue that these contentions would be insufficient to entitle plaintiff to suppress the evidence found in the Market if this issue came before a court in a criminal posture -- and that they are more seriously inadequate as a basis for piercing defendants' qualified immunity in this civil proceeding. Because I conclude that the defendant officers had probable cause to search the Market, and that the search warrant was validly issued, I do not reach the qualified immunity defense in this context.
1. The Betts Conversation
In the leading Supreme Court case involving alleged material misrepresentations in a search warrant affidavit, the Court held that:
where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.