mention the earlier warrant application for 1101 First Terrace.
It was submitted to, and approved by, the same Superior Court
judge who had issued the warrant for 1101 First Terrace. Both
warrants authorized police to search for physical evidence
linking Mr. Black to the crime — a dark coat, jeans, 9 mm pistol
and ammunition. Pl.'s Oppos.Mem., Ex. 23 at 1 (Search Warrant for
1101 First Terrace, dated 25 Mar. 1997); Def.'s Mot.Summ.J., Ex.
5 (Search Warrant for 1152 First Terrace, dated 27 Mar. 1997).
Officer Venzin led the warrant execution team to the house he
had earlier identified and described as 1152 First Terrace. It
was actually 1152 Sursum Corda Court, the home of Ms. Gales. The
door was slightly ajar because an extension cord was in the
doorway. Detective Middleton opened the door, banged on it and
announced, at least three times, "Search warrant; get on the
floor." Gales Depos. at 40. Ms. Gales was standing near the door.
She remained standing and laughed at Middleton's command,
"because she didn't know what was going on." Id. Another
officer then approached Ms. Gales with his pistol drawn and told
her twice to get on the floor. Id. at 44-46. When this second
officer reached Ms. Gales, who was still standing, he "snatched
[Ms. Gales'] left arm and put it behind [her], put his knee in
[her] back, and shoved [her] to the floor, and then put plastic
cuffs on [her]." Id. at 46.
Within one minute after Ms. Gales was placed on the floor,
another officer asked her for her name and address. Id. at 48,
51-53. Upon hearing Gales say she lived at 1152 Sursum Corda
Court, the officer asked twice whether the address was not
actually 1152 First Terrace. Id. 53-55. Suspecting that the
officers were searching the wrong house, Ms. Gales asked the
officers for a search warrant. She was told that one would arrive
later. Id. at 57-58. She offered the police no documentation to
prove that her address was Sursum Corda Court. Gales Depos. at
64. Early in the search, the police found "a gym-type bag with
live ammunition and between 200-300 small zip lock baggies."
Def.'s Mot.Summ.J., Ex. 10, Parks Aff. at 2. Lieutenant Parks,
based on his experience, "knew the baggies were of the type which
are commonly used to package illegal drugs for distribution in
the District of Columbia." Id. The ammunition found was five
bullets-four for a .32 caliber weapon, and one for a .22 caliber
The length of the search is disputed, as is the question
whether the police continued to search after they realized that
they were at the wrong address. It is undisputed, however, that
Ms. Gales was handcuffed for less than thirty minutes, and that
she was not harassed during this time. Gales Depos. at 63, 95.
The police maintain that any searching conducted after discovery
of the mistaken address was for the officers' safety.
Ms. Gales' complaint named the District, the MPD, Lieutenant
Rodney Parks, Detective Jacqueline Middleton, Detective Jeffery
A. Mayberry, Captain Alan Dreher, Officer Venzin, Officer Fox,
and "certain unnamed individual police officers and employees of
the [MPD], Jane and John Does One Through Ten." Amended Complaint
¶ 1. It alleged permanent physical injuries, pain and suffering,
humiliation, medical costs and expenses, lost income, impairment
of earning capacity, and property damage. Amended Complaint ¶ 42;
Def.Mot.Summ.J., Ex. 24 at 1. The record contains no evidence to
support Ms. Gales' claim of musculo-skeletal injuries to her neck
and left arm.
The § 1983 claims against defendants named in their individual
capacities will be barred by the defense of qualified immunity if
a reasonable officer could have believed, in light of clearly
established law and the information they possessed, that their
actions were lawful. Hunter v. Bryant, 502 U.S. 224, 227, 112
S.Ct. 534, 116 L.Ed.2d 589 (1991). The reasonableness standard is
an objective one. Harlow
v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d
396 (1982); Fludd v. United States, 771 F.2d 549, 552-53
(D.C.Cir. 1985). Qualified immunity issues ordinarily should be
resolved before trial, Hunter, 502 U.S. at 228, 112 S.Ct. 534,
and, where possible, before extensive discovery. Fludd, 771
F.2d at 553. The issue of qualified immunity is normally decided
as a matter of law.
Plaintiff's resistance to the qualified immunity defenses
interposed in this action center on Det. Mayberry, who allegedly
caused the 1152 First Terrace warrant to be obtained without
probable cause or intentionally or recklessly omitted material
information from the warrant application, and on the warrant
execution team, whose members allegedly relied unreasonably on
the 1152 First Terrace warrant, used excessive force against Ms.
Gales, and/or unlawfully continued to search after realizing that
they were not at 1152 First Terrace.
A. The warrant application
If the application Det. Mayberry caused Det. Middleton to file
was "so lacking in indicia of probable cause as to render
official belief in its existence unreasonable," Malley v.
Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 89 L.Ed.2d 271
(1986); United States v. Salamanca, 990 F.2d 629, 634 (D.C.Cir.
1993) (citing United States v. Leon, 468 U.S. 897, 923, 104
S.Ct. 3405, 82 L.Ed.2d 677 (1984)), then Det. Mayberry is not
entitled to qualified immunity. I find, however, that the
application was not lacking in indicia of probable cause: David
Black's own statement was corroborated by the WALES printout, and
Officer Venzin provided a description of the property confirmed
by a personal visit. The application was objectively reasonable.
Ms. Gales goes on to argue, however, that the warrant would not
have been approved had it included information, available to Det.
Mayberry, that David Black had been associated with three other
addresses. In other words, Ms. Gales claims, Det. Mayberry
intentionally or recklessly omitted facts that would have
undermined probable cause. Pl.'s Oppos. at 3 n. 4. See
Washington v. D.C., 685 F. Supp. 264, 270 (D.D.C. 1988) (citing
Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667
(1978)). To prevail against the motion for summary judgment on
this claim, Ms. Gales had to produce evidence substantially
demonstrating Det. Mayberry's deliberate falsehood or reckless
disregard and then establish that inclusion of the omitted
information would have prevented the warrant's approval. See
Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995). Ms. Gales has
not made such a showing. The inclusion of the omitted information
in Det. Middleton's affidavit would not have prevented all
reasonably competent police officers from believing that there
was probable cause to search 1152 First Terrace. See Cartier v.
Lussier, 955 F.2d 841, 845-46 (2d Cir. 1992); 1B Martin Schwartz
& John Kirklin, Section 1983 Litigation: Claims and Defenses, §
9.26 at 446-47 (1998).*fn2
B. Warrant execution
The officers have qualified immunity for executing the search
warrant because they reasonably believed it to be a facially
valid warrant obtained by fellow officers. See Salmon v.
Schwarz, 948 F.2d 1131, 1140-41 (10th Cir. 1991); Schwartz &
Kirklin, supra § 9.27 at 454-55 ("[E]xecution of a facially
valid warrant is objectively reasonable conduct."). There is no
evidence in the record that any of the officers actually knew or
should have known that the warrant was not supported by probable
cause. Cf. Juriss v. McGowan, 957 F.2d 345, 351 (7th Cir.
The claim that the officers used excessive force during the
search is governed
by Scott v. District of Columbia, 101 F.3d 748, 759 (D.C.Cir.
1996). Here, the relevant inquiry is whether the officers'
actions were "objectively reasonable in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation." Id. The Scott case involved
the efforts of several police officers to prevent the plaintiff,
an apparently intoxicated off-duty officer, from escaping. The
plaintiff was punched by one officer and then tackled by several
others, some of whom pinned the plaintiff to the ground with
their knees. The D.C. Circuit noted that officers must be given
the benefit of the doubt in "a quickly developing situation" and
that "[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers, violates the
Fourth Amendment." Scott, 101 F.3d at 759-60 (citing Graham v.
Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989)). In the instant case, Ms. Gales admits that she failed to
obey at least five separate orders, by officers who identified
themselves as law enforcement agents, to get down on the floor.
Gales Depos. at 40. It is taken as true for purposes of this
motion that an officer put Ms. Gales' arm behind her, shoved her
to the floor, and then used a knee to keep her there. In the
context of a search for a murder weapon, this degree of force was
not "so excessive that no reasonable officer could have believed
in the lawfulness of his actions." Scott, 101 F.3d at 759.
Ms. Gales' claim that the police unreasonably continued their
search after realizing they realized they were not at 1152 First
Terrace also fails as a matter of law. Early in their search, the
officers discovered 200-300 plastic bags of the type often used
to package drugs and several .32 and .22 caliber bullets. Those
items provided an independent basis for probable cause to search,
or at the very least to complete a protective sweep of the
C. Liability of District of Columbia, Capt. Dreher and Lt.
Ms. Gales' claim against the MPD, a municipal department of the
District, was dismissed because agencies and departments within
the District of Columbia government are not suable as separate
entities. Fields v. District of Columbia Department of
Corrections, 789 F. Supp. 20, 22 (D.D.C. 1992).