According to his version of events, he reached the bus when plaintiff
was walking away with his son on his shoulders. After speaking with the
bus driver and the woman, and then observing a knife in plaintiff's
pocket, he shouted for the plaintiff to stop. Plaintiff turned around
briefly and took his son off his shoulders, but then he continued to
walk at what appeared to be a faster pace. Plaintiff's version is that
he walked down the street until he heard a woman say: "Not him, the
white guy." At that point he turned around and saw the policemen with
their weapons drawn.
The parties also have different versions of the conduct of the
officers. Plaintiff claims that his son was "grabbed" and "thrown to the
ground," while defendants allege that they "placed him on his feet."*fn2
In either case, the child was then placed in a police car.
Plaintiff avers that defendants then "slammed" him to the ground,
frisked him, confiscated his knife, pulled him up by the handcuffs and
"slammed" him into a car. Defendants state that they ordered plaintiff
to the ground, that he complied, that they handcuffed him, and patted
him down, and that they then assisted him to his feet.
It is undisputed that plaintiff told the officers that the child was
his son and gave them the telephone number of the babysitter; and that,
after the officers verified that the plaintiff was the child's father,
they apologized and drove him and his son home.
1. Section 1983 claims
Law enforcement officers acting within the scope of their employment
have qualified immunity for claims asserted under section 1983, DeGraff
v. District of Columbia, 120 F.3d 298, 302 (D.C.Cir. 1997); Wardlaw v.
Pickett, 1 F.3d 1297, 1301 (D.C.Cir. 1993). It is undisputed, and in
fact alleged, that the defendant officers were at all times acting
within the scope of their employment as WMATA police officers. Complaint
at ¶¶ 5-6.
Plaintiff maintains, however, that these officers are not entitled to
qualified immunity because they lacked probable cause to arrest him. See
Wardlaw v. Pickett, 1 F.3d 1297, 1305 (D.C.Cir. 1993) ("[O]fficer
retains qualified immunity from suit if he had an objectively reasonable
basis for believing that the facts and circumstances surrounding the
arrest were sufficient to establish probable cause.") (citing Malley v.
Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
Defendants argue that the applicable standard is not "probable cause"
but "reasonable suspicion," because they did not arrest the plaintiff
but instead conducted a temporary investigative stop under Terry v.
Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A reasonable
suspicion, which requires less proof than probable cause, United States
v. White, 648 F.2d 29, 42 (D.C.Cir. 1981), is sufficient basis for a
Terry stop, see United States v. Christian, 187 F.3d 663, 668 (D.C.Cir.
1999). Officers making a lawful Terry stop, like those making a lawful
arrest, are entitled to qualified immunity.
Assuming for the sake of argument that the officers did not have
probable cause for an arrest, it is necessary to determine whether their
detention of plaintiff was an arrest or a Terry stop. In United States
v. Clipper, 973 F.2d 944, 951 (D.C.Cir. 1992), relying on United States
v. White, 648 F.2d 29, 34 (D.C.Cir. 1981), our Court of Appeals used a
five-part test for determining whether a specific detention was a Terry
stop or an arrest: "the officer s intent in stopping the citizen; the
impression conveyed to the citizen as to whether he was in custody or
detained for questioning; the length of the stop; the questions, if any,
asked; and the extent of the search, if any, made." Not all of these
factors can be evaluated on the basis of the present record, and of
course the first two are subjective factors that might naturally give
rise to disputed questions of fact. The record does support objective
findings, however, that the encounter between the parties lasted
approximately sixteen minutes (Pltf.'s Opp'n. Ex. 4 at 37), that Officer
Hanna forced plaintiff to the ground to confiscate his knife (Pltf.'s
Opp'n. Ex. 1 at 57), and that, once the officers determined that
plaintiff was the child's father, the encounter ended promptly (Pltf.'s
Opp'n. at 4). These findings are consistent with Terry stops and not
with arrests. While plaintiff maintains that the officer's use of
handcuffs transformed the encounter into an arrest, persuasive authority
from other circuits holds that the use of handcuffs is not determinative.
See United States v. Crittendon, 883 F.2d 326, 329 (4th Cir. 1989)
(handcuffs did not turn stop into an arrest so long as restraints were
reasonable); United States v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.
1989) (handcuffs and guns used during an investigatory stop did not
convert stop into an arrest): cf. United States v. Trullo, 809 F.2d 108,
113 (1st Cir. 1987) (guns used during an investigatory stop did not
convert stop into an arrest).
I find that plaintiff was not in fact arrested, but that he was
instead subjected to a Terry stop to investigate a possible child
abduction. If the officers making the stop had an objectively reasonable
belief that there was reasonable suspicion to make the stop, Terry,
392 U.S. at 21, 88 S.Ct. 1868, then the stop was lawful and qualified
immunity attaches to their actions.
The inquiry set forth in Terry to determine whether a stop was
unreasonable "is a dual one — whether the officer's action was justified
at its inception, and whether it was reasonably related in scope to the
circumstances which justified the interference in the first place."
Terry, 392 U.S. at 20, 88 S.Ct. 1868. The Terry stop in this case easily
passes the test. First, as to whether it was justified at its inception:
the police had received a tip that a kidnaping was in progress.
Plaintiff did nothing to dispel suspicion when he encountered the police.
He walked away with the child on his shoulders (Pltf.'s Opp'n. at 3),
did not put the child down when asked (Pltf.'s Dep. at 51), had a large
knife in his pocket (id. at 56, 88 S.Ct. 1868), and, according to the
officers, smelled of alcohol (Def.'s Dep. at 86). These factors easily
justify the inception of a Terry stop.
Second, as for the scope of the Terry stop, I find that it was
"strictly tied to and justified by" the circumstances which rendered its
initiation permissible. Terry, 392 U.S. at 19, 88 S.Ct. 1868. Defendants
detained the plaintiff for sixteen minutes (Pltf.'s Opp'n. Ex. 4 at 37),
only removed a knife from his outer clothing (Pltf.'s Opp'n. Ex. 1 at
57), and ended the investigation after they determined that plaintiff
was the father (Pltf.'s Opp'n. at 4).
Because the defendant officers conducted a lawful Terry stop grounded
on objectively reasonable suspicion, they are immune from liability for
the section 1983 false arrest claim.
Plaintiff's section 1983 claim of excessive force requires further
analysis. The "qualification" in an officer's qualified immunity from a
claim of excessive force relates to the level of excessiveness of the
force. This presents, at least initially, a question for the court,
since a rule that requires the submission of the excessiveness question
to the jury would vitiate the goal of qualified immunity to "avoid such
disruption (and the social cost it entails)," Harris v. District of
Columbia, 932 F.2d 10, 13 (D.C.Cir. 1991). Thus,
"[A] defendant's motion for summary judgment is to
be denied only when, viewing the facts in the record
and all reasonable inferences derived therefrom
in the light most favorable to the plaintiff, a
reasonable jury could conclude that the excessiveness
of the force is so apparent that no reasonable officer
could have believed in the lawfulness of his actions."
Wardlaw v. Pickett, 1 F.3d 1297, 1306 (D.C.Cir. 1993)
See also DeGraff v. District of Columbia, 120 F.3d 298, 302 (D.C.Cir.
1997); Martin v. Malhoyt, 830 F.2d 237, 253-254 (D.C.Cir. 1987).