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Bolger v. Dist. of Columbia

September 11, 2007

ELIZABETH BOLGER, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

This case arises out of the highly publicized arrests of a group of protesters at a Washington, D.C. parking garage on April 20, 2002. Eleven of the arrestees ("plaintiffs") filed suit against the District of Columbia, various Washington, D.C. ("MPD") police officers, and Robert S. Mueller, III, the Director of the Federal Bureau of Investigation ("FBI"). The case has proceeded primarily against District of Columbia defendants, focused on the false-arrest claims. As is relevant here, however, plaintiffs allege that two FBI agents on the scene interrogated them about their political activities and affiliations, videotaped the interrogations, collected information about plaintiffs, and used and disseminated that information improperly. These actions, plaintiffs assert, violated their rights under the First and Fourth Amendments, as well as the Privacy Act, 5 U.S.C. § 552a (2007). Defendant Mueller, who has been sued in his official capacity, seeks dismissal of the claims against him, or in the alternative summary judgment on those claims. Plaintiffs oppose the motion and have countered with a motion pursuant to Fed. R. Civ. P. 56(f). For the reasons set forth below, the Court will grant defendant Mueller's motion and deny plaintiff's Rule 56(f) motion.

BACKGROUND

The facts, unless otherwise noted, are drawn from plaintiffs' Second Amended Complaint ("Second Am. Compl."). On April 20, 2002, plaintiffs were among the thousands of protesters who participated in mass demonstrations during the spring meetings of the International Monetary Fund and the World Bank in Washington, D.C. Second Am. Compl. at 5. Plaintiffs were dressed in black, a color that law enforcement officials associate with supporters of Anarchism. Id. A member of plaintiffs' group had a key card that permitted weekend access to an indoor parking garage located at 1725 K Street, N.W. Id. at 11 ¶ 28. Plaintiffs entered the garage by swiping the key card and parked the van that they were using there. Id. at 11-12 ¶¶ 29-30. After the demonstration ended, plaintiffs returned to the garage to eat food that they had previously prepared. Id. at 12 ¶ 31.

While plaintiffs were in the garage, law enforcement officers approached them with their weapons drawn. Id. at 12 ¶ 35. The officers ordered plaintiffs out of the garage, searched their persons and possessions, and searched the van without consent. Id. at 12-13 ¶¶ 36-37. In addition, the officers questioned plaintiffs about their political activities, reviewed flyers and political material, and recorded with video equipment images of political patches and slogans on plaintiffs' clothing. Id. at 13 ¶¶ 38-39. MPD officers arrested plaintiffs for unlawful entry. But charges against plaintiffs were not pursued, and the D.C. Superior Court eventually ordered the expungement and sealing of their arrest records. Id. at 6-9 ¶¶ 1-11. Under Superior Court rules, the court's order required, among other things, that the prosecutor collect all law enforcement records in his possession and that he provide a certification that no further records exist "or that, if such records do exist, steps have been taken to retrieve them." See D.C. SCR-Crim. Rule 118(f)(2)(A), (B).

Of particular relevance here is the role of the FBI. Plaintiffs alleged in their original Complaint and have since reasserted that two FBI agents "pulled out selected detained protesters for the purposes of conducting on-camera video taped interviews." Id. at 13 ¶ 41; Original Comp. at 13 ¶ 40. These interviews allegedly centered on "political associations and activities" protected by the First Amendment. Second Am. Compl. at 16-17 ¶ 57. The Second Amended Complaint further avers that (1) the FBI collected information and created records as to all plaintiffs; (2) the information and records were maintained, used, and disseminated both inside and outside of the FBI; and (3) the information and records stigmatize plaintiffs by associating them with political beliefs and associations that law enforcement officials believe are indicative of criminal conduct. Id. at 16-17 ¶¶ 56-63. In so acting, plaintiffs maintain, the FBI violated their rights under the First and Fourth Amendments to the U.S. Constitution and the Privacy Act, 5 U.S.C. § 552a.*fn1 Second Am. Compl. ¶ 74. Plaintiffs seek a declaratory judgment to that effect, as well as an injunction "compelling the collection, provision to plaintiffs and expungement of" both the records "derived from" their arrests and the records that "describ[e]" their constitutionally protected activities. Id. at 20 (e, f).

Defendant Mueller filed a motion to dismiss or in the alternative for summary judgment in November 2006. Plaintiffs responded with an opposition and their counter-motion pursuant to Fed. R. Civ. P. 56(f) two months later. After briefing on these motions was ostensibly complete, however, the protracted discovery efforts related to plaintiffs' claims against the District of Columbia defendants yielded new information about the FBI's role in the events of April 20, 2002. The so-called "running resume" -- a log of police activity from that evening -- confirmed the FBI's involvement and provided a timeline for what transpired. A prominent newspaper reported on the transmittal of the log to the plaintiffs in this suit and commented on the law enforcement action on its editorial page. See Carol D. Leonnig, Police Log Confirms FBI Role In Arrests; Group Detained, Questioned During D.C. War Protest, Wash. Post, April 3, 2007, at B01; Editorial, A Black Mark, Wash. Post, April 11, 2007, at A14.

In light of these developments, the Court provided defendant Mueller with an opportunity to supplement the record and plaintiffs with a chance to respond. Dkt. #115 (Order of 4/12/2007). Defendant Mueller attached to his supplemental brief sworn declarations from two FBI special agents who had questioned the group of plaintiffs on the night in question: Sean McMenamin and Amy Landman. Dkt. #120 (Def.'s First Supp. Mem.). The FBI later agreed to allow the two agents to appear for depositions and to give non-privileged and unclassified testimony. Dkt. #133 (6/5/2007 Motion). These depositions took place in July 2007, and the Court permitted the parties to file a second round of supplemental briefs and accompanying materials to address the deposition testimony. Dkt. #134 (6/12/2007 Status Report); Minute Order of 7/12/2007. This latest round of briefing having been received, defendant Mueller's dispositive motion and plaintiffs' counter-motion are now ripe for resolution.

STANDARD OF REVIEW

Defendant Mueller has moved to dismiss plaintiff's claims under Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment. When, on a Rule 12(b)(6) motion, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed. R. Civ. P. 12(b); see Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003) (per curiam). Here, the parties have presented, and the Court has considered, extensive materials beyond the pleadings.*fn2 In addition, both parties were given a reasonable opportunity to respond to the other's submissions. The Court will accordingly treat defendant's dispositive motion as one for summary judgment pursuant to Fed. R. Civ. P. 56(c).

Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "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 absence of a genuine issue of material fact." Id. (quoting Fed. R. Civ. P. 56(c)).

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.

Plaintiffs seek an order under Rule 56(f) of the Federal Rules of Civil Procedure deferring defendant Mueller's motion for summary judgment and permitting additional discovery. Such an order is available where "it appear[s] from the affidavits of the party opposing the [summary judgment] motion that the party cannot . . . present by affidavit facts essential to justify the party's opposition." Fed. R. Civ. P. 56(f). The "party making a Rule 56(f) request must 'state[] concretely' why additional discovery is needed to oppose a motion for summary judgment." Messina v. Krakower, 439 F.3d 755, 762 (D.C. Cir. 2006) (citation omitted). A Rule 56(f) motion need not be granted "where the requesting party has offered only a 'conclusory assertion without any supporting facts' to justify the proposition that the discovery sought will produce the evidence required." Id. (citation omitted); see also Byrd v. EPA, 174 F.3d 239, 248 n.8 (D.C. Cir. 1999) (plaintiff must "show what facts he intended to discover that would create a triable issue and why he could not produce them in opposition to the ...


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