The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiffs represent a class of individuals arrested by the District of Columbia's Metropolitan Police Department while marching through the Adams Morgan neighborhood to protest the second inauguration of President George W. Bush. They have sued the District of Columbia ("the District") alleging, inter alia, that the arrests violated their First and Fourth Amendment rights. Before the Court are the parties' cross-motions for partial summary judgment limited to the issue of liability only. For the reasons stated herein, plaintiffs' motion for summary judgment will be granted and defendant's motion for summary judgment will be denied.
On the evening of January 20, 2005, plaintiffs Sarah Carr, Allyson Kirk, Chelsea Kirk, and Jonathan Scolnik attended an Anti-Inaugural Concert ("the Concert") at the Sanctuary Theater, in a church located at 1459 Columbia Road, N.W. (Def.'s Stmt of Undisputed Material Facts ["Def.'s Facts"] ¶ 1.) The Concert was publicized on the Internet. (Id. ¶ 2.) The Intelligence Section of the Metropolitan Police Department ("MPD") learned about the Concert through monitoring open and publicly accessible websites. (Id. ¶ 3.) The Intelligence Section did not learn anything about a possible march following the Concert from the Internet. (Id. ¶ 4.)
At the Concert, announcements were made from the stage and fliers were distributed that stated that after the performance, a march would begin and would terminate in front of the Hilton Hotel, where one of the inaugural balls was being held. (Id. ¶¶ 5, 9, 10.) The flier stated:
Protest March - After the Show!!!!
As we've said tonight's show is not a concert, it's a celebration and it's a protest!!! After Anti-Flag's last song we invite you to join in a festive march from this show through the streets of DC to the doorstep of those in power. We're going to take our resistance to one of the Inaugural Ball[s] where Bush and his supporters celebrate their power and privilege at the expense of all.
During the last song of the evening we will distribute buckets, and encourage drumming, chanting and participation from all. Dress warm and be prepared to head out the door. After the last song, we'll exit the space and march down Columbia Road towards 16th Street. We imagine a large festive march, that takes the amazing energy surging through tonight's show to create an explosive protest against the war in Iraq and the war here at home as well as against all that Bush represents. We will march from the show to the Washington Hilton, located at 1919 Connecticut Ave NW. This is the site of one of tonight's balls. From the march, we will engage in our own protests. We will show people faces behind those of us who resist this administration and sham. We will march from 18th St to Columbia, and make a left on 18th and a right on Florida to get to Connecticut. We will bring people back to the show space afterwards as well. Please remember to be respectful of the people in the Columbia Heights area where we are guests. Watch your surroundings and keep the energy focused where it needs to be -- on showing the world our opposition to Bush.
Join us in the streets tonight to send one NO! To the Bush regime and a million yeses to all of the things we can create together.
(Def.'s Mot. Ex. 11 [Flier].)
An undercover officer was assigned to attend the Concert to gather intelligence regarding possible criminal activity. (Def.'s Facts ¶¶ 14-15.) At around 9:00 p.m., the undercover officer telephoned Detective Drew Smith of the Intelligence Section of the Office of the Superintendent of Detectives within MPD's Investigation Branch. (Id. ¶ 16.) The undercover officer reported that a possible protest march was being discussed in the church, but that the organizers only wanted to have the march if enough people participated for it to be effective. (Id. ¶ 16.) The undercover officer further advised that the march was to begin around midnight and that the organizers were distributing bandannas and poles*fn1 that could be used to hold up banners at the Concert. (Id. ¶¶ 17-18.) He advised Smith of the intended march route and said that a person speaking from the stage had said that the marchers would "crash" the Inaugural Ball. He also stated that some of the protesters were discussing engaging in property damage along the route. (Id. ¶ 19.)*fn2
At some point after 11:00 p.m., Smith observed 500 or more people exit the church onto Columbia Road N.W. (Id. ¶ 24.) Some departed the area, while the majority congregated at the intersection of Columbia Road N.W. and 16th Street N.W. (Id.) Some unspecified number of the persons in the crowd were carrying the poles that had been distributed in the church. (Id.) They had soup cans attached to them full of flaming fluid and were being used as torches. (Id.)
After spending five to ten minutes getting organized, a group of between 250 and 300 persons marched westbound on Columbia Road N.W. (Id. ¶ 30.) Detective Smith followed behind the march in his unmarked cruiser. (Id.) Plaintiff Singer, who was at Madam's Organ, a nightclub on 18th Street N.W., saw the march go by and went out into the street to learn more about the demonstration. (Pls.' Stmt of Undisputed Material Facts ["Pls.' Facts"] ¶ 5.) During the march, some unidentified protesters committed criminal acts such as spray-painting buildings, pulling newspaper vending machines into the street, and breaking windows. (Pls.' Facts ¶ 7; Def.'s Facts ¶ 33.) Rocks and bottles were thrown at police vehicles. A rock broke the windshield of a police cruiser. (Def.'s Facts ¶ 46.) Smith heard firecrackers being set off. (Def.'s Facts ¶ 34.)
Smith's observations and his information from the undercover officer were relayed to then-Special Operations Division Commander Cathy Lanier. (Id. ¶ 27.) Lanier decided to send two MPD Civil Disturbance Units ("CDU") to Columbia Road N.W. between 16th and 18th Streets, NW, and to 18th Street N.W. (Id. ¶ 53.) Commander Lanier also reported to that location in a marked MPD cruiser. Based on what she had heard from her subordinates and her own observations, Lanier decided that she had probable cause to order an arrest of the protestors for rioting. (Id. ¶ 55.)
The CDU officers blocked the protesters into an alley and arrested them.*fn3 No order to stop or disperse was given prior to the arrest. (Pls.' Facts ¶ 21.) Lanier ordered the Field Arrest paperwork to reflect the lesser charge of parading without a permit so that the arrestees could avail themselves of expedited release mechanisms that would not apply if she charged them with ...