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Bolger v. District of Columbia

March 31, 2009

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

Plaintiffs are eight individuals who were arrested for unlawful entry of a parking garage after attending the daylong protests on April 20, 2002 that coincided with the spring meetings of the World Bank and the International Monetary Fund in Washington, D.C. Plaintiffs allege that their arrests violated the U.S. Constitution and D.C. common law, and they assert claims against both the District of Columbia (the "District") and various Washington, D.C. ("MPD") police officers.*fn1 Currently before the Court are the parties' cross-motions for summary judgment. Plaintiffs have also requested sanctions against the District based on the destruction of recorded police radio communications sought during discovery. For the reasons set forth below, the Court will deny plaintiffs' motion for summary judgment and will deny their request for sanctions without prejudice. The Court will enter judgment in favor of defendants on those claims as to which plaintiffs do not oppose dismissal,*fn2 but it will deny defendants' motion in all other respects with the exception of qualified immunity for MPD Officers Michael Carruth, Andrea Latson and Adrian Sanders, which will be granted.

BACKGROUND

After nearly six years of litigation and an extremely contentious discovery process, many facts in this case remain hotly contested. What follows is a brief overview of the key events that transpired on April 20, 2002. Where facts are disputed, the Court has so noted.

A group of individuals, including plaintiffs, traveled from Baltimore to Washington, D.C. on the morning of Saturday April 20, 2002 to attend the protests that were scheduled to coincide with the spring meetings of the World Bank and the International Monetary Fund ("IMF"). See Pls.' Stmt. of Facts As to Which There Exists a Genuine Issue to Litigate ("Pls.' Stmt.") ¶ 1. One member of the group, Jacob Leshner, worked as an information technologies specialist at the Association for Professionals in Infection Control and Epidemiology ("APIC"). Id. APIC's offices are located at 1275 K Street, N.W., in downtown Washington, D.C. As an APIC employee, Leshner possessed an electronic keycard that granted him access to the building garage on weekends. Id. Upon arrival at APIC's offices that day, Leshner used his electronic keycard to open the garage door and the group -- traveling in two vans and one car -- parked in the underground garage. Id. The group then exited the garage and spent the day participating in the protests. Id.

As the protests were winding down, some members of the group told Leshner that they wished to return to the parking garage to eat food that had been left in one of the vans. Id. ¶ 4. Because Leshner wanted to remain at the final rally site for another ten or twenty minutes to listen to a musical performance, he invited members of the group to return to the garage without him. In order to allow them to enter the garage, Leshner gave his electronic keycard to Todd Spalt. Id. Among those who returned to the parking garage with Spalt were individuals dressed in all black attire and/or in possession of black bandanas, carrying protest signs bearing anti-war and anti-capitalist messages, wearing t-shirts with radical political slogans, and wearing items of clothing displaying the letter "A" surrounded by a circle, a recognized symbol for anarchism. Id. ¶ 2.

The group led by Spalt arrived at the parking garage in two batches, with one arriving shortly after the other. Id. ¶ 9. They both claim that they utilized Leshner's keycard to gain entry to the garage. Id. ¶¶ 10-11. According to defendants, however, at approximately the same time, U.S. Secret Service Sergeant Mike Kuchinsky ("Sgt. Kuchinsky") observed a group of approximately twelve individuals standing near the entrance to an underground parking garage at 13th and K Streets, N.W. See Defs.' Stmt. of Material Facts As To Which There Is No Genuine Dispute ("Defs.' Stmt.") ¶ 1. Sgt. Kuchinsky noticed that some of these individuals had helmets, gas masks, or defense shields. Id. ¶ 2. As he was driving, Sgt. Kuchinsky observed a vehicle exiting the parking garage or a neighboring alley, and he also saw the garage gate begin to close. Id. ¶ 3. He then says that he saw four to six individuals from the group diving or rolling under the garage gate just before it closed. Id. ¶ 4. At this point, Sgt. Kuchinsky says that he called MPD to report what he had witnessed. Id. ¶ 5. MPD arrived at the scene soon thereafter. Id. ¶ 6.

Meanwhile, shortly after the protestors returned to the van and began to eat, one group member, plaintiff Helen Johnson, walked to the top of the parking ramp to use her cell phone. Pls.' Stmt. ¶¶ 16-17. At that time, Ms. Johnson encountered a law enforcement officer who was located on the other side of the grated metal garage door. According to Ms. Johnson, the officer demanded to know who was in the garage and demanded to be let in. Id. ¶ 17. Once she explained that she could not let the officer into the garage because she did not have the electronic keycard, Ms. Johnson returned to the lower level of the garage to find Spalt and apprise him of the situation. Id. ¶¶ 17-18. Spalt, accompanied by at least one other member of the group, immediately walked up the ramp to speak to the officer. Id. ¶¶ 18-19. After Spalt explained that the group was gathered in the garage eating food, Sgt. Kuchinsky asked Spalt if he would open the garage door so that law enforcement could speak with the group further. Id. ¶¶ 21, 23. In response, Spalt passed the keycard through the metal grate of the gate so that the law enforcement personnel could enter. Id. ¶ 24.

Plaintiffs assert that upon opening the garage door, a number of law enforcement officers charged down the ramp into the garage while yelling and shouting. Id. ¶¶ 28-29. Many of the individuals within the garage contend that, in response to the loud noises they heard coming down the ramp, they chose to exit the garage by using the stairwell. Id. ¶ 29. By contrast, defendants claim that upon reaching the group, one officer yelled "police" and most of the individuals then ran away. Defs.' Stmt. ¶ 10. The individuals who did exit the garage via the stairwell say that they walked briskly, but calmly, up the stairwell, through the lobby, and out onto the street. Pls.' Stmt. ¶ 34. Once there, a number of these individuals encountered the police, who detained them. Id. ¶ 33; Defs.' Stmt. ¶¶ 13, 15. Those individuals who remained in the garage were escorted to the street level by MPD officers and detained. Pls.' Stmt. ¶ 32; Defs.' Stmt. ¶ 15. A total of twenty-four individuals, including Spalt, were detained by MPD. Defs.' Stmt. ¶ 15; Pls.' Stmt. ¶ 28. However, none of these individuals was arrested immediately. Pls.' Stmt. ¶¶ 38, 40.

Rather than arrest the group, the MPD commenced an investigation soon after the group had been cleared out of the garage. Around this time, Leshner also arrived at the scene. Id. ¶ 46. Leshner says that he was very vocal in his efforts to inform the authorities that he worked in the building, that those individuals being detained had parked in the garage with him that morning, and that because he was running a few minutes behind he had given his keycard to Spalt in order to allow them access to the garage. Id. Leshner was left with the impression at the time that his statements to law enforcement were generally disregarded. Id. ¶ 47. Contrary to this belief, however, Leshner's pleas did not fall on deaf ears. The record demonstrates that numerous law enforcement personnel -- including Commander Mark Beach ("Cmdr. Beach"), the officer in charge at the scene -- were aware at the time that the group possessed an electronic keycard that was provided by a building employee (i.e., Leshner) and that the keycard was used to gain entry to the garage. See id. ¶ 50.

During the course of the investigation, John Johnson, a building security guard at 1275 K Street, N.W., employed by Admiral Security, was interviewed by MPD. Affidavit of John Johnson ("Johnson Aff.") ¶ 2. Johnson says that he "never told the police that the individuals lacked authority to be on the premises." Id. ¶ 3. He also claims that when speaking to MPD at the scene, he did not request that the protestors be arrested, nor did he believe that he had any reason to make such a request. Deposition of John Johnson ("Johnson Dep.") at 10. By contrast, MPD Officer Jeffrey Cadle, who interviewed Johnson at the scene, testified that Johnson told him that the individuals did not have authority to be on the premises. Deposition of Jeffrey Cadle ("Cadle Dep.") at 49. Officer Cadle's notes from the scene are consistent with his testimony. Defs.' Ex. J (Cadle notes) ("Security Guard Johnson advises that they do not have authorization to be on premises.").

It is undisputed that during the course of MPD's investigation some effort was made to locate a representative of the building management company to ascertain whether the group had permission to use the parking garage. The parties vehemently disagree whether such an individual was ever contacted. Cmdr. Beach testified that he was informed that "a representative of property management requested their arrest and indicated that the representative from property management would be a complainant in the D.C. Superior Court for the prosecution of those persons for unlawfully entering." Deposition of Mark Beach ("Beach Dep.") at 155; see also Beach's Responses to Pls.' First Set of Interrogs. ("Beach's Responses") at 6-7. Cmdr. Beach did not speak to the representative directly; rather, he says this information was relayed to him by another law enforcement officer. Beach's Responses at 6. Cmdr. Beach does not recall the name of the officer who provided this information to him and the officer has never been identified. Beach Dep. at 24-26.

The identity (as well as existence) of the building management representative also remains a mystery. Cmdr. Beach admitted that he never knew the representative's name, even at the time, nor did he ever see the individual. Id. at 23-24. The representative's name was not recorded at the scene by Officer Cadle along with the names of other witnesses. See Defs.' Ex. J. Nor was the name noted in the arrest documentation prepared several days later -- instead, "JBG Company" was listed as the "complainant." See Pls.' Opp'n, Ex. 59 (MPD supplement report). MPD Sergeant Gregory Shamenek ("Sgt. Shamenek") testified that he recalled attempting to call a contact number listed on the wall of the parking garage during the investigation, but that he could not recall if those efforts were successful. Deposition of Gregory Shamenek ("Shamenek Dep.") at 39-41. Efforts by the building management company, JBG Properties, to search its records and identify such a person were also unsuccessful. See Affidavit of JBG Props., Inc. ("JBG Props. Aff."). Nonetheless, defendants contend that Sgt. Kuchinsky's testimony corroborates Cmdr. Beach's story. See Defs.' Reply to Pls.' Opp'ns to Mot. for Summ. J. ("Defs.' Reply") at 9-10. Sgt. Kuchinsky testified that he observed an individual having a conversation with MPD officers, and he "would assume" that someone from MPD verified that this person was a representative of the building management. Deposition of Michael Kuchinsky ("Kuchinsky Dep.") at 125-26. Sgt. Kuchinsky's testimony, however, offers nothing more concrete than this assumption. Based on the lack of corroborative evidence, plaintiffs assert that Cmdr. Beach is lying. See Pls.' First Opp'n at 2. On plaintiffs' view of the facts, Cmdr. Beach simply fabricated the building management representative in an attempt to manufacture probable cause where none existed. See id. at 2-3.

After investigating the circumstances surrounding the group's presence in the parking garage for over an hour, Cmdr. Beach gave the order to arrest plaintiffs, along with the other group members who were being detained, for unlawful entry. See Pls.' Stmt. ¶¶ 40, 55. While the investigation was still ongoing, members of the MPD's Civil Disturbance Unit ("CDU") arrived at the scene. Defs.' Stmt. ¶ 17. CDU was on duty that day in response to the World Bank/IMF meeting and the related protests. Id. ¶ 18. The CDU squad members who arrived at the scene included Officers Michael Carruth, Andrea Latson, Wendy Payne and Adrian Sanders. Id. ¶ 19. Acting pursuant to Cmdr. Beach's order, and at the direction of their commanding officers, Officers Carruth, Latson, Payne and Sanders processed plaintiffs' arrests. Id. ¶¶ 39-47. After being transported from the scene to a MPD facility and there undergoing further processing, plaintiffs were released that night with a citation that directed them to appear in court on a future date to respond to the unlawful entry charges. Id. ¶¶ 53-54. Before their court date, however, the U.S. Attorney's Office made the determination not to prosecute and entered a nolle prosequi on all charges. Id. ¶ 55.

This action was initiated in 2003.*fn3 After several amendments to the complaint, the gravamen of plaintiffs' case remains the same -- plaintiffs believe that they were targeted improperly by law enforcement because they were perceived to be anarchists and, consequently, they were arrested without probable cause for exercising their constitutionally protected rights to free speech and free association during the World Bank/IMF protests. Based on this premise, plaintiffs assert claims against the District and the individual MPD officers involved in their arrests pursuant to 42 U.S.C. § 1983 ("section 1983"), contending that their arrests violated both the First and Fourth Amendments and deprived them of due process of law. See Second Am. Compl. ¶¶ 65-66. Plaintiffs also assert claims for false arrest and imprisonment under D.C. common law against all defendants with the exception of Cmdr. Beach. Id. ¶ 67.

LEGAL STANDARD

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 movant 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 identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.

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.

ANALYSIS

I. Probable Cause to Arrest Plaintiffs for Unlawful Entry

In Count I, plaintiffs raise claims alleging that they were falsely arrested and imprisoned in violation of the First and Fourth Amendments and D.C. common law.*fn4 Second Am. Compl. ¶ 65. Both parties agree that because the arrests at issue here were made without a warrant, the presence or absence of probable cause to arrest plaintiffs is essential to resolving Count I. See Pls.' Am. Mot. for Summ. J. ("Pls.' Am. Mot.") at 7-13; Defs.' Mot. for Summ. J. ("Defs.' Mot.") at 6-14; see also Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C. Cir. 1993) ("Where, as here, a false arrest claim is based on a warrantless arrest, the defendant officers must establish probable cause to arrest."). Although the Court agrees with the parties, it cannot, based on the present record, determine as a matter of law whether there was probable cause in this case because there is a genuine issue of material fact whether a representative of the building management ever informed law enforcement that plaintiffs were not authorized to be in the parking garage. Without resolving that fact -- which is unmistakably a task for the jury, especially because Cmdr. Beach's credibility is at issue -- the Court cannot determine as a matter of law whether there was probable cause to arrest plaintiffs for unlawful entry. Consequently, summary judgment on this issue is precluded for both parties, and none of the claims encompassed by Count I can be resolved at this time.

"The elements of a constitutional claim for false arrest are substantially identical to the elements of a common-law false arrest claim." Scott v. District of Columbia, 101 F.3d 748, 753 (D.C. Cir. 1997). In resolving a claim for false arrest, whether raised pursuant to section 1983 or D.C. common law, the central inquiry is identical: was the arresting officer justified in ordering the arrest of the plaintiff? See Dellums v. Powell, 566 F.2d 167, 175 (D.C. Cir. 1977). If the arrest was justified then "the conduct of the arresting officer is privileged and the action fails." Id. Because "[j]ustification can be established by showing that there was probable cause for arrest of the plaintiff on the grounds charged," id., "[m]ost false arrest claims turn on the issue of whether the arresting officer had probable cause," Scott, 101 F.3d at 754.

"It is well settled that an arrest without probable cause violates the fourth amendment." Martin v. Malhoyt, 830 F.2d 237, 262 (D.C. Cir. 1987) (citing Gerstein, 420 U.S. at 111). Probable cause is determined on the basis of the "totality of the circumstances," see Illinois v. Gates, 462 U.S. 213, 230 (1983), which requires that "the police had enough information to warrant a man of reasonable caution in the belief that a crime has been committed and that the person arrested has committed it," Barham v. Ramsey, 434 F.3d 565, 572 (D.C. Cir. 2006) (internal quotations omitted); see Gerstein, 420 U.S. at 111 (probable cause to arrest exists when the facts and circumstances are sufficient to warrant a prudent person to believe that the individual has committed an offense).

Here, plaintiffs were arrested and charged with unlawful entry. In pertinent part, D.C. Code § 22-3302 defines the offense of unlawful entry as follows:

Any person who, without lawful authority, shall enter, or attempt to enter, any public or private dwelling, building, or other property, or part of such dwelling, building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof . . . shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $100 or imprisonment in the Jail for not more than 6 months, or both.*fn5

To prosecute this type of unlawful entry offense,*fn6 the government must prove that the accused: (1) entered or attempted to enter public or private premises or property; (2) did so without lawful authority; (3) did so against the express will of the lawful occupant or owner; and (4) had general intent to enter. Culp v. United States, 486 A.2d 1174, 1176 (D.C. 1985). Therefore, to have probable cause to arrest an individual for an unlawful entry of this sort an officer must have "enough information to warrant a man of reasonable caution in the belief" that all four of these elements are present. Barham, 434 F.3d at 572.

Plaintiffs do not dispute that the first two elements were present when they entered the parking garage at 1275 K Street, N.W., in the early evening of April 20, 2002. Pls.' Am. Mot. at 8. The primary dispute concerns the third element -- whether plaintiffs entered the parking garage "against the will of the lawful occupant or of the person lawfully in charge thereof." D.C. Code § 22-3302. On this issue, the parties have wildly divergent views of the facts. Without resolution of this core factual dispute, the Court cannot determine as a matter of law whether there was probable cause to arrest plaintiffs for unlawful entry.

In defendants' view, plaintiffs were not authorized to be in the parking garage because, inter alia, the police confirmed with persons in charge of the building that the group did not have permission to be on the premises.*fn7 See Defs.' Mot. at 11-14; Defs.' Reply at 9-10. Defendants first point to Officer Cadle's testimony regarding his conversation with security guard Johnson, whom he interviewed at the scene. Officer Cadle testified that Johnson told him that the individuals did not have authority to be on the premises. Cadle Dep. at 49. His notes from the scene are consistent with his testimony. Defs.' Ex. J ("Security Guard Johnson advises that they do not have authorization to be on premises.").*fn8 As further evidence, defendants also highlight Cmdr. Beach's testimony. He testified that he was informed by another member of law enforcement that "a representative of property management requested their arrest and indicated that the representative from property management would be a complainant in the D.C. Superior Court for the prosecution of those persons for unlawfully entering." Beach Dep. at 155; see also Beach's Responses at 6-7. Lastly, defendants contend that Sgt. Kuchinsky's testimony corroborates Beach's story because Kuchinsky says that he observed an individual having a conversation with MPD officers, and he "would assume" that someone from MPD verified that this person was a representative of the building management. Kuchinsky Dep. at 125-26; see also Defs.' Reply at 9-10.

Plaintiffs offer a starkly different view of the evidence. To begin with, they contend that the undisputed evidence demonstrates that law enforcement knew at the time that plaintiffs' entry into the parking garage was invited by a building employee (Leshner), was effectuated by use of an electronic keycard, and was therefore with permission and was not against the will of the lawful owner or person in charge. See Pls.' First Opp'n at 1; Pls.' Stmt. ¶ 50. Because defendants possessed such knowledge, plaintiffs argue that it is reasonable to infer that the communications with the building management representative were fabricated in order to create the appearance that the group's presence was unauthorized. To support their claim, they attack Cmdr. Beach's credibility and assert that "[a]side from Beach's bare assertion, there is no evidence that any officer reported to Beach that there was such a [building management] representative." Pls.' First Opp'n at 2. Plaintiffs point out that Cmdr. Beach has never claimed to have spoken directly to the representative; rather, he says the information from the representative was relayed to him by another law enforcement officer. See Pls.' First Opp'n at 29-30; Beach's Responses at 6. At his deposition Cmdr. Beach could not identify the officer who provided this information to him. Beach Dep. at 24-26. Moreover, the record does not contain any evidence of this unknown officer's identity. Cmdr. Beach also admitted that he never knew the building representative's name, even at the time, nor did he ever see the individual. Id. at 23-24.

Plaintiffs assert that beyond Cmdr. Beach's "unsubstantiated claim, there is no evidence at all" to support the conclusion that a building management representative spoke to law enforcement. Pls.' First Opp'n at 29. The representative's name was not recorded at the scene by Officer Cadle along with the names of other witnesses. See Defs.' Ex. J. Law enforcement also failed to note the name in the arrest documentation prepared several days later -- instead, "JBG Company" was listed as the "complainant." See Pls.' Opp'n, Ex. 59. Sgt. Shamenek testified that he recalled attempting to call a contact number listed on the wall of the parking garage during the investigation, but that he could not recall if those efforts were successful. Shamenek Dep. at 39-41. Efforts by the building management company, JBG Properties, to search its records and identify such a ...


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