The opinion of the court was delivered by: John D. Bates United States District Judge
In this civil rights action, plaintiff John Barnhardt seeks damages for injuries resulting from his alleged false arrest in 2004. He asserts claims under 42 U.S.C. §§ 1981 and 1983 and directly under the Fourth and Fifth Amendments against the District of Columbia and two Metropolitan Police Department ("MPD") officers. This matter is now before the Court on defendants' motion for summary judgment. Having considered the motion, plaintiff's opposition, and the entire record of this case, the Court will grant the motion in part and deny it in part.
On the evening of February 13, 2004, Sergeant Curt Sloan and Detective Allee Ramadhan of the MPD drove to the home of John Barnhardt for the purpose of serving him with a grand jury subpoena. See Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Opp'n"), Ex. B ("Sloan Dep.") at 11:11-20, 20:18-21:8 & Ex. C ("Ramadhan Dep.") at 5:1-19. At that time, they were members of a task force comprised of MPD and Drug Enforcement Administration personnel, the goal of which was to develop cases against narcotics dealers operating in the District of Columbia, Maryland and Virginia. Sloan Dep. at 4:18-5:9; Ramadhan Dep. at 3:20-4:1. The subpoena related to a criminal case against Barnhardt's brother for narcotics offenses and assault on a police officer. See Sloan Dep. at 15:21-16:6, 20:18-21:8. Sloan previously had attempted to serve Barnhardt with the subpoena on December 15, 2003, but was unsuccessful. See Pl.'s Opp'n at 4-7; see also id., Ex. A ("Barnhardt Dep.") at 10:5-11:1.*fn1
When Sloan and Ramadhan arrived at Barnhardt's residence, there were two vehicles parked in the driveway: a white pickup truck and a black SUV belonging to Barnhardt's sister who had driven her SUV into the driveway just before Sloan and Ramadhan arrived. Barnhardt Dep. at 35:10-11, 37:11-38:1; Sloan Dep. at 22:10-14, 22:18-23:3; Ramadhan Dep. at 10:10-12. She remained in the driver's seat of the SUV as the officers and Barnhardt approached one another. Sloan Dep. at 22:12-23:3; Ramadhan Dep. at 10:10-12. Also present was Barnhardt's neighbor who had walked to Barnhardt's house. Barnhardt Dep. at 28:-20-30:21. Barnhardt was walking along the driveway towards the street when the officers arrived. Id. at 37:10-17; Ramadhan Dep. at 11:5-17.
Sloan parked his vehicle at an angle behind the SUV and blocked the driveway. Sloan Dep. at 22:4-9; Barnhardt Dep. at 37:9-38:15. The two officers got out of their vehicle and approached Barnhardt. Sloan Dep. at 22:12, 24:3-4; Ramadhan Dep. at 10:13. Sloan wore a black nylon jacket with the word "POLICE" written across the front and his shirt sleeves bore an MPD patch and sergeant chevrons. Sloan Dep. at 21:17-21. Ramadhan wore a bulletproof vest with the word "POLICE" written on it in large yellow letters. Ramadhan Dep. at 10:13-16. Barnhardt recognized Sloan as the same police officer he had seen at a hearing in his brother's criminal case and who came to his house on December 15, 2003. Barnhardt Dep. at 40:10-42:2. At this point, the participants' stories diverge.
When asked to identify himself, Barnhardt first gave the officers the fictitious name of "Tony Hicks." Barnhardt Dep. at 42:5-43:6. Before allowing Barnhardt to retrieve his wallet from the back pocket of his pants, Sloan patted the pocket. Id. at 43:9-14. Barhardt then produced his father's identification, id. at 43:9-18, before correctly identifying himself and producing his own identification, id. at 45:2-4, 47:17. Ramadhan hit Sloan on the arm, id. at 45:19-21, directed Sloan to wait with Barnhardt, and walked up the driveway while, as Sloan directed, Barnhardt spread his hands on the hood of the SUV, id. at 47:17-48:5.
Barnhardt observed Ramadhan, who was standing behind the pickup truck, pull out of his sweater an object later described as a black shaving bag. Barnhardt Dep. at 49:15-17, 50:3-5. Ramadhan then signaled Sloan, who immediately restrained Barnhardt on the SUV. Id. at 51:13-20. Barnhardt fought Sloan and tried to break Sloan's hand. Id. at 52:8-11. Ramadhan then approached, id. at 52:16-17, and when Sloan and Ramadhan grabbed Barnhardt's hands, Barnhardt fell onto the bag, which had been opened and now lay in the yard, id. at 52:18-20, 54:6-7. Sloan and Ramadhan forced Barnhardt's hand into the bag. Id. at 54:15-55:21. Barnhardt had never seen the bag before, id. at 55:4-5, and he believed that "one of the officers put it there," id. at 55:7-8. During the struggle, Sloan called Barnhardt a "motherfucker" and a "black nigger." Id. at 82:18-18.
Several officers arrived soon afterwards, and Barnhardt was handcuffed and his legs were shackled. See Barnhardt Dep. at 66:17-68:9. Sloan searched him, id. at 70:8-11, and the search entailed the removal of items from his pockets and the removal of his belt, id. at 72:9-14. Barnhardt's pants fell down when the belt was removed, and an officer helped to pull his pants up. Id. at 77:19-21. Barnhardt remembered having approximately $3,900 cash with him when he was searched, which he explained was for materials and labor for a job he was doing for a neighbor. Id. at 72:15-73:9. The officer who helped Barnhardt pull up his pants took Barnhardt to the DEA headquarters. Id. at 78:20-79:1, 85:3-8. Sloan later came to the DEA office and searched Barnhardt again. Id. at 85:20-21.
Ramadhan joined the MPD in 1990, Ramadhan Dep. at 36:14-16, and in his years as an officer he had "been involved in numerous drug and gun offenses," id. at 40:3-4, meaning, presumably, that he had made many arrests for gun and drug offenses.
Ramadhan observed Barnhardt toss a black object into the pickup truck as he was approaching the officers. Ramadhan Dep. at 10:16-19. He described the object as "a small shaving kit bag, like... a small box shape." Id. at 10:20-11:2. Ramadhan became suspicious of Barnhardt when, after seeing police officers approach him, he disposed of an object in his possession -- such conduct, Ramadhan believed, was "consistent [with] someone disposing of contraband." Id. at 33:11-12.
Ramadhan walked back to the pickup truck, id. at 14:14-19, and saw two black items in the bed of the truck: a black shaving bag, and a large battery, which Ramadhan knew could not have been tossed, id. at 15:11-17. Ramadhan opened the bag and "observed a white rock-like substance, which is consistent with cocaine."*fn2 Id. at 15:18-20. Ramadhan stated that the amount of drugs, the scales and the razor blades were "consistent with possession with intent to distribute." Id. at 56:1-2. Ramadhan then walked back towards Sloan and Barnhardt, and gave Sloan the signal to arrest. Id. at 15:20-16:15. The drugs were left on the hood of the SUV while Sloan and Ramadhan struggled with Barnhardt. Id. at 18:3-5. The officers also called for assistance because other individuals were approaching to within 10 feet and they were yelling at Sloan and Ramadhan. Id. at 21:5-20. During the struggle, the parties were never close to the bag, and Ramadhan watched the bag the whole time "to make sure that nobody would grab it." Id. at 29:12-20.
After Barnhardt was arrested, he was searched, and over $3,000 was found in his pocket. Id. at 23:4-10. Ramadhan observed Sloan search Barnhardt; Sloan did not strip search Barnhardt. Id. at 44:7-14. Ramadhan telephoned his wife, Tina Ramadhan, an MPD crime scene search officer, id. at 25:12, after Barnhardt had been transported to find out whether she was available to assist with evidence recovered at the scene. Id. at 24:5-9. He has made such calls whenever he recovered drugs "[o]nly because it's faster... than... going through the dispatcher." Id. at 24:13-19. "[O]ther officers call [Tina Ramadhan] directly because they know it's faster to go through her." Id. at 25:18-19.
Sloan joined the MPD in 1988, Sloan Dep. at 38:8-10, attained the rank of Sergeant in 1993, id. at 39:9-12, and among other assignments he had served with vice units and in the major narcotics branch, id. at 39:1-6, 40:4-8, 40:18. Sloan "had... knowledge that [Barnhardt] had been involved in some narcotics activities" in the past, id. at 16:21-17:6, but had no specific information that Barnhardt was dealing drugs, id. at 20:4-5.
When Sloan asked Barnhardt his name, Barnhardt claimed to be Tony Lawrence. Sloan Dep. at 24:5-11. Sloan asked Barnhardt for identification. Id. at 24:11. At this time, Sloan asked Barnhardt to put down the tools he was holding in his left hand; Barnhardt complied, and Sloan moved the tools away from Barnhardt. Id. at 24:12-16. Before allowing Barnhardt to reach for his wallet, Sloan squeezed the pocket "to make sure it was just that, the wallet." Id. at 25:17-18. Barnhardt then produced his identification. Id. at 26:7-10.
By this time, Ramadhan was approaching the pickup truck. Id. at 28:2-3. Sloan believed that Ramadhan "had observed something... and he wanted to... investigate." Id. at 28:11-24.
At Ramadhan's direction to "hold onto Mr. Barnhardt," id. at 28:15, Sloan instructed Barnhardt to place his hands on the hood of the SUV, id. at 28:5-6. Barnhardt's hands repeatedly slid down, and Sloan repeated his direction to Barnhardt to put his hands back on the vehicle. Id. at 14-19. Based on his experience, Barnhardt's noncompliance "put the alert level up a little bit." Id. at 29:21-30:1. Sloan saw Ramadhan moving at the back of the pickup truck, but focused his attention on Barnhardt until Ramadhan gave a verbal signal to arrest Barnhardt. Id. at 30:6-12. Sloan told Barnhardt to place his hands behind his back, and radioed for assistance after Barnhardt started struggling. Id. at 30:19-31:20, 32:16-17. Sloan did not observe Barnhardt toss an object, id. at 28:19-21, and Ramadhan did not say anything to Sloan at the time Ramadhan allegedly observed Barnhardt toss the object into the pickup truck, id. at 29:8-10.
Once Barnhardt had been subdued, Sloan searched Barnhardt's pockets, shoes, and socks, and removed his belt and shoelaces, which Sloan stated is standard procedure before transport. Id. at 33:5-17. Sloan denied that Barnhardt was strip searched, id. at 33:8-10, and Sloan did not remember Barnhardt's pants being lowered during the search, id. at 33:18-19. Barnhardt was transported to the 7th District by another officer because the vehicle Sloan was driving was not suitable for transporting an arrestee. Id. at 36:11-21, 37:1-6.
The crime scene officer who came to process the evidence was Tina Ramadhan, Detective Allee Ramadhan's wife. Id. at 34:1-9. Sloan remembered calling Tina Ramadhan "on a... couple of occasions even when [Sloan] wasn't with [Ramadhan] to get assistance with a particular scene." Id. at 34:18-20.
According to the criminal complaint, on February 13, 2004, Barnhardt "did unlawfully, knowingly and intentionally possess with intent to distribute a mixture and substance containing a detectable amount of cocaine," and thus he was charged with one count of unlawful possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C). Criminal Complaint, United States v. Barnhardt, No. 04cr132 (D.D.C. Feb. 17, 2004); see Mem. of P. & A. in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Mem."), Ex. A (Arrest/Prosecution Report). After an initial appearance, at which time he was ordered held without bond, and a postponement at Barnhardt's request, on March 3, 2004, Magistrate Judge Facciola held the preliminary hearing and detention hearing. See Transcript of Preliminary Hearing and Detention Hearing ("Tr."), United States v. Barnhardt, No. 04cr132 (D.D.C. Mar. 17, 2004).*fn3
The government presented testimony only from Ramadhan, who Barnhardt's counsel cross-examined. See Tr. 3:19-38:14. Barnhardt had an opportunity to present evidence and his counsel declined to do so. Tr. 39:19-22. Magistrate Judge Facciola ultimately found "probable cause to believe that [Barnhardt] committed the crime with which he [was] charged, Tr. 39:23-24, and had the following exchange with Barnhardt's counsel:
Counsel: Your Honor, I know this Court moved to the probable cause determination awfully quick. I would like to speak on a couple of things, though.
Counsel: In terms of the probable cause determination, there is no indication here that the officer saw Mr. Barnhardt for more than maybe one or two seconds with this object [referring to the black shaving bag]. There is no indication here that Mr. Barnhardt, assuming that that was seen in the manner in which it was seen, had knowledge of what was in that container, which was closed... and there was no obvious sign that Mr. Barnhardt at that time was manipulating that so as to indicate --
MJ: [Counsel], there were two objects in the back of the truck. One was the shaving case, the other was a battery.
Counsel: I appreciate that.
MJ: It's not very likely that when Officer Ramadhan showed us what he did [referring to Ramadhan's courtroom demonstration of the tossing motion he observed Barnhardt make], that anybody could fling a battery like that.
Counsel: I appreciate that, but the fact that if he did fling that in the manner in which he did, did he have knowledge of what's inside, when you're talking about a black leather shaving... kit which you can't see through --
MJ: Couldn't a reasonable person determine that upon seeing Detective Ramadhan and seeing the word "Police," took the object in the hopes of disassociating himself with it, that consciousness of guilt would be... evidence of his knowledge of its contents?
Counsel: No, because given the way... officers routinely in the District of Columbia seize objects from people, and the difficulty in getting objects back under any circumstances once the police seize things, you may not want the police involved in seizing your items. So I don't think there's proof here that Mr. Barnhardt had specific knowledge of what's in a shaving... container.... The Court may say, "Well, I'm not here to decide the legality of a search," in terms of the question is was there probable cause to believe he was in possession of drugs. But when you have an instance when it's clear the police did not have the authority to conduct a search in the manner ...