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Theodore Wesby, et al v. District of Columbia

January 18, 2012

THEODORE WESBY, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert L. Wilkins United States District Judge

MEMORANDUM OPINION In the present action, sixteen Plaintiffs bring claims against the District of Columbia and five officers (Edwin Espinosa, Jason Newman, Anthony Campanale, Andre Parker and Faraz Khan) of the District of Columbia Metropolitan Police Department ("MPD"). (Doc. 1, Compl. ¶¶ 19-24.) In Count I of the complaint, Plaintiffs bring a civil rights false arrest claim pursuant to 42 U.S.C. § 1983 ("Section 1983") against the five officers in their individual capacities.*fn1 In Count II, Plaintiffs assert a state common law claim for false arrest against the five officers, and also against the District of Columbia ("District") on the basis of respondeat superior. Count III alleges negligent supervision solely against the District.

Presently before the Court are cross motions for summary judgment. The Defendants seek summary judgment on all claims. (Doc. 31.) Plaintiffs likewise seek summary judgment on all claims. (Doc. 25.) *fn2

For the reasons set forth below, the Court finds that both motions are due to be granted in part and denied in part.

I. FACTS

A. Overview

The overall facts are generally undisputed. In the early morning hours of Saturday, March 15, 2008, Plaintiffs were attending a gathering at 115 Anacostia Avenue, N.E., in Washington, D.C. *fn3 At approximately 1:30 a.m., officers from the D.C. Metropolitan Police Department (MPD) arrived at the house in response to a call about the property. The officers entered the residence and spoke to the Plaintiffs, an assortment of twenty-one men and women (sixteen of whom are Plaintiffs in this action). Several of the women were scantily dressed and had currency tucked into their garments. None of the Plaintiffs owned the home, but one or more of the Plaintiffs informed one or more of the police officers that a woman named "Peaches"*fn4 had invited the Plaintiffs to the house for a bachelor party. When an officer spoke to Peaches via telephone, she indicated she had given the Plaintiffs permission to hold a bachelor party at the house. However, the officer later spoke to the purported owner of the home and he indicated that, while he had discussed leasing the property to Peaches, she did not have a lease for the property and that the Plaintiffs did not have his permission to be in the house.

At some point during the investigation, Sergeant Suber arrived at the house and took control of the situation. Upon learning that Peaches did not have permission from the owner to occupy the property, Sgt. Suber made the decision to arrest the Plaintiffs for unlawful entry.*fn5

Suber is not a defendant in this action.

After Plaintiffs were taken to the police station, they were eventually released at the direction of the watch commander, Lieutenant Netter, who disagreed with Suber's decision regarding the unlawful entry arrests. Before the Plaintiffs could depart, however, Netter ordered the arrest of Plaintiffs for disorderly conduct*fn6 for using "loud voices," based on advice or direction from a representative of the District of Columbia Office of the Attorney General ("Attorney General" or "OAG"). Neither Lieutenant Netter nor the attorney from the OAG have been named as Defendants in this action.

Although Suber objected and informed Netter that the disorderly conduct charge was not appropriate, Netter failed to reverse his decision. Suber and the other officers who were at the scene have since testified that they did not observe any activities consistent with a disorderly conduct charge. Between the time spent detained at the house, at the police station, and in lock up on the disorderly conduct charges, each Plaintiff was in police custody a total of several hours. The disorderly conduct charges were later dropped as to each Plaintiff.

That was a summary. Because the role of each officer, the reasonableness of each officers' actions, the state of the collective knowledge of the officers, and other particularized issues have been raised, set forth below are more detailed descriptions of the evidence from the accounts of several key police officer witnesses and an arrest report.

B. Sergeant Andre Suber

Sergeant Suber admits he made the decision to arrest the Plaintiffs for unlawful entry on the night in question. (Suber Dep. 24.) After some of the officers had already entered the property, Sergeant Suber arrived at the scene and entered the house, which had working electricity. (Suber Dep. 11.) In the course of his debriefing, he asked the officers if the owner of the property was on the scene and they said no. (Suber Dep. 17.) He then asked those present if someone was renting the house and "they" began to tell him about Peaches who "claimed to be renting the house," but no one present could provide proof of such rental and Peaches was not on the scene. (Id. 17.) Suber then asked who gave the Plaintiffs permission to entertain at the house and "no one at the location could provide [him] a name or number of an owner. They only gave a name of . . . Peaches." (Id. 18.) Suber further testified:

A: We called Peaches several times on the phone, a female. We asked her,

"Who gave you permission to be inside this house?" She said no one. She said she was possibly renting the house from the owner who was fixing the house up for her. And that she gave the people who were inside the place, told them they could have the bachelor party.

I asked her again who gave her permission to give them permission to come into an establishment or house that's not under her control. The [sic] she became evasive and hung up the phone.

I called her back. She again began yelling and saying she had permission - -she didn't know the owner's name, but she had permission to be inside the residence because she was going to rent the place out. Then she hung up. . . . [We got her on the telephone again and] she stated that she didn't have permission to be inside the location. At that time they all were there unlawfully.

Q. So she told them that they could be there right?

A. Yes.

Q. Okay. And then you all determined that she didn't have the right to tell them that they could be there right?

A. Yes, sir.

Q. And then because she told them - - gave them misinformation, you then arrested the people who thought they had a legal right to be there?

A. If a person comes to a location, it's upon them, their responsibility, to find out if they can in fact be at the residence lawfully.

Q. And it did not matter whether or not they believed, based on what Peaches told them, that they had a right to be there?

A. Peaches nor the other individuals occupying that location did not have the right to be there.

(Id. 18-19, 39) (emphasis added).

Around the time of the arrests Suber apparently informed the night watch commander, who was at another location, about the course of events and she was "okay" with his "decision" to arrest Plaintiffs for unlawful entry. (Suber Dep. 31.) Around 5:00 a.m., the next watch commander, Lieutenant Netter, came on duty at the precinct. (Id. 28, 31.) While the order of events is somewhat unclear, Netter consulted with other upper level officers and decided he was going to release the Plaintiffs, to which Suber responded by providing Netter with the unlawful entry statute. (Id. 28-29.) Netter decided "he didn't care, and that he was going to release these people," to which Suber responded "You're the watch commander, I'm a sergeant, you have that authority and I don't." (Id. 28-29, 39-40.)

At some juncture, Netter again consulted with two other upper level officers and they telephoned the Attorney General's office. (Suber Dep. 40-41.)As the Plaintiffs were being released and were getting their belongings from the front counter, Suber is told that someone from the Attorney General's office said "Lock them up for disorderly conduct, loud voices." (Id. 29-30, 41.)

Suber, however, was of the opinion that the disorderly conduct charge did not fit the circumstances because "you can't be disorderly inside of a house" and there was no evidence that the Plaintiffs had become loud or boisterous causing people to wake up, turn on their lights, and/or come outside to investigate a commotion. (Id. 42-43.) Although the details of the entire conversation are not in the record, Suber testified he told Netter that the disorderly conduct charge was not "an appropriate charge," but Netter indicated that as watch commander he was going to charge the Plaintiffs. (Id. 42-43.) Suber walked out and the Plaintiffs were then gathered and processed for disorderly conduct. (Id. 43, 30.)

C. Defendant Officer Andre Parker

At one point in Officer Parker's deposition, he testified that prior to his arrival at the scene a call went out for assistance at the house because "there was some unlawful people inside of this home." (Parker Dep. 10.) At another point he testified there was a call. The call that came out was for a loud party at the location. And there had been like previous calls to that house that there were some - - I mean, I've heard officers have talked about that there was some - - a lot of partying going on at this particular location over course of time [sic].

(Parker Dep. 11.) Parker further testified that the person who called the precinct indicated there was illegal activity going on at the house and this information was passed on to the officers. (Parker Dep. 17.) At some point, he was told the "house was due to be vacant. It was a vacant home. And no one had permission to be there." (Id.11.)

Once he entered the house, he observed individuals holding cups and he went upstairs where he observed women dressed "provocatively" with money in their garters. (Parker Dep. 14.) He also smelled marijuana and searched for illegal narcotics, but did not find any illegal narcotics and observed no illegal activity. (Parker Dep. 14-15, 17, 20.) Inside the house Parker observed a mattress, along with lighted candles, but testified he did not see "any furniture." (Parker Dep. 14-15.)

While the officers were investigating the scene, all of the "individuals were asked who the owner of the house was and where the owner was." (Parker Interrog. 2.) One of the Plaintiffs told Parker "that her friend Peaches had allowed her - - Peaches was throwing the party," but Peaches was not at the residence. (Parker Dep. 15-16.) Either this same Plaintiff or one of the other Plaintiffs also told Parker that Peaches was renting the house from the grandson of the owner, who had recently passed away, and that the grandson had given permission for the individuals to entertain in the house. (Parker Interrog. 2.)

Parker asked one of the Plaintiffs to get Peaches on the telephone and to ask her to come back to the house to clear things up by bringing "a lease or something." (Parker Dep. 15-16.)

Eventually, Parker spoke to Peaches and she told him that she had just left the house and that she would not return because she was afraid of being arrested. (Parker Interrog. 3.) Peaches did indicate that the grandson of the owner had given her permission to occupy the property and that Parker could confirm this. (Parker Interrog. 3.) Parker then spoke to "Hughes,"*fn7 who told Parker nobody had permission to be in the house. (Parker Dep. 17-18; Parker Interrog. 2.) Hughes indicated he and Peaches were in the process of working out a leasing arrangement, but they never reached an agreement. (Parker Dep. 17-18.)

Upon learning of this information, Sergeant Suber made the decision to arrest Plaintiffs for unlawful entry. (Parker Dep. 18-19.) When asked if he was familiar with the law regarding unlawful entry at the time of the arrests, Parker responded "Yes." (Parker Dep. 31.) He testified the arrests were made because Peaches was reluctant to come back and "[b]ecause one person said they didn't have the right, and one person said they did have the right." (Parker Dep. 19, 31-32.) "It was stated that because it was not clear who the owner of the house was and whether or not permission was given to the individuals to be in the house at the time of the occurrence Sergeant Suber ordered that all the individuals be arrested." (Parker Interrog. 2.)

Parker testified that he did not place anyone under arrest or complete any of the paperwork. (Parker Dep. 20.) He did, however, provide the information he obtained from Peaches and Hughes "to the officers that took [the] arrest." (Parker Dep. 20.) In one of his interrogatory responses he indicates he does not know who arrested the Plaintiffs, but in another interrogatory response he recalls that Officers Khan and Newman made arrests. (Parker Interrog. 12, 20.) There were other officers at the scene, but he does not recall all of their names. (Parker Interrog. 5, 12; Parker Dep. 13.)

Parker did not observe anything at the scene that constituted disorderly conduct. (Parker Dep. 32, 34.)

D. Defendant Officer Anthony Campanale

Officer Anthony Campanale and Officer Parker were on patrol the night of the arrests when they received a call from Officer Jarboe who indicated "there were people in a house at 115 Anacostia Avenue, NE." (Defs. Ex. P, Campanale Interrog. 2.) Upon arriving at the house, Officer Jarboe told Campanale and Parker that "the people in the house should not be there. He also told [them] that he had received information from neighbors that this was an ongoing problem. Officer Jarboe further stated that the neighbors had advised him that the house was abandoned and nobody should be in it." (Id.) After entering the house, Campanale observed some individuals holding cups of liquor and beer and he could smell marijuana. (Id.) He "also observed female [sic] provocatively dressed with dollar bills in a garter belt around their leg." (Id.)

Campanale began taking pictures, during which time Sergeant Suber arrived. (Campanale Interrog. 2.) When the occupants were asked who gave them permission to be in the house, plaintiff Natasha Chittams indicated "Peaches" gave them permission. (Id.) Later, Campanale was informed by Officer Parker that he spoke to Peaches. (Campanale Dep. 35;

Campanale Interrog. 2.) Officer Parker told Campanale that, although Peaches allegedly had permission to use the residence, she could not return to the scene and could not identify the owner. (Campanale Dep. 35; Campanale Interrog. 2.) Further, Campanale observed that none of the other occupants "could say who gave them permission to be in the house." (Campanale Interrog. 2.) Instead, they said they were present at the "invitation of somebody else." (Campanale Interrog. 9.)

In his interrogatory responses, Campanale explains that "individuals were handcuffed and arrested for unlawful entry," but he does not know who did so. (Campanale Interrog. 19-20.) In his deposition, however, he says he arrested someone for unlawful entry because they did not have permission to be inside the residence, but he does not remember who he arrested or whether the individual was male or female. (Campanale Dep. 35, 37.) When asked how he made the unlawful entry determination, Campanale testified that Officer Parker told Campanale and Sergeant Suber about Parker's conversation with Peaches. (Campanale Dep. 35.) Based on that information, "we believed we had probable cause to place the individuals under arrest for unlawful entry. Nobody could determine who was supposed to be inside the residence." (Id.) When asked his understanding of what constitutes unlawful entry, he replied "you're present inside of a location that you do not have permission to be in." (Id. 35.) Later, he gave his arrest reports to Officer Phifer because the officers "were at check-off point," and the supervisors were not allowing the officers to "stay past [their] tour." (Id. 41.)

Campanale did not observe any conduct that would support a charge of disorderly conduct. (Campanale Dep. 41-42.) According to Campanale, the other four defendants were at the scene along with other officers. (Campanale Interrog. 5.)

E. Defendant Officer Edwin Espinosa

On the night of the arrests, Espinosa was partnered with his training officer, Master Patrol Officer Gregory Phifer, who had a conversation with Officer David Jarboe. (Espinosa Interrog. 2.) Espinosa does not know the substance of the conversation, but he and Phifer left the precinct and drove to the house. (Id.) Although the arrest report indicates Espinosa heard "loud music" prior to entering the house, when asked to give a statement of facts surrounding the arrest of Plaintiffs, Espinosa's interrogatory responses make no mention of hearing music, much less loud music. (Espinosa Interrog. 2.) Upon entering the house, he did not observe any illegal activity. (Espinosa Dep. 11.) The Plaintiffs were asked "if there was an owner to the apartment or to that residence," and when that question was not answered, Officers Phifer and Jarboe tried to determine if anyone knew the owner and the Plaintiffs "came up with no answer." (Espinosa Dep. 11-12.) Espinosa does not know who made the decision to arrest the Plaintiffs or who actually arrested them, but he did not question, search, detain or handcuff any of the individuals or tell them they were under arrest. (Espinosa Dep. 12; Espinosa Interrog. 2, 16, 20.)

He and Officer Phifer later returned to the precinct where Espinosa completed three arrest forms "by copying the individuals [sic] information from the MPD form 256." (Espinosa Dep. 12.) He also signed the forms, but he did not complete the narrative and he did not obtain any information from any of the officers prior to handling the paperwork. (Espinosa Interrog. 2; Espinosa Dep. 12, 21.) Phifer gave Espinosa the assignment for completing the forms. (Espinosa Interrog. 19.)

In addition to Officer Phifer, Espinosa recalls seeing Officers Khan and Jarboe at the scene, but he does not recall which other officers were present. (Espinosa Interrog. 4, 12.) He did not observe any activity that would support a charge of disorderly conduct. (Espinosa Dep. 22.)

F. Defendant Officer Faraz Khan

Khan was riding with training Officer Jarboe on the night of the arrests. (Khan Interrog. 2.) Jarboe and Phifer had a conversation about going to the house, but Khan does not recall the particulars of that conversation. (Id.) Once at the house, he saw "females dressed only in their bra and thong with money hanging out their garter belts." (Id.) Khan stayed in ...


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