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Fox v. District of Columbia

United States District Court, District of Columbia

February 20, 2013

Barbara FOX, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants.

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[Copyrighted Material Omitted]

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Sean Robert Day, Law Office of Sean Robert Day, Greenbelt, MD, William CharlesCole Claiborne, III, Law Office of William Claiborne, III, Washington, DC, for Plaintiffs.

Bradford Collins Patrick, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.



Plaintiffs Barbara Fox and Hamilton P. Fox, III have filed an action that includes claims against two Metropolitan Police Department officers, Officer Squires and Sargent Boyd, in their individual capacities. Sec. Am. Compl. [Dkt. # 39] ¶ 5. They allege three causes of action arising from a dispute between Mr. Fox and the officers that ultimately led to Mr. Fox's arrest for disorderly conduct and his release pursuant to a " post-and-forfeit" procedure whereby an arrestee simultaneously posts and forfeits collateral in return for his release from jail without prosecution.[1] Id. ¶¶ 53-64. Specifically, Mrs. Fox alleges that Sargent Boyd violated her Fourth Amendment rights (Count 1), id. ¶ 55, and Mr. Fox alleges that both officers violated his First Amendment (Count 2) and Fourth Amendment (Count 3) rights, id. ¶¶ 59, 63. All three counts arise under 42 U.S.C. § 1983. Id. ¶ 2. Defendants have moved for judgment on the pleadings on the grounds that they are entitled to qualified immunity. See Def. Boyd Mot. for J. on the Pldgs. [Dkt. # 47] (" Boyd Mot." ) at 1-2; Def. Squires Mot. for J. on the Pldgs. [Dkt. # 48] (" Squires Mot." ) at 1-2. The Court will grant Sargent Boyd's motion with respect to Count 1 because the factual allegations in the complaint do not plausibly suggest that he violated Mrs. Fox's clearly established Fourth Amendment

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rights. However, the Court will deny defendants' motions to dismiss Counts 2 and 3 because the pleadings do not contain sufficient facts for the Court to determine as a matter of law whether the officers had probable cause to arrest Mr. Fox or whether the arrest was retaliatory. This ruling is without prejudice to future dispositive motions on those grounds; the holding of the Court today is simply that the determination of whether defendants are entitled to qualified immunity for their arrest of Mr. Fox must await further development of the factual record.


The following facts are taken from the second amended complaint, and defendants do not dispute them for the purposes of their motions. See Boyd Mem. in Supp. of Mot. for J. on the Pldgs. [Dkt. # 47] (" Boyd Mem." ) at 2 n. 2; Squires Mem. in Supp. of Mot. for J. on the Pldgs. [Dkt. # 48] (" Squires Mem." ) at 2 n. 2. On Saturday, December 20, 2008, around 5:00 p.m., Mr. Fox drove Mrs. Fox to the CVS Pharmacy at 661 Pennsylvania Avenue SE, to pick up some medication. Sec. Am. Compl. ¶ 23. After dropping his wife off, Mr. Fox pulled around onto D Street near 7th Street. Id. ¶ 24. There were two parking signs at that location: the upper sign had an arrow pointing east and read " No Standing or Parking Anytime" ; and the lower sign had an arrow pointing west and read " No Parking/Loading Zone/For Commercial Vehicles Only/7:00 a.m. to 6:30 p.m./Monday-Saturday." Id. ¶ 25. Mr. Fox moved his car to the " No Parking/Loading Zone" on the west side of the sign and remained in his vehicle with his engine running as he waited for Mrs. Fox to return. Id. ¶ 26.

Officer Squires pulled up behind Mr. Fox in his marked police vehicle and said something over his vehicle sound system that Mr. Fox could not understand. Id. ¶ 27. Mr. Fox then exited his car and walked over to Officer Squires. Id. When he reached the police car, Officer Squires informed him that he was not allowed to park in front of the " No Parking/Loading Zone" sign. Id. ¶ 28. Mr. Fox argued that he " was not parked, he was standing while waiting for his wife who was in the CVS." Id. ¶ 29. Unpersuaded, Officer Squires told Mr. Fox: " Gotta move your car, Sir." Id. ¶ 30. Mr. Fox, who was, as he puts it, " incredulous as the street signs were plainly understandable, asked to speak with a supervisor to discuss the matter." Id. ¶ 31. Officer Squires told Mr. Fox that he could stand on the sidewalk to wait for a supervisor, and Mr. Fox stood there for about fifteen minutes. Id. ¶ 32. At that time, Mrs. Fox returned from the pharmacy, asked what was happening, and got into the vehicle. Id. ¶ 33. Mr. Fox waited for a few more minutes for the supervisor but when no one arrived, he got into his car and started to leave because in his view, " the parking issue was moot" at that point. Id.

As Mr. Fox began to leave the scene, Officer Squires activated his siren. Sec. Am. Compl. ¶ 33. Mr. Fox stopped and again walked over to the police car. Id. ¶¶ 33-34. Officer Squires explained that since Mr. Fox had asked to speak with a supervisor, he had to wait for one. Id. ¶ 34. At that time, Sargent Boyd and other officers arrived on the scene. Id. ¶ 35. As the complaint recounts, " Mr. Fox then made a remark to an arriving officer, within earshot of Officer Squires and other officers, that was derogatory of Officer Squires' intelligence and competence." Id. ¶ ...

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