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Scott v. United States

United States District Court, District Circuit

July 2, 2013



AMY BERMAN JACKSON, United States District Judge.

On October 17, 2012, plaintiff Fitzgerald Scott filed this lawsuit against the United States alleging that the United States Supreme Court Police violated clearly established First Amendment principles when they arrested him for unlawful entry while he was wearing a jacket bearing the message "Occupy Everywhere" in the Supreme Court building. Compl. [Dkt. # 1] ¶¶ 8, 13, 17-18. The complaint consists of one count under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), alleging false arrest and imprisonment, and it seeks compensatory damages and the expungement of all records of Scott's arrest. Id. ¶¶ 23-25, Prayer for Relief.

The United States has moved to dismiss the case or, in the alternative, for summary judgment under Federal Rules of Civil Procedure 12(b)(6) and 56. Def.'s Mot. to Dismiss or, in the alternative, for Summ. J. ("Def.'s Mot.") [Dkt. # 6]. Scott opposes defendant's motion and has filed a cross-motion for summary judgment. PL's Cross-Mot. for Summ. J. [Dkt. # 10]. Because Scott's arrest was supported by probable cause or, at a minimum, a reasonable good faith belief on the part of the arresting officers that they had probable cause, the Court will grant defendant's motion for summary judgment and deny Scott's cross-motion.


The following facts are undisputed except where noted. On January 20, 2012, Scott entered the interior of the Supreme Court wearing a jacket that had the words "Occupy Everything" or "Occupy Everywhere" painted on it. PL's Statement of Issues as to which there is a Genuine Dispute ("PL's Statement"), Ex. 2 to PL's Mem. in Opp. to Def's Mot. [Dkt. # 8-2] ¶ 1; Def's Resp. to PL's Statement of Undisputed Facts ("Def.'s Resp."), Ex. 1 to Def.'s Reply in Supp. of Def.'s Mot. and Opp. to PL's Cross-Mot. [Dkt. # 14-1] ¶ 1. According to Timothy Dolan, Deputy Chief of the Supreme Court of the United States Police ("Supreme Court Police"), there had been a significant protest outside of the Court that day organized by the "Occupy" movement. Dolan DecL, Ex. 2 to Def.'s Mot. [Dkt. # 6-2] ¶ 5. While Scott was inside the building looking at exhibits on display, Deputy Chief Dolan approached him and told him that he could not wear the jacket while in the building, but that he could do so on the public sidewalk outside. PL's Statement ¶¶ 2-3; Def.'s Resp. ¶ 4.

In the course of their interaction, Deputy Chief Dolan - who was wearing his uniform -identified himself as the authority at the Supreme Court. Compl. ¶ 15; Dolan DecL ¶6. He also informed Scott that his jacket was comparable to a sign or demonstration, and that Scott would be arrested if he did not either remove the jacket or leave the building. PL's Statement ¶4; Def.'s Resp. ¶¶ 2, 4. When Scott did neither, Deputy Chief Dolan instructed another officer to place Scott under arrest for unlawful entry. PL's Statement ¶ 5; Dolan DecL ¶6.[1] Scott was released from custody the same day, and the charges against him were ultimately dropped. Compl. ¶ 20; Dolan Decl. ¶ 6.

Scott filed an administrative tort claim with the Supreme Court that was denied on September 20, 2012. Compl. ¶ 22. On October 17, 2012, he filed this suit under the FTCA asserting that the "United States is liable for the false arrest and imprisonment of Mr. Scott because Pfc. Freeman arrested Mr. Scott without probable cause." Compl.¶23. The defendant has moved to dismiss or, in the alternative, for summary judgment under Rules 12(b)(6) and 56 on the grounds that the Supreme Court Police had probable cause to arrest Scott for violating D.C.'s unlawful entry statute, D.C. Code § 22-3302(b), as well as the federal statute banning the display within the Supreme Court building of items designed to bring notice to organizations or movements. 40 U.S.C. § 6135 (2012). Def.'s Mem. in Supp. of Def.'s Mot. ("Def.'s Mem.") [Dkt. # 6] at 7. Scott opposes the motion, and he has filed a cross-motion for summary judgment, asserting that his actions were protected by the First Amendment under Cohen v. California, 403 U.S. 15 (1971), and that therefore, his arrest was illegal. PL's Mem. in Opp. to Def.'s Mot. and in Supp. of PL's Cross-Mot. for Summ. J. ("PL's Mem") [Dkt. # 10-1] at 6-7.


I. Motion to Dismiss

"To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); accord Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678.

And "[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. "The plausibility standard is not akin to a 'probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id., quoting Twombly, 550 U.S. at 556. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action, " id., quoting Twombly, 550 U.S. at 555, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed liberally in plaintiffs favor, and the Court should grant plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiffs legal conclusions. See id; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002) (citation omitted).

II. Summary Judgment

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is only "material" if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party's motion, the court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007) (citations omitted). All underlying facts and inferences must be analyzed in the light most favorable to the non-moving party. Anderson, 477U.S. at 255 (citations omitted). "The rule governing cross-motions for summary judgment ...

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