United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For ANTHONY MICHAEL PATTERSON, Plaintiff: Jeffrey Louis Light, LEAD ATTORNEY, LAW OFFICE OF JEFFREY LIGHT, Washington, DC.
For UNITED STATES OF AMERICA, TODD C. REID, Sergeant - in his individual capacity, MATTHEW COONEY, Officer #058 - in his individual capacity, JENNIFER L. LEMKE, Officer #398 - in her individual capacity, Defendants: Carl Ezekiel Ross, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
KETANJI BROWN JACKSON, United States District Judge.
Plaintiff Anthony Michael Patterson (" Patterson" or " Plaintiff" ) filed the instant complaint alleging that his constitutional rights were violated when he was arrested for using profanity in a public park. He has brought suit against United States Park Police Sergeant Todd Reid and Officers Jennifer Lemke and Matthew Cooney (collectively, " individual defendants," " Defendants," or " the officers" ), claiming that they violated his First and Fourth Amendment rights and requesting damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). (Compl., ECF No. 1, ¶ ¶ 21-26.) Patterson has also brought a false arrest claim against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). ( Id. ¶ ¶ 27-29.)
Presently before the Court is the individual defendants' motion to dismiss the claims against them. (Defs.' Mot. to Dismiss the Compl. (" Defs.' Mot." ), ECF No. 8.) In that motion, the individual defendants argue that the first two counts of the complaint--the Bivens claims against the officers--must be dismissed for failure to state a claim upon which relief can be granted because the officers are entitled to qualified immunity.
Upon consideration of the arguments made in the parties' briefs and at the October 31, 2013, motion hearing, the Court DENIES the individual defendants' motion to dismiss. A separate order consistent with this opinion will follow.
A. Facts Alleged in the Complaint
Patterson's complaint alleges the following facts. Patterson is an Occupy D.C. protestor who was in McPherson Square park on January 8, 2012, when he saw three teenagers enter the park with signs supporting the Tea Party movement. (Compl. ¶ 8.) The complaint states that Patterson looked up at the sky when he saw the Tea Party supporters and said, " Ah, this fucking bullshit." ( Id. ¶ 9.) According to Patterson, this statement was " not directed at anyone in particular," and was made at a " normal conversational volume" in a non-aggressive manner that " merely indicated annoyance." ( Id. ) Patterson alleges that the Tea Party supporters were approximately seven feet away from him when he made the comment and did not acknowledge Patterson or his comment in any way. ( Id. ) The complaint states that the only people present in the park when Patterson made the statement, other than he and the three Tea Party supporters, were two other Occupy D.C. protesters and eight police officers. ( Id. ¶ 8.)
Seconds after Patterson made the statement, several United States Park Police officers, including Sergeant Reid and Officers Lemke and Cooney, approached him. ( Id. ¶ 10.) According to the complaint, Sergeant Reid told Patterson not to use profanity, and it was only after Sergeant Reid issued that rebuke that the Tea Party supporters appeared to notice Patterson. ( Id. ) In response to Sergeant Reid, Patterson turned towards the officers and said, " I can't say fuck?" ( Id. ¶ 11.) Sergeant Reid told Patterson that this was his " second warning." ( Id. ¶ 12.) Patterson replied,
" That's fucking bullshit." ( Id. ¶ 13.) Sergeant Reid then ordered Officers Lemke and Cooney to arrest Patterson for disorderly conduct, which they did. ( Id. ¶ ¶ 14-15.) The complaint does not allege that the Tea Party supporters had any particular reaction to the conversation between Patterson and the officers. ( See id. ¶ ¶ 11-15.)
The officers brought Patterson to their station, processed him, and released him with an upcoming D.C. Superior Court date. ( Id. ¶ 16.) Patterson alleges that as he left the station, Sergeant Reid said to him, " Mr. Patterson, you are right. Profanity is protected under freedom of speech. But when you use profanity it causes a hostile environment for the police." ( Id. ¶ 17.)
On January 10, 2012, Officer Lemke appeared before an Assistant Attorney General for the District of Columbia and signed a Gerstein affidavit regarding Patterson's arrest ( id. ¶ 19), which is discussed further below.  In the complaint, Patterson references this affidavit solely to allege that, " [t]he Gerstein affidavit signed by Officer Lemke contained statements that Officer Lemke knew to be false." ( Id. ¶ 19.) One month later, the government dropped the disorderly conduct charges against Mr. Patterson. ( Id. ¶ 20.)
B. Procedural History
Almost one year after his arrest, Patterson filed the instant complaint, which includes three counts: two against the arresting officers in their individual capacities, and one against the United States. The third count alleges that the United States is liable under the Federal Tort Claims Act for Patterson's false arrest (Compl. ¶ ¶ 27-29); this count is not at issue in the instant motion.  Instead, the instant motion to dismiss addresses the first two counts of the complaint--the claims against the individual defendants. Count I alleges that Sergeant Reid violated Patterson's First Amendment rights when he ordered Officers Lemke and Cooney to arrest Patterson solely based on the content of protected speech in the absence of probable cause to arrest him for disorderly conduct and that Officers Lemke and Cooney violated Patterson's First Amendment rights when they complied with that order and actually arrested him. ( Id. ¶ ¶ 22-23.) In Count II, Patterson similarly alleges that the officers also violated his Fourth Amendment rights insofar as there was no probable cause for the arrest. ( Id. ¶ ¶ 25-26.)
The individual defendants seek dismissal of these two counts for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (Defs.' Mot. at 1.) With respect to Count I, the First Amendment retaliatory arrest claim, the individual defendants contend that there is no Bivens remedy available for a First Amendment violation, and even if there is such a remedy, the officers are entitled to qualified immunity because they
had probable cause for Patterson's arrest. ( See Defs.' Mot. at 1, 4-5.) Defendants seek dismissal of Count II, the Fourth Amendment false arrest claim, solely on the grounds that the officers are entitled to qualified immunity. ( See Defs.' Mot. at 1, 5-6.)
The individual defendants have attached to their motion a copy of the Gerstein affidavit that Officer Lemke executed in connection with Patterson's arrest. In the Gerstein affidavit, Officer Lemke contends that Patterson yelled " fuck white people" when he saw the Tea Party protesters enter the park, and she describes how Patterson continued to yell " fuck" multiple times after Sergeant Reid approached him and warned him to stop cursing. (Gerstein Aff., Ex. 1 to Defs.' Mot., ECF No. 8-1.) According to Officer Lemke, Patterson responded to Sergeant Reid by stating that his " language was protected under [the] 1st amendment." ( Id. ) The affidavit also represents that Patterson's language caused " a crowd of onlookers" to gather in the square. Officer Lemke avers that Patterson repeatedly shouted profanity until he was taken away, and that Sergeant Reid specifically warned him against " this type of language, intending to cause a disturbance." ( Id. ) The individual defendants contend that the Gerstein Affidavit further supports that the officers had probable cause for Patterson's arrest. (Reply In Support of Defs.' Mot. to Dismiss (" Defs.' Reply" ), ECF No. 14, at 2 n.1.)
Conversely, Patterson maintains that both of the challenged counts of his complaint survive the individual defendants' motion to dismiss because he was arrested for engaging in protected speech and without probable cause to believe he was committing any crime. (Mem. of P & A in Opp'n to Defs.' Mot. to Dismiss (" Pl.'s Mem." ), ECF No. 11, at 5.) As for Count I, Patterson maintains that the First Amendment is violated when a person is arrested for protected speech, including profanity that does not threaten violence ( id. at 7-8), and counsel for the plaintiff argued at the motion hearing that the Court must follow D.C. Circuit case law recognizing the availability of a Bivens remedy for such a violation. Moreover, with respect to both counts of the complaint, Patterson urges that no reasonable officer would have found probable cause for his arrest; and, therefore, the officers are not entitled to qualified immunity. ( Id. at 4-5.)
II. STANDARD OF REVIEW
A. Motion To Dismiss
The individual defendants seek dismissal of Patterson's claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6). (Defs.' Mot. at 1.) In evaluating a motion to dismiss, the court must accept as true all factual allegations in the complaint, and the plaintiff should receive the benefit of all inferences that can be derived from the facts alleged. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113, 342 U.S.App. D.C. 268 (D.C. Cir. 2000). " While the complaint is to be construed liberally in plaintiff's favor, 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 plaintiff's legal conclusions." Kramer v. United States, 460 F.Supp.2d 108, 110 (D.D.C. 2006) (citing Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276, 305 U.S.App. D.C. 60 (D.C. Cir. 1994)). Although " detailed factual ...