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Corrigan v. Glover

United States District Court, District of Columbia

June 8, 2017

ROBERT GLOVER, et al. Defendants.


          BERYL A. HOWELL Chief Judge.

         The plaintiff, Matthew Corrigan, brought this lawsuit, pursuant to 42 U.S.C. § 1983, against the District of Columbia and over twenty named and unnamed officers of the Metropolitan Police Department (“MPD”), seeking damages for violation of his Fourth Amendment rights arising from a warrantless search of his home on February 3, 2010. See generally Compl., ECF No. 1; First Am. Compl. (“FAC”), ECF No. 11. During the ensuing litigation, twenty-two of the individual defendants were dismissed voluntarily by the plaintiff or their motions to dismiss or motions for summary judgment were granted.[1] This Court then granted the motions for summary judgment by the four remaining defendants, the District of Columbia, Lieutenant Robert Glover, Sergeant Kevin Pope, and Officer Mark Leone, ruling that no violation of a clearly established right had occurred and that the officers were entitled to qualified immunity. See Corrigan v. District of Columbia, Civil No. 12-173 (BAH), 2015 WL 5031364 (D.D.C. Aug. 25, 2015). This ruling was subsequently affirmed in part and reversed in part by the D.C. Circuit. See Corrigan v. District of Columbia, 841 F.3d 1022 (D.C. Cir. 2016).

         Although before this Court the parties, in examining the totality of the circumstances, see Grady v. North Carolina, 135 S.Ct. 1368, 1371 (2015) (noting “reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations”), treated the challenged MPD search as a single, continuous incident, the D.C. Circuit delineated two distinct searches based on the different purpose and scope of the searches conducted of the plaintiff's basement apartment by two separate MPD units, see Pl.'s Statement of Material Facts (“Pl.'s SMF”), Ex. 2, Dep. of Lt. Robert Glover (“Glover Dep.”) at 38:13, ECF No. 87-1 (describing the plaintiff's home as an “English basement apartment”). Specifically, the D.C. Circuit concluded that while the MPD officers involved in the first search, conducted by the MPD's Emergency Response Team (“ERT”), were entitled to qualified immunity, Corrigan, 841 F.3d at 1035 (“For the brief and limited warrantless ERT ‘sweep' of Corrigan's home, the officers had a sufficiently reasonable basis for believing there was probable cause to look for a potentially injured and incapacitated person as to entitle them to qualified immunity.”), the MPD officers involved in the second search, conducted by the MPD's Explosive Ordinance Disposal unit (“EOD”), were not, id. (“We therefore hold that the EOD search violated Corrigan's rights under the Fourth Amendment.”); id. at 1025 (“because no reasonable officer could have concluded such a basis [an exigency] existed for the second more intrusive search, the officers were not entitled to qualified immunity across the board”); id. at 1033 (“the extensive EOD search far exceeded the bounds of reasonableness”).[2]

         As the plaintiff points out, the defendants “did not appeal this ruling.” Pl.'s Reply Mem. Supp. Mot. Part. Summ. J. and Mot. in Limine (“Pl.'s Reply”), at 4, ECF No. 147. The D.C. Circuit remanded the plaintiff's claim of municipal liability against the District of Columbia, which is now moot in light of the plaintiff's voluntary dismissal of the municipality, see Pl.'s Opp'n Defs.' Supp. Mot. Summ. J. (“Pl.'s Opp'n”), at 1, ECF No. 134, and the issue of whether Ofc. Mark Leone is entitled to qualified immunity “because [he] reasonably relied on the directive of [his] superior, ” in conducting the EOD search, Corrigan, 841 F.3d at 1038.[3]

         The trial in this matter is scheduled to begin on the date the parties jointly suggested, on July 10, 2017. See Consent Motion for New Trial Date (May 20, 2017), ECF No. 143; Minute Order (May 22, 2017) (granting motion and scheduling trial for July 10, 2017). Pending before the Court are (1) Ofc. Leone's supplemental motion for summary judgment, Def.'s Supp. Mot. Summ. J. (“Def.'s Supp. MSJ”), ECF No. 131; (2) the plaintiff's motion in limine or for partial summary judgment, Pl.'s Mot. In Limine or Partial Summ. J. (“Pl.'s Mot.”), ECF No. 138; and (3) the defendants' motions in limine, see Defs.' Mot. In Limine, ECF No. 104; Defs.' Mot. In Limine, ECF No. 105, which motions were originally denied as moot in 2015, see Order, ECF No. 125, but, on remand, have been reinstated, at the defendants' request, Defs.' Notice of Filing Re: Mots. In Limine, at 1, ECF No. 137.

         I. BACKGROUND

         The background of this case has been fully summarized in prior decisions in this case, see generally Corrigan v. District of Columbia, 841 F.3d at 1025-28; Corrigan v. District of Columbia, 2015 WL 5031364, at *1-4, and, thus, only those facts necessary for resolving the instant motions are provided below.

         On February 2, 2010, during a telephone call to the National Suicide Hotline, the plaintiff informed the hotline operator that he was a military veteran and owned firearms. FAC ¶¶ 9. “After a short conversation, [the plaintiff] hung up, turned off [his] phone, took prescribed sleeping medication, and went to bed.” Id. The hotline operator then called 911, Defs.' Suppl. Statement of Material Facts as to which there is no Genuine Dispute in Further Supp. of Defs.' Mot. Summ. J. (“Defs.' Suppl. SMF”) ¶ 1, ECF No. 119-1, and MPD officers were dispatched to the plaintiff's home based on a “report of an ‘Attempted Suicide, '” Def. District of Columbia's Mot. Summ. J., Ex. 5 (“Barricade Report from 2408 N. Capitol St. N.W. (5D) on Wednesday, February 3, 2010 (ERT # 10-11), Feb. 9, 2010 (“Incident Rep.”)) at 1, ECF No. 76-4. After an odor of natural gas was detected, a barricade situation was declared and members of the MPD's ERT, part of the MPD's “Special Operations Division” (“SOD”), were dispatched to the scene. Id. at 1-2.

         Around 2:30 A.M., approximately three-and-a-half hours after MPD officers first arrived on the scene, defendant Lt. Robert Glover arrived. Incident Rep. at 2; Defs.' Suppl. SMF ¶ 3. At approximately 4:00 A.M., the plaintiff awoke after hearing his name being called on a bullhorn and around 4:50 A.M. the plaintiff peacefully exited the apartment and was taken into police custody. FAC ¶¶ 10-11. The plaintiff did not give the MPD consent to enter his apartment, but Lt. Glover nonetheless ordered the ERT to immediately break into the apartment and conduct a “sweep” of the apartment to determine whether any other individuals remained in the apartment. Def. Glover's Statement of Material Facts as to which there is no Genuine Dispute (“Glover SMF”) ¶ 27, ECF No. 79; see also Pl.'s Response to Defendants' Statement of Material Facts ¶ 38, ECF No. 86-1. After no other individuals were found in the apartment, Lt. Glover ordered the EOD to enter and search the plaintiff's apartment for explosives or other hazardous materials. Glover SMF ¶ 32; see also Glover Dep. at 10:1-22 (“I directed the members of the [ERT] Entry Team to enter and search for any human threats that remained or victims. And I also directed members of the [EOD] to enter and check for any hazardous materials that could remain on the scene and be dangerous to the public or anybody else in that block or area.”).

         Ofc. Mark Leone conducted the EOD search. Pl.'s SMF, Ex. 5, Deposition of Officer Mark Leone (“Leone Dep.”), at 19:7, ECF No. 87-1. Ofc. Leone was informed of a “barricade situation in reference somebody [sic] had a military background and that they were requesting that we cleared [sic] the apartment for any hazardous materials.” Id. at 18:13-17. Before he conducted the search, Ofc. Leone had been told that ERT had already been in the apartment and that they had searched to “make sure there that there wasn't any other people in the apartment.” Id. at 20:9-12. Thus, Ofc. Leone knew when he entered the apartment that no other people were inside. Id. at 20:13-15. Ofc. Leone “didn't know one way or another” if there was probable cause to believe that there were hazardous materials in the apartment. Id. at 21:21-22; see also Id. at 101:11-15; 109:11-13. Nonetheless, Ofc. Leone then “performed a search on the apartment to clear for any booby traps or explosive devices, [or] hazardous materials.” Id. at 19:1-4. This search was performed despite the fact that he had not been told that any MPD officer had seen explosives or that anyone heard that explosives were in the apartment. Id. at 22:2-7; see also Id. at 101:16-21. Instead, he was merely advised that “due to the [plaintiff's] military background [MPD] believed that the [sic] possibility of explosives could be in the apartment.” Id. at 91:18-22. During Ofc. Leone's search, he “cut open every zipped bag, dumped onto the floor the contents of every box and drawer, broke into locked boxes under the bed and in the closet, emptied shelves into piles in each room, and broke into locked boxes containing Corrigan's three firearms, ” Corrigan, 841 F.3d at 1028 (citing Pl.'s Answers to Interrogs., ¶ 8; FAC ¶ 22), resulting in the seizure from “[i]nside the locked boxes, . . . an assault rifle, two handguns, a military smoke grenade, a military "whistler" device, fireworks, and ammunition, ” id.


         A. Summary Judgment

         Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “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 moving party bears the burden of demonstrating the “absence of a genuine issue of material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477 U.S. 242, 256 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on summary judgment, the appropriate inquiry is “whether, on the evidence so viewed, a reasonable jury could return a verdict for the nonmoving party” (internal quotation marks omitted)); see also Fed. R. Civ. P. 56(c), (e)(2)-(3). In making this evaluation, “courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment, ” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam), and “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor, ” id. at 1863 (quoting Liberty Lobby, 477 U.S. at 255 (alteration in original)).

         B. Motions In Limine

         The Supreme Court has recognized that “[a]lthough the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4, (1984); see id. at 40 n.2 (defining motion in limine “in a broad sense to refer to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered”). Indeed, Rule 103(d) of the Federal Rules of Evidence mandates that the court must conduct a jury trial to the extent practicable so that inadmissible evidence is not suggested to the jury by any means. Fed.R.Evid. 103(d). Pretrial motions in limine are an important mechanism to effectuate this goal of insulating the jury from inadmissible evidence and further the purpose of the rules, generally, to administer the proceedings “fairly . . . to the end of ascertaining the truth and securing a just determination.” Fed.R.Evid. 102; see Banks v. Vilsack, 958 F.Supp.2d 78, 82 (D.D.C. 2013) (citing Fed.R.Evid. 103(d)). Moreover, “[a] pretrial ruling, if possible, may generally be the better practice, for it permits counsel to make the necessary strategic determinations.” United States v. Jackson, 627 F.2d 1198, 1209 (D.C. Cir. 1980).

         In evaluating the admissibility of proffered evidence on a pretrial motion in limine the court must assess whether the evidence is relevant and, if so, whether it is admissible, pursuant to Federal Rules of Evidence 401, 402 and 403. “[T]he burden is on the introducing party to establish relevancy, ” Dowling v. United States, 493 U.S. 342, 351 n. 3 (1990), as well as admissibility. Even relevant evidence may be deemed inadmissible and subject to exclusion on multiple grounds, including that “its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. “Assessing the probative value of [the proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court's sound judgment under Rules 401 and 403.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (alteration in original) (quoting United States v. Abel, 469 U.S. 45, 54 (1984)).

         Depending upon the nature of the evidentiary issue presented in a pretrial motion in limine, the court must also assess whether a ruling is appropriate in advance of trial or, instead, should be deferred until trial “‘[when] decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole.'” Herbert v. Architect of the Capitol, 920 F.Supp.2d 33, 38 (D.D.C. 2013) (alteration in original) (quoting Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D. Ill. 2011)). The timing of a decision on the admissibility of contested evidence is a matter within a trial judge's discretion. Banks, 958 F.Supp.2d at 81-82 (citing authorities); Barnes v. District of Columbia, 924 F.Supp.2d 74, 78-79 (D.D.C. 2013) (citing authorities).


         The Court first addresses Ofc. Leone's motion for summary judgment on the explicit issue remanded by the D.C. Circuit: whether he is entitled to qualified immunity for following his superior's order to conduct the warrantless EOD search. Def.'s Mem. Supp. Summ. J. (Def.'s MSJ”) at 5-8, ECF No. 131. Then the plaintiff's motion in limine and for partial summary judgment to exclude evidence, argument, or reference by defendants that the search of plaintiff's home was constitutional, Pl.'s Mem. Supp. Pl.'s Mot. at 1-2, is addressed, before turning finally to the defendants' motions in limine seeking exclusion of argument or evidence relating to the plaintiff's arrest, incarceration, and prosecution in his underlying criminal proceedings.

         A. Ofc. Leone's Supplemental Motion for Summary Judgment

         Ofc. Leone argues that he is entitled to qualified immunity because he relied on an order from Lt. Robert Glover. Def.'s MSJ at 5-6 (“Once Officer Leone arrived at the scene, based on the directive given to him by Lt. Glover, he joined other MPD officers already present in Plaintiff's apartment.”). He posits that his conduct must be measured not by the reasonableness, or lack thereof, of the EOD search but by the reasonableness of him following the order of his superior officer. Id. at 7 (framing “the relevant question [as] whether an officer in this Defendants' position could have reasonably relied on the judgment of Lt. Glover” and urging that “[t]he facts here show such reasonable reliance”). Citing the “paramilitary” nature of the police department, Ofc. Leone argues he “was not in a position to disregard Lt. Glover's order which he believed to be lawful.” Id.

         At the outset, the factual record is murky regarding how Lt. Glover's order was communicated to Ofc. Leone. Although Lt. Glover testified that he directed the EOD to enter the apartment, Ofc. Leone, who actually conducted the EOD search, could not recall “who exactly” the order “came down from.” Leone Dep. at 102:22-103:1. Instead, Ofc. Leone testified that he spoke with a colleague on the EOD, Officer William Powell, who “had spoken with higher ups” and “Officer Powell told [Leone] that he or [Leone] were supposed to go in and conduct a search.” Id. at 103:4-8.[4] At oral argument on this motion, plaintiff's counsel indicated that he does not “have it in the record that [Leone] said Glover told him to go in.” Motions Hearing (May 17, 2017). At the same time, in his supplemental responses to plaintiff's first set of interrogatories, Ofc. Leone stated that “[o]nce on the scene, I was advised by Lt. Glover that they needed the residence cleared on an EOD aspect due to the fact that the Plaintiff had a military background.” Leone Mot. Summ. J., Ex 21, Leone Supp. Resp. Pl's 1st Set Interrogs., at 3, ECF No. 81-21. Thus, Ofc Leone has indicated both that he received the order from Lt. Glover and that he received the order from Ofc. Powell, who in turn received the order from unnamed superiors. In any event, no dispute exists that Lt. Glover gave the order for the EOD search and that Ofc. Leone executed that order, so any issue about precisely how that order was communicated to Ofc. Leone is immaterial and, therefore, does not require resolution at trial of a predicate factual issue before determination of whether qualified immunity applies.

         The D.C. Circuit has expressly held that “the EOD search violated Corrigan's rights under the Fourth Amendment.” Corrigan, 841 F.3d at 1035. Just because a search is found to violate the Fourth Amendment does not mean civil liability automatically attaches, however. Instead, when an officer “engages in constitutionally deficient conduct, ” qualified immunity provides a liability shield “if, in doing so, she did not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.'” Brosseau v. Haugen, 543 U.S. 194, 205 (2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity ‘gives government officials breathing room to make reasonable but mistaken judgments' and ‘protects all but the plainly incompetent or those who knowingly violate the law.'” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2085 (2011)). Consequently, whether qualified immunity applies “‘generally turns on the objective legal reasonableness of the [official's] action, assessed in light of the legal rules that were clearly established at the time.'” Id. at 546 (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). In other words, while an officer's subjective state of mind is not relevant to the qualified immunity inquiry, the officer's perceptions of the objective facts animating the challenged conduct are. See White v. Pauly, 137 S.Ct. 548, 550 (2017) (instructing that in evaluating qualified immunity defense, “the Court considers only the facts that were knowable to the defendant officers”); Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015) (noting that determination of objective reasonableness must be made “from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight”) (internal quotations and citations omitted).

         Mindful of these principles, Ofc. Leone's reliance on Lt. Glover's order for EOD to search the plaintiff's apartment is not dispositive of whether Ofc. Leone is entitled to qualified immunity since the “objective reasonableness” of his actions must be assessed based on what was known to him at the time. Indeed, the D.C. Circuit has emphasized that it “has never held that qualified immunity permits an officer to escape liability for his unconstitutional conduct simply by invoking the defense that he was ‘just following orders.'” Wesby v. District of Columbia, 765 F.3d 13, 29 (D.C. Cir. 2014); see also Messerschmidt, 565 U.S. at 554-55 (2012) (approval of a warrant by a magistrate, along with review by an officers' superior and deputy district attorney, was “pertinent” but not “dispositive” as to whether an officer could have reasonably believed that a warrant was supported by probable cause). Two D.C. Circuit decisions, Elkins v. District of Columbia and Wesby v. District of Columbia, instruct that an officer's ...

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