United States District Court, District of Columbia
G. SULLIVAN UNITED STATES DISTRICT JUDGE
Makhi Whittaker brings this action under 42 U.S.C. §
1983, alleging violations of his constitutional rights when
defendant Christian Munoz, an MPD Officer, allegedly arrested
Mr. Whittaker without probable cause in violation of the
Fourth Amendment. Mr. Whittaker also alleges that Officer
Munoz violated his First Amendment rights by arresting him in
retaliation for his speech. Officer Munoz moves for summary
judgment arguing that Mr. Whittaker fails to show a violation
of the Constitution, and, alternatively, even if there was a
violation, qualified immunity precludes this lawsuit. Upon
consideration of Officer Munoz's motion for summary
judgment, the response and reply thereto, the applicable law,
and the entire record, the Court will GRANT
Officer Munoz's motion for summary judgment.
Makhi Whittaker, a high school student, was arrested after
boarding a metrobus on the afternoon of March 22, 2017.
See Statement of Undisputed Facts
(“SOF”), ECF No. 19-1 at 23.Mr. Whittaker was
not in school that day because he had a doctor's
appointment. Id. Mr. Whittaker and his girlfriend,
Sheila Shelton, began the day by going to Ms. Shelton's
home to visit her family. Id. They left Ms.
Shelton's home in the afternoon, at which point they had
plans to go to the Northeast section of the city so Mr.
Whittaker could sell a videogame at a local store.
Id. at 23-24.
to Northeast, Mr. Whittaker and Ms. Shelton attempted to
catch a metrobus at the Minnesota Avenue Metro Station.
Id. at 24. Once the metrobus arrived, Mr. Whittaker
and Ms. Shelton entered the metrobus along with other
schoolchildren, some in uniform and some not. Id.
Mr. Whittaker was not in uniform that day because he did not
go to school. Id. Mr. Whittaker and Ms. Shelton did
not pay the bus fare and did not show the bus driver a
“D.C. One Card” which allows students in the
District of Columbia to ride the metrobus for free if they
are going to or from school, or a school-related activity.
Id. Mr. Whittaker was waived onto the bus by the
driver as the driver was letting other students onto the
Mr. Whittaker went on the bus without paying a fare, and he
and Ms. Shelton boarded the bus. Id. at 25.
Officer Munoz, an MPD Officer, was patrolling the Minnesota
Avenue Metro Station, an area that has had problems in the
past with fare evasion. Id. at 24. He was patrolling
the station when Mr. Whittaker and Ms. Shelton arrived.
Id. at 24. Officer Munoz observed Mr. Whittaker
enter the bus without paying the fare and without displaying
a D.C. One Card. Id. at 25. Officer Munoz ordered
them both to exit the metrobus and arrested Mr. Whittaker for
fare evasion by placing him in handcuffs. Id. The
parties disagree about what Mr. Whittaker said to Officer
Munoz and when; however the parties do agree that Mr.
Whittaker asked why he was being put in handcuffs and also
asked Officer Munoz to explain what probable cause he had to
arrest him. Id. at 26. Officer Munoz searched Mr.
Whittaker incident to the arrest. Id. Mr. Whittaker
was released the next day and was not charged with a crime.
Compl., ECF No. 1 ¶ 46.
Mr. Whittaker filed this lawsuit alleging violations of the
First and Fourth Amendments and seeking compensation pursuant
to 42 U.S.C. § 1983. See generally Id. After a
short discovery period, Officer Munoz moved for summary
judgment against all claims. Def.'s Mot., ECF No. 17. Mr.
Whittaker filed his opposition, ECF No. 19, and Officer Munoz
has filed a reply, ECF No. 22. This motion is ripe for
Federal Rule of Civil Procedure 56, summary judgment should
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); Waterhouse v. District of Columbia, 298 F.3d
989, 991 (D.C. Cir. 2002). The moving party must identify
“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
the moving party has met its burden, the non-moving party
must come forward with specific facts that would present a
genuine issue for trial. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine
dispute exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Any inferences drawn on the facts must
be viewed in the light most favorable to the nonmoving party.
See Matsushita, 475 U.S. at 587. A party asserting
that a fact is “genuinely disputed” must support
that assertion by “citing to particular parts of
materials in the record” or “showing that the
materials cited [by the opposing party] do not establish the
absence ... of a genuine dispute.” Fed.R.Civ.P.
56(c)(1). “If a party ... fails to properly address
another party's assertion of fact, ” the court may
“consider the fact undisputed for purposes of the
motion.” Fed.R.Civ.P. 56(e); see also Local
Civ. R. 7(h).
Whittaker has sued Officer Munoz under Section 1983 alleging
several violations of his constitutional rights. See
generally, Compl., ECF No. 1. Specifically, he alleges
violations of the Fourth Amendment right to be free from
unreasonable search and seizure; and the First Amendment's
prohibition against retaliatory arrest. Id. at 7-10.
Officer Munoz alleges that both claims fail because he had
probable cause to arrest Mr. Whittaker. See
generally Def.'s Mot., ECF No. 17.
Whittaker does not dispute the fact that his claims fail if
Officer Munoz had probable cause to arrest him; nor can he.
An arrest supported by probable cause does not violate the
Fourth Amendment's prohibition against unreasonable
search and seizure. See Atwater v. City of Lago
Vista, 532 U.S. 318, 354 (2001)(“If an officer has
probable cause to believe that an individual has committed
even a very minor criminal offense in his presence, he may,
without violating the Fourth Amendment, arrest the
offender.”). As for the First Amendment claim, at the
time of Mr. Whittaker's arrest, the Supreme Court had
held that it “has never recognized a First Amendment
right to be free from a retaliatory arrest that is supported
by probable cause.” Reichle v. Howards, 566
U.S. 658, 664-65 (2012). The Court recently addressed this
issue in Nieves v. Bartlett, in which it held that,
generally, a First Amendment retaliatory arrest claim fails
as a matter of law when an officer has probable cause to
arrest. 139 S.Ct. 1715, 1726 (2019). Accordingly,
if this Court finds that Officer Munoz had probable cause to
arrest Mr. Whittaker, both the Fourth and First Amendment
claims fail as a matter of law. The Court discusses each
claim in turn.
Fourth Amendment Claim: ...