Xingru Lin v. DC (PUBLIC) ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 16, 2021 Decided September 2, 2022
Reissued September 13, 2022
No. 20-7111
XINGRU LIN,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-00645)
Kelsey Dennis, Student Counsel, argued the cause for
appellant. On the briefs was Aderson Francois.
Thais-Lyn Trayer, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With her on the brief were Karl A.
Racine, Attorney General, Loren L. AliKhan, Solicitor General,
Caroline S. Van Zile, Deputy Solicitor General, and Ashwin P.
Phatak, Deputy Solicitor General.
Before: MILLETT, RAO and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT
2
Opinion concurring in part and dissenting in part by
Circuit Judge WALKER.
MILLETT, Circuit Judge: In February 2016, Xingru Lin
was working as a bus ticketing agent in Washington, D.C.
when Yokasty Rodriguez attempted to sneak onto a bus headed
to New York without a ticket. After Lin ordered Rodriguez
off the bus and attempted to photograph her, the two women
got into a scuffle. When District of Columbia Metropolitan
Police officers arrived in response to Rodriguez’s call reporting
Lin for assault, Lin, whose first language is Mandarin, was
unable to communicate her version of events effectively due to
her limited English proficiency. Although Lin was seated,
calmly cooperating with the police and attempting to explain
the circumstances of the assault, officers grabbed Lin, pressed
her against the wall, and then forced her to the floor and
handcuffed her. Lin Opening Br. 5; Gov’t Br. 3. The police
charged her with simple assault on Rodriguez and with
assaulting a police officer while resisting arrest.
Lin subsequently sued the District of Columbia and the
police officers, alleging civil rights violations during this arrest
and a second arrest that occurred in April 2016. She appeals
the district court’s grant of summary judgment in favor of the
District and its officers.
We agree in part and reverse the district court’s grant of
summary judgment for the District and its officers on Lin’s 42
U.S.C. § 1983 wrongful arrest, common law false arrest, and
respondeat superior claims. We affirm the district court’s
grant of summary judgment as to Lin’s other claims.
3
I
A
Lin’s claims arise from two separate encounters with
police in 2016. The first occurred on the evening of February
15, 2016, while Lin was working as a ticketing agent for Focus
Travel Agency.1 J.A. 83. As part of her job that evening, she
supervised the boarding of a bus headed to New York. J.A.
83. A security video shows that, after the tickets were
collected and the passengers were seated, Lin, the bus driver,
and another person who appears to be a colleague prepared the
bus for departure by walking around the outside of the bus,
finalizing the loading of the luggage compartment, and
checking the tires. Pl. Ex. 1 at 00:30–5:19. At her
deposition, Lin said that, after the loading process was
complete and the doors were closed for departure, Rodriguez,
who did not have a ticket, opened the front door of the bus and
attempted to sneak on. J.A. 1197, 1199. Lin approached
and, without entering, told Rodriguez that she had to get off the
bus. J.A. 1200.
Security footage shows that, after the bus pulled away
from the curb, Lin and her colleague talked outside of the
agency. Pl. Ex. 1 at 6:20. Lin observed Rodriguez sitting
down on some nearby steps and cursing at her. J.A. 1205–
1206. So Lin pulled out her cellphone and attempted to
photograph Rodriguez. Pl. Ex. 1 at 6:20–6:32. Pursuing a
fleeing Lin, Rodriguez grabbed at Lin’s phone and began
1 In reviewing the district court’s grant of summary judgment,
we accept Lin’s evidence as true and “draw all reasonable
inferences” in her favor. Thompson v. District of Columbia, 832
F.3d 339, 344 (D.C. Cir. 2016).
4
hitting her. Pl. Ex. 1 at 6:38; J.A. 1206. Lin immediately hit
back, and they both scratched each other. Pl. Ex. 1 at 6:39;
J.A. 1207.
After a further exchange of heated words, Pl. Ex. 1 at 6:51–
7:04, Lin retreated into the safety of the travel agency office,
and both Lin and Rodriguez called the police. Pl. Ex. 1 at
7:10–7:49; J.A. 84, 1217.
Officers Corey Vullo and Blake Johnson were the first to
arrive in response to Rodriguez’s call. Plaintiff’s Resp. to
Defs’. Statement of Material Facts (“Pltf’s Stmn. of Material
Facts”), J.A. 877. Outside the travel agency office, they
encountered Rodriguez, who was crying and had a cut on her
face. Gov’t Br. 2; Pltf’s Stmn. of Material Facts, J.A. 878.
Rodriguez told them that Lin had attacked her “for no reason”
as Rodriguez said goodbye to her boyfriend. Gov’t Br. 21;
Pltf’s Stmn. of Material Facts, J.A. 878. Rodriguez pointed to
the office and said that a “Chinese woman” inside was the one
who attacked her. Gov’t Br. 2, 21; Pltf’s Stmn. of Material
Facts, J.A. 878.
Meanwhile, Lin was on the phone with the police, waiting
to be connected to the Metropolitan Police Department’s
Language Line interpretation service. Lin Deposition Tr.
39:20–40:6 (Oct. 4, 2018), J.A. 1216–1217. When Officer
Vullo approached the office, Lin immediately opened the door
for him. Lin Opening Br. 4. While holding a cellphone to her
ear, she nodded her head, gesturing for him to come in. Lin
Opening Br. 4. Although Lin communicated that she was on
the phone with the police, Officer Vullo demanded that she
hang up. Lin Opening Br. 4. He began speaking with Ms.
Lin, but she had significant trouble communicating due to the
language barrier. Gov’t Br. 2; Pltf’s Stmn. of Material Facts,
5
J.A. 879. Officer Vullo asked Lin if she wanted an interpreter,
but she declined. Gov’t Br. 2.
As Lin was indicating to Officer Vullo that she could only
speak Mandarin, Officer Johnson entered the travel agency and
promptly ordered Lin: “Turn around, turn around, you
understand turn around don’t you?” Lin Opening Br. 4–5;
D.C. Ex. 2 at 2:09–2:14. Lin did not understand. J.A. 84,
1267. Officer Johnson moved her to a chair by twisting her
arm behind her back, forcing her to sit down. Lin Opening Br.
5; Lin Deposition Tr. 91:17–92:18, J.A. 1268–1269. Once on
the chair, she sat calmly while Officers Johnson and Vullo held
her arms. Lin Opening Br. 5; Lin Deposition Tr. 91:17–92:18,
J.A. 1268–1269. Lin’s colleague, who was also in the room,
attempted to explain that Lin had actually been trying to call
the police for help, but Officer Johnson shouted him down.
The two officers then yanked Lin out of the chair and
pushed her against the wall. Pltf’s Stmn. of Material Facts,
J.A. 880. Security footage shows that Lin stood motionless as
the two officers held her. At this point, two more officers,
Officers Albert Salleh and John Merzig, entered the travel
agency and immediately joined in restraining Lin. Lin
Opening Br. 5. The four officers forced Lin onto the floor and
handcuffed her as Lin cried out. Pltf’s Stmn. of Material
Facts, J.A. 880–881; Lin Opening Br. 5.
After the handcuffing, Officer Vullo asked for an
interpreter, who arrived several minutes later and gathered
Lin’s side of the story. Lin. Opening Br. 5; Gov’t Br. 4.
Officer Vullo then talked to Rodriguez, who was still
standing outside. Gov’t Br. 4. Rodriguez stated that she
“was just gonna go say bye” to her boyfriend when Lin told her
she “ha[d] to go.” Gov’t Br. 4; D.C. Ex. 2 at 3:35–3:45.
6
Rodriguez claimed that she tried to reassure Lin that she was
not getting on the bus, but that Lin shouted at her to “get out
right now.” D.C. Ex. 2 at 3:50–4:05. Rodriguez then made
an illustrative pulling motion with her hand. Gov’t Br. 4.
According to Rodriguez, Lin then exclaimed that she would
call the police and scratched her face. Gov’t Br. 4.
While Officer Vullo spoke with Rodriguez, Officer
Merzig viewed the travel agency’s outdoor and indoor security
footage in a back room. Lin Opening Br. 6; Gov’t Br. 4.
Lin’s colleague helped Officer Merzig play the security footage
and provided his perspective on the evening’s events.
The security cameras showed at least three different angles
on the bus. When Officer Merzig observed footage of
Rodriguez sneaking onto the bus, he reacted with, “Hmm.
Yeah, no. I just, I just saw her go on.” Gov’t Br. 4; Pltf’s
Stmn. of Material Facts, J.A. 882; D.C. Ex. 4 at 12:38–12:42.
As the officer continued watching the recordings, Lin’s
colleague explained that the physical altercation between the
two women happened after the bus left. Gov’t Br. 4; Pltf’s
Stmn. of Material Facts, J.A. 882. He then enthusiastically
gestured at the footage and emphasized that it was Rodriguez
who had attacked Lin, not the other way around. Officer
Merzig agreed that the security video footage demonstrated
that, contrary to Rodriguez’s story, the assault occurred after
the bus had departed, and Rodriguez was “the aggressor.”
Gov’t Br. 4; Pltf’s Stmn. of Material Facts, J.A. 882.
Officer Merzig brought Officer Vullo back to view the
footage. After seeing the videos, Officer Vullo agreed with
Officer Merzig that they would have to cut Lin loose. Officer
Zhang Deposition Tr. 225:14–225:19 (Jan. 17, 2019), J.A.
1521; D.C. Ex. 2 at 18:39–18:41. Officer Merzig replied,
“Yeah, oh yeah, I mean, that’s my opinion.” Ex. 2 at 18:41–
7
18:44. They determined that Rodriguez should be arrested for
unauthorized entry of a motor vehicle and assault. Pltf’s
Stmn. of Material Facts, J.A. 882. The officers then removed
Lin’s handcuffs. Pltf’s Stmn. of Material Facts, J.A. 882.
The police investigation shifted to determining if Lin
should be arrested for assaulting a police officer on the theory
that she resisted arrest when they tried to handcuff her. Lin.
Br. 6. Officer Vullo told the supervising officer on scene,
Sergeant Christopher Ritchie, that Lin had pulled and yanked
when they tried to arrest her. Gov’t Br. 5. Sergeant Ritchie
then questioned the other officers on the scene about the
handcuffing. Gov’t Br. 5. Officer Johnson reported: “She
wasn’t flailing at us, she was just not allowing us to handcuff
her.” Gov’t Br. 6; D.C. Ex. 4 at 19:57–20:02. Sergeant
Ritchie asked, “So she was actively resisting you?” D.C. Ex.
4 at 20:02–20:04. Officer Johnson replied: “Passively,
yeah.” Lin Opening Br. 6; Gov’t Br. 6; D.C. Ex. 4 at 20:04–
20:06. Officer Merzig interjected, “She was pulling away.”
Gov’t Br. 6; D.C. Ex. 4 at 20:07–20:08. Subsequently,
Sergeant Ritchie reviewed the footage from both the incident
with Rodriguez and the handcuffing. Pltf’s Stmn. of Material
Facts, J.A. 882.
Sergeant Ritchie decided to arrest Lin for assaulting a
police officer, and Lin was placed in handcuffs again, this time
without incident. Pltf’s Stmn. of Material Facts, J.A. 883.
Before leaving the travel agency, Sergeant Ritchie advised the
officers that Lin should be charged with assaulting a police
officer and Rodriguez should be charged with unauthorized
entry of a motor vehicle and simple assault. Pltf’s Stmn. of
Material Facts, J.A. 884. But when Officer Vullo returned to
the police station, he charged Lin with simple assault as well as
assaulting a police officer. Pltf’s Stmn. of Material Facts, J.A.
884.
8
At the police station, Lin gave a statement through an
interpreter. Lin. Deposition Tr. 40:15–41:8, J.A. 1217–1218.
The police then transferred her to the hospital because she was
complaining of pain. Lin Deposition Tr. 41:5–41:8, 49:2–
49:15, J.A. 1218, 1226. Medical personnel took an x-ray and
prescribed Lin medicine for back, neck, and shoulder pain.
J.A. 88; Lin Deposition Tr. 49:21–50:8, J.A. 1226–1227. The
medical evaluation noted bruises on Lin’s back. J.A. 901.
She was held in jail overnight, but both charges were dropped
the next day. J.A. 88.
B
Just before noon on April 12, 2016, while Lin was again
checking tickets and supervising bus boarding at Focus Travel
Agency, Valente Fanning arrived with an expired ticket. J.A.
89; Lin Deposition Tr. 52:8–52:19, J.A. 1229. Fanning
nevertheless tried to board a bus to Philadelphia, pushed past
Lin, and stepped on her foot. Lin. Deposition Tr. 56:8–56:20,
J.A. 1233. As a result, Lin lost her balance and grabbed onto
Fanning’s jacket to steady herself. Lin Deposition Tr. 58:14–
59:9, J.A. 1233. Fanning later exited the bus because he was
heading to New York, not Philadelphia. Lin Deposition Tr.
58:8–59:9, J.A. 1235–1236. He then called the police. Pltf’s
Stmn. of Material Facts, J.A. 885.
Officer Barbara Shelton arrived outside the Focus Travel
Agency office and interviewed Fanning, who said that Lin had
grabbed his jacket, ripped it, and ejected him from the bus.
Pltf’s Stmn. of Material Facts, J.A. 885. Seeing that the lights
were turned off at the travel agency, Officer Shelton left and
told Fanning to call back if he saw Lin. Pltf’s Stmn. of
Material Facts, J.A. 886–887.
9
A different officer arrived later in response to a “second
sighting” of Lin. Pltf’s Stmn. of Material Facts, J.A. 887. He
arrested Lin and took her to the police station, where she
communicated with officers in part through the Metropolitan
Police Department Language Line. Pltf’s Stmn. of Material
Facts, J.A. 887–888. After two hours, the Metropolitan Police
released Lin with a citation for simple assault. J.A. 90.
Charges were later dropped, but her arrest remains on the
public record. J.A. 91.
C
Lin then filed suit against the District of Columbia and
eight Metropolitan Police Department officers (collectively,
“District”), for violating her civil and common-law rights.2
As relevant here, Lin filed suit under 42 U.S.C. § 1983,
claiming that her wrongful arrest in February 2016 and the
excessive force used by the officers in handcuffing and
arresting her violated her Fourth Amendment rights.3 Lin also
alleged false arrest, negligent infliction of emotional distress,
and assault and battery claims against the officers involved in
the February incident, as well as negligent supervision and
2 The Metropolitan Police Officers named in Lin’s Third
Amended Complaint are Officers Corey Vullo, Albert Salleh, John
Merzig, Blake Johnson, Barbara Shelton, and Timothy Jefferson, as
well as Sergeants Christopher Ritchie and Francis Martello. Lin
later voluntarily dismissed her claims against Sergeant Martello.
3 Section 1983 provides: “Every person who, under color of
any [law] * * * of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of
any rights * * * secured by the Constitution and laws [of the United
States], shall be liable[.]”
10
training and respondeat superior liability on the part of the
District of Columbia, all under D.C. law. Finally, the
complaint alleged that both the February and April arrests
rendered the District of Columbia liable for negligent training,
and denial of equal treatment based on Lin’s race, color, or
national origin, under Title VI of the Civil Rights Act of 1964,
42 U.S.C. § 2000d, and the D.C. Human Rights Act. J.A.
112–114.
After discovery, the District moved for summary
judgment, which the district court initially granted as to all
claims except for Lin’s Section 1983 wrongful arrest, false
arrest, and respondeat superior claims, all as they related to her
February arrest for assault on a police officer. Lin v. District
of Columbia, No. 16-645, 2020 WL 3542253, at *1 (D.D.C.
June 30, 2020) (Lin I). The district court determined that there
was probable cause to arrest Lin for simple assault in both
February and April, id. at *7–10, but denied summary
judgment on the other claims because the evidence was
inconclusive as to whether there was probable cause to arrest
Lin for assaulting a police officer, id. at *9.
Turning to Lin’s excessive force, negligent infliction of
emotional distress, and assault and battery claims, the district
court granted summary judgment to the District because, even
taking the facts in the light most favorable to Lin, the police did
not use excessive force during the February arrest, causing all
three claims to fail. Lin I, 2020 WL 3542253, at *10–12, *18–
20.
The district court also granted summary judgment to the
District on Lin’s negligent supervision and training claim.
The court reasoned that a single incident—Lin’s February
arrest for assaulting a police officer—during which the
supervising sergeant conducted an independent investigation
11
was insufficient to establish liability. Lin I, 2020 WL
3542253, at *17–18. The district court rejected evidence of
past misconduct from other court cases against the
Metropolitan Police because, in the district court’s view, Lin
had not presented any “evidence connecting prior allegations
of unrelated misconduct to” her arrests. Id. at *18.
Lastly, the district court granted summary judgment to the
District on Lin’s Title VI and D.C. Human Rights Act claims.
Lin I, 2020 WL 3542253, at *22–24. The district court
concluded that Lin had not shown that Rodriguez and Fanning
were similarly situated to her, and so their different treatment
did not give rise to an inference of discrimination. Id. at *23.
The District moved for reconsideration, arguing that, if
there was probable cause to arrest Lin for simple assault in
February—and so an arrest was lawful—then it was irrelevant
that there may not have been probable cause to arrest Lin
specifically for assaulting a police officer. The district court
agreed and granted summary judgment to the District on all
counts. Lin v. District of Columbia, No. 16-645, 2020 WL
5816235, at *4 (Lin II).
II
The district court exercised jurisdiction under 28 U.S.C.
§ 1331, and this court has appellate jurisdiction under 28
U.S.C. § 1291. We review de novo the district court’s
decision to grant summary judgment. Thompson v. District of
Columbia, 832 F.3d 339, 344 (D.C. Cir. 2016).
III
We affirm in part and reverse in part. We reverse only the
grant of summary judgment on Lin’s Section 1983 wrongful
12
arrest, common law false arrest, and respondeat superior
claims because there are material disputed facts over whether
the police had probable cause to arrest Lin for simple assault or
for assaulting a police officer in February 2016. We affirm the
rest of the district court’s judgment.
A
We first address Lin’s procedural objection to the district
court’s decision to reconsider its initial summary judgment
ruling and then grant full summary judgment to the District.
Lin argues that the district court abused its discretion under
Federal Rule of Civil Procedure 54(b) by granting the District’s
motion for reconsideration.
Rule 54 allows “any order” that “adjudicates fewer than all
the claims” in a case to “be revised at any time before the entry
of a judgment adjudicating all the claims[.]” FED. R. CIV. P.
54(b). We review the district court’s decision to reconsider its
initial decision for an abuse of discretion. Capitol Sprinkler
Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 225 (D.C.
Cir. 2011).
In Lin’s view, the district court erred because the District’s
motion for reconsideration “cited no new facts nor any
significant change in case law; nor did [the District] allege that
any of [its] arguments were misunderstood by the district
court.” Lin Opening Br. 16.
There was no abuse of discretion. Rule 54(b) allows
district courts to be “flexible” in considering “the interlocutory
presentation of new arguments as the case evolves[.]” Cobell
v. Jewell, 802 F.3d 12, 25 (D.C. Cir. 2015). District courts
also have discretion to hear motions for reconsideration “as
13
justice requires.” Capitol Sprinkler Inspection, Inc., 630 F.3d
at 227 (citation omitted).
In this case, the district court’s grant of reconsideration
appropriately responded to the evolution of legal issues in the
litigation. When the district court first considered the
District’s motion to dismiss, the litigants and the court
considered separately the issues of probable cause to arrest Lin
for simple assault and for assaulting a police officer. That led
the district court to find that probable cause existed to arrest
Lin for simple assault, but not for assaulting a police officer.
Lin I, 2020 WL 3542253, at *7–9.
But once the district court found probable cause for the
simple assault charge, that laid the legal groundwork for the
District to argue that, as long as the police officers had probable
cause to arrest for some offense, the arrest was proper
regardless of whether they also had probable cause to arrest for
assaulting a police officer. Revisiting a ruling as legal issues
develop over the course of litigation falls squarely within Rule
54(b)’s wheelhouse.
B
Lin argues that the district court erred in granting the
District summary judgment on her claims of false arrest in
violation of the Fourth Amendment and District of Columbia
law. In particular, she contends that there are disputed issues
of material fact as to whether there was probable cause to arrest
her for assaulting either Rodriguez or a police officer. There
is merit to Lin’s objections.
The Fourth Amendment guarantees Lin the right to be
secure in her “person[] * * * against unreasonable searches and
seizures” by the police. U.S. CONST. Amend. IV. There is no
14
question that an arrest is a “seizure” of a “person” within the
meaning of the Fourth Amendment. Torres v. Madrid, 141
S. Ct. 989, 996 (2021). Seizures “conducted outside the
judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment—subject
only to a few specifically established and well delineated
exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372
(1993) (citation omitted).
One of those exceptions allows a warrantless arrest if the
officer has “probable cause to believe that a criminal offense
has been or is being committed.” Devenpeck v. Alford, 543
U.S. 146, 152 (2004); see Dunaway v. New York, 442 U.S. 200,
208 (1979).4
The existence of probable cause depends on “the
reasonable conclusion to be drawn from the facts known to the
arresting officer at the time of the arrest[,]” Devenpeck, 543
U.S. at 152, and is based on “the totality of the circumstances,”
District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018)
(citation omitted). Probable cause requires “more than bare
4 In Terry v. Ohio, the Supreme Court recognized a further
exception to the probable cause requirement for a brief investigative
detention if an officer “observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal
activity may be afoot[.]” 392 U.S. 1, 30 (1968). Such a detention
must be based on “‘reasonable suspicion’—that is, ‘a particularized
and objective basis for suspecting the particular person stopped’ of
breaking the law.” Heien v. North Carolina, 574 U.S. 54, 60 (2014)
(citation omitted). The parties debate whether the first time that Lin
was handcuffed was merely an investigatory detention under Terry
v. Ohio, or a full-blown arrest. We agree with the parties that we
need not resolve the issue because the officers had probable cause to
arrest Lin for simple assault when they first handcuffed her.
15
suspicion,” but “less than a preponderance of the evidence.”
United States v. Burnett, 827 F.3d 1108, 1114 (D.C. Cir. 2016).
What is required is a “substantial chance of criminal activity[.]”
Wesby, 138 S. Ct. at 586 (quoting Illinois v. Gates, 462 U.S.
213, 243–244 n.13 (1983)).
Determining whether probable cause existed is an
“objective inquiry” that asks “whether the officer acted on the
basis of ‘reasonably trustworthy information * * * sufficient to
warrant a prudent [person] in believing that the [suspect] had
committed or was committing an offense.’” Hall v. District of
Columbia, 867 F.3d 138, 154 (D.C. Cir. 2017) (citation
omitted).
We reverse the district court’s grant of summary judgment
on the false arrest claims for two reasons. First, there is a
genuine dispute of material fact as to whether probable cause
for the simple assault charge dissipated before Lin was
handcuffed a second time and taken involuntarily to the police
station. Second, there is a genuine issue of material fact as to
the existence of probable cause to arrest Lin for assaulting a
police officer.
1
We agree with the district court that the police officers had
probable cause to arrest Lin for simple assault at the time they
first handcuffed her.
District of Columbia law defines simple assault as: “(1)
an attempt, with force or violence, to injure another; (2) [with]
the apparent present ability to effect the injury; and (3) [with]
the intent to do the act, constituting the assault.” Stroman v.
United States, 878 A.2d 1241, 1244–1245 (D.C. 2005) (citation
omitted) (interpreting D.C. Code § 22-404(a)(1)).
16
At the time the police first handcuffed Lin, the officers had
received a call from Rodriguez claiming that she had been
assaulted. Pltf’s Stmn. of Material Facts, J.A. 877; D.C. Ex. 2
at 0:58–1:00. Rodriguez’s report was corroborated by her
physical appearance and emotional state when Officer Vullo
arrived on the scene. Gov’t Br. 2. He observed Rodriguez
standing outside the travel agency crying and with a cut on her
face. D.C. Ex. 2 at 1:08; Pltf’s Stmn. of Material Facts, J.A.
878; Gov’t Br. 2. Rodriguez reported that Lin had hit her “for
no reason” while she was saying goodbye to her boyfriend.
D.C. Ex. 2 at 1:12–1:13, 1:18; Pltf’s Stmn. of Material Facts,
J.A. 878. Rodriguez then pointed inside Focus Travel Agency
and identified Lin as her assailant. D.C. Ex. 2 at 1:25; Pltf’s
Stmn. of Material Facts, J.A. 878.
Officer Vullo’s initial interactions with Lin did not clear
the air. Certainly, Lin was compliant with his orders and was
also on the phone with the Police Department when he arrived.
Lin Opening Br. 4. But at that time, neither she nor her
colleague had provided any information to the officer
indicating that she was the true victim. D.C. Ex. 2 at 1:45–
2:02; see Lin. Opening Br. 4–5.
Those circumstances gave rise to probable cause. The
apparent victim of the offense, Rodriguez, had
“communicate[d] to the arresting officer information affording
credible ground for believing that the offense was committed”;
Rodriguez “unequivocally identifie[d] the accused as the
perpetrator”; and, at this preliminary stage in the investigation,
“materially impeaching circumstances [were] lacking.”
Pendergrast v. United States, 416 F.2d 776, 785 (D.C. Cir.
1969); id. at 784 (finding probable cause where a victim with a
“bloody face” described “salient details” about the incident,
17
identified the alleged assailant, and repeatedly asserted that he
was not mistaken as to the identification).
Given the information they had, Officers Vullo and
Johnson had probable cause to arrest Lin for simple assault
without first waiting to hear her full explanation. That is
because an “officer’s failure to investigate an arrestee’s
protestations of innocence generally does not vitiate probable
cause.” Amobi v. District of Columbia Dep’t of Corr., 755
F.3d 980, 990 (D.C. Cir. 2014) (quoting Panetta v. Crowley,
460 F.3d 388, 395–396 (2d Cir. 2006)). Instead, “[i]t is
enough” for probable cause “that the police officer * * *
received his information from some person—normally the
putative victim or an eye witness—who it seems reasonable to
believe is telling the truth.” Daniels v. United States, 393 F.2d
359, 361 (D.C. Cir. 1968) (per curiam). In other words,
because no cracks in the officers’ probable cause had yet
surfaced that would have warranted a more probing inquiry, the
officers had the authority to arrest and handcuff Lin at that very
early stage of the investigation.
2
The district court nevertheless erred in granting summary
judgment to the District on Lin’s wrongful arrest and common
law false arrest claims because there is a genuine dispute of
material fact over whether probable cause for the simple-
assault arrest had dissipated and required the police officers to
release Lin—all before a separate decision was made to arrest
her for resisting the police.
A corollary of the rule that probable cause requires a
“totality-of-the-circumstances analysis,” Hall, 867 F.3d at 154
(quoting Gates, 462 U.S. at 238), is that “new facts” can
“negate probable cause,” United States v. Spencer, 530 F.3d
181003, 1008 (D.C. Cir. 2008) (emphasis omitted). As a result,
a person “must be released from arrest[] if previously
established probable cause has dissipated.” United States v.
Lopez, 482 F.3d 1067, 1073 (9th Cir. 2007).5
The information that the police gathered after they initially
handcuffed Lin uniformly discredited Rodriguez and creates a
genuine issue of material fact as to whether there was probable
cause to keep Lin under arrest (or to re-arrest her after
unhandcuffing her, as Lin claims, Lin Opening Br. 18).
After Lin had been arrested and handcuffed, subsequent
investigation on the scene quickly disproved Rodriguez’s
version of events. To start, while Rodriguez had told Officer
Vullo that she went to the bus to say goodbye to her boyfriend,
security camera footage showed Rodriguez trying to steal onto
the bus after the doors had closed and the bus was ready to
5 See Karamanoglu v. Town of Yarmouth, 15 F.4th 82, 88 (1st
Cir. 2021); Barnett v. MacArthur, 956 F.3d 1291, 1297 (11th Cir.
2020) (“Just as ‘probable cause may cease to exist after a warrant is
issued,’ it may also dissipate after an officer makes a warrantless
arrest.”) (citation omitted); United States v. Brinkley, 980 F.3d 377,
387 (4th Cir. 2020); Hernandez v. Boles, 949 F.3d 251, 260 (6th Cir.
2020); Nicholson v. City of Los Angeles, 935 F.3d 685, 691 (9th Cir.
2019) (“It is well-established that a ‘person may not be arrested, or
must be released from arrest, if previously established probable cause
has dissipated.’”) (citation omitted); United States v. Dalton, 918
F.3d 1117, 1128 (10th Cir. 2019); BeVier v. Hucal, 806 F.2d 123,
128 (7th Cir. 1986) (“The continuation of even a lawful arrest
violates the Fourth Amendment when the police discover additional
facts dissipating their earlier probable cause.”); Bigford v. Taylor,
834 F.2d 1213, 1218 (5th Cir. 1988) (“As a corollary * * * of the rule
that the police may rely on the totality of facts available to them in
establishing probable cause, they also may not disregard facts
tending to dissipate probable cause.”).
19
depart. Gov’t Br. 2, 4; Pltf’s Stmn. of Material Facts, J.A.
882; D.C. Ex. 2 at 3:30–3:50, 17:45–18:49.
In addition, Rodriguez indicated that Lin had tried to pull
her off the bus while exclaiming that she had to “get out right
now” and that she would call the police, following which she
scratched Rodriguez’s face as Rodriguez was trying to
disembark. Gov’t Br. 2, 4; Pltf’s Stmn. of Material Facts, J.A.
882; D.C. Ex. 2 at 3:40–4:36. So in Rodriguez’s telling, there
was only one physical altercation during which she was
injured, and which ended in calls being made to the police.
But the only physical altercation the security footage shows is
Rodriguez delivering the first blow, and doing so on the
sidewalk after the bus had pulled away. Gov’t Br. 4. And
that was the assault that led both Lin and Rodriguez to call the
police.
To be clear, the record before us does not contain the full
security video footage, and what it contains is not crystalline.
But what the record does show is that the officers on the scene
saw the video footage firsthand and concluded that (1)
Rodriguez had attempted to sneak onto the bus twice, Lin
Opening Br. 3; Gov’t Br. 4; D.C. Ex. 2 at 17:45–18:49, and (2)
Rodriguez was the “primary aggressor,” D.C. Ex. 2 at 17:22–
17:26; Officer Merzig Deposition Tr. 31:2–31:8 (Aug. 31,
2018), J.A. 1125.
In addition to the security videos, body camera footage
records Officer Merzig’s description of events, stating that
Rodriguez “snuck on the bus, she had to be kicked off the bus
* * * [but] she got right off.” Lin Opening Br. 6; D.C. Ex. 2
at 18:45–18:56. Tellingly, Officer Merzig’s description of
interactions at the bus makes no mention of an assault taking
place on the bus itself. The only assault he discusses is when
Rodriguez “attack[ed]” Lin after the bus had departed, Gov’t
20
Br. 4; Lin Opening Br. 6; D.C. Ex. 2 at 18:32–18:35. Multiple
times, Officer Merzig described the assault as “start[ing]” with
Rodriguez’s attack after the bus left. D.C. Ex. 4 at 15:45–
15:50; 16:18–16:20; see also Officer Merzig Deposition Tr.
30:19–32:2, J.A. 1124–1126.
So taken together, the security videos and body camera
footage in the record seem to affirmatively disprove
Rodriguez’s claim that Lin assaulted her while trying to
remove her from the bus—a claim that had been the sole source
of the initial probable cause to arrest Lin.
After hearing Officer Merzig’s conclusions, Officer Vullo
specifically asked whether there were two separate events that
involved assaults or just one. Lin Opening Br. 6; D.C. Ex. 2
at 17:39–17:41. He examined the video and listened to
Officer Merzig’s descriptions with this question in mind, and
then concluded that they should “cut her loose”—that she
should not remain under arrest for simple assault—to which
Officer Merzig agreed. Officer Zhang Deposition Tr. 225:14–
225:19, J.A. 1521; Lin Opening Br. 6; D.C. Ex. 2 at 17:42–
18:45. Based on that decision, the officers immediately
removed Lin’s handcuffs. Pltf’s Stmn. of Material Facts, J.A.
882. As Officer Merzig testified, by this time, “from what I
viewed, and from what all the other officers had kind of
compiled in the investigation, we determined that [Lin] was the
victim” of the simple assault. Officer Merzig Deposition Tr.
33:5–33:9, J.A. 1127. While an officer’s subjective
knowledge is immaterial to the probable cause inquiry, the
officer’s conclusions shed light on the content of evidence that
they were able to view on scene. See Hall, 867 F.3d at 154.
In addition, having called a translator to the scene, Officer
Vullo was able to hear Lin’s side of the story. Lin Opening
Br. 5; Gov’t Br. 5; D.C. Ex. 2 at 7:48–8:06. Lin’s version
21
aligned fully with the events on the security video. Lin
reported that Rodriguez had tried to open the door of the bus,
and Lin tried to stop her. Lin Opening Br. 5; D.C. Ex. 2 at
8:08–8:19. After the bus had pulled away, Lin attempted to
photograph Rodriguez, after which Rodriguez assaulted her,
they tussled, and they then both called the police. Lin
Opening Br. 3; D.C. Ex. 2 at 8:20–8:33.
Finally, a witness to the interactions between Lin and
Rodriguez—Lin’s colleague—identified Rodriguez as the
initiator and perpetrator of the assault, pointing specifically to
video footage of their interactions after the bus left. D.C. Ex.
4 at 13:50–14:10. The colleague did not identify any violent
interaction occurring on the bus, further undermining
Rodriguez’s narrative. Pl. Ex. 1.
It apparently was not until Officer Vullo reached the police
station later that evening that he first came to the view that there
was probable cause to believe that there were two separate
assaults, one in which Lin scratched Rodriguez’s face on the
bus and a second when Rodriguez attacked Lin. J.A. 453–
454, 517, 541–542.
Considering the totality of the circumstances and the lack
of clarity in the record as to what the police officers were able
to see on the security video, there is a genuine issue of material
fact as to whether probable cause for the simple assault charge
had dissipated before the police handcuffed Lin for a second
time and involuntarily transported her to the police station.
That is critical because, if probable cause for the simple assault
of Rodriguez no longer existed, then the District had to
establish probable cause that Lin had assaulted a police officer
to be entitled to summary judgment.
22
3
We agree with the district court and Lin that, taking the
evidence in the light most favorable to Lin, a jury could find
that Sergeant Ritchie lacked probable cause to charge Lin for
assaulting a police officer, thereby precluding summary
judgment. Recall that probable cause exists when an officer
acts based on “reasonably trustworthy information * * *
sufficient to warrant a prudent [person] in believing that the
[suspect] had committed or was committing an offense.”
Hall, 867 F.3d at 154 (citation omitted).
At the time of the arrest, the District of Columbia statute
prohibiting the assault of a member of the police force provided
that “[w]hoever without justifiable and excusable cause,
assaults, resists, opposes, impedes, intimidates, or interferes
with a law enforcement officer on account of, or while that law
enforcement officer is engaged in the performance of his or her
official duties shall be guilty of a misdemeanor[.]”. D.C.
Code § 22-405(b) (2013).
Despite that broad wording, District of Columbia law does
“not criminalize every refusal to submit to a police officer or
every prevention or hindrance of an officer in his duties.”
Ruffin v. United States, 76 A.3d 845, 850 (D.C. 2013) (citation
omitted). “To constitute resisting a police officer, a person’s
conduct must go beyond speech and mere passive resistance or
avoidance, and cross the line into active confrontation,
obstruction or other action directed against an officer’s
performance in the line of duty by actively interposing some
obstacle that precluded the officer from questioning him or
attempting to arrest him.” Id. (internal quotation marks and
citation omitted). “[T]he key to establishing any violation of”
the statute is the existence of “active and oppositional” conduct
undertaken “for the purpose of thwarting a police officer in his
or her duties.” Id. (citation omitted).
23
Whether Lin’s reaction to Officer Johnson’s effort to arrest
her amounted to active and oppositional resistance under
Section 22-405(b) is a genuinely disputed material fact.
Viewing the evidence in the light most favorable to Lin, a
reasonable jury could conclude that Sergeant Ritchie could not
reasonably believe that her actions indicated anything other
than passivity, reaction to pain, confusion due to the language
barrier, and non-resistance to the police officer’s use of
physical force in conducting the arrest.
Shortly after entering the travel agency, Officer Johnson
twisted Lin’s arm behind her back and used that position to
force her to sit on a bench of chairs. D.C. Ex. 2 at 2:15–2:18;
Lin Opening Br. 4–5. Lin exclaimed what sounds like:
“Excuse, me! Excuse me!” Lin Deposition Tr. 44:20–45:7,
J.A. 1221–1222; D.C. Ex. 2 at 2:16–2:18. She then sat calmly
on the chair. Lin Opening Br. 5; D.C. Ex. 2 at 2:20–2:23.
Although Lin remained seated and quiescent, Officer
Johnson suddenly yanked her across the room and pushed her
up against the wall. Lin Opening Br. 5; Pltf’s Stmn. of
Material Facts, J.A. 880. Lin alleges that she felt a great deal
of pain as Officers Johnson and Vullo pressed her into the wall.
Lin Deposition Tr. 44:20–45:17, J.A. 1221–1222. Still, the
video footage indicates that Lin stood motionless and passive.
Lin Opening Br. 5; D.C. Ex. 2 at 2:23–2:29. One of the
officers said “stand up” even though Lin, who is only 5 feet 3
inches, was already standing up. Gov’t Br. 3; D.C. Ex. 2 at
2:25; J.A. 997.
The officers then pulled Lin’s hands behind her back.
Pltf’s Stmn. of Material Facts, J.A. 880–881. On the video
footage, she remained passive and cooperative, but began
crying out. Pltf’s Stmn. of Material Facts, J.A. 881; Lin
Opening Br. 5. Lin testified that the force used on her arm
24
made her feel so much pain that she started wailing. Lin
Deposition Tr. 45:15–45:17, J.A. 1222; see also Lin Ex. 4, J.A.
1002–1003. The video audio captures an audible thump as the
four officers forced Lin to the ground. D.C. Ex. 2 at 2:30–
2:32. She screamed in pain on the way down. Lin Opening
Br. 5; Pltf’s Stmn. of Material Facts, J.A. 881; D.C. Ex. 2 at
2:30–2:34. As they handcuffed her, pulling her arms behind
her and twisting her shoulders, she continued to cry out in pain.
D.C. Ex. 2 at 2:34–3:04; Lin Opening Br. 5; Pltf’s Stmn. of
Material Facts, J.A. 880–881.
Not long after the arrest, when Sergeant Ritchie arrived at
the scene, Officer Johnson reported that Lin was only
“passively” resisting. D.C. Ex. 4 at 20:05–20:08; Officer
Johnson Deposition Tr. 70:12–70:13 (July 30, 2018), J.A. 352
(“I said that she wasn’t actively, but she was passively
resisting.”). That meant to him that “[s]he wasn’t doing
motions that would not allow herself to be handcuffed. She
was essentially tensing up and not allowing her[self] to be
handcuffed.” Officer Johnson Deposition Tr. 71:10–71:12,
J.A. 353. The video footage is insufficient to resolve the
question of whether Sergeant Ritchie had probable cause
because it is unclear whether Lin was actively obstructing
arrest or reflexively moving her arms in reaction to both the
force of multiple police officers combined against her and the
resulting pain.
In that regard, we view the record differently from the
dissenting opinion. For example, the dissenting opinion
emphasizes that Sergeant Ritchie heard the officers on the
video instruct Lin to “stop resisting.” Dissent Op. at 2. The
problem is that the officers’ narration does not always align
with the events that transpired. Just a few seconds before the
officers instructed Lin to stop resisting, they instructed her to
stand even though she was already standing. Gov’t Br. 3; D.C.
25
Ex. 2 at 2:25. Further, the dissenting opinion points to reports
that Lin was pulling and flailing, Dissent Op. at 2–3; Gov’t Br.
5, but those same officers provided clarifying reports of the
same events that contradict those characterizations. See, e.g.,
D.C. Ex. 4 at 20:05–20:08; Officer Johnson Deposition Tr.
70:7–71:18, J.A. 352–353 (Officer Johnson reporting that Lin
was only “passively” resisting); D.C. Ex. 4 at 19:56–20:02;
Officer Johnson Deposition Tr. 71:3, J.A. 353 (“[Lin] wasn’t
flailing.”). While the dissenting opinion reasons that the
footage could be understood to show “active and oppositional
conduct,” Dissent Op. at 3, Officer Johnson, who was there,
said explicitly that Lin was only “passively resisting” and that
“[s]he wasn’t doing motions that would not allow herself to be
handcuffed.” Officer Johnson Deposition Tr. 70:12–70:13,
J.A. 352; Officer Johnson Deposition Tr. 71:10–71:12, J.A.
353.
All we hold is that, given these factual disputes and
contradictions, a reasonable jury crediting Lin’s and some of
the officers’ accounts, as well as other record evidence, could
find that Lin’s movements were merely passive resistance and
that probable cause was lacking. Ruffin, 76 A.3d at 850.
Accordingly, given the entire record, the district court correctly
ruled that there is a genuine issue of material fact as to whether
there was probable cause to arrest Lin for assaulting a police
officer.
4
Because there are genuine issues of material fact as to the
existence of probable cause to arrest Lin in February 2016, the
district court erred in granting the District’s motion for
summary judgment on Lin’s Section 1983 claim for wrongful
arrest, as well as her common law claim for false arrest. See
Amobi, 755 F.3d at 989 (“Constitutional and common law
26
claims of false arrest are generally analyzed as though they
comprise a single cause of action.”).
The existence of genuine issues of material fact as to
whether Lin was falsely arrested also requires us to remand
Lin’s respondeat superior claim under District of Columbia
law. The District does not dispute that its officers were acting
within the scope of their employment at the time of the arrest.
See Schecter v. Merchants Home Delivery, Inc., 892 A.2d 415,
427 (D.C. 2006) (“Respondeat superior is a doctrine of
vicarious liability and allows the employer to be held liable for
the acts of his employees committed within the scope of their
employment.”) (citation omitted).
We therefore remand these claims to the district court for
further proceedings.6
C
1
We affirm the district court’s grant of summary judgment
on Lin’s negligent supervision claim. A negligent supervision
claim lies when “an employer knew or should have known its
employee behaved in a[n] * * * incompetent manner,” and the
employer, “armed with * * * actual or constructive knowledge,
failed to adequately supervise the employee.” Jenkins v.
District of Columbia, 223 A.3d 884, 898 (D.C. 2020) (citation
omitted). Lin argues that Sergeant Ritchie failed to conduct
an adequate investigation before authorizing her arrest. For
6 On remand, the district court should first consider whether the
officers are entitled to qualified immunity or any other relevant
privilege from suit they might assert. Because qualified immunity
“is an immunity from suit rather than a mere defense to liability,”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), we are confident the
district court will resolve this issue expeditiously.
27
this claim, she relies on District of Columbia v. Tulin, 994 A.2d
788 (D.C. 2010), which held that a jury could find negligent
supervision when sergeants authorized an arrest “without any
inquiry on their part into * * * critical information[.]” Id. at
797. But here, undisputed evidence shows that Sergeant
Ritchie (1) spoke to the officer who was translating for Lin, (2)
spoke to the officers who arrested Lin, and (3) reviewed
footage of the altercation with Rodriguez and the arrest to
determine if she had assaulted Rodriguez or assaulted a police
officer. That investigation was sufficiently thorough to
preclude Lin’s negligent supervision claim.7
2
As for Lin’s negligent training claim, we affirm the grant
of summary judgment to the District. To state a claim of
negligent training under District of Columbia law, the plaintiff
must show that the employer both “knew or should have known
its employee behaved in a dangerous or otherwise incompetent
manner,” and “armed with that actual or constructive
knowledge failed to adequately [train]” its employees to
prevent recurrence of the misconduct. Blair v. District of
Columbia, 190 A.3d 212, 229 (D.C. 2018) (citation omitted).
Lin has not made that showing. In particular, she has not
come forward with evidence that would allow a reasonable jury
to find that the District of Columbia was aware of an alleged
constitutional shortfall in its officers’ behavior because, on this
record, her case appears to be an isolated incident. At most,
she points to one other incident that occurred before February
2016 that involved an arrest allegedly executed without
probable cause. See Lin Opening Br. 41 (citing J.A. 535–539,
601–602, 1399–1400 and Zhi Chen v. District of Columbia,
7 Lin failed to raise, and so forfeited, any other theory of
negligent supervision.
28
808 F. Supp. 2d 252 (D.D.C. 2011)). But Zhi Chen is of no
help because, in that case, the district court did not even decide
whether probable cause to arrest existed; it certainly made no
finding that probable cause was absent. 808 F. Supp. 2d at
255, 258. Nor do the facts as alleged in that case necessarily
demonstrate a lack of probable cause. Id. at 255. A single
case that does not even establish that an improper arrest
actually occurred hardly gives the District of Columbia notice
of a shortfall in its training processes. Without more evidence
than that, the district court correctly ruled that Lin’s negligent
training claim could not go forward.
D
Lin challenges the district court’s grant of summary
judgment to the District on her claim that the police used
excessive force during her February 2016 arrest, in violation of
the Fourth Amendment. That argument fails.
To determine if an officer has used excessive force,
“courts ask whether the officers’ actions are objectively
reasonable in light of the facts and circumstances confronting
them.” Lombardo v. City of St. Louis, 141 S. Ct. 2239, 2241
(2021) (per curiam) (internal quotation marks and citation
omitted). Relevant factors include “the relationship between
the need for the use of force and the amount of force used; the
extent of the plaintiff’s injury; any effort made by the officer to
temper or to limit the amount of force; the severity of the
security problem at issue; the threat reasonably perceived by
the officer; and whether the plaintiff was actively resisting.”
Id. (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397
(2015)).
Taking the evidence in the light most favorable to Lin, we
assume that she was not “offering any resistance” as the police
29
handcuffed her. Wasserman v. Rodacker, 557 F.3d 635, 641
(D.C. Cir. 2009). Given that, alongside her calm interaction
with Officer Vullo when he initially entered the travel agency
and questioned her, the need for force was very low. Lin Br.
4. So those facts weigh in Lin’s favor.
But other facts and circumstances render the use of force
reasonable under the circumstances. The severity of the
security problem was elevated in part because the officers had
probable cause to believe that Lin had just physically assaulted
Rodriguez, leaving a scratch on her face. Also, Lin’s physical
injuries from the handcuffing were not severe. When Lin was
taken to the hospital, she was given painkillers, but no specific
physical injuries other than bruising were diagnosed, and she
received no other treatment. Lin Deposition Tr. 49:2–49:5,
49:19–50:8, J.A. 1226–1227; Lin Deposition Tr. 78:11–79:1,
J.A. 1255–1256.
In addition, law enforcement officers may use “some
degree of physical coercion” or threat thereof in making an
arrest. Wasserman, 557 F.3d at 641 (holding that even though
plaintiff “was not moving or offering any resistance” after the
officer initiated arrest, the officer was authorized to use “some
degree of physical coercion when arresting [the] suspect”)
(internal quotation marks and citation omitted). “[N]ot every
push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers, violates the Fourth Amendment.”
Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993)
(formatting modified and citation omitted).
Given the record in this case, a reasonable jury could not
find that the officers used excessive force in arresting Lin.
Because we affirm the district court’s determination that
Lin failed to make out an excessive force claim, we also affirm
30
the grant of summary judgment on Lin’s assault and battery
claim. “If the officer does not use force beyond that which the
officer reasonably believes is necessary, given the conditions
apparent to the officer at the time of the arrest, he is clothed
with privilege” from tort claims that similarly challenge the
force used. District of Columbia v. Chinn, 839 A.2d 701, 706
(D.C. 2003); see Holder v. District of Columbia, 700 A.2d 738,
745 (D.C. 1997) (A jury finding that the officer “did not use
excessive force” meant that “the District [was] entitled to
judgment as a matter of law on the assault and battery count.”).
In addition, we affirm the district court’s grant of summary
judgment on Lin’s negligent infliction of emotional distress
claim stemming from her first handcuffing. There was no
negligence because the officers had probable cause at the time
of her first handcuffing and did not use unreasonable force.
See Gabrou v. May Dep’t Stores Co., 462 A.2d 1102, 1105
(D.C. 1983).
E
1
Lin also appeals the district court’s grant of summary
judgment on her claim that the officers discriminated against
her on the basis of her race, color, or national origin, in
violation of Title VI of the Civil Rights Act of 1964. See 42
U.S.C. § 2000d.
Title VI provides that “[n]o person in the United States
shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity
receiving Federal financial assistance.” 42 U.S.C. § 2000d.
Title VI “prohibits only intentional discrimination.”
Alexander v. Sandoval, 532 U.S. 275, 280 (2001).
31
In Lin’s view, she was treated differently than Rodriguez
and Fanning because she was not given the same opportunity
as they were to tell her side of the story to the police before
arrest. See Lin Opening Br. 48.
While Lin’s frustration with the consequences of the
language barrier is understandable, she has failed to carry her
burden of adducing evidence of intentional discrimination.
To start, Lin does not claim that she has produced direct
evidence of intentional discrimination during her February or
April arrests. See Lin Opening Br. 45.
So we turn to the McDonnell Douglas framework for
considering claims of intentional discrimination based on
indirect evidence. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–805 (1973); see also Texas Dep’t of
Community Affs. v. Burdine, 450 U.S. 248, 253 (1981);
Richardson v. Loyola Coll. in Md., Inc., 167 F. App’x 223, 224
(D.C. Cir. 2005) (per curiam) (“The district court properly
granted summary judgment on [plaintiff’s] Title VI * * *
claims, since he neither offered direct evidence of
discrimination nor met his initial burden under the McDonnell
Douglas framework.”).8
Under the McDonnell Douglas framework, Lin has the
burden of “proving by the preponderance of the evidence a
8 See also Rashdan v. Geissberger, 764 F.3d 1179, 1182 (9th
Cir. 2014) (“We now join the other circuits in concluding that
McDonnell Douglas also applies to Title VI disparate treatment
claims.”); Brewer v. Board of Trustees of Univ. of Ill., 479 F.3d 908,
921 (7th Cir. 2007); Bryant v. Independent Sch. Dist. No. I–38., 334
F.3d 928, 929–930 (10th Cir. 2003); Fuller v. Rayburn, 161 F.3d
516, 518 (8th Cir. 1998).
32
prima facie case of discrimination.” Burdine, 450 U.S. at252–253. Then the burden shifts to the District “to articulate
some legitimate, nondiscriminatory reason” for the disparate
treatment. Id. at 253 (citation omitted). The burden then
reverts to Lin to show that “the legitimate reasons offered by
the defendant were not its true reasons, but were instead a
pretext for discrimination.” Id.Assuming that Lin made out a prima facie case of
discrimination, the District came forward with evidence of a
legitimate, nondiscriminatory reason for its different treatment
of Lin, Rodriguez, and Fanning. Specifically, in both
incidents, the police officers had probable cause to arrest Lin
when they first arrived on the scene. When Officers Vullo and
Johnson first arrived at Focus Travel Agency, they initially had
probable cause to arrest Lin but not Rodriguez. See Section
III.B.1, supra.9 Likewise, during the April arrest, the police
had probable cause to arrest Lin but not Fanning because, in
speaking with the police, Fanning described the attack with
some detail, provided evidence of his torn jacket, and
positively identified Lin as the perpetrator. Lin I, 2020 WL
3542253 at *10. Lin has not come forward with any evidence
that the officers’ conduct was merely pretext for
discrimination.
2
Lin’s discrimination claim under the District’s Human
Rights Act fares no better.
9 Only the first handcuffing is at issue for this claim, because
shortly thereafter, a translator arrived and was able to gather Lin’s
side of the story.
33
The Human Rights Act generally makes it unlawful for a
District of Columbia agency or office “to limit or refuse to
provide any facility, service, program, or benefit to any
individual on the basis of,” among other things, “an
individual’s actual or perceived: race, color, religion, [or]
national origin * * *.” D.C. Code § 2-1402.73. Intentional
discrimination claims under the D.C. Human Rights Act are
analyzed under the same McDonnell Douglas test applied to
Lin’s Title VI claim. Esteños v. PAHO/WHO Fed. Credit
Union, 952 A.2d 878, 895 n.20 (D.C. 2008); McFarland v.
George Wash. Univ., 935 A.2d 337, 346 (D.C. 2007). And her
claim fails for the same reasons.
To be sure, the District’s Human Rights Act is broader
than Title VI because even non-intentional discrimination is
unlawful if the agency’s practices “bear disproportionately on
a protected class and are not independently justified for some
nondiscriminatory reason[.]” Jackson v. District of Columbia
Board of Elections & Ethics, 999 A.2d 89, 119 n.56 (D.C.
2010) (en banc) (quoting Esteños, 952 A.2d at 887). But that
is of no help to Lin because the police officers’ actions were
“independently justified” by a nondiscriminatory reason—
namely, the initial existence of probable cause to arrest Lin but
not Rodriguez or Fanning. Id. Consequently, the district
court properly granted summary judgment for the District on
Lin’s Human Rights Act claim.
IV
For the foregoing reasons, we affirm in part, reverse in
part, and remand to the district court for further proceedings on
Lin’s wrongful arrest, common law false arrest, and respondeat
superior claims.
So ordered.
WALKER, Circuit Judge, concurring in part and dissenting
in part: Xingru Lin and Yokasty Rodriguez had a fight, and
both called the District of Columbia police. Officers arrived
and arrested Lin. Then a supervising officer named Sergeant
Christopher Ritchie arrived. He talked with the arresting
officers, watched video footage of the arrest, and determined
that there was probable cause to charge Lin with Assault on a
Police Officer. That charge was ultimately dropped, as was the
charge for assaulting Rodriguez.
Lin then sued D.C., Sergeant Ritchie, and several other
officers. Her claims included § 1983 wrongful arrest, common
law false arrest, and respondeat superior. 1 Sergeant Ritchie and
the other defendants moved for summary judgment, but the
district court found a genuine factual dispute about whether
Sergeant Ritchie had probable cause to charge Lin with Assault
on a Police Officer. For other reasons, though, the district court
granted them summary judgment on all of Lin’s claims.
Today, the Court’s decision to partially reverse the district
court’s decision depends on whether a reasonable jury could
find that Sergeant Ritchie lacked probable cause to arrest Lin
for Assault on a Police Officer. It could not.
Although Assault on a Police Officer was not called
“Resisting Arrest” in February 2016, you wouldn’t have known
it from the definition: Lin assaulted a police officer if she
“resist[ed]” an arresting officer “without justifiable and
excusable cause.” 2 D.C. Code § 22-405(b) (2013).
1
Lin brought other claims as well. I agree with the Court’s decision
to affirm the district court’s dismissal of those claims.
2
In June 2016, the Council of the District of Columbia modified the
provision by removing “resists, opposes, impedes, intimidates, or
interferes with” from D.C. Code § 22-405(b). See 63 D.C. Reg.
4659, 4666 (Apr. 1, 2016). It instead criminalized Resisting Arrest
under D.C. Code § 22-405.01(b). See id.2
That was a low bar. For example, a person would have
committed Assault on a Police Officer when he “la[id] down
with his arms under his body,” making it harder to handcuff
him. Coghill v. United States, 982 A.2d 802, 805, 808 (D.C.
2009). 3 Another person was convicted because he broke away
from arresting officers “by swinging his arm forward, making
it difficult for the officers to handcuff him.” In re J.S., 19 A.3d
328, 329, 331-32 (D.C. 2011) (cleaned up). True, “speech and
mere passive resistance or avoidance” did not violate the
statute. Ruffin v. United States, 76 A.3d 845, 850 (D.C. 2013)
(cleaned up). But any “obstruction or other action directed
against an officer’s performance in the line of duty” sufficed.
Id. (cleaned up).
The standard for probable cause is a similarly low bar — it
merely requires “a reasonable ground for belief of guilt.”
Maryland v. Pringle, 540 U.S. 366, 371 (2003) (cleaned up).
So finding probable cause for Assault on a Police Office was a
low bar beneath another low bar.
Sergeant Ritchie’s decision cleared that doubly low bar. In
the 60 seconds that it took the officers to handcuff Lin, they
went from the wall, to a bank of chairs several feet away, back
to the wall, and finally to the floor. During that time, the
arresting officers repeatedly asked Lin to “stop resisting,” and
one complained that “she keeps putting her hands in her
freaking coat.” JA 270-71, Ex. 2, 2:41, 2:56, 3:01; see also
Gov’t Br. 30. When Sergeant Ritchie asked the arresting
officers if Lin had resisted or fought her arrest, one officer
3
Although the court found the jury could have convicted the
defendant of Assault on a Police Officer for his resistance to being
handcuffed, it reversed his conviction on other grounds. Id. at 806-
09.
3
replied, “Yeah, she was pulling, yanking, flailing.” JA 270-71,
Ex. 2, 21:44-21:55; see also Gov’t Br. 31. Another officer who
had reviewed the video footage told Sergeant Ritchie that Lin
had been “pulling away.” JA 274-75, Ex. 4, 26:29; see also
Gov’t Br. 31. Sergeant Ritchie then watched the footage
himself, and although some details are obscured by the backs
of various people, what is visible could quite reasonably be
understood as “active and oppositional conduct” by Lin “for
the purpose of thwarting” the officers’ attempt to arrest her.
Ruffin, 76 A.3d at 850 (cleaned up). Those facts are more than
enough to provide “a reasonable ground for belief” that Lin
resisted the officers’ attempt to arrest her. Pringle, 540 U.S. at
371 (cleaned up).
To be sure, Lin may not have been guilty of Assault on a
Police Officer. If she had been prosecuted, a jury might have
found reasonable doubt as to whether her resistance was
“without justifiable and excusable cause.” D.C. Code § 22-
405(b) (2013). Lin may just have been in pain. JA 1221-22.
One arresting officer said she was only “tensing up” and
“passively resisting.” JA 352:13, 353:12. And the arresting
officer who described her “pulling, yanking, flailing”
nevertheless said, “I don’t feel like I got APO’d” (Assault on a
Police Officer-ed). JA 270-71, Ex. 2, 22:03; see also Lin
Opening Br. 6; Gov’t Br. 31; cf. Maj. Op. 20 (“an officer’s
subjective knowledge is immaterial to the probable cause
inquiry”).
But a reasonable ground for belief that Lin resisted the
arrest is a much lower standard than proof beyond a reasonable
doubt that she did. After Sergeant Ritchie heard from the other
officers and watched the video, he had a reasonable ground for
that belief. In my view, no reasonable jury could find
otherwise. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
4
I therefore respectfully dissent from the Court’s decision
to reverse the district court as to Lin’s claims for § 1983
wrongful arrest, common law false arrest, and respondeat
superior. As to the Court’s decision to affirm the district
court’s grant of summary judgment to the defendants on Lin’s
other claims, I concur.