Dorsey v. District of Columbia ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
NIKA DORSEY, et al., )
)
Plaintiffs, )
)
v. ) Case No. 15-cv-1462 (RMC)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
____________________________________ )
MEMORANDUM AND OPINION
On the evening of June 7, 2013, officers of the Washington, D.C. Metropolitan
Police Department (MPD) executed a search warrant at 4701 Alabama Avenue S.W., Apartment
31. Without announcing their presence, the officers breached the door of the apartment and then
handcuffed and detained most of its occupants: a husband and wife, a sixteen-year-old boy, and
a grandmother. Only a three-year-old was left without handcuffs but frightened and in tears; the
officers refused to remove the mother’s handcuffs so that she could comfort him. The search
was aimed at recovering several Burberry purses stolen from a Virginia store, but no purses were
located. The officer who obtained the warrant had sworn that he was likely to find evidence of
the crime at the home because it was an address at which the get-away car was registered and the
car’s primary driver was reported to live; based on his “training and experience,” the officer also
sought to search for and seize all electronic devices.
Nika Dorsey and her two children, occupants of Apt. 31 on June 7, sue for alleged
violations of their constitutional rights under the Fourth and Fifth Amendments. Defendants are:
(1) William Dempster, the MPD officer who swore out the affidavit for the search warrant; (2)
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the MPD officers who, in addition to Officer Dempster, executed the search warrant (“Defendant
Officers” 1); and (3) the District of Columbia. See 2d Am. Compl. [Dkt. 24] ¶¶ 16–18. Plaintiffs
assert that Officer Dempster relied on his “training and experience” to obtain the warrant despite
knowing that D.C. warrants based on “training and experience,” without specific facts, rarely
find what is sought. Plaintiffs also claim that the officers who executed the search warrant acted
in an unconstitutional manner, breaching the door without announcing their presence, using
unreasonable force in their search, and overstepping the scope of the warrant. They allege that
these constitutional violations occurred as a result of a pattern and practice of faulty training by
the District of Columbia.
All Defendants have moved to dismiss except William Dempster, who has left
MPD and has not been served. 2 See Def. District of Columbia’s Mot. to Dismiss Pls.’ 2d Am.
Compl. [Dkt. 27] (DC MTD); Def. Officers’ Partial Mot. to Dismiss Counts I, II and V of Pls.’
2d Amended Compl. [Dkt. 28] (Officers’ MTD). 3 The Court will grant the Motions to Dismiss
in part and deny them in part.
I. Background
On June 3, 2013, two people stole nine Burberry purses from a Leesburg, Virginia
outlet store and fled in a dark BMW with the license plate EE0674. Two days later, MPD
1
Specifically, the Defendant Officers are: Michael Pulliam; Johnathan Lauderdale; Gregory
Shiffer; Emma B. Deoleo; Brock Virgil; Anthony T. Campanale III; Nicholas Smith; Christopher
Eckhert; and Robert Ranck.
2
Over 90 days have passed since Plaintiffs filed their Second Amended Complaint on June 10,
2016. To date, the Court has no record that Officer Dempster has been served with the
complaint. Accordingly, the Court will issue an order simultaneously with this Opinion
addressing the lack of service.
3
Of course, Defendant Officers did not file a “partial motion.” To the contrary, theirs is a
complete motion to dismiss in part.
2
officers spotted the same dark BMW in Northeast DC, when they attempted a traffic stop and the
car sped away. Notified of this occurrence, Officer William Dempster, a specialist in auto theft,
ran the plates, and learned that title to the BMW was held by two people, one of whom was
Francis Taylor. Mr. Taylor carried the insurance on the car and was identified as its primary
driver. His driver’s license indicated that he lived at 4701 Alabama Ave. S.W., Apt. 31.
Several unnamed sources confirmed to Officer Dempster that Mr. Taylor’s
current address was Apt. 31, 4701 Alabama Ave. S.W. Armed with these pieces of information,
Officer Dempster prepared an affidavit and applied for a search warrant to authorize MPD to
search the apartment. While he had no direct information that evidence of the theft would be
found in Apt. 31, Officer Dempster swore that his “training and experience” led him to conclude
that thieves typically stash stolen items in their homes until they can sell them safely. 2d Am.
Compl. Ex. 1 (Affidavit for Search Warrant) (Affidavit) at 1. The Affidavit also contained
boilerplate paragraphs to the effect that thieves typically take photos of themselves with their
stolen goods and otherwise document their activities using cell phones and personal computers;
thus, Officer Dempster sought authorization to seize all personal electronic devices and
computers located during the search of Apt. 31. Id. A judicial officer of the District of
Columbia Superior Court issued the requested search warrant (Warrant). Id. at 5.
Plaintiffs allege that Francis Taylor did not reside at Apt. 31, 4701 Alabama Ave.,
S.W., at the time of the search and that he had not hidden any Burberry purses there. When the
Warrant was executed, the only occupants of the apartment were Mr. Taylor’s cousin, Nika
Dorsey, her husband, mother, and her two youngest children, 16-year-old Jonte Watts and three-
year old J.C. Plaintiffs assert that none of these persons had any connection to, or knowledge of,
the crime. Without knocking or announcing their presence, the MPD officers breached the
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apartment’s door, trained weapons on the family inside, detained them, and handcuffed everyone
except three-year-old J.C., who was terrified and screamed and cried. The officers refused to
release Ms. Dorsey from handcuffs at any time during the search so that she could comfort J.C.
As part of their search, the officers confiscated all cell phones and a laptop computer. After two
hours of searching, the officers left without any purses.
Plaintiffs cite statistics that indicate that a large majority of D.C. warrants that
rely on “training and experience” to establish probable cause find no evidence at the residence
searched; thus, they contend, the unsuccessful outcome of this particular search was both typical
and totally predictable. Given the widespread use of such allegedly-flawed affidavits, Plaintiffs
contend that D.C. has a pattern and practice of insufficient training of MPD officers that
frequently results in constitutional violations of the City’s residents. Accordingly, Plaintiffs sue
Officer Dempster, the Defendant Officers, and the District of Columbia.
II. Legal Standards
The Complaint advances five separate “Claims:” (1) that the Affidavit was so
lacking in probable cause that no reasonable officer could have relied on it; (2) that the Affidavit
contained statements that were knowingly and recklessly false and omitted material information;
(3) that the false and reckless statements and omissions in the Affidavit robbed the Warrant of
probable cause and were the result of a pattern and practice by MPD; (4) that the Officers
violated Plaintiffs’ constitutional rights when they failed to knock and announce their presence
before entering the apartment; and (5) that the Officers violated Plaintiffs’ constitutional rights
when they exceeded the scope of the Warrant, used excessive force, and made unnecessary and
unreasonable seizures not authorized by the Warrant. See 2d Am. Compl. at 19–22.
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The Defendant Officers move to dismiss, asserting that they are entitled to
qualified immunity for their good faith reliance on what they believed was a valid warrant
properly executed. See Officer’s MTD at 1. The District of Columbia also moves to dismiss,
arguing that Plaintiffs have fail to state any constitutional violations and therefore cannot sue
D.C. See DC MTD at 1.
A. Motion to Dismiss
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).
To survive a motion to dismiss, a complaint must contain sufficient factual information, accepted
as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A court must
assume the truth of all well-pleaded factual allegations and construe reasonable inferences from
those allegations in favor of the plaintiff. Sissel v. Dep’t of Health & Human Servs., 760 F.3d 1,
4 (D.C. Cir. 2014). A court need not accept inferences drawn by a plaintiff if such inferences are
not supported by the facts set out in the complaint. Kowal v. MCI Commc’ns Corp., 16 F.3d
1271, 1276 (D.C. Cir. 1994). Further, a court does not need to accept as true legal conclusions
set forth in a complaint. Iqbal, 556 U.S. at 678. In deciding a motion under Rule 12(b)(6), a
court may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits or incorporated by reference, and matters about which the court may take judicial notice.
Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
B. Qualified Immunity
In assessing whether Plaintiffs have pleaded sufficient factual information to state
a plausible claim for relief, the Court must additionally consider whether the Defendant Officers
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are entitled to qualified immunity for their alleged actions. “Although government officials may
be sued in their individual capacities for damages . . . qualified immunity protects officials from
liability ‘insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Atherton v. D.C. Office of Mayor, 567
F.3d 672, 689 (D.C. Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818–19 (1982)).
“When determining whether a right was ‘clearly established,’ ‘the contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing violates that
right.’” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “The relevant,
dispositive inquiry in determining whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”
Saucier v. Katz, 533 U.S. 194, 202 (2001). It is the Plaintiffs’ “burden to show that the particular
right in question—narrowly described to fit the factual pattern confronting the officers—was
clearly established.” Dukore v. District of Columbia, 799 F.3d 1137, 1145 (D.C. Cir. 2015).
C. Monell Liability
If Plaintiffs have adequately pled a violation of their constitutional rights (whether
or not the Defendant Officers are entitled to qualified immunity), they can only sue the District
of Columbia if they can further show that a custom or policy of the District caused the violation.
“[W]hen execution of a government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy, inflicts the injury” then
“the government as an entity is responsible.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436
U.S. 658, 694 (1978). “[I]n considering whether a plaintiff has stated a claim for municipal
liability, the district court must conduct a two-step inquiry. First, the court must determine
whether the complaint states a claim for a predicate constitutional violation. Second, if so, then
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the court must determine whether the complaint states a claim that a custom or policy of the
municipality caused the violation.” Zaker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.
Cir. 2003) (citing Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992)); see also Monell,
436 U.S. at 694.
III. Analysis
The Court will proceed chronologically through Plaintiffs’ Claims, beginning
with the Affidavit and then addressing its execution. Finally, the Court will assess the Monell
claim against the District.
A. Claim 2: The Affidavit
Claim 2 is directed against Officer Dempster and alleges that his reliance on
“training and experience” to assert that he was likely to find evidence of the purse theft in Apt.
31, 4701 Alabama Ave., S.W., violated the Fourth Amendment in two ways: (1) it was
knowingly and recklessly false and misleading; and (2) it omitted known material facts, i.e.,
Officer Demptster’s knowledge of another residence occupied by Mr. Taylor and the statistical
failures of such general warrants, that, if presented, would have undermined a finding of
probable cause. 2d Am. Compl. ¶ 75. Officer Dempster has not been served. The Court
summarizes the applicable law and allegations in Claim 2 only for the purpose of assessing
below whether Plaintiffs have sufficiently plead a cause of action against the District.
The Supreme Court has stated that “[w]hen the Fourth Amendment demands a
factual showing sufficient to comprise ‘probable cause,’ the obvious assumption is that there will
be a truthful showing.” Franks v. Delaware, 438 U.S. 154, 164 (1978). The information “is to
be ‘truthful’ in the sense that the information put forth is believed or appropriately accepted by
the affiant as true.” Id. at 165. The Fourth Amendment is therefore violated when “a false
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statement knowingly and intentionally, or with reckless disregard for the truth, was included by
the affiant, if the allegedly false statement is necessary to the finding of probable cause.” Id. at
155–56. The question presented here is whether Plaintiffs have adequately pleaded that Officer
Dempster knowingly or recklessly included false information or failed to include necessary
information.
That the Affidavit did not rely on more particularized evidence is not itself
dispositive that a constitutional violation occurred. The United States Court of Appeals for the
District of Columbia Circuit (hereinafter the D.C. Circuit) has held that “observations of illegal
activity occurring away from the suspect’s residence can support a finding of probable cause to
issue a search warrant for the residence, if there is a reasonable basis to infer from the nature of
the illegal activity observed, that relevant evidence will be found in the residence.” United
States v. Thomas, 989 F.2d 1252, 1255 (D.C. Cir. 1993). Thomas ruled that an officer’s
“experience investigating narcotics trafficking” served as a reasonable basis to establish probable
cause. Id. at 1254–55. In a series of further cases involving drug crimes, the D.C. Circuit has
repeatedly held that such “training and experience” warrants suffice to establish probable cause
to search the houses of drug traffickers; as the Circuit has stated, “[c]ommon experience suggests
that drug dealers must mix and measure the merchandise, protect it from competitors, and
conceal evidence of their trade [and f]or the vast majority of drug dealers, the most convenient
location to secure items is the home.” United States v. Spencer, 530 F.3d 1003, 1007 (D.C. Cir.
2008); see also United States v. Washington, 775 F.3d 405, 409 (D.C. Cir. 2014) (holding that an
affiant’s observations that, in his “extensive experience in drug enforcement,” drug traffickers
typically keep much of their drug supply at home or in a stash house, was sufficient to establish
probable cause); United States v. Johnson, 437 F.3d 69, 72 (D.C. Cir. 2006) (holding that
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probable cause to search a home was established where affiant testified that “in the affiant’s
experience, drug dealers frequently keep business records, narcotics, proceeds from sales and
firearms in their houses”).
Plaintiffs contend that these drug cases do not control here. Indeed, Thomas
allows “training and experience”-based warrants where “there is a reasonable basis to infer from
the nature of the illegal activity observed” that evidence of a crime will be found in an alleged
perpetrator’s home. The Circuit has accepted such warrants during drug trafficking
investigations and/or arrests, but has not ruled on their applicability to the much broader range of
alleged criminal conduct as to which Plaintiffs assert D.C. has extended the practice.
Officer Dempster cited his thirteen years as a law enforcement officer to establish
his reasonable basis to believe that evidence of the purse theft (and the thief’s clothing) might be
found in Apt. 31. However, the current record is silent as to what specific training and
experience was relied upon when Officer Dempster prepared the Affidavit. As another court in
this District put the issue: “A talismanic invocation of [an officer’s] ‘training and experience’
will not inoculate an affiant’s statement against the basic scrutiny that normally attends claims of
probable cause in warrant applications.” Davis v. District of Columbia, 156 F. Supp. 3d 194, 201
(D.D.C. 2016)(JEB).
Plaintiffs allege that statistical data show that well more than half of D.C. search
warrants that are based on “information and experience” to support probable cause, rather than
case-specific facts, discover no criminal evidence. See 2d Am. Compl. ¶¶ 8, 41. They further
allege that Officer Dempster knew this fact and omitted it from the Affidavit. Id. ¶ 75. The
District of Columbia counters that the statistical data is irrelevant, since Officer Dempster was
not required to include every known fact in his Affidavit. See DC MTD at 14. While all facts
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need not be included in an affidavit, the Affidavit suggests that Officer Dempster relied on his
aggregate experiences and training as a police officer, mostly in auto theft, to aver that non-auto
thieves keep stolen goods in their homes.
In fact, probable cause existed to support the Warrant insofar as it sought to
search Apt. 31 for evidence of the purse theft or suspicious clothing. Officer Dempster had
located official records that tied the BMW, License EE0674, to Francis Taylor, its half-owner
and the holder of its auto insurance. Mr. Taylor’s driver’s license identified Apt. 31, 4701
Alabama Ave., S.W., as his residence. Plaintiffs argue that the police knew of, and had already
searched on that day, a different address thought to be where Mr. Taylor lived. Police suspicion
of this other address was omitted from the Affidavit. However, it is not entirely unusual for
persons in D.C. to have multiple locations at which they might sleep, particularly moving
between relatives and girlfriends. Having failed to locate evidence of the theft at the first
address, the Court finds nothing untoward about going on to an alternate, likely, location.
The Court is more troubled by the Affidavit’s request, granted by the Warrant, to
seize telephones not belonging to Mr. Taylor and to seize other electronic equipment with no
connection to Mr. Taylor. Without further information, the Court finds it difficult to credit that
grab-and-run purse thieves actually maintain electronic records of their criminal activity. The
relevant paragraphs of the Affidavit are pure boilerplate and show no particular relationship to
the crime under investigation.
These boilerplate, catch-all provisions raise questions as to MPD’s training of its
officers, and whether MPD had a custom and practice of instructing officers to cite general
“training and experience” for probable cause in multiple kinds of cases, without case-specific
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facts, presumably based on D.C. Circuit approval of such warrants in drug cases—and whether
such instruction, if given, were proper or led to constitutional violations.
B. Claim 1: Reliance on the Warrant
Plaintiffs assert that, even after the Warrant was signed by a Superior Court
judicial officer, it was so lacking in probable cause that no reasonable police officer could have
relied on it. “It is incumbent on the officer executing a search warrant to ensure the search is
lawfully authorized and lawfully conducted,” although an officer who “himself prepared the
affidavit . . . may not argue that he reasonably relied on the Magistrate’s assurance that the
warrant contained an adequate description of the things to be seized and was therefore valid.”
Groh v. Ramirez, 540 U.S. 551, 563 (2004).
As to the Defendant Officers, “the protection of qualified immunity is available if
“a reasonable officer could have believed that [his actions] were lawful, in light of clearly
established law and the information the officers possessed.” Youngbey v. March, 676 F.3d 1114,
1117 (D.C. Cir. 2012) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)). “In the ordinary
case, an officer cannot be expected to question the magistrate’s probable-cause determination or
his judgment that the form of the warrant is technically sufficient.” United States v. Leon, 468
U.S. 897, 921 (1984). “Only where the warrant application is so lacking in indicia of probable
cause as to render official belief in its existence unreasonable will the shield of immunity be
lost.” Malley v. Briggs, 475 U.S. 335, 344–45 (1986). Where a warrant is “not facially invalid,”
law enforcement officers executing it are entitled to qualified immunity. Elkins v. District of
Columbia, 690 F.3d 554, 565 (D.C. Cir. 2012).
Plaintiffs make no allegation of fact that would undercut the legitimacy of the
Defendant Officers’ reliance on a Warrant signed by an appropriate judicial officer. As
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discussed supra, the D.C. Circuit has held that search warrants based on “training and
experience” are valid, at least in certain cases. The distinction that might be made among search
warrants investigating different kinds of crimes would not reasonably be expected to be forecast
by the Defendant Officers. Plaintiffs allege no bad faith on their parts in accepting the Warrant
for what it was: authority to conduct a search for stolen purses (or thief’s clothes) in Apt. 31.
Claim I will be dismissed as to the Defendant Officers. 4
C. Claim 4: Failure to Knock and Announce
Claim 4 is directed at Officer Dempster and the Defendant Officers. The latter do
not move to dismiss it at this time and the District of Columbia has expressly disavowed any
intention to do so, except to the extent that Plaintiffs assert municipal liability for the no-knock
entry. D.C. Reply at 1–2 (“[T]o the extent that the District has argued for dismissal of Plaintiffs’
claim the Defendant Officers failed to knock and announce their presence before making forcible
entry into Plaintiffs’ home that argument is withdrawn.”). The Court reads Claim 4 to allege
violations of the Fourth Amendment only by Officer Dempster and/or the Defendant Officers.
The Court will not dismiss Claim 4 as to these Defendants. Since Claim 4 does not allege any
illegal conduct by the District of Columbia, the District’s arguments are moot.
D. Claim 5: Officers’ Behavior Incident to the Search
Police have wide authority to take steps necessary to conduct searches in a safe
and efficient manner. In Muehler v. Mena, 544 U.S. 93 (2005), the Supreme Court held that
“[a]n officer’s authority to detain incident to a search” is “categorical” because “the character of
the additional intrusion caused by detention is slight and because the justifications for detention
4
As Claim 1 remains against Officer Dempster, it accordingly survives against the District for
any municipal liability stemming from his theoretical actions.
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are substantial,” in particular “preventing flight in the event that incriminating evidence is found;
minimizing the risk of harm to the officers; and facilitating the orderly completion of the search.”
544 U.S. at 98.
Mena recognized that handcuffing residential occupants during a search “was
undoubtedly a separate intrusion in addition to detention,” but held that it was appropriate in the
circumstances of that case, which “was no ordinary search.” Id. at 99, 100. The police in Mena
were seeking evidence, including deadly weapons, related to a drive-by shooting. The Supreme
Court instructed that “the governmental interests in not only detaining, but using handcuffs, are
at their maximum where . . . a warrant authorizes a search for weapons.” Joining the majority in
Mena, Justice Kennedy wrote separately to emphasize that “if, at any point during the search, it
would be readily apparent to any objectively reasonable officer that removing the handcuffs
would not compromise the officers’ safety or risk interference or substantial delay in the
execution of the search” then “the restraint should . . . be removed.” Id. at 102; see also LaFave,
Wayne R., 2 Search & Seizure § 4.9(e) (5th ed.) (“While it seems clear on the facts of Mena that
the detention in handcuffs was . . . ‘reasonable as an initial matter,’ whether such force was
justified for the entirety of the 2-3 hour search is another matter.” (quoting Mena, 544 U.S. at
100)). Some Judges in this District have found that Mena does not give law enforcement officers
a categorical right to handcuff occupants during all residence searches. See Nelson v. District of
Columbia, 953 F. Supp. 2d 128, 132 (D.D.C. 2013)(RCL) (declining to rule as a matter of law
that Mena permitted law enforcement to handcuff occupants during a search and upholding jury
verdict finding that MPD officers violated occupant’s Fourth Amendment rights for handcuffing
her during the entirety of two-hour search); see also Youngbey v. District of Columbia, 766 F.
Supp. 2d 197, 213 (D.D.C. 2011)(JSG) (allowing Fourth Amendment claims to proceed when
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police handcuffed and trained weapons on home occupants for entirety of search), rev’d on other
grounds sub nom. Youngbey v. March, 676 F.3d 1114 (D.C. Cir. 2012).
It is very clear that Mena authorized the detention of Plaintiffs during the entirety
of the search of Apt. 31 without any violation of the Fourth Amendment. However, the
watchword of the Fourth Amendment is “reasonable” and Mena gives pause as to whether its
categorical detention rule extends to handcuffing occupants for hours when none is under
criminal suspicion, none is alleged to have been aggressive or obstructionist, and the underlying
crime involved an unarmed theft of purses with no violence. When all facts are known,
Defendant Officers may be entitled to qualified immunity or a jury can evaluate the
reasonableness of their use of handcuffs throughout the search. Such a decision cannot be made
on this limited record.
However, Plaintiffs’ allegations that the Defendant Officers violated the Fourth
Amendment when one or more searched 16-year-old Jonte Watts are without merit; they will be
dismissed. Ybarra v. Illinois, 44 U.S. 85 (1979) long ago held that a law enforcement officer
may frisk individuals in the course of executing a search warrant “to find weapons [the officer]
reasonably believes or suspects are then in the possession of the person he has accosted.” Id. at
100. The search of Jonte Watts’ person, equivalent to a Terry search, 5 is permitted to ensure the
safety and security of the officers. There is no allegation that the search of Jonte was unusually
intrusive or inappropriate; Plaintiffs only argue that he was a young person watching television
on his own in an upstairs bedroom. 2d Am. Compl. ¶ 61. A 16-year-old is not too young to
submit to a Terry search. Notably, Jonte Watts was released from handcuffs before the adults in
the apartment, and, in light of the law, Plaintiffs make no allegation that the Defendant Officers
5
Terry v. Ohio, 392 U.S. 1 (1968).
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engaged in any unconstitutional conduct in the course of their search beyond that already
articulated supra.
The Court will also dismiss the allegations in Claim 5 that Defendant Officers
exceeded the scope of the Warrant. While the constitutionality of the entirety of the Warrant
may be subject to further litigation, there is no doubt that it facially authorized the Defendant
Officers to seize electronic devices. Compare 2d Am. Compl. Claim 5, ¶ 81 (alleging seizure of
a laptop and cellular devices) & Affidavit at 5. For that reason, Defendant Officers are entitled
to qualified immunity.
E. Fifth Amendment
The Second Amended Complaint alleges that the conduct of Officer Dempster
and the Defendant Officers in entering, searching and handcuffing the Plaintiffs “shocks the
conscience” in violation of the Fifth Amendment. 2d Am. Compl. (Claim 5, ¶ 81 (“Officers
Raiding the Home Exceeded the Scope of the Warrant, Used Excessive Force, Made
Unnecessary and Unreasonable Seizures Not Authorized by the Warrant, and Engaged in
Conduct that Shocks the Conscience in Violation of the Fourth and Fifth Amendments.”). The
Court will dismiss the allegation that Officer Dempster or the Defendant Officers violated their
Fifth Amendment rights to due process. The allegation confuses rights under the different
Amendments. The Supreme Court has ruled that “[w]here a particular Amendment ‘provides an
explicit textual source of constitutional protection’ against a particular sort of government
behavior, ‘that Amendment, not the more generalized notion of substantive due process, must be
the guide for analyzing” those claims. Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting
Graham v. Connor, 490 U.S. 386, 395 (1989)). More clearly, the D.C. Circuit has held that a
plaintiff cannot “use the search of her home . . . as grounds for a claim under the Fifth
15
Amendment” because a search is explicitly governed by Fourth Amendment protections. Elkins
v. District of Columbia, 690 F.3d 554, 562 (D.C. Cir. 2012). Accordingly, the Court will grant
the Defendant Officers’ Motion to Dismiss the Fifth Amendment allegation in Claim 5.
F. Claim 3: Municipal Liability
Claim 3 asserts that the alleged constitutional violations by the MPD stem from a
policy, practice or custom for which the District of Columbia is liable due to a failure to train its
officers properly. 2nd Am. Compl. (Dkt 24) ¶ 77. When a motion to dismiss is pending, courts
read complaint allegations and their reasonable inferences in the light most favorable to the non-
moving party. See Sissel v. Dep’t of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014).
Doing so, the Court finds that the Second Amended Complaint is sufficient to make out a claim
for municipal liability under Monell and its progeny.
The District largely predicates its argument against liability on the ground that no
constitutional violations occurred. See DC MTD at 1 (“Plaintiffs’ second amended complaint
fails to state a constitutional violation and, therefore, cannot support the Monell claim against the
District.”) However, the Court has already concluded that the Plaintiffs have adequately pleaded
a Fourth Amendment violation for the Affidavit’s reliance on “training and experience” to justify
search and seizure of electronics. 6 Therefore, the question is whether the Plaintiffs have
adequately pleaded that a custom or policy of the District caused the violation.
The District limits Monell-based argument to the assertion that “proof of a single
incident of alleged unconstitutional activity is not enough to impose liability on a municipality
unless proof of the incident includes proof that it was caused by an existing unconstitutional
6
As noted, Plaintiffs do not allege a custom or practice behind the officers’ no-knock entry or
the duration of handcuffs on one or more of the occupants of Apt. 31.
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policy.” DC MTD at 19. While undoubtedly accurate in some circumstances, the argument is
unavailing here. Plaintiffs have alleged that the statistical evidence they cite will demonstrate
that search warrants based on an officer’s “training and experience” consistently fail to produce
evidence of an alleged crime; if such statistics are proved and accepted, a jury might find that the
conduct at issue here was not limited to a “single incident.” See 2d Am. Compl. ¶¶ 8, 41. In
addition, Officer Dempster cited his “training,” presumably done at the behest of MPD and
offered to many MPD officers, to support the Warrant. See Affidavit at 1, 3. Claim 3 will not be
dismissed as it relates to those latter portions of the Affidavit that are reliant on “training and
experience.”
Plaintiffs’ Claims against the District are decidedly convoluted. Claim 3 is titled
“The Obvious Lack of Probable Cause and False and Reckless Statements and Omissions Were
the Result of a Policy, Pattern and Custom of Such Conduct by the MPD and the Result of the
MPD’s Failure to Properly Train and Supervise its Officers”; its supporting paragraph includes
only allegations relating to search warrants, thereby limiting its assertion of Monell liability
accordingly. 2d Am. Compl. ¶ 75. Similar language appears in Claim 5, where Plaintiffs assert
that the “seizures and searches reflect a pattern and practice of MPD officers . . . and reflect a
failure of the MPD properly to train, supervise and discipline its officers.” 2d Am. Compl. ¶ 81.
However, as discussed above, most of Claim 5 has no merit as a matter of law: the Affidavit
facially provided probable cause for the Defendant Officers to search for the stolen purses in
Apt. 31; seizure of the laptop and cell phones was authorized by the Warrant and the Defendant
Officers are entitled to immunity for seizing them; the search of Jonte Watts was lawful and for
officer protection; detention of the members of the family living in Apt. 31 for the duration of the
search was lawful under Mena; and the only question is whether Officer Dempster and/or the
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Defendant Officers should have released one or more of the occupants from handcuffs more
quickly. The Second Amended Complaint does not provide further evidence that this activity
was directed by the District. Accordingly, Plaintiffs can proceed according to the Claim against
the Defendant Officers, but it will be dismissed as to the District.
Claim 4 is short and sweet and contains no pattern-and-practice or custom-and-
policy allegations. It will be litigated as drafted.
IV.
For the reasons set forth above, the Court will GRANT in part and DENY in part
the District’s and Defendant Officers’ respective motions to dismiss. The following Claims
remain: (1) All claims as to Defendant Dempster; (2) Claim 3 as to the District relating to the
Affidavit’s reliance on training and experience; (3) Claim 4 (no-knock) as to the Defendant
Officers; (4) Claim 5 as to the Defendant Officers relating to handcuffing all Plaintiffs for the
duration of the search. A memorializing order accompanies this opinion.
Defendants shall file timely Answers to the Second Amended Complaint.
Date: January 11, 2017 /s/___________
ROSEMARY M. COLLYER
United States District Court
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