Whittaker v. Munoz ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MAKHI WHITTAKER
Plaintiff,
v. Civ. No. 17-1983 (EGS)
CHRISTIAN MUNOZ, in his
Individual capacity
Defendant.
MEMORANDUM OPINION
Plaintiff Makhi Whittaker brings this action under 42
U.S.C. § 1983, alleging violations of his constitutional rights
when defendant Christian Munoz, an MPD Officer, allegedly
arrested Mr. Whittaker without probable cause in violation of
the Fourth Amendment. Mr. Whittaker also alleges that Officer
Munoz violated his First Amendment rights by arresting him in
retaliation for his speech. Officer Munoz moves for summary
judgment arguing that Mr. Whittaker fails to show a violation of
the Constitution, and, alternatively, even if there was a
violation, qualified immunity precludes this lawsuit. Upon
consideration of Officer Munoz’s motion for summary judgment,
the response and reply thereto, the applicable law, and the
entire record, the Court will GRANT Officer Munoz’s motion for
summary judgment.
I. Background 1
Mr. Makhi Whittaker, a high school student, was arrested
after boarding a metrobus on the afternoon of March 22, 2017.
See Statement of Undisputed Facts (“SOF”), ECF No. 19-1 at 23. 2
Mr. Whittaker was not in school that day because he had a
doctor’s appointment. Id. Mr. Whittaker and his girlfriend,
Sheila Shelton, began the day by going to Ms. Shelton’s home to
visit her family. Id. They left Ms. Shelton’s home in the
afternoon, at which point they had plans to go to the Northeast
section of the city so Mr. Whittaker could sell a videogame at a
local store. Id. at 23–24.
To get to Northeast, Mr. Whittaker and Ms. Shelton
attempted to catch a metrobus at the Minnesota Avenue Metro
Station. Id. at 24. Once the metrobus arrived, Mr. Whittaker and
Ms. Shelton entered the metrobus along with other
schoolchildren, some in uniform and some not. Id. Mr. Whittaker
was not in uniform that day because he did not go to school. Id.
Mr. Whittaker and Ms. Shelton did not pay the bus fare and did
not show the bus driver a “D.C. One Card” which allows students
in the District of Columbia to ride the metrobus for free if
they are going to or from school, or a school-related activity.
1 Unless otherwise noted, the following facts are undisputed.
2 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number not the
page number of the filed document.
2
Id. Mr. Whittaker was waived onto the bus by the driver as the
driver was letting other students onto the bus. 3 Mr. Whittaker
went on the bus without paying a fare, and he and Ms. Shelton
boarded the bus. Id. at 25.
Meanwhile, Officer Munoz, an MPD Officer, was patrolling
the Minnesota Avenue Metro Station, an area that has had
problems in the past with fare evasion. Id. at 24. He was
patrolling the station when Mr. Whittaker and Ms. Shelton
arrived. Id. at 24. Officer Munoz observed Mr. Whittaker enter
the bus without paying the fare and without displaying a D.C.
One Card. Id. at 25. Officer Munoz ordered them both to exit the
metrobus and arrested Mr. Whittaker for fare evasion by placing
him in handcuffs. Id. The parties disagree about what Mr.
Whittaker said to Officer Munoz and when; however the parties do
agree that Mr. Whittaker asked why he was being put in handcuffs
and also asked Officer Munoz to explain what probable cause he
had to arrest him. Id. at 26. Officer Munoz searched Mr.
Whittaker incident to the arrest. Id. Mr. Whittaker was released
the next day and was not charged with a crime. Compl., ECF No. 1
¶ 46.
3 The parties dispute whether the bus driver waived any
passengers on to the bus. This disputed fact, however, is not
material.
3
Thereafter, Mr. Whittaker filed this lawsuit alleging
violations of the First and Fourth Amendments and seeking
compensation pursuant to 42 U.S.C. § 1983. See generally id.
After a short discovery period, Officer Munoz moved for summary
judgment against all claims. Def.’s Mot., ECF No. 17. Mr.
Whittaker filed his opposition, ECF No. 19, and Officer Munoz
has filed a reply, ECF No. 22. This motion is ripe for
disposition.
II. Legal Standard
Under Federal Rule of Civil Procedure 56, summary judgment
should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); Waterhouse
v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). The
moving party must identify “those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(internal
quotation marks omitted).
Once the moving party has met its burden, the non-moving
party must come forward with specific facts that would present a
genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). A genuine dispute exists
4
if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Any inferences drawn on the
facts must be viewed in the light most favorable to the
nonmoving party. See Matsushita, 475 U.S. at 587. A party
asserting that a fact is “genuinely disputed” must support that
assertion by “citing to particular parts of materials in the
record” or “showing that the materials cited [by the opposing
party] do not establish the absence ... of a genuine dispute.”
Fed. R. Civ. P. 56(c)(1). “If a party ... fails to properly
address another party's assertion of fact,” the court may
“consider the fact undisputed for purposes of the motion.” Fed.
R. Civ. P. 56(e); see also Local Civ. R. 7(h).
III. Analysis
Mr. Whittaker has sued Officer Munoz under Section 1983
alleging several violations of his constitutional rights. See
generally, Compl., ECF No. 1. Specifically, he alleges
violations of the Fourth Amendment right to be free from
unreasonable search and seizure 4; and the First Amendment’s
4 Mr. Whittaker also initially brought a claim for violation of
the Fourth Amendment’s prohibition against the use of excessive
force. Compl., ECF No. 1 at 10–11. However, he has conceded that
“his claim for excessive force must fail and that summary
judgment should be granted to Defendant Munoz with respect to
such claim.” Pl.’s Opp’n, ECF No. 19-1 at 5 n.1. The Court
agrees, Mr. Whittaker has failed to provide support for his
allegation that he suffered an injury from the use of force, and
5
prohibition against retaliatory arrest. Id. at 7–10. Officer
Munoz alleges that both claims fail because he had probable
cause to arrest Mr. Whittaker. See generally Def.’s Mot., ECF
No. 17.
Mr. Whittaker does not dispute the fact that his claims
fail if Officer Munoz had probable cause to arrest him; nor can
he. An arrest supported by probable cause does not violate the
Fourth Amendment’s prohibition against unreasonable search and
seizure. See Atwater v. City of Lago Vista, 532 U.S. 318, 354
(2001)(“If an officer has probable cause to believe that an
individual has committed even a very minor criminal offense in
his presence, he may, without violating the Fourth Amendment,
arrest the offender.”). As for the First Amendment claim, at the
time of Mr. Whittaker’s arrest, the Supreme Court had held that
it “has never recognized a First Amendment right to be free from
a retaliatory arrest that is supported by probable cause.”
Reichle v. Howards, 566 U.S. 658, 664–65 (2012). The Court
recently addressed this issue in Nieves v. Bartlett, in which it
held that, generally, a First Amendment retaliatory arrest claim
fails as a matter of law when an officer has probable cause to
arrest. 5 139 S. Ct. 1715, 1726 (2019). Accordingly, if this Court
therefore his excessive force claim fails as a matter of law.
See Garay v. Liriano, 943 F. Supp. 2d 1, 19 (D.D.C).
5 The Supreme Court identified one circumstance when probable
cause to arrest may not defeat a claim for retaliatory arrest
6
finds that Officer Munoz had probable cause to arrest Mr.
Whittaker, both the Fourth and First Amendment claims fail as a
matter of law. The Court discusses each claim in turn.
A. Fourth Amendment Claim: Unlawful Search and Arrest
An arrest is supported by probable cause “when known facts
and circumstances are sufficient to warrant [an officer] of
reasonable prudence in the belief that an offense has been or is
being committed.” United States v. Davis, 458 F.2d 819, 821
(D.C. Cir. 1972). The existence of probable cause thus turns on
objective considerations, rather than the actual mental state of
the arresting officer. See, e.g., United States v. Jackson, 415
F.3d 88, 91 (D.C. Cir. 2005). The probable cause standard does
“not demand any showing that such a belief be correct or more
likely true than false.” Texas v. Brown, 460 U.S. 730, 742
(1983). “To determine whether [an officer] had probable cause to
believe that [a plaintiff was] violating District of Columbia
law, we look to District law to identify the elements of each of
those offenses.” McGovern v. George Washington University, 245
F. Supp. 3d 167 (D.D.C. 2017)(citation and internal quotation
marks omitted).
under the First Amendment. This circumstance is where officers
have probable cause to make arrests, “but typically exercise
their discretion not to do so.” Nieves, 139 S. Ct. at 1727.
7
Based on the undisputed facts in this case, the Court is
satisfied that Officer Munoz had probable cause to arrest Mr.
Whittaker. Under District of Columbia law, it is a crime to ride
the metrobus without paying a fare. D.C. CODE § 35-216. The
relevant provision of the D.C. Code states as follows: “[n]o
person shall . . . knowingly board a public or private passenger
vehicle for hire, including vehicles owned and/or operated by
the Washington Metropolitan Area Transit Authority . . . without
paying the established fare or presenting a valid transfer for
transportation on such public passenger vehicle.” Id. 6 Although
students are not charged a fare when taking an eligible bus
trip, a student is expressly prohibited from using “his or her
Student Rider Card . . . for trips that are not eligible for a
student trip.” 18 DCMR § 1799.1. Absent an eligible trip, a
student must pay full bus fare in the District of Columbia.
It is undisputed that Mr. Whittaker was not in his school
uniform, and was not going to school or engaged in a school-
related activity. See SOF, ECF No. 19-1 at 23–24. It is also
undisputed that when he entered the metrobus, he did not pay the
bus fare, nor did he show his D.C. One Card. Id. at 25.
Accordingly, the probable-cause question boils down to whether
6 A violation of § 35-216 is “punishable by a fine of not more
than $300, by imprisonment for not more than 10 days or both.”
D.C. CODE § 35-253.
8
it was reasonably prudent for Officer Munoz to conclude that Mr.
Whittaker was committing the crime of fare evasion. Under these
circumstances, faced with the fact that he was in an area known
for fare evasion, he observed a person who was not in a school
uniform enter a bus and not pay a fare or present a D.C. One
Card, the Court concludes that Officer Munoz had a reasonable
belief that the offense of fare evasion was being committed.
Therefore, Mr. Munoz had probable cause to make the arrest.
Mr. Whittaker makes several arguments for why Officer
Munoz’s actions were not supported by probable cause, but each
are foreclosed by precedent. He first argues that there was no
evidence that he knowingly violated the intent requirement of
the fare-evasion statute because he was waived onto the metrobus
by the bus driver. See Pl.’s Opp’n, ECF No. 19-1 at 11–13. Mr.
Whittaker is correct that when specific intent is an element of
a crime, an officer needs to have some evidence of the
arrestee’s intent to violate the law. See U.S. v. Christian, 187
F.3d 663, 667 (D.C. Cir. 1999). In Christian, the Court of
Appeals for the District of Columbia Circuit (“D.C. Circuit”)
held an Officer did not have probable cause to arrest a man who
only possessed a dagger when the law prohibited possession of
the weapon with intent to use it unlawfully against another. Id.
Because there was no evidence witnessed by the arresting
officer, direct or circumstantial, that showed that the arrestee
9
intended to use the dagger unlawfully, the Court held the
officer lacked probable cause to arrest him. Id.
The problem for Mr. Whittaker, however, is that fare
evasion is not a specific-intent crime, but rather a general
intent crime. See Tillman v. WMATA, 695 A.2d 94, 96 (D.C.
1997)(stating officer had probable cause to arrest a person for
failure to pay fare even if the failure to pay “may have been an
inadvertent product of . . . confusion concerning the absence of
the usual gate”). Consequently, the requisite intent required to
violate the statute is the general intent to commit the act that
constitutes the crime, not intent to violate the law itself. See
Dauphine v. U.S., 73 A.3d 1029, 1032 (D.C. 2013)(explaining
standard for general intent). Based on the facts in this case,
Mr. Whittaker’s actions of boarding the bus without paying the
fare was sufficient evidence for Officer Munoz to believe the
crime of fare evasion occurred in his presence.
Mr. Whittaker also argues that because the bus driver
waived him onto the metrobus, Mr. Whittaker’s failure to pay the
fare or show his D.C. One Card was not unlawful. Pl.’s Opp’n,
ECF No. 19-1 at 12–13. Even if this is true, Officer Munoz has
testified that he did not see the bus driver waive Mr. Whittaker
onto the bus and that he understood that bus drivers do not have
the authority to allow patrons to ride WMATA’s metrobuses for
free. Def.’s Reply, ECF No. 22 at 11 (citing Munoz Deposition,
10
ECF No. 17-3 at 57:18–59:3). Even if Mr. Whittaker was mistaken
as to both assumptions, and it is not clear that he was, the
Supreme Court has held that the Fourth Amendment is not violated
when an Officer seizes someone but makes a reasonable mistake of
fact or law. See Hein v. North Carolina, 135 S. Ct. 530, 539
(2014). The Court holds that, assuming there was a mistake of
fact or law in this case, it was reasonable, and therefore there
was no violation of the Fourth Amendment as a matter of law. See
Herring v. United States, 555 U.S. 135, 139 (2009)(assuming a
Fourth Amendment violation, but noting that “[w]hen a probable-
cause determination was based on reasonable but mistaken
assumptions, the person subjected to a search or seizure has not
necessarily been the victim of a constitutional violation”).
Accordingly, the Court GRANTS Officer Munoz summary judgment on
the unlawful arrest claim. 7
B. First Amendment Claim: Retaliatory Arrest
When an arrest is supported by probable cause, a First
Amendment retaliatory arrest claim will generally fail as a
matter of law. Nieves, 139 S. Ct. at 1726 (stating that probable
cause for an arrest will typically defeat a retaliatory arrest
7 Mr. Whittaker agrees that if the arrest was lawful then the
search incident to arrest could not have violated the Fourth
Amendment. See Pl.’s Opp’n, ECF No. 19-1 at 16. Therefore the
Court GRANTS Officer Munoz’s motion for summary judgment related
to the allegation of unreasonable search.
11
claim). However, in Nieves the Supreme Court identified one
circumstance under which probable cause may not defeat a claim
for retaliatory arrest under the First Amendment. Id. at 1727.
This circumstance is “where officers have probable cause to make
arrests, but typically exercise their discretion not to do so.”
Id. In other words, “the no-probable-cause requirement should
not apply when a plaintiff presents objective evidence that he
was arrested when otherwise similarly situated individuals not
engaged in the same sort of protected speech had not been.” Id.
As the Court explained, “[i]n such cases, an unyielding
requirement to show the absence of probable cause could pose ‘a
risk that some police officers may exploit the arrest power as a
means of suppressing speech.’” Id. (citation omitted). The
parties understandably did not brief this issue, and it appears
that they did not take evidence on this issue in discovery,
because the Nieves case was not decided prior to the close of
discovery in this case. Although this Court would typically
order supplemental briefing in such a circumstance, the Court
need not follow that course in this case because qualified
immunity disposes this claim.
The doctrine of qualified immunity entitles officers to
immunity from suit unless their conduct violated “clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555
12
U.S. 223, 231 (2009)(citation and internal quotation marks
omitted). A right is clearly established at the time of an
alleged violation if it would have been “clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001)(citation
omitted). If the right in question was not clearly established,
a court need not “broach the question of whether a
constitutional violation occurred because the officers are
entitled to qualified immunity regardless.” Dukore v. District of
Columbia, 799 F.3d 1137, 1144 (D.C. Cir. 2015)(citing Pearson,
555 U.S. at 236).
In reviewing a grant of qualified immunity, a Court must
consider the right asserted “not as a broad general proposition,
but in a particularized sense so that the contours of the right
are clear[.]” Reichle, 566 U.S. at 665 (internal citations and
quotation marks omitted). The right that must be consider in
this case is “not the general right to be free from retaliation
for one's speech,” but rather “the more specific right to be
free from a retaliatory arrest that is otherwise supported by
probable cause.” Id.
In March 2017, the time of the arrest in this case, the
precedent in this Circuit was inconclusive on the question of
whether an arrest supported by probable cause could violate the
First Amendment’s protection against retaliatory arrests. See
13
Nieves, 139 S. Ct. at 1728 (explaining that the Court took up the
question in 2018, but “ultimately left the question
unanswered”). 8 And courts had not spoken on the issue of whether
an officer who has probable cause to make an arrest, but would
typically exercise his or her discretion not to, will violate
the First Amendment if he or she arrests someone who engages in
protected speech. Since there was no consensus view at the time
of the actions in this case, even if there was a First Amendment
violation for retaliatory arrest notwithstanding the fact
Officer Munoz had probable cause to arrest Mr. Whittaker,
Officer Munoz is entitled to qualified immunity. 9 Therefore, the
Court GRANTS Officer Munoz’s motion for summary judgment on the
First Amendment retaliatory arrest claim.
IV. Conclusion
For the foregoing reasons Officer Munoz’s motion for
summary judgment is GRANTED. An appropriate Order accompanies
this Memorandum Opinion.
8 The D.C. Circuit, in 2015, explicitly stated that the question
was inconclusive in 2011. Dukore, 799 F.3d at 1145. Mr.
Whittaker has not identified, and this Court has not found, any
precedent that shows that the right was clearly established as
of 2017.
9 The Court notes that, as of May 28, 2019, it is clearly
established that probable cause may not defeat a claim for
retaliatory arrest when an officer arrests and individual who
engages in protected speech but chooses not to arrest otherwise
similarly situated individuals not engaged in the same type of
protected speech. See Nieves, 139 S. Ct. at 1728.
14
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
September 4, 2019
15