Fox v. Government of the District of Columbia , 794 F.3d 25 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 16, 2015 Decided July 17, 2015
No. 14-7042
BARBARA FOX,
APPELLANT
v.
GOVERNMENT OF THE DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-02118)
Caleb S. Fox argued the cause and filed the briefs for
appellant.
James C. McKay Jr., Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellees. With him on the brief were
Eugene A. Adams, Interim Attorney General for the District of
Columbia, Todd S. Kim, Solicitor General, and Loren L.
AliKhan, Deputy Solicitor General.
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Before: ROGERS and MILLETT, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Barbara Fox filed an
action under 42 U.S.C. § 1983 alleging that a police officer
violated her Fourth Amendment right when, during her
husband’s traffic stop and arrest, the officer ordered her to get
out of the car and put her hands on the hood. The district
court granted the police officer’s motion for judgment on the
pleadings because the factual allegations in the complaint do
not plausibly suggest that the officer violated Mrs. Fox’s
clearly established Fourth Amendment right. We affirm the
judgment.
I.
For the purposes of this appeal, we accept as true the
facts alleged in the complaint. See Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1273 (D.C. Cir. 1994).
Around 5:00 p.m. on Saturday, December 20, 2008,
Hamilton P. Fox III drove his wife to a pharmacy. While she
went in to pick up medication, Mr. Fox “remained in his
standing and running vehicle” near a sign reading “No
Parking / Loading Zone / For Commercial Vehicles Only /
7:00 a.m. to 6:30 p.m. / Monday – Saturday” and another sign
reading “No Standing or Parking Anytime.” Second Am.
Compl. ¶¶ 25–26, Fox v. District of Columbia, 924 F. Supp.
2d 264 (D.D.C. 2013) (No. 10-2118) (“SAC”). Shortly after
Mr. Fox stopped his car, Metropolitan Police Department
Officer Brett L. Squires pulled up in a marked police car and
told Mr. Fox that he could not park there. Mr. Fox claimed he
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was not parking—he was simply “standing while waiting for
his wife.” Id. ¶ 29. “Gotta move your car, Sir,” Officer
Squires replied. Id. ¶ 30. Mr. Fox became “incredulous” and
“asked to speak with a supervisor to discuss the matter.”
Id. ¶ 31. Officer Squires told Mr. Fox to wait on the
sidewalk.
Mr. Fox waited for about fifteen minutes. Eventually,
Mrs. Fox returned, asked what was going on, and got into the
car. Mr. Fox then got back into his car and attempted to
leave, but Officer Squires stopped him. Officer Squires
explained that, because Mr. Fox asked to speak with a
supervisor, he needed to wait for a supervisor to arrive.
Shortly thereafter, several “police officers swarmed the
scene.” Id. ¶ 35.
While police officers arrested her husband, Mrs. Fox got
out of the car to ask what was happening. She was ordered to
get back into the car, and she complied. When Metropolitan
Police Department Officer Alfred L. Boyd approached the
car, Mrs. Fox again asked what was happening. “Shut up,”
responded Officer Boyd. Id. ¶ 42. For a third time, Mrs. Fox
asked what was happening, and Officer Boyd told her “if he
had to tell her to shut up again, he would arrest her.” Id.
“Mrs. Fox started crying, and asked why she could not ask a
question.” Id. ¶ 43. Officer Boyd then ordered her out of the
car and told her to put her hands on the hood. Mrs. Fox
complied. Another police officer asked Mrs. Fox for her
driver’s license to see if there were any outstanding warrants
or issues. Finding none, he returned the driver’s license and
let Mrs. Fox leave.
Mr. and Mrs. Fox brought a civil action for damages
under § 1983 against the District of Columbia and Officers
Squires and Boyd in their individual capacities. Under
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Count 1, the only cause of action relevant to this appeal, Mrs.
Fox alleged that Officer Boyd violated her “well-established
right under the Fourth Amendment to the United States
Constitution to be free from unreasonable searches and
seizures” when he “stopp[ed] and detain[ed]” her. Id. ¶ 55.
Officer Boyd moved for judgment on the pleadings for
Count 1, arguing that he is protected by qualified immunity.
The district court explained, to overcome Officer Boyd’s
claim to qualified immunity, Mrs. Fox needed to establish
that: (1) Officer Boyd’s conduct violated her constitutional
right; and (2) “the ‘right at issue was clearly established at the
time of [Officer Boyd’s] alleged misconduct.’” Fox, 924 F.
Supp. 2d at 269 (quoting Pearson v. Callahan, 555 U.S. 223,
232 (2009)) (internal quotation marks omitted). The district
court held that Mrs. Fox satisfied neither requirement. “[T]he
factual allegations in the complaint do not plausibly suggest
that [Officer Boyd] violated Mrs. Fox’s clearly established
Fourth Amendment rights.” Id. at 266–67.
Based on the allegations in the complaint, Mr. Fox
violated at least one District of Columbia traffic regulation
when he parked his car in a commercial loading zone. Id. at
270 (citing D.C. Mun. Regs. Tit. 18, § 2402). Because
Officer Squires could have issued a notice of infraction for the
violation, the district court explained that “Officer Squires
was legally permitted to detain Mr. Fox—and his passenger
Mrs. Fox—while he addressed the situation.” Id. at 271. “In
this case,” the district court noted, “Mrs. Fox admit[ted] that
she became progressively more upset as [the officers] arrested
her husband,” and that she “attempted to get out of the car,
kept asking what was happening, and ultimately started
crying.” Id. (footnote omitted). Under these circumstances,
the district court concluded that Officer Boyd, “[i]n response
to [Mrs. Fox’s] escalating emotional state, . . . lawfully
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ordered her to get out of the car and place her hands on the
vehicle in order to protect himself and the other officers on
the scene and to prevent her from interfering with their arrest
of Mr. Fox.” Id. (citing Rogala v. District of Columbia, 161
F.3d 44, 45 (D.C. Cir. 1998)).
Holding that Officer’s Boyd’s brief detention of Mrs. Fox
did not violate her clearly established Fourth Amendment
right, the district court granted Officer Boyd’s motion for
judgment on the pleadings as to Count 1. Id. at 271–72. Mrs.
Fox timely appealed.
II.
We review a district court’s grant of a motion for
judgment on the pleadings “de novo, taking the complaint’s
factual allegations as true.” Mpoy v. Rhee, 758 F.3d 285, 287
(D.C. Cir. 2014).
The doctrine of qualified immunity protects police
officers “from suit under 42 U.S.C. § 1983 unless they have
violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct.” City &
County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774
(2015) (internal quotation marks and citation omitted). To
overcome Officer Boyd’s claim to qualified immunity, we
need to determine: (1) whether Mrs. Fox alleged facts
showing a violation of a constitutional right; and, if so,
(2) whether the constitutional right was clearly established at
the time of the incident. Pearson, 555 U.S. at 232
(summarizing the two-step analysis mandated by Saucier v.
Katz, 533 U.S. 194, 201 (2001)).
In Pearson, the Supreme Court modified Saucier’s two-
step analysis, declaring that the sequence of the two steps
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“should not be regarded as an inflexible requirement.” 555
U.S. at 227; see also Plumhoff v. Rickhard, 134 S. Ct. 2012,
2020 (2014) (same). Instead, lower courts may “exercise
their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.”
Pearson, 555 U.S. at 236. Given the circumstances of this
particular case, we begin and end our analysis with the second
requirement.
At a minimum, Officer Boyd contends that he is entitled
to qualified immunity because Mrs. Fox’s opening brief fails
to “argue that her right not to be seized in these particular
circumstances was ‘clearly established,’ let alone identify
what decisions of the Supreme Court or the courts of appeals
clearly established that right.” Appellee’s Br. 25. We agree
and thus conclude that Mrs. Fox forfeited this argument. In
her reply brief, Mrs. Fox explains that her opening brief
included several citations to cases, which, in her view, show
that her Fourth Amendment right was clearly established
when Officer Boyd seized her. See Reply Br. 11–13 (listing
Maryland v. Wilson, 519 U.S. 408 (1997); Whren v. United
States, 517 U.S. 806 (1996); Pennsylvania v. Mimms, 434
U.S. 106 (1977) (per curiam); and Terry v. Ohio, 392 U.S. 1
(1968)). Yet, Mrs. Fox never argued in her opening brief that
any of these cases (standing alone or read together) clearly
established a Fourth Amendment violation under the
circumstances of her seizure. And critically, she made no
effort to identify the “contours of the right” at issue, let alone
in a manner that would make it “clear to a reasonable official
that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202 (internal quotation marks and
citation omitted). As a result, she forfeited the argument.
City of Waukesha v. EPA, 320 F.3d 228, 250 n.22 (D.C. Cir.
2003) (per curiam) (argument inadequately raised in an
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opening brief is waived); see also Am. Wildlands v.
Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008) (argument
first appearing in a reply brief is forfeited).
Even if we were to reach the merits, it is not at all clear
that Mrs. Fox could prevail. For a constitutional right to be
clearly established, “[t]he contours of the right must be
sufficiently clear that a reasonable [police officer] would
understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). “We do
not require a case directly on point, but existing precedent
must have placed the . . . constitutional question beyond
debate.” Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011).
The merits question would be whether, given the
circumstances of her alleged seizure, Mrs. Fox’s Fourth
Amendment right was “clearly established by prior case law”
when Officer Boyd ordered her to get out of the car and put
her hands on the hood during her husband’s traffic stop.
Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (quotation
marks omitted).
Some prior case law at least arguably supports Officer
Boyd’s position that it was not clearly established. For
example, a police officer can order the driver and any
passengers to get out of the vehicle during a lawful traffic
stop, see Wilson, 519 U.S. at 415; Mimms, 434 U.S. at 111,
without any “cause to believe any occupant of the vehicle is
involved in criminal activity,” Arizona v. Johnson, 555 U.S.
323, 326 (2009). Moreover, the subjective intentions of the
officer cannot invalidate the officer’s “objectively justifiable
behavior under the Fourth Amendment.” Whren, 517 U.S. at
812. Mrs. Fox in her opening brief has neither cited nor
discussed any cases suggesting that Officer Boyd’s actions
were objectively unreasonable given the circumstances of her
alleged seizure. Officer Boyd, on the other hand, suggests
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that ordering Mrs. Fox to get out of the car during her
husband’s arrest was a reasonable precautionary measure.
Appellee’s Br. 21–22 (discussing Rogala, 161 F.3d at 47–54,
and United States v. Moorefield, 111 F.3d 10, 13 (3d Cir.
1997)).
Conversely, Mrs. Fox’s position is far from being without
support. Each of the above cases which might support the
officer’s position is to some degree distinguishable. Among
other potential issues, the Supreme Court has made clear that
“a traffic stop ‘can become unlawful if it is prolonged beyond
the time reasonably required to complete th[e] mission’ of
issuing a warning ticket.” Rodriguez v. United States, 135 S.
Ct. 1609, 1614–15 (2015) (quoting Illinois v. Caballes, 543
U.S. 405, 407 (2005)). Certainly, a plausible argument can be
made that the officer’s conduct in the present case crossed
that constitutional line. That, however, is not good enough to
pierce the officer’s claim of qualified immunity. Under
Saucier and Pearson and their progeny, the piercing requires
a violation of a constitutional right clearly established at the
time of the incident. Not only has Mrs. Fox not established
that her right not to be seized in the circumstances of this case
was “clearly established,” she did not even argue this matter
in her opening brief. As also noted above, where a litigant
has forfeited an argument by not raising it in the opening
brief, we need not reach it. In short, we need not decide the
constitutional issue because Mrs. Fox has not properly
brought it before us.
Given the circumstances of Mrs. Fox’s alleged seizure,
nothing in her brief shows that existing precedent has placed
her Fourth Amendment right beyond debate. See Al-Kidd,
131 S. Ct. at 2083. Consequently, Mrs. Fox has not shown
that Officer Boyd violated her clearly established Fourth
Amendment right when he ordered her to get out of the car
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and put her hands on the hood during her husband’s traffic
stop.
***
We affirm the district court’s judgment in favor of
Officer Boyd.
So ordered.