Barnhardt v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN BARNHARDT,
Plaintiff,
v. Civil Action No. 07-0624 (JDB)
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
In this civil rights action, plaintiff John Barnhardt seeks damages for injuries resulting
from his alleged false arrest in 2004. He asserts claims under 42 U.S.C. §§ 1981 and 1983 and
directly under the Fourth and Fifth Amendments against the District of Columbia and two
Metropolitan Police Department (“MPD”) officers. This matter is now before the Court on
defendants’ motion for summary judgment. Having considered the motion, plaintiff’s
opposition, and the entire record of this case, the Court will grant the motion in part and deny it
in part.
I. BACKGROUND
A. Barnhardt’s Arrest
On the evening of February 13, 2004, Sergeant Curt Sloan and Detective Allee
Ramadhan of the MPD drove to the home of John Barnhardt for the purpose of serving him with
a grand jury subpoena. See Pl.’s Mem. in Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s Opp’n”),
Ex. B (“Sloan Dep.”) at 11:11-20, 20:18-21:8 & Ex. C (“Ramadhan Dep.”) at 5:1-19. At that
-1-
time, they were members of a task force comprised of MPD and Drug Enforcement
Administration personnel, the goal of which was to develop cases against narcotics dealers
operating in the District of Columbia, Maryland and Virginia. Sloan Dep. at 4:18-5:9;
Ramadhan Dep. at 3:20-4:1. The subpoena related to a criminal case against Barnhardt’s brother
for narcotics offenses and assault on a police officer. See Sloan Dep. at 15:21-16:6, 20:18-21:8.
Sloan previously had attempted to serve Barnhardt with the subpoena on December 15, 2003, but
was unsuccessful. See Pl.’s Opp’n at 4-7; see also id., Ex. A (“Barnhardt Dep.”) at 10:5-11:1.1
When Sloan and Ramadhan arrived at Barnhardt’s residence, there were two vehicles
parked in the driveway: a white pickup truck and a black SUV belonging to Barnhardt’s sister
who had driven her SUV into the driveway just before Sloan and Ramadhan arrived. Barnhardt
1
Regarding the December 15, 2003 attempt to serve the subpoena, Sloan stated:
[W]hen I approached the car – when I approached the driveway, rather, Mr.
Barnhardt got into what I believe was a blue Buick Century, quickly got into it, into
the driver’s seat. He was the only occupant. Put his car in reverse and sped out of
the driveway in reverse . . . at a high rate of speed, driving against the one-way sign.
Sloan Dep. at 6:17-7:7. Barnhardt described the encounter as follows:
I had drove up my driveway, and I had my – had my nephew with me. And
when I had drove up, Sergeant Sloan came from my left side; two other officers,
unknown to me – I didn’t know they was officers at the time – but three gentlemen,
Caucasian, which was Sloan came from my left and the other two was on the right
side.
Sergeant Sloan, in an aggressive manner, came and tried to open my door in
an aggressive manner. I locked my door. And when that happened, I started to pull
off, back out of my driveway.
Then Sergeant Sloan had jumped on the hood of my car and onto the – to the
mirror, hanging off, and I pulled away and he flew off, and then I just pulled off and
went down the street.
Barnhardt Dep. at 10:6-11:1.
-2-
Dep. at 35:10-11, 37:11-38:1; Sloan Dep. at 22:10-14, 22:18-23:3; Ramadhan Dep. at 10:10-12.
She remained in the driver’s seat of the SUV as the officers and Barnhardt approached one
another. Sloan Dep. at 22:12-23:3; Ramadhan Dep. at 10:10-12. Also present was Barnhardt’s
neighbor who had walked to Barnhardt’s house. Barnhardt Dep. at 28:-20-30:21. Barnhardt was
walking along the driveway towards the street when the officers arrived. Id. at 37:10-17;
Ramadhan Dep. at 11:5-17.
Sloan parked his vehicle at an angle behind the SUV and blocked the driveway. Sloan
Dep. at 22:4-9; Barnhardt Dep. at 37:9-38:15. The two officers got out of their vehicle and
approached Barnhardt. Sloan Dep. at 22:12, 24:3-4; Ramadhan Dep. at 10:13. Sloan wore a
black nylon jacket with the word “POLICE” written across the front and his shirt sleeves bore an
MPD patch and sergeant chevrons. Sloan Dep. at 21:17-21. Ramadhan wore a bulletproof vest
with the word “POLICE” written on it in large yellow letters. Ramadhan Dep. at 10:13-16.
Barnhardt recognized Sloan as the same police officer he had seen at a hearing in his brother’s
criminal case and who came to his house on December 15, 2003. Barnhardt Dep. at 40:10-42:2.
At this point, the participants’ stories diverge.
1. Barnhardt’s Account
When asked to identify himself, Barnhardt first gave the officers the fictitious name of
“Tony Hicks.” Barnhardt Dep. at 42:5-43:6. Before allowing Barnhardt to retrieve his wallet
from the back pocket of his pants, Sloan patted the pocket. Id. at 43:9-14. Barhardt then
produced his father’s identification, id. at 43:9-18, before correctly identifying himself and
producing his own identification, id. at 45:2-4, 47:17. Ramadhan hit Sloan on the arm, id. at
45:19-21, directed Sloan to wait with Barnhardt, and walked up the driveway while, as Sloan
-3-
directed, Barnhardt spread his hands on the hood of the SUV, id. at 47:17-48:5.
Barnhardt observed Ramadhan, who was standing behind the pickup truck, pull out of his
sweater an object later described as a black shaving bag. Barnhardt Dep. at 49:15-17, 50:3-5.
Ramadhan then signaled Sloan, who immediately restrained Barnhardt on the SUV. Id. at 51:13-
20. Barnhardt fought Sloan and tried to break Sloan’s hand. Id. at 52:8-11. Ramadhan then
approached, id. at 52:16-17, and when Sloan and Ramadhan grabbed Barnhardt’s hands,
Barnhardt fell onto the bag, which had been opened and now lay in the yard, id. at 52:18-20,
54:6-7. Sloan and Ramadhan forced Barnhardt’s hand into the bag. Id. at 54:15-55:21.
Barnhardt had never seen the bag before, id. at 55:4-5, and he believed that “one of the officers
put it there,” id. at 55:7-8. During the struggle, Sloan called Barnhardt a “motherfucker” and a
“black nigger.” Id. at 82:18-18.
Several officers arrived soon afterwards, and Barnhardt was handcuffed and his legs were
shackled. See Barnhardt Dep. at 66:17-68:9. Sloan searched him, id. at 70:8-11, and the search
entailed the removal of items from his pockets and the removal of his belt, id. at 72:9-14.
Barnhardt’s pants fell down when the belt was removed, and an officer helped to pull his pants
up. Id. at 77:19-21. Barnhardt remembered having approximately $3,900 cash with him when
he was searched, which he explained was for materials and labor for a job he was doing for a
neighbor. Id. at 72:15-73:9. The officer who helped Barnhardt pull up his pants took Barnhardt
to the DEA headquarters. Id. at 78:20-79:1, 85:3-8. Sloan later came to the DEA office and
searched Barnhardt again. Id. at 85:20-21.
2. Ramadhan’s Account
Ramadhan joined the MPD in 1990, Ramadhan Dep. at 36:14-16, and in his years as an
-4-
officer he had “been involved in numerous drug and gun offenses,” id. at 40:3-4, meaning,
presumably, that he had made many arrests for gun and drug offenses.
Ramadhan observed Barnhardt toss a black object into the pickup truck as he was
approaching the officers. Ramadhan Dep. at 10:16-19. He described the object as “a small
shaving kit bag, like . . . a small box shape.” Id. at 10:20-11:2. Ramadhan became suspicious of
Barnhardt when, after seeing police officers approach him, he disposed of an object in his
possession – such conduct, Ramadhan believed, was “consistent [with] someone disposing of
contraband.” Id. at 33:11-12.
Ramadhan walked back to the pickup truck, id. at 14:14-19, and saw two black items in
the bed of the truck: a black shaving bag, and a large battery, which Ramadhan knew could not
have been tossed, id. at 15:11-17. Ramadhan opened the bag and “observed a white rock-like
substance, which is consistent with cocaine.”2 Id. at 15:18-20. Ramadhan stated that the amount
of drugs, the scales and the razor blades were “consistent with possession with intent to
distribute.” Id. at 56:1-2. Ramadhan then walked back towards Sloan and Barnhardt, and gave
Sloan the signal to arrest. Id. at 15:20-16:15. The drugs were left on the hood of the SUV while
Sloan and Ramadhan struggled with Barnhardt. Id. at 18:3-5. The officers also called for
assistance because other individuals were approaching to within 10 feet and they were yelling at
Sloan and Ramadhan. Id. at 21:5-20. During the struggle, the parties were never close to the
bag, and Ramadhan watched the bag the whole time “to make sure that nobody would grab it.”
Id. at 29:12-20.
2
The bag also contained razors and a scale with Barnhardt’s fingerprint on it. Pl.’s
Opp’n, Ex. D (Tr. of Ruling before Dist. Judge Friedman, United States v. Barnhardt, No. CR-
04-0132 (D.D.C. May 14, 2004)) at 12:24-13:1.
-5-
After Barnhardt was arrested, he was searched, and over $3,000 was found in his pocket.
Id. at 23:4-10. Ramadhan observed Sloan search Barnhardt; Sloan did not strip search
Barnhardt. Id. at 44:7-14. Ramadhan telephoned his wife, Tina Ramadhan, an MPD crime
scene search officer, id. at 25:12, after Barnhardt had been transported to find out whether she
was available to assist with evidence recovered at the scene. Id. at 24:5-9. He has made such
calls whenever he recovered drugs “[o]nly because it’s faster . . . than . . . going through the
dispatcher.” Id. at 24:13-19. “[O]ther officers call [Tina Ramadhan] directly because they know
it’s faster to go through her.” Id. at 25:18-19.
3. Sloan’s Account
Sloan joined the MPD in 1988, Sloan Dep. at 38:8-10, attained the rank of Sergeant in
1993, id. at 39:9-12, and among other assignments he had served with vice units and in the major
narcotics branch, id. at 39:1-6, 40:4-8, 40:18. Sloan “had . . . knowledge that [Barnhardt] had
been involved in some narcotics activities” in the past, id. at 16:21-17:6, but had no specific
information that Barnhardt was dealing drugs, id. at 20:4-5.
When Sloan asked Barnhardt his name, Barnhardt claimed to be Tony Lawrence. Sloan
Dep. at 24:5-11. Sloan asked Barnhardt for identification. Id. at 24:11. At this time, Sloan
asked Barnhardt to put down the tools he was holding in his left hand; Barnhardt complied, and
Sloan moved the tools away from Barnhardt. Id. at 24:12-16. Before allowing Barnhardt to
reach for his wallet, Sloan squeezed the pocket “to make sure it was just that, the wallet.” Id. at
25:17-18. Barnhardt then produced his identification. Id. at 26:7-10.
By this time, Ramadhan was approaching the pickup truck. Id. at 28:2-3. Sloan believed
that Ramadhan “had observed something . . . and he wanted to . . . investigate.” Id. at 28:11-24.
-6-
At Ramadhan’s direction to “hold onto Mr. Barnhardt,” id. at 28:15, Sloan instructed Barnhardt
to place his hands on the hood of the SUV, id. at 28:5-6. Barnhardt’s hands repeatedly slid
down, and Sloan repeated his direction to Barnhardt to put his hands back on the vehicle. Id. at
14-19. Based on his experience, Barnhardt’s noncompliance “put[] the alert level up a little bit.”
Id. at 29:21-30:1. Sloan saw Ramadhan moving at the back of the pickup truck, but focused his
attention on Barnhardt until Ramadhan gave a verbal signal to arrest Barnhardt. Id. at 30:6-12.
Sloan told Barnhardt to place his hands behind his back, and radioed for assistance after
Barnhardt started struggling. Id. at 30:19-31:20, 32:16-17. Sloan did not observe Barnhardt toss
an object, id. at 28:19-21, and Ramadhan did not say anything to Sloan at the time Ramadhan
allegedly observed Barnhardt toss the object into the pickup truck, id. at 29:8-10.
Once Barnhardt had been subdued, Sloan searched Barnhardt’s pockets, shoes, and
socks, and removed his belt and shoelaces, which Sloan stated is standard procedure before
transport. Id. at 33:5-17. Sloan denied that Barnhardt was strip searched, id. at 33:8-10, and
Sloan did not remember Barnhardt’s pants being lowered during the search, id. at 33:18-19.
Barnhardt was transported to the 7th District by another officer because the vehicle Sloan was
driving was not suitable for transporting an arrestee. Id. at 36:11-21, 37:1-6.
The crime scene officer who came to process the evidence was Tina Ramadhan,
Detective Allee Ramadhan’s wife. Id. at 34:1-9. Sloan remembered calling Tina Ramadhan “on
a . . . couple of occasions even when [Sloan] wasn’t with [Ramadhan] to get assistance with a
particular scene.” Id. at 34:18-20.
B. Criminal Proceedings
According to the criminal complaint, on February 13, 2004, Barnhardt “did unlawfully,
-7-
knowingly and intentionally possess with intent to distribute a mixture and substance containing
a detectable amount of cocaine,” and thus he was charged with one count of unlawful possession
with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C). Criminal
Complaint, United States v. Barnhardt, No. 04cr132 (D.D.C. Feb. 17, 2004); see Mem. of P. &
A. in Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Mem.”), Ex. A (Arrest/Prosecution Report).
After an initial appearance, at which time he was ordered held without bond, and a postponement
at Barnhardt’s request, on March 3, 2004, Magistrate Judge Facciola held the preliminary
hearing and detention hearing. See Transcript of Preliminary Hearing and Detention Hearing
(“Tr.”), United States v. Barnhardt, No. 04cr132 (D.D.C. Mar. 17, 2004).3
The government presented testimony only from Ramadhan, who Barnhardt’s counsel
cross-examined. See Tr. 3:19-38:14. Barnhardt had an opportunity to present evidence and his
counsel declined to do so. Tr. 39:19-22. Magistrate Judge Facciola ultimately found “probable
cause to believe that [Barnhardt] committed the crime with which he [was] charged, Tr. 39:23-
24, and had the following exchange with Barnhardt’s counsel:
Counsel: Your Honor, I know this Court moved to the probable cause
determination awfully quick. I would like to speak on a couple of
things, though.
MJ: Go ahead.
Counsel: In terms of the probable cause determination, there is no indication
here that the officer saw Mr. Barnhardt for more than maybe one or
two seconds with this object [referring to the black shaving bag].
There is no indication here that Mr. Barnhardt, assuming that that
was seen in the manner in which it was seen, had knowledge of what
was in that container, which was closed . . . and there was no obvious
sign[] that Mr. Barnhardt at that time was manipulating that so as to
indicate –
3
The hearing took place on March 3, 2004, and a transcript of the hearing was
entered on the docket on March 17, 2004.
-8-
MJ: [Counsel], there were two objects in the back of the truck. One was
the shaving case, the other was a battery.
Counsel: I appreciate that.
MJ: It’s not very likely that when Officer Ramadhan showed us what he
did [referring to Ramadhan’s courtroom demonstration of the tossing
motion he observed Barnhardt make], that anybody could fling a
battery like that.
Counsel: I appreciate that, but the fact that if he did fling that in the manner in
which he did, did he have knowledge of what’s inside, when you’re
talking about a black leather shaving . . . kit which you can’t see
through –
MJ: Couldn’t a reasonable person determine that upon seeing Detective
Ramadhan and seeing the word “Police,” took the object in the hopes
of disassociating himself with it, that consciousness of guilt would be
. . . evidence of his knowledge of its contents?
Counsel: No, because given the way . . . officers routinely in the District of
Columbia seize objects from people, and the difficulty in getting
objects back under any circumstances once the police seize things,
you may not want the police involved in seizing your items. So I
don’t think there’s proof here that Mr. Barnhardt had specific
knowledge of what’s in a shaving . . . container . . . . The Court may
say, “Well, I’m not here to decide the legality of a search,” in terms
of the question is was there probable cause to believe he was in
possession of drugs. But when you have an instance when it’s clear
the police did not have the authority to conduct a search in the
manner in which they conducted their search, that . . . now we’re
going to impose a very severe sanction upon Mr. Barnhardt by having
him detained pending the outcome of this case[.]
Tr. 42:24-45:6. Responding to counsel’s argument, Magistrate Judge Facciola stated:
The question of the search is not before me. With reference to the argument
[counsel] made, I find probable cause to believe [Barnhardt] committed the crime
charged.
As I indicated, there is a moment in time when [Barnhardt] viewed a man coming at
him, who has the word “Police” written across his chest. At that point, he causes a
black object to go flying through the air and land in the back of the truck. In the
back of the truck there are two objects. One obviously is impossible in being flipped
in that way, it’s a car battery. The other is the object which the officer seizes and
finds the drugs. I believe that a reasonable person could find on those facts that there
was a willful attempt to get rid of the object before the police could get it, and that
would be evidence in itself from which a jury can draw the conclusion that the
person who threw the object had knowledge of its contents.
-9-
Therefore, I find probable cause to believe that [Barnhardt] knowingly possessed a
controlled substance with intent to distribute it.
Tr. 48:2-22. The government then presented the case to a grand jury, which returned an
indictment on March 11, 2004. Indictment, United States v. Barnhardt, No. 04cr132 (D.D.C.
Mar. 11, 2004).
After his arraignment, Barnhardt moved to suppress the drug evidence seized at the time
of his arrest. See Def.’s Mot. to Suppress Physical Evidence, United States v. Barnhardt, No.
04cr132 (D.D.C. Mar. 25, 2004). He argued that the officers “acted without the authority of a
warrant and . . . did not have probable cause to arrest [him].” Id. ¶ 4. According to Barnhardt,
the officers not only lacked probable cause but also lacked “a reasonable articulable suspicion to
believe that [he] was or had been engaged in criminal activity.” Id. ¶ 5. The government
opposed the motion, contending that: (1) Barnhardt had no legitimate expectation of privacy and
thus lacked standing to challenge the search of the pickup truck or the black bag, (2) Barnhardt
abandoned the bag and thus lacked standing to challenge the recovery of drugs from it, (3) the
officers conducted a reasonable search of Barnhardt’s person and the area within his immediate
access, and (4) the officers had probable cause to believe that the pickup truck and the black bag
contained evidence of a crime and therefore could search the truck under the automobile
exception to the warrant requirement. Gov’t’s Opp’n to Def. Barnhardt’s Mot. to Suppress
Physical Evidence, United States v. Barnhardt, No. 04cr132 (D.D.C. Apr. 30, 2004) at 3-8.
After an evidentiary hearing and argument, Judge Friedman granted the motion to
suppress. See Order, United States v. Barnhardt, No. 04cr132 (D.D.C. May 18, 2004). Judge
Friedman considered and rejected each of the government’s arguments. See generally Transcript
-10-
of Ruling (“Tr. of Ruling”), United States v. Barnhardt, No. 04cr132 (D.D.C. Aug. 12, 2004).
First, on the issue of standing, he considered whether Barnhardt had a legitimate expectation of
privacy in the area searched or a proprietary interest in the property seized. Tr. of Ruling at
13:4-6. Judge Friedman found that Barnhardt had an ownership interest in the house and
property, but not in the truck, id. at 15:6-7, and had a possessory interest in the scale containing
his fingerprint, id. at 15:8-10. Judge Friedman concluded that, “when he’s at his own home, in
his own driveway, coming out of his own house, where there is a truck that is there not on one
but on numerous . . . occasions . . . where his sister arrives to visit and pulls in behind that truck,”
and where the bag had been in Barnhardt’s hands and the scale had his fingerprint on it,
Barnhardt must “have standing to raise Fourth Amendment claims.” Id. at 17:13-23. Judge
Friedman then considered whether Barnhardt forfeited any expectation of privacy he might have
had by tossing the bag away. He found that Barnhardt had remained next to the vehicle, Tr. of
Ruling at 18:21-22, and “it doesn’t seem plausible that he abandoned a piece of property that he
had put into a vehicle parked in the driveway of his own home, which vehicle itself was blocked
from exiting by his sister’s SUV,” id. at 18:24-19:2.
Next, Judge Friedman considered whether, under Terry v. Ohio, 392 U.S. 1 (1968), Sloan
and Ramadhan lawfully detained Barnhardt and searched him and the area immediately
surrounding him. See Tr. of Ruling at 19:14-23:25. Judge Friedman observed that Sloan and
Ramadhan were suspicious because of Barnhardt’s background, his brother’s history, and the
fact that Barnhardt fled on an earlier occasion, and that the tossing of the bag caused Ramadhan
to go see what the bag was. Id. at 20:23-21:5. But Judge Friedman noted that Barnhardt was
unarmed, had placed his tools on the ground, and stood over 15 feet from the bag, which tended
-11-
to show that “this search was not reasonably limited in scope to the accomplishment of the only
goal which might conceivably have justified its inception, the protection of the officer[s].” Id. at
12:23-25. Moreover, Judge Friedman was not convinced that suspicions about Barnhardt’s prior
attempt to avoid service of a subpoena or the alleged drug activity of Barnhardt’s brother would
justify seizure of the bag – Ramadhan “really didn’t invoke the safety rationale for even picking
[the bag] up, and he certainly didn’t invoke the safety rationale for opening it. He had no reason
to open it.” Id. at 22:12-14. Hence, “[t]here was no justifiable reason, no reasonable suspicion,
no probable cause to open the pouch.” Id. at 23:12-14.
Lastly, Judge Friedman rejected the government’s argument that the automobile
exception to the warrant requirement applied. Tr. of Ruling at 24:4-7. He found that the
exception “is based on the mobility of vehicles,” id. at 24:12, and that the truck could not be
moved because it was blocked in by two other vehicles, id. at 24:15-18.
Barnhardt apparently remained in custody pending the government’s appeal of Judge
Friedman’s ruling, which was dismissed on the government’s motion. Order, United States v.
Barnhardt, No. 04-3077 (D.C. Cir. Aug. 13, 2004). The government then moved to dismiss the
indictment. Gov’t’s Mot. to Dismiss, United States v. Barnhardt, No. 04cr132 (D.D.C. Aug. 17,
2004). Judge Friedman granted the motion, see Order, United States v. Barnhardt, No. 04cr132
(D.D.C. Sept. 2, 2004), and Barnhardt was released from custody, see Order for Release of
Defendant, United States v. Barnhardt, No. 04cr132 (D.D.C. Sept. 2, 2004).
C. Counts of the Amended Complaint
Barnhardt brings this civil rights action against the District of Columbia and against
Sloan and Ramadhan in their individual capacities under 42 U.S.C. §§ 1981 and 1983 and Bivens
-12-
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He asserts
several claims in six counts.4
In Count 1, Barnhardt alleges that Sloan and Ramadhan “orchestrated their arrival at [his]
home in order to ‘plant’ evidence” in retaliation for the December 15, 2003 encounter, in
violation of the Fourth and Fifth Amendments to the United States Constitution.5 Am. Compl.
¶¶ 21-22. In Count 2, he alleges that defendants “detained, handcuffed and arrested” him,
resulting in his being “jailed without bond on the federal drug charges from February 13, 2004
through September 2, 2004,” the time period for which he “seeks compensation[.]” Id. ¶ 24.
Counts 1 and 2 comprise Barnhardt’s constitutional claims for false arrest and false
imprisonment. And in Count 3, Barnhardt alleges that Sloan and Ramadhan “conspired to
falsely arrest [him].” Am. Compl. ¶ 26.
He then alleges in Count 4 that the District of Columbia, “pursuant to official policy and
custom, . . . knowingly, or negligently failed to instruct, supervise, control and discipline [Sloan
and Ramadhan] in the performance of their duties,” such that the officers “were permitted to
conspire to falsely arrest [Barnhardt] for their personal motives.” Id. ¶ 34. And in Count 5,
Barnhardt alleges that Sloan and Ramadhan caused him to be subjected to a strip search, first
outside his home and then at headquarters downtown. Id. ¶ 37. Lastly, Barnhardt alleges in
4
Barnhardt’s common law claims for false arrest, false imprisonment, assault,
intentional infliction of emotional distress, malicious prosecution, abuse of process, and unlawful
entry or trespassing have been dismissed, as were his claims against former Mayor Anthony
Williams and former MPD Chief Charles Ramsey. Barnhardt v. Dist. of Columbia, 560 F. Supp.
2d 15, 19-20 (D.D.C. 2008).
5
The Fourteenth Amendment does not apply to the District of Columbia, see
Bolling v. Sharpe, 347 U.S. 497, 498 (1954), and Barnhardt’s claims under the Fourteenth
Amendment will be dismissed.
-13-
Count 6 that Sloan and Ramadhan “targeted [him] for the arrest based on his status as an African
American.” Id. ¶ 39.
II. DISCUSSION
A. Summary Judgment Standard
The Court may grant a motion for summary judgment “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the
moving party’s affidavits may be accepted as true unless the opposing party submits his own
affidavits, declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453,
456 (D.C. Cir. 1992).
“[I]n responding to a proper summary judgment motion, the nonmoving party, ‘by
affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is
a genuine issue for trial.’” Bush v. Dist. of Columbia, 595 F.3d 384, 387 (D.C. Cir. 2010)
(quoting Fed. R. Civ. P. 56(e)). “Mere allegations or denials of the adverse party’s pleading are
not enough to prevent the issuance of summary judgment.” Williams v. Callaghan, 938 F. Supp.
46, 49 (D.D.C. 1996). The adverse party must do more than simply “show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Instead, while the movant bears the initial responsibility of
identifying those portions of the record that demonstrate the absence of a genuine issue of
material fact, the burden shifts to the non-movant to “come forward with ‘specific facts showing
-14-
that there is a genuine issue for trial.’” Id. at 587 (citing Fed. R. Civ. P. 56(e)) (emphasis in
original).
Although a court should draw all favorable inferences from the supporting records
submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not
sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). To be material, the factual assertion must be capable of affecting the substantive
outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible
evidence that a reasonable trier of fact could find for the nonmoving party. Laningham v. United
States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251 (stating
that the court must determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of
law”).
B. Collateral Estoppel (Issue Preclusion)
Defendants move for summary judgment primarily on the ground that the doctrine of
collateral estoppel, or issue preclusion, bars relitigation of the issue of probable cause for
Barnhardt’s arrest. See Defs.’ Mot. at 6-10. According to defendants, “[t]he undisputed facts
show that, following a full and fair hearing on the issue of probable cause in which [p]laintiff
was represented by counsel, a court of competent jurisdiction found probable cause for
[p]laintiff’s February 13, 2004 arrest.” Id. at 10. If Barnhardt cannot revisit the issue of
probable cause for his arrest, defendants assert, his remaining claims also fail because they “are
dependent on the alleged false arrest and imprisonment claims.” Id. at 6.
“The Supreme Court has defined issue preclusion to mean that ‘once a court has decided
-15-
an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the
issue in a suit on a different cause of action involving a party to the first case.’” Yamaha Corp.
of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (quoting Allen v. McCurry, 449 U.S.
90, 94 (1980)). “To preclude parties from contesting matters that they have had a full and fair
opportunity to litigate protects their adversaries from the expense and vexation attending
multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by
minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U.S. 147,
153-54 (1979). The doctrine applies to civil rights actions under § 1983, see Allen, 449 U.S. at
96, and a finding in a criminal proceeding may bar a party from relitigating the same issue in a
subsequent civil action, Emich Motors Corp. v. Gen. Motors Corp., 340 U.S. 558, 568-69 (1951)
(holding that “plaintiffs are entitled to introduce the prior judgment to establish prima facie all
matters of fact and law necessarily decided by the conviction and verdict on which it was
based”); Otherson v. Dep’t of Justice, 711 F.2d 267, 271 (D.C. Cir. 1983) (stating that “issues
determined in connection with a criminal conviction may be taken as preclusively established for
the purposes of later civil trials”) (citations omitted); see also Allen, 449 U.S. at 105 (applying
collateral estoppel in a § 1983 action based on factual claims litigated in an earlier criminal trial).
In order for collateral estoppel to apply, three elements must be shown:
[1], the same issue now being raised must have been contested by the
parties and submitted for judicial determination in the prior case[; 2],
the issue must have been actually and necessarily determined by a
court of competent jurisdiction in that prior case[; and 3], preclusion
in the second case must not work a basic unfairness to the party
bound by the first determination.
Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting Yamaha Corp., 961 F.2d
-16-
at 254). In this case, collateral estoppel is asserted defensively, that is, to prevent litigation of an
issue plaintiff previously litigated and lost, and defendants may assert collateral estoppel as a
defense even though they were not bound by the prior judgment. See McCord v. Bailey, 535
F.2d 606, 609 n.1 (D.C. Cir. 1980).
Although “[t]he objective of the doctrine of . . . collateral estoppel . . . is judicial
finality,” Yamaha Corp., 961 F.2d at 254, not all prior determinations have preclusive effect.
For example, issues litigated in the context of a preliminary injunction traditionally would not
form a basis for collateral estoppel. See Kuznich v. County of Santa Clara, 689 F.2d 1345, 1350-
51 (9th Cir. 1983). However, “recent decisions have relaxed traditional views of the finality
requirement in the collateral estoppel context by applying the doctrine to matters resolved by
preliminary rulings or to determinations of liability that have not yet been completed by an
award of damages or other relief, let alone enforced.” In re Nangle, 274 F.3d 481, 484-85 (8th
Cir. 2001) (citations and internal quotation marks omitted). The doctrine may apply, then, where
the findings made in the prior proceeding are “sufficiently firm” to remove any compelling
reason to permit relitigation of the issues. Hawksbill Sea Turtle v. FEMA, 126 F.3d 461, 474
n.11 (3d Cir. 1997); see Christo v. Padgett, 223 F.3d 1324, 1339 (11th Cir. 2000) (preliminary
findings with respect to a proposed settlement); Haupt v. Dillard, 17 F.3d 285, 288-89 (9th Cir.
1994) (probable cause determination at a criminal preliminary hearing). Finality for purposes of
collateral estoppel “may mean little more than that the litigation of a particular issue has reached
such a stage that a court sees no really good reason for permitting it to be litigated again.” In re
Brown, 951 F.2d 564, 569 (3d Cir. 1991) (internal quotation marks and citations omitted).
Defendants’ collateral estoppel argument based on the probable cause determination at a
-17-
criminal preliminary hearing is not without support in case law. For example, in Coogan v. City
of Wixom, 820 F.2d 170 (6th Cir. 1987), overruled on other grounds by Frantz v. Vill. of
Bradford, 245 F.3d 869, 874 (6th Cir. 2001), a state district judge had conducted a preliminary
hearing at which Coogan was represented by counsel, who cross-examined 14 out of 15
witnesses produced by the prosecutor. 820 F.2d at 172. The judge found probable cause and
bound Coogan over for trial in the state circuit court, where Coogan filed a motion to quash the
criminal charge in order “to have the circuit court judge reexamine the issue of probable cause.”
Id. After a hearing, the state circuit court found no basis for overturning the lower court
decision. Id. In the subsequent federal § 1983 case, the Sixth Circuit concluded that Coogan
was “collaterally estopped from raising the issue of probable cause,” since he had had a full and
fair opportunity to litigate the issue at an earlier state proceeding. Id. at 175. The court
concluded that, where a preliminary hearing under Michigan law offered “an opportunity to
contest probable cause . . . and the accused does so, a finding of probable cause by the examining
. . . state judge should foreclose relitigation of that finding in a subsequent § 1983 action.” Id.
The Seventh Circuit similarly applied collateral estoppel in Guenther v. Holmgreen, 738
F.2d 879 (7th Cir. 1984). After an evidentiary hearing, the state trial court found probable cause
to arrest and denied a motion to dismiss. 738 F.2d at 881. A jury then found Guenther not guilty
of disorderly conduct; it was unable to reach a verdict on the charge of resisting arrest. Id. He
filed a § 1983 action claiming that the arrest was made without probable cause and was based on
the arresting officer’s misrepresentations. Id. The Seventh Circuit construed the claim as an
attack on both the sufficiency and the integrity of the evidence supporting the probable cause
determination. Id. at 884. Guenther, who was represented by counsel, had raised and litigated
-18-
probable cause at the preliminary hearing “by attempting to show that the events [the arresting
officer] relied on to establish probable cause actually occurred after the arrest had taken place,”
by “thoroughly litigat[ing] and challeng[ing] the veracity of [the arresting officer] and the other
prosecution witnesses who supplied the bases for probable cause,” and by calling a rebuttal
witness of his own. Id. And the state court’s determination of probable cause “actually and
necessarily entailed the rejection of [Guenther’s] challenges to [the arresting officer’s] veracity,
integrity, and good faith,” id. (internal quotation marks omitted), in “a much more extensive and
probing hearing” than ordinarily would occur, id. at 886.
More recently, in Flowers v. City of Detroit, 306 Fed. Appx. 984 (6th Cir. 2009), the
plaintiff brought claims of false arrest and false imprisonment in a § 1983 action following the
dismissal of criminal charges against him. Id. at 985, 987. At the preliminary hearing in the
criminal case, plaintiff’s counsel had declined an opportunity to cross-examine the prosecution’s
witnesses and, after argument from both sides, the state judge had found probable cause and
bound the plaintiff over for trial. Id. at 986-87. The federal court granted the defendants’
motion for summary judgment in the subsequent civil rights action, “finding that [the plaintiff]
was precluded from arguing lack of probable cause for his arrest – an element of each of his
claims – by collateral estoppel arising from a state court judgment on the issue of probable
cause,” and the Sixth Circuit affirmed. Id. And in Craig v. City of Hobart, No. 09-0053, 2010
WL 680857 (W.D. Okla. Feb. 24, 2010), the plaintiff brought claims of false arrest, but he was
barred from relitigating the issue of probable cause for his arrest because the issue already had
been decided at the preliminary hearing in the underlying state criminal matter. Id., 2010 WL
680857, at *4. The court interpreted Oklahoma law as directing that an order binding a criminal
-19-
defendant for trial “precludes relitigation of the issue of probable cause in a subsequent civil suit
for false arrest following acquittal.” Id. (citation omitted).
Here, the parties do not dispute that Magistrate Judge Facciola found probable cause to
believe that Barnhardt committed the drug offense with which he was charged. See Defs.’ Mem.
at 7; Pl.’s Opp’n at 3. But that finding does not necessarily have preclusive effect in this
subsequent civil rights action following dismissal of the criminal case. Rather, each element of
collateral estoppel must be assessed based on the facts and circumstances present.
1. Was the same issue previously raised in the prior case?
The probable cause finding at the preliminary hearing will have preclusive effect only if
the issue before Magistrate Judge Facciola was the same issue now before the Court in this case.
At a preliminary hearing in federal court, a magistrate judge “determine[s] whether there is
probable cause to believe that an offense has been committed and that the arrested person has
committed it.” 18 U.S.C. § 3060(a); see United States v. Hinkle, 307 F. Supp. 117, 120 (D.D.C.
1969) (“[T]he directive of Sec. 3060(a) is clear and definite; as regards the function of the
preliminary hearing, subsection (a) provides that ‘a preliminary examination shall be held . . . to
determine whether there is probable cause to believe that an offense has been committed and that
the arrested person has committed it.’”). “It has generally been thought that the purpose of a
preliminary hearing is to afford the accused (1) an opportunity to establish that there is no
probable cause for his continued detention and thereby to regain his liberty and, possibly, escape
prosecution, and (2) a chance to learn in advance of trial the foundations of the charge and the
evidence that will comprise the government’s case against him.” Blue v. United States, 342 F.2d
894, 901 (D.C. Cir. 1964); accord, Ross v. Sirica, 380 F.2d 557, 559 (D.C. Cir. 1967). The first
-20-
purpose of the preliminary hearing is at issue here.
To be sure, there are circumstances in which a probable cause determination at a
preliminary hearing will have no preclusive effect because the issue presented there is not the
same as the issue later presented in the § 1983 action. For example, where the later attack is on
the integrity of the evidence supporting the earlier probable cause determination, that prior
determination may have no preclusive effect. In Hinchman v. Moore, 312 F.3d 198 (6th Cir.
2001), a state court judge found probable cause for an arrest on a felony assault charge based on
the testimony of two arresting officers. Id. at 201. After her acquittal, Hinchman filed a § 1983
action claiming, inter alia, false arrest and false imprisonment. Id. at 201. She contended that
the officers supplied false information to the prosecutors and to the state court, id. at 202, a claim
characterized by the Sixth Circuit as a challenge to the integrity of the evidence supporting the
probable cause determination. See id. at 203. Bound by its precedent, see Darrah v. City of Oak
Park, 255 F.3d 301 (6th Cir. 2001), the Sixth Circuit concluded that an identity of issues was
lacking, reasoning that the preliminary hearing dealt with the sufficiency of evidence, while
Hinchman’s § 1983 claims pertained to the integrity of the evidence upon which the probable
cause determination was made. See 312 F.3d at 203.
A similar result was reached in Schertz v. Waupaca County, 875 F.2d 578 (7th Cir.
1989). There, at a preliminary hearing the state judge found probable cause to bind the plaintiff
over for trial. 875 F.2d at 579. Following acquittal on all charges, Schertz filed a § 1983 action
claiming that he had been arrested and detained without probable cause. Id. at 580. He did not
attack the sufficiency of the evidence supporting the probable cause determination; rather, “his
theory [was] that the flaws in the murder investigation demonstrate[d] the defendants’ bad faith .
-21-
. . thereby negat[ing] the existence of probable cause.” Id. at 581. The Seventh Circuit held that
because Schertz’s theory was “more accurately characterized as a challenge to the integrity of
the evidence than its sufficiency, identity of the issues [was] lacking,” and hence the prior
probable cause determination had no preclusive effect. Id.6
On the other hand, as reflected in the cases discussed earlier, the Sixth and Seventh
Circuits both recognize that a probable cause determination may have preclusive effect. In
Whitley v. Seibel, 676 F.2d 245 (7th Cir. 1982), the Seventh Circuit “conceded that there will be
identical issues in a preliminary hearing and a [§] 1983 action when only the legality of the arrest
is at issue.” 676 F.2d at 249. And the Sixth Circuit in Hinchman noted that “not every criminal
defendant turned civil plaintiff will prevail in a § 1983 action based on malicious prosecution or
a similar claim after being acquitted on criminal charges.” Hinchman, 312 F.3d at 203. Where
plaintiff had an opportunity to cross-examine the government’s witnesses and to testify himself,
courts should not necessarily “allow [a § 1983 plaintiff] a second bite at the probable-cause
apple, a result that is diametrically opposed to the collateral-estoppel concept.” Id.
Barnhardt principally relies on two points: that Judge Friedman granted his motion to
suppress and that the criminal case consequently was dismissed. See Pl.’s Opp’n at 5. That may
6
In Williams v. Kobel, 789 F.2d 463 (7th Cir. 1986), the Seventh Circuit concluded
that the applicable Illinois statute governing preliminary hearings “[did] not require the judge to
evaluate the presence or absence of probable cause at the time of the arrest,” and “absent a
motion challenging the validity of the arrest, the presiding judicial official bases the probable
cause to bindover determination on evidence exclusively presented at the hearing and does not
and should not consider the separate issue of whether there was probable cause to arrest the
defendant.” 789 F.2d at 468. The preliminary examination determination, then, had no
preclusive effect for two reasons – whether there was probable cause to arrest the plaintiff was
not at issue at the preliminary hearing and the officers did not have a full and fair opportunity to
litigate probable cause there. Id. at 470.
-22-
not always be enough. But here, Barnhardt’s account of the facts giving rise to his arrest
contrasts markedly with Ramadhan’s account, and he challenges Ramadhan’s veracity by
denying ownership or possession of the black shaving bag, by testifying that Ramadhan planted
the bag, and by denying any knowledge of the bag’s contents. If Barnhardt’s account is to be
believed, Ramadhan lied about what he observed. And Judge Friedman’s ruling undermines
Ramadhan’s rationale, such as it was, for retrieving and searching the shaving bag. The officers
could have accomplished the purpose of their visit to Barnhardt’s home – simply to serve him
with a subpoena – once they had verified Barnhardt’s identity and determined that he did not
pose a threat to their safety. But for the search that was subsequently deemed unconstitutional
by Judge Friedman, Barnhardt would not have been arrested on the drug charge.
Barnhardt’s circumstances, then, are closer to those in Hinchman and Schertz than to the
cases finding collateral estoppel. The former plaintiffs directly challenged the basis on which
the arresting officers decided to arrest, thereby attacking the integrity (or quality) of the evidence
on which the arrests were made. However, the sole issue at each preliminary hearing was the
sufficiency (or quantum) of the evidence. In Hinchman, the plaintiff’s issue was “whether the
detectives . . . supplied the prosecutor’s office and the state court with a false version of the
facts” supporting her arrest for felonious assault, while the issue at the preliminary hearing
“concerned probable cause to arrest and prosecute her.” 312 F.3d at 202. Similarly, in Schertz,
“[t]he preliminary hearing concerned the sufficiency of the evidence to establish probable
cause,” but the claim in the subsequent § 1983 action was “more accurately characterized as a
challenge to the integrity of the evidence than to its sufficiency.” 875 F.2d at 581.
Barnhardt’s success on the suppression motion came about when Judge Friedman
-23-
reviewed the arresting officers’ motivation and purported rationale for searching the black
shaving bag, found no ground for conducting the search, and thus undermined the basis for
Barnhardt’s arrest on the drug charge. Judge Friedman’s ruling, then, supports the conclusion
that the probable cause finding at the preliminary hearing has no collateral estoppel effect. As in
Hinchman, Barnhardt challenges the accuracy or veracity of law enforcement’s version of the
facts which, in the words of Schertz, is better described “as a challenge to the integrity of the
evidence than to its sufficiency.” Schertz, 875 F.2d at 581. Identity of the issues is lacking here,
therefore, because the issue of probable cause at the criminal preliminary hearing is not the same
issue raised in this civil rights suit.
2. Was the issue now presented actually and necessarily determined by a
court of competent jurisdiction in the prior criminal case?
One violates 18 U.S.C. § 841(a)(1), the offense with which Barnhardt was charged, if one
knowingly possesses cocaine with an intent to distribute it. See, e.g., United States v. Burch, 156
F.3d 1315, 1324 (D.C. Cir. 1998) (“To establish the requisite elements on the possession count,
the government needed to prove that appellant possessed crack cocaine knowingly and
intentionally, and that when he possessed the cocaine he had a specific intent to distribute it.”).
Having heard Ramadhan’s testimony at the preliminary hearing, Magistrate Judge Facciola
found that there was sufficient evidence from which a jury could conclude that Barnhardt
knowingly possessed cocaine with intent to distribute it – i.e., that there was probable cause to
arrest and hold Barnhardt for that offense. But Magistrate Judge Facciola’s finding did not
require that he probe Ramadhan’s motivation for conducting the search, and he did not have the
benefit of the testimony of any other witness. Nor was it within his jurisdiction to rule on the
constitutionality of the search leading to Barnhardt’s arrest. The issue presented in this civil
-24-
rights action – the integrity of the evidence upon which the probable cause determination was
made – was not presented earlier, and it follows that the issue was not actually and necessarily
determined at the prior criminal proceeding.
3. Does preclusion here work a basic unfairness to Barnhardt?
Generally, collateral estoppel does not apply where the party against whom the defense is
asserted did not have a full and fair opportunity to litigate the issue in a prior proceeding. See
Haring v. Prosise, 462 U.S. 306, 313 (1983); Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found.,
402 U.S. 313, 333 (1971) (noting that, before a defense of collateral estoppel can prevail, a
plaintiff “must be permitted to demonstrate, if he can, that he did not have a fair opportunity
procedurally, substantively and evidentially to pursue his claim the first time”); Kinslow v.
Ratzlaff, 158 F.3d 1104, 1106 (10th Cir. 1998) (concluding that police officers sued in their
individual capacities were “neither parties nor privies to the prior state court determination and,
therefore, did not have a full and fair opportunity to litigate in state court the constitutionality of
the issues in this [§] 1983 action”).
In the criminal case, the preliminary hearing was rescheduled in order to accommodate
Barnhardt’s counsel, who then cross-examined the sole government witness. That cross-
examination probed whether Ramadhan actually saw or could have seen the small black bag in
Barnhardt’s hand and then tossed by Barnhardt. The cross-examination also highlighted the fact
that the officers could have served Barnhardt with the subpoena as soon as they verified his
identity and that they could have then left the scene. Barnhardt’s counsel presented arguments to
Magistrate Judge Facciola resisting a probable cause finding. And although counsel had an
opportunity to produce evidence in Barnhardt’s defense, he declined to do so. These factors in
-25-
combination suggest that Barnhardt had a full and fair opportunity at the preliminary hearing to
litigate the issue of probable cause and that he had adequate incentive to do so, since a ruling in
his favor could have brought about his release. See, e.g., Flowers, 306 Fed. Appx. at 986;
Guenther, 738 F.2d at 886; Trepanier v. City of Blue Island, No. 03-C-7433, 2008 WL 4442623,
at *2 (N.D. Ill. Sept. 29, 2008). Still, Magistrate Judge Facciola observed that “the question of
the search” was not before him, thus indicating that Barnhardt did not have a full and fair
opportunity to litigate the relevant issue, and that preclusion would be unfair to him.
The issue now raised in this civil rights action focuses on the integrity of the evidence
relating to probable cause for the search and Barnhardt’s subsequent arrest, not on its sufficiency
as was the case at the criminal preliminary hearing. Hence, the first element required for
application of collateral estoppel is not present – the same issue is not being contested. And
ultimately it would be unfair to apply collateral estoppel against Barnhardt here, as it amounts to
a rejection of his version of events, which was not previously litigated and decided against him.
On the facts and circumstances of this case, then, collateral estoppel does not bar relitigation of
the issue of probable cause for Barnhardt’s arrest.
C. Qualified Immunity
Sloan and Ramadhan argue that there was probable cause for Barnhardt’s arrest and
hence no violation of his Fourth Amendment rights, and, therefore, that qualified immunity
protects them from suit. Because qualified immunity is “an immunity from suit rather than a
mere defense to liability, . . . it is effectively lost if a case is erroneously permitted to go to trial.”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original). Accordingly, courts must
“resolv[e] immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502
-26-
U.S. 224, 227 (1991) (per curiam).
“[G]overnment officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests – the need to
hold public officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties reasonably.”
Pearson v. Callahan, 129 S. Ct. 808, 815 (2009). This protection is afforded to government
officials whether their “error is a mistake of law, a mistake of fact, or a mistake based on mixed
questions of law and fact.” Id. (citations and internal quotation marks omitted); see Brinegar v.
United States, 338 U.S. 160, 177 (1949) (“Because many situations which confront officers in
the course of executing their duties are more or less ambiguous, room must be allowed for some
mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading
sensibly to their conclusions of probability.”); see also Anderson v. Creighton, 483 U.S. 635, 661
(1987) (Stevens, J., dissenting) (“The concept of probable cause leaves room for mistakes,
provided always that they are mistakes that could have been made by a reasonable officer.”).
“[A]ll but the plainly incompetent or those who knowingly violate the law” may enjoy the
protection of qualified immunity. Malley v. Briggs, 475 U.S. 335, 341 (1986).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court set forth a two-step analysis
for resolving government officials’ qualified immunity claims. First, the court decides “whether
the facts that a plaintiff has alleged or shown make out a violation of a constitutional right.” Id.
at 201. If the plaintiff satisfies this first step, the court then decides whether the right at issue
-27-
was clearly established at the time of the defendant’s alleged misconduct. Id. The sequence of
this analysis no longer is mandatory, and now the 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, 129 S. Ct. at 818.
With respect to the second prong of the analysis, “[i]t is well settled that an arrest without
probable cause violates the [F]ourth [A]mendment,” Martin v. Malhoyt, 830 F.2d 237, 262 (D.C.
Cir. 1987) (citing Gerstein v. Pugh, 420 U.S. 103, 111 (1975)), and Barnhardt’s right to be free
from an unreasonable search and seizure was clearly established in February 2004. The central
question is whether the facts alleged, taken in the light most favorable to Barnhardt, show that
Ramadhan’s and Sloan’s conduct violated a constitutional right. See Saucier, 533 U.S. at 201.
1. Probable Cause as a Defense to False Arrest
There is “no real difference as a practical matter between false arrest and false
imprisonment[,]” Shaw v. May Dep’t Stores Co., 268 A.2d 607, 609 n.2 (D.C. 1970) (citations
omitted), and “[t]he gist of any complaint for false arrest or false imprisonment is an unlawful
detention,” Dent v. May Dep’t Stores Co., 459 A.2d 1042, 1044 (D.C. 1982) (internal quotation
marks and citation omitted). The elements of a common law false arrest claim and a
constitutional false arrest claim are practically identical. See McCarthy v. Kleindienst, 741 F.2d
1406, 1413 (D.C. Cir. 1984) (“While the false arrest claim is asserted under both the Fourth
Amendment and the common law, the requisite elements in both cases are that the plaintiff was
arrested against his will and that the arrest was unlawful.”); Scott v. Dist. of Columbia, 101 F.3d
748, 753 (D.C. Cir. 1997).
Under District of Columbia law, false imprisonment “is defined as the unlawful detention
-28-
of a person without a warrant or for any length of time whereby he is deprived of his personal
liberty or freedom of locomotion; it may be caused by actual force, or by fear of force, or even
by words.” Tocker v. Great Atl. & Pac. Tea Co., 190 A.2d 822, 824 (D.C. 1963). To prevail, a
plaintiff must demonstrate “that the police acted without probable cause, in an objective
constitutional sense, to effectuate his arrest.” Taylor v. Dist. of Columbia, 691 A.2d 121, 125
(D.C. 1997) (citing Welch v. Dist. of Columbia, 578 A.2d 175, 176 (D.C. 1990)).
The standard for arrest is probable cause, Gerstein, 420 U.S. at 112, which denotes “facts
and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person,
or one of reasonable caution, in believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S.
31, 37 (1979). It is a “practical, nontechnical conception,” Brinegar, 338 U.S. at 176, factoring
in “the factual and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act,” id. at 175. “Whether probable cause exists depends upon the
reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the
arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (citing Maryland v. Pringle, 540 U.S.
366, 371 (2003)). The arresting officer’s state of mind is not relevant in determining whether
probable cause exists, Devenpeck, 543 U.S. at 152, and his “subjective motive does not
invalidate objectively reasonable behavior under the Fourth Amendment,” Oberwetter v.
Hilliard, 680 F. Supp. 2d 152, 167 (D.D.C. 2010).
“[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment
where there is probable cause to believe that a criminal offense has been or is being committed.”
Devenpeck, 543 U.S. at 152 (citations omitted). If an arrest is justified, then the arresting officer
-29-
is protected by qualified immunity and the damages action against him fails.7 See Dellums v.
Powell, 566 F.2d 167, 175 (D.C. Cir. 1977) (citation omitted); Saucier, 533 U.S. at 207; see also
Pierson v. Ray, 386 U.S. 547, 557 (1967) (holding that “the defense of good faith and probable
cause . . . is . . . available to the officers in the action under § 1983”). Hence, the central inquiry
in this case is whether Sloan and Ramadhan were justified in arresting Barnhardt. See Bolger v.
Dist. of Columbia, 608 F. Supp. 2d 10, 18 (D.D.C. 2009) (citing Dellums, 566 F.2d at 175).
2. On the Present Record, Ramadhan Is Not Entitled to Qualified Immunity
While there is no dispute that the bag contained crack cocaine, razors, and a scale bearing
Barnhardt’s fingerprint, the parties dispute the means by which the bag found its way into the
back of the pickup truck. Barnhardt claims that Ramadhan planted it; Ramadhan claims that
Barnhardt tossed it there. If Barnhardt’s version is to be believed, there could not have been
probable cause for his arrest, which was based solely on the alleged discovery of drugs and drug
paraphernalia inside the bag. If Ramadhan’s version is credited, there still remains an open
question as to whether, under all the circumstances, probable cause existed for Barnhardt’s
arrest. The Court is reluctant to issue a ruling suggesting that a genuine issue of material
fact exists any time a plaintiff’s version of events differs markedly from the defendant’s version
7
Barnhardt appears to argue that the decision to grant the motion to suppress
evidence and then dismiss the indictment trumps the probable cause determination reached by
Magistrate Judge Facciola at the prior preliminary hearing. See Pl.’s Opp’n at 6. Not so. The
ultimate resolution of the criminal charges is not determinative, as the qualified immunity
analysis focuses solely on the facts and circumstances surrounding the arrest itself. See Gerstein,
420 U.S. at 112; DeFillippo, 443 U.S. at 36 (“The validity of the arrest does not depend on
whether the suspect actually committed a crime; the mere fact that the suspect is later acquitted
of the offense for which he is arrested is irrelevant to the validity of the arrest.”). Likewise,
unless it has collateral estoppel effect – which the Court has concluded it does not – the
dismissal based on the suppression of evidence is not determinative of the probable cause inquiry
for purposes of qualified immunity.
-30-
with respect to probable cause. Cf. Ayers v. City of Holly Springs, No. 05-cv-75, 2006 WL
2943295, at *4 (N.D. Miss. Oct. 13, 2006). But the competing versions of the facts here are not
“so replete with inconsistencies and improbabilities that no reasonable juror would undertake the
suspension of disbelief necessary to credit the allegations made in [Barnhardt’s] complaint.”
Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005). As to Ramadhan, then, the Court
is presented with “a classic ‘he said, she said’ (in this case ‘he said, he said’) situation in which
summary judgment is inappropriate because the facts are in diametric opposition.” Jones v.
Tozzi, No. 05-cv-0148, 2007 WL 433116, at *11 (E.D. Cal. Feb. 7, 2007). Resolution of these
factual issues depends on credibility determinations which the Court cannot make on summary
judgment. Hence, the assertion that Ramadhan is protected by qualified immunity must be
rejected. See, e.g., DeVentura v. Keith, 169 F. Supp. 2d 390, 398 (D. Md. 2001) (finding that
genuine issues of material fact as to whether the plaintiff was pulled out of her home and thrown
to the ground, or whether she was outside of her home and pushed a police officer, precluded
entry of judgment in officer’s favor on false arrest claim).
3. Sloan Is Entitled to Qualified Immunity
Based on the deposition transcripts submitted with Barnhardt’s opposition to defendants’
summary judgment motion, the facts and circumstances known to Sloan at the time of the
February 13, 2004 incident were sufficient to warrant a reasonable officer’s belief that Barnhardt
had committed the drug offense with which he was charged. Qualified immunity therefore
protects Sloan from suit.
Sloan was aware that Barnhardt and his brother allegedly were involved in drug activity,
and that a prior attempt to serve Barnhardt with a subpoena ended when Barnhardt fled.
-31-
Barnhardt had given two false names before producing proper identification and verifying his
identity. Although Sloan did not himself observe Barnhardt toss an object, he reasonably
believed that Ramadhan had observed activity worthy of further investigation. Sloan had long
experience with drug offenses, and in his experience, Barnhardt’s failure to follow instructions to
keep his hands on the fender of the SUV “put[] the alert level up a little bit.” Sloan Dep. at
29:21-30:1. Only upon Ramadhan’s verbal signal did Sloan act to place Barnhardt under arrest.
A police officer may rely on a fellow officer’s assessment of circumstances sufficient to
warrant a suspect’s arrest. See, e.g., United States v. Hensley, 469 U.S. 221, 232 (1985)
(upholding a police officer’s reliance on a flyer or bulletin issued by another police department);
Daniels v. United States, 393 F.2d 359, 361 (D.C. Cir. 1968) (“There is no requirement that the
arresting officer have sufficient firsthand knowledge to constitute probable cause. It is enough
that the police officer initiating the chain of communication either had firsthand knowledge or
received his information from some person – normally the putative victim or an eye witness –
who it seems reasonable to believe is telling the truth.”); Brandon v. City of New York, No. 07-
8789, 2010 WL 1375207, at *7 (S.D.N.Y. Mar. 30, 2010) (concluding that police officers who
relied on a fellow officer’s signal to arrest the plaintiff were entitled to qualified immunity).
Sloan arrested Barnhardt on Ramadhan’s signal, and he was not obligated to make an
independent determination of probable cause, as long as it was objectively reasonable for him to
rely on Ramadhan’s decision to arrest under the circumstances. See Barham v. Salazar, 566 F.3d
844, 850 (D.C. Cir. 2009) (Henderson, J., concurring) (commenting that a Park Police officer’s
reliance on an MPD officer’s determination that probable cause existed to arrest protestors for
failing to obey a police order “must be objectively reasonable for him to be clothed with
-32-
qualified immunity”). Here, Sloan reasonably could believe that there was a valid basis to arrest
Barnhardt without a warrant based on Ramadhan’s investigation of suspicious activity and his
subsequent signal to make the arrest.
Sloan did not testify at the preliminary hearing, and neither his actions nor testimony
influenced Magistrate Judge Facciola’s probable cause determination. Barnhardt does not
accuse Sloan of planting evidence, and therefore does not question Sloan’s veracity in the same
way he challenges Ramadhan’s observations and recollection. Moreover, Sloan’s recollection of
the events is not inconsistent with Barnhardt’s version with respect to the alleged tossing of the
bag: Barnhardt denies ownership or knowledge of the bag, and Sloan did not see the bag in
Barnhardt’s hands.
It is true that Barnhardt contends that Sloan and Ramadhan forced his hand into the bag,
and that although Sloan and Ramadhan acknowledge that there was a struggle, neither admits
that Barnhardt’s hands were forced into the bag. “At the summary judgment stage, facts must be
viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to
those facts,” and where “the record taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380
(2007) (citations and internal quotation marks omitted). Here, the parties’ differing descriptions
of the struggle have no bearing on the probable cause question “[s]ince the existence of probable
cause turns on the information known to the [officers] at the moment of arrest.” Bonds v. Fizer,
No. 09-2726, 2010 WL 2070241, at *7 (N.D. Ill. May 20, 2010). The struggle occurred after
Ramadhan signaled Sloan to arrest Barnhardt, and arguments “based on post-arrest
developments [are] unpersuasive.” Id. If the officers forced Barnhardt’s hands into the bag, this
-33-
action might explain Barnhardt’s fingerprint on the scale. But Barnhardt was not arrested based
on that fingerprint or anything else relating to a possible struggle with the bag. The decision to
arrest, and the probable cause determination, necessarily occurred before any fingerprints had
been taken. Crime scene investigators did not even arrive on the scene until after Barnhardt had
been transported elsewhere.
Under the circumstances presented in this case, it cannot be said that Sloan violated
Barnhardt’s Fourth Amendment rights. Sloan acted reasonably in reliance on Ramadhan’s signal
to arrest. Hence, his conduct is protected by qualified immunity.
D. Liability of the District of Columbia (Count 4)
Barnhardt also brings a “policy or practice” claim against the District of Columbia under
42 U.S.C. § 1983. He alleges that:
Acting under color of law, and pursuant to official policy and custom,
. . . the District of Columbia knowingly[] or negligently failed to
instruct, supervise, control and discipline [Ramadhan and Sloan] in
the performance of their duties. This lack of oversight led to the
environment in which [Ramadhan and Sloan] were permitted to
conspire to falsely arrest [Barnhardt] for their personal motives.
Am. Compl. ¶ 34. The District responds that Barnhardt has failed to demonstrate an
unconstitutional policy or practice, and hence all claims against it must be dismissed.
“The failure to train or supervise a city employee can amount to an unconstitutional
policy when it can be said that the failure amounts to deliberate indifference towards the
constitutional rights of persons with whom the officials come in contact.” Reed v. Dist. of
Columbia, 474 F. Supp. 2d 163, 170 (D.D.C. 2007) (citing City of Canton v. Harris, 489 U.S.
378, 388-89 (1989)). The municipality itself must cause the alleged constitutional violation.
Harris, 489 U.S. at 385 (citing Monell v. Dep’t of Soc. Serv. of the City of New York, 436 U.S.
-34-
658, 694 (1978) (emphasis in original)). In other words, there must be an affirmative link
between the municipal policy or practice and the alleged constitutional violation. Oklahoma City
v. Tuttle, 471 U.S. 808, 817 (1985). “Respondeat superior or vicarious liability will not attach
under § 1983,” Harris, 489 U.S. at 385 (citing Monell, 436 U.S. at 694-95), and, therefore, the
District cannot be held liable solely on account of the actions of its employees, Ashcroft v. Iqbal,
129 S. Ct. 1937, 1348 (2009).8
A municipality may set a policy in various ways. It may fail “to respond to a need (for
example, training of employees) in such a manner as to show ‘deliberate indifference’ to the risk
that not addressing the need will result in constitutional violations.” Baker v. Dist. of Columbia,
325 F.3d 1302, 1306 (D.C. Cir. 2003) (citations omitted); see also Daskalea v. Dist. of
Columbia, 227 F.3d 433, 441 (D.C. Cir. 2000); Muhammad v. Dist. of Columbia, 584 F. Supp.
2d 134, 138 (D.D.C. 2008). “Deliberate indifference is determined by analyzing whether the
municipality knew or should have known of the risk of constitutional violations.” Baker, 326
F.3d at 1307 (citation omitted). The frequency or consistency of constitutional violations may
create a custom marking the need for further training options. See Atchinson v. Dist. of
Columbia, 73 F.3d 418, 421 (D.C. Cir. 1996); Warren v. Dist. of Columbia, 353 F.3d 36, 39
(D.C. Cir. 2004). Where proper training and supervision is absent, that may demonstrate
deliberate indifference sufficient to support a claim of a constitutional violation. Muhammad,
584 F. Supp. 2d at 138-39; Thomas v. Dist. of Columbia, 887 F. Supp. 1, 4 (D.D.C. 1995).
Count 4 of the Amended Complaint does not identify a particular unconstitutional policy
8
The District of Columbia is “a body corporate for municipal purposes,” D.C.
Code § 1-102, and is considered a “person” for purposes of § 1983, see, e.g., Brown v. Dist. of
Columbia, 514 F. 3d 1279, 1283 (D.C. Cir. 2008).
-35-
or practice of the District, and Barnhardt does not otherwise describe the District’s alleged
failure to instruct, supervise or control Sloan and Ramadhan in the performance of their duties.
See Am. Compl. ¶¶ 33-34. Barnhardt’s assertion of the District’s constitutional violation is
something of a moving target, moreover. What began as an allegation of a lax atmosphere
within which Ramadhan and Sloan could conspire to violate Barnhardt’s constitutional rights has
shifted to an assertion that “the process in which the evidence was gathered after the initial
illegal search violat[ed] clearly established law.” Pl.’s Opp’n at 5. In support of this assertion,
Barnhardt appears to rely on Judge Friedman’s favorable ruling on the motion to suppress as
evidence both that the search violated his Fourth Amendment rights and that the District failed to
supervise and discipline the officers. See id. at 5. But that is not enough, as otherwise any
alleged Fourth Amendment violation by an officer would also suffice to assert a custom or policy
establishing municipal liability. Plainly that is not the law.
Barnhardt also relies on deposition testimony regarding Ramadhan’s call to his wife,
rather than to a dispatcher, to obtain crime scene search assistance. Barnhardt considers this a
“startling admission[],” id., as well as a clear violation of MPD policy. See id., Ex. E (Expert
Report of Myron K. Smith) ¶ 1.a. But that, too, is insufficient. “As a general matter, a breach of
departmental policy does not by itself constitute a constitutional violation.” Bowen v. County of
Westchester, No. 07-CV-6277, 2010 WL 1529397, at *10 (S.D.N.Y. Mar. 31, 2010) (citing
Virginia v. Moore, 553 U.S. 164, 172-73 (2008)). Barnhardt was arrested immediately after
Ramadhan allegedly found the drugs. Only after Barnhardt had been subdued, handcuffed, and
taken away did the officers call for crime scene search officers. Hence, even if Ramadhan
violated MPD policy by calling Tina Ramadhan instead of requesting assistance through a
-36-
dispatcher, these events occurred long after Barnhardt’s arrest. This alleged deviation from
MPD policy, then, could not have contributed to his arrest, as there is no link between this
asserted policy and the alleged constitutional violation. See Johnson v. Williams, 584 F. Supp.
2d 97, 107 (D.D.C. 2008) (dismissing claims regarding police training and supervision because
the plaintiff failed to “identify a causal connection between a deficiency in the District’s police
training or supervision and his injury”). Indeed, Barnhardt offers no basis to attribute any
claimed injury to the use of Tina Ramadhan rather than a dispached crime scene officer.
Moreover, Barnhardt establishes at most that one sergeant and one detective have
violated an MPD General Order with respect to summoning a crime scene search officer. But
isolated incidents do not rise to the level of a widespread custom or practice. Nothing in the
record suggests that the call to Tina Ramadhan resulted from a policy attributable to the District
of Columbia. See Tuttle, 471 U.S. at 823-34 (“Proof of a single incident of unconstitutional
activity is not sufficient to impose liability under Monell, unless proof of the incident includes
proof that it was caused by an existing, unconstitutional municipal policy, which policy can be
attributed to a municipal policymaker.”). Indeed, even if Sloan and Ramadhan violated MPD
policy by calling Tina Ramadhan, Barnhardt does not rebut defendants’ argument that neither
officer is authorized to make policy on the District of Columbia’s behalf. See Pembaur v. City of
Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion) (“We hold that municipal liability under
§ 1983 attaches where – and only where – a deliberate choice to follow a course of action is
made from among various alternatives by the official or officials responsible for establishing
final policy with respect to the subject matter in question.”) (citation omitted). And it is not
enough that Barnhardt alleges that the District of Columbia failed to adequately train Sloan and
-37-
Ramadhan. As the Supreme Court has explained, “only where the failure to train amounts to
deliberate indifference to the rights of persons with whom the police come into contact” is there
liability under § 1983. Harris, 489 U.S. at 388; see also Stewart v. Moll, No. 07-1085, 2010 WL
1947634, at *8-9 (E.D. Pa. May 11, 2010) (finding insufficient support in the record for
plaintiff’s contention that the city “created an organizational atmosphere that condoned
unconstitutional, reckless and dangerous behavior by individual officers” resulting in the use of
excessive force); Pace v. Town of Southampton, 678 F. Supp. 2d 79, 88 (E.D.N.Y. 2010)
(finding that plaintiff’s unsupported assertion of municipal defendants’ “fail[ure] to train officers
in psychological awareness skills in order to prevent and avoid [the] false arrest of innocent
persons” alone does not create a triable issue of fact) (citation and internal quotation marks
omitted); Robinson v. Dist. of Columbia, 403 F. Supp. 2d 39, 54 (D.D.C. 2005) (concluding that
the plaintiff failed to establish a § 1983 claim against the District for failure to train, supervise,
or discipline an MPD officer); Fernandors v. Dist. of Columbia, 382 F. Supp. 2d 63, 75-78
(D.D.C. 2005) (discussing lack of evidence of widespread unconstitutional strip searches to
establish municipal liability under a failure to train or supervise theory). Again, there is no basis
on the record here to attribute deliberate indifference to the District with respect to training or
any other policy or practice.
For all these reasons, Barnhardt’s municipal liability claim under § 1983 fails and
summary judgment will be granted for the District of Columbia.
E. Strip Search (Count 5)
According to Barnhardt, Sloan and Ramadhan “caused [him] to be subjected to a strip
search of his body, under circumstances where there was no cause to believe that weap[o]ns or
-38-
contraband had been concealed in, or on, his body.” Am. Compl. ¶ 37. There allegedly were
two strip searches, the first “a partial . . . search outside his home at the time of his arrest[,]” and
a second “more thorough search at Narcotics Headquarters[] downtown.” Id. Barnhardt testified
that his pants fell down after Sloan removed his belt prior to transport, but neither officer agrees
that a strip search occurred. Barnhardt supplies no specifics regarding the second alleged search.
Sloan and Ramadhan deny that any strip search occurred.
None of the parties explain what a strip search entails. However, MPD General Order
GO-PCA-502.01, Transportation of Prisoners (January 12, 2001) (“General Order 502.01”),
defines a strip search as “having a prisoner remove or arrange his/her clothing to allow a visual
inspection of the genitals, buttocks, anus, breasts and undergarments.” Id. at 2; see Safford
Unified Sch. Dist. No. 1 v. Redding, 129 S.Ct. 2633, 2641 (2009) (finding that the term “strip
search is a fair way to speak of” a search that involved the suspect “pulling her underwear away
from her body . . . to . . . expose[] her breasts and pelvic area to some degree” to the school
officials conducting the search); United States v. Scott, 987 A.2d 1180, 1197 (D.C. 2010) (stating
that a strip search “may include a visual body cavity inspection (but not a physical intrusion) if
particularized reasonable suspicion exists to justify that step”).
Aside from Barnhardt’s bald assertions, there is nothing in the record consistent with a
strip search as the term is defined in General Order 502.01 or case law. And Barnhardt’s
description of events is at best conclusory; indeed, he only claims that on the first occasion his
pants slipped down when his belt was removed, a far cry from the removal of clothing to permit
a visual inspection, and he provides no facts at all with respect to the second occasion. He points
to no evidence in the record to show that any genuine issue of material fact exists as to whether a
-39-
strip search actually occurred on either occasion. The Court therefore will grant summary
judgment for defendants on Count 5 of the amended complaint. See Brandon, 2010 WL
1375207, at *5 (dismissing plaintiff’s conclusory allegation that he was subjected to an illegal
and improper strip search because the claim was not supported by any of the factual allegations
in the complaint).
F. Race Discrimination (Count 6)
“All persons within the jurisdiction of the United States shall have the same right in
every State and Territory . . . to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens[.]” 42 U.S.C. § 1981(a). “A
prima facie case of discrimination requires that the plaintiff suffer an adverse action that gives
rise to an inference of discrimination.” Middlebrooks v. Bonner Kierman Trebach & Crociata,
671 F. Supp. 2d 61, 63 (D.D.C. 2009) (citation omitted).
In Count 6, Barnhardt alleges broadly that Sloan and Ramadhan arrested him because he
is African-American. Am. Compl. ¶ 39. Defendants counter that Count 6 should be dismissed
due to Barnhardt’s failure “to establish that the [d]efendants intended to discriminate against him
on the basis of race.” Defs.’ Mem. at 14. Absent from the record, defendants assert, is “any
evidence that the officers were motivated by racial prejudice.” Id. Defendants need not present
evidence in their motion; instead they may point to Barnhardt’s failure to produce evidence of
racial animus in his opposition. See Bush, 595 F.3d at 387.
Barnhardt’s opposition merely refers to his own deposition testimony. See Pl.’s Opp’n at
3. That Sloan allegedly “called [Barnhardt] a black nigger,” Barnhardt Dep. at 82:18, in the
circumstances of this case during a struggle to effectuate an arrest, is not a sufficient basis from
-40-
which a juror could conclude that the single insult standing alone is evidence of the officer’s
racial animus as a motivation for Barnhardt’s arrest. See Fletcher v. Dist. of Columbia, No.
01-0297, 2005 WL 1315213, at *1 (D.D.C. June 2, 2005) (dismissing § 1981 claim based “solely
on the fact that during the underlying shooting incident . . . a police officer allegedly used the
term “nigger” or “nigga”). If a single alleged racial slur by a police officer during the course of
an arrest or other contact with a citizen were sufficient to state a § 1981 claim, the federal courts
would be clogged with such claims. There is simply no evidence to support Barnhardt’s
assertion that the officers intentionally targeted him for arrest because of his race.
-41-
III. CONCLUSION
Collateral estoppel does not bar relitigation of the issue of probable cause in this § 1983
action based on an alleged absence of probable cause for an arrest. Sloan is entitled to qualified
immunity, however, and summary judgment will be entered in his favor. But because genuine
issues of material fact are in dispute with respect to Barnhardt’s arrest, Ramadhan may not be
entitled to qualified immunity. Absent a showing that a policy or practice of the District of
Columbia caused a violation of Barnhardt’s constitutional rights, the District of Columbia cannot
be held liable under § 1983, and Count 4 therefore fails. And absent either factual allegations or
evidence in the record that a strip search occurred, Count 5 also cannot survive. Finally,
Barnhardt has failed to state a claim for race discrimination under § 1981, and therefore Count 6
fails as well. For all these reasons, defendants’ motion for summary judgment will be granted in
part and denied in part.
A separate Order accompanies this Memorandum Opinion.
/s/
JOHN D. BATES
United States District Judge
DATE: July 16, 2010
-42-