Corrigan v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MATTHEW CORRIGAN,
Plaintiff, Civil Action No. 12-173 (BAH)
v. Judge Beryl A. Howell
DISTRICT OF COLUMBIA, et al.
Defendants.
MEMORANDUM OPINION
The motions for summary judgment filed previously by the defendants, the District of
Columbia, Metropolitan Police Department (“MPD”) Lieutenant Robert Glover, MPD Sergeant
Kevin Pope, and MPD Officer Mark Leone, ECF Nos. 76 (Defendant District of Columbia’s
Mot. Summ. J.); 79 (Defendant Robert T. Glover’s Mot. Summ. J.); and 81 (Defs. Kevin Pope
and Mark Leone’s Mot. Summ. J.), were denied upon consideration of the grounds put forward
by the parties in their moving papers. Minute Orders, Mar. 6, 2015. The parties were advised,
however, that pursuant to Federal Rule of Civil Procedure 54(b), the Court is now reconsidering
its denial of summary judgment to the aforementioned defendants. Rough Hrg. Tr. (“Hrg. Tr.”)
21:8-10;1 Minute Order, July 22, 2015. After careful reconsideration, including review of the
supplemental briefing and exhibits provided by the parties, Defs.’ Suppl. Briefing in further
Supp. Defs.’ Mot. Summ. J. (“Defs.’ Suppl. Mem.”), ECF No. 119; Pl.’s Resp. Defs.’ Suppl.
Mem. (“Pl.’s Suppl. Opp’n”), ECF No. 120; Defs.’ Reply Pl.’s Suppl. Opp’n Defs.’ Suppl. Mem.
(“Defs.’ Suppl. Reply”), ECF No. 123, for the reasons set out below, the Court concludes that
1
The final transcript of the pretrial conference held on July 24, 2015 is not yet available. Accordingly, the Court
cites to the court reporter’s unofficial “rough” transcript.
1
summary judgment as to the individual defendants and the District of Columbia should be
granted.
I. BACKGROUND
The plaintiff, Matthew Corrigan, is a former resident of the District of Columbia and an
Army Reservist. First Am. Compl. (“FAC”) ¶ 2, ECF No. 11. The plaintiff alleges that, on the
night of February 2, 2010, he telephoned the National Suicide Hotline, though he believed he
was calling the “Military’s Emotional Support Hotline,” because “he was depressed and had not
slept for several days.” Id. ¶¶ 7–9. During a telephone conversation with a hotline employee,
the plaintiff revealed, in response to questioning, that he was a veteran and owned firearms. Id. ¶
9. The plaintiff avers that he did not indicate he was suicidal or that he planned to harm anyone.
Id. He also contends that he “repeatedly told the person at the National Suicide Hotline that he
did not have his guns out.” Pl.’s Statement of Material Facts as to which there are Genuine
Issues of Material Dispute (“Pl.’s SMF”) ¶ 7, ECF No. 86-1. “After a short conversation, [the
plaintiff] hung up, turned off [his] phone, took prescribed sleeping medication, and went to bed.”
FAC ¶ 9.
Unbeknownst to the plaintiff, the hotline employee with whom he spoke called 911.
Defs.’ Suppl. Statement of Material Facts as to which there is no Genuine Dispute in Further
Supp. of Defs.’ Mot. Summ. J. (“Defs.’ Suppl. SMF”) ¶ 1, ECF No. 119-1.2 MPD officers from
the department’s Fifth District (or “5D”) were sent to the plaintiff’s apartment shortly after 11:00
p.m. based on a “report of an ‘Attempted Suicide.’” Def. District of Columbia’s Mot. Summ. J.
2
The defendants submitted a supplemental statement of material facts as to which there is no genuine dispute with
their supplemental memorandum. Defs.’ Suppl. SMF. The plaintiff did not separately respond to these
supplemental facts. The Court, therefore, considers the plaintiff to be relying upon his initial Statement of Material
Facts as to which there are Genuine Issues of Material Dispute, filed with his omnibus opposition to the defendants’
motions for summary judgment, ECF No. 86, as a response to the defendants’ supplemental facts.
2
Ex. 5 (“Barricade Report from 2408 N. Capitol St. NW (5D) on Wednesday, February 3, 2010
(ERT #10-11), Feb. 9, 2010 (“Incident Rep.”)) at 1, ECF No. 76-4. The initial officers on the
scene were unable to contact the plaintiff. Def. District of Columbia’s Statement of Material
Undisputed Facts (“Def. D.C.’s SMF”) ¶ 6, ECF No. 76 (“[M]embers of MPD responded to
Plaintiff’s apartment and repeatedly tried to reach Plaintiff by phone but were unsuccessful.”);
Pl.’s SMF ¶ 8 (noting “the reason for the delay” in reaching the plaintiff “was that Plaintiff was
sleeping”). These officers reported “a noted ‘strong order’ of natural gas emanating from the
immediate area in and around the target address,” resulting in a call to the local gas utility and
the discontinuation of gas service to the building in which the plaintiff’s apartment was located
and the building next to it. Incident Rep. at 1. Based on these facts, “MPD Captain [Mark]
Beach declared a barricade” situation at the plaintiff’s address, resulting in the members of
MPD’s Emergency Response Team (“ERT”)3 receiving a “barricade page . . . at approximately
0045 hours” on February 3, 2010. Id. at 1–2; Defs.’ Suppl. SMF ¶ 2.
By 2:00 a.m. on February 3, members of the ERT were being briefed by Fifth District
officers on the scene, including negotiators who were apparently gathering information from
neighbors and other sources. See Incident Rep. at 2. Lieutenant Glover arrived at the scene
around 2:30 a.m., nearly three-and-a-half hours after the initial call to 911 from the suicide
hotline employee. Id.; Defs.’ Suppl. SMF ¶ 3.
At approximately 4:00 a.m., the plaintiff “awoke because he heard his name being called
over a bullhorn.” FAC ¶ 10. The plaintiff contends that he saw floodlights “outside his front
and back doors and an estimated 8 police officers in the back yard and 20 in the front yard.” Id.
After turning on his phone, the plaintiff avers that he spoke with “Officer Fisher” of the Fifth
3
The ERT is MPD’s equivalent of a special weapons and tactics (“SWAT”) team in other jurisdictions. Glover
Dep. 169:20-22.
3
District, who asked the plaintiff to come out of his home. Id. ¶ 11. The plaintiff complied at
approximately 4:50 a.m. by walking out his front door, which he pulled shut behind him, locking
it. Id.
The plaintiff testified at his deposition that as he was being led away from his apartment,
an officer stepped out of an ERT vehicle and “asked [the plaintiff] for the key to [his]
apartment.” Pl.’s Opp’n Ex. 1 (Depo. of Plaintiff, Nov. 13, 2013 (“Pl.’s Dep.”)) 94:11-13, ECF
No. 87-1. The plaintiff told the officer he was “not giving [the officer] consent to go into [his]
place.” Id. 94:13-14. In response, the plaintiff recalls the officer saying the officer did not “have
time to play this constitutional bullshit. We’re going to break down your door. You’re going to
have to pay for a new door.” Id. 94:15-18. The plaintiff states he responded by saying “it looks
like I’m paying for a new door, then. I’m not giving you consent to go into my place.” Id.
94:19-21.
Despite the plaintiff’s refusal to give consent to the police to search his apartment, Lt.
Glover “directed members of the [ERT] to enter and search for any human threats or victims who
may have been located inside Plaintiff’s apartment.” Def. Glover’s Statement of Material Facts
as to which there is no Genuine Dispute (“Glover SMF”) ¶ 27, ECF No. 79. Lt. Glover also
“ordered the Explosive Ordinance [sic] Division (EOD) to search Plaintiff’s apartment” for
explosives or other hazardous materials. Id. ¶ 32. Members of the ERT did not seize any
evidence from the apartment, while the EOD unit seized only a “military smoke grenade and
military whistler device, which were handled in accordance with standing [national] protocols.”
Incident Rep. at 5.4
4
The plaintiff disputes whether Lt. Glover ordered the seizure of the plaintiff’s property, Pl.’s SMF ¶¶ 90–91, citing
testimony of a Crime Scene Search technician, Ofc. Jeffrey Henderson, but this testimony does not support the
plaintiff’s assertion. Officer Henderson, who was voluntarily dismissed by the plaintiff as a defendant in this matter,
stated in a response to interrogatories that “he was instructed by the ‘Command Official on the scene that the items
4
After leaving his apartment, the plaintiff’s hands were restrained with “zip-tie[s],” he was
placed in a patrol car, and taken to a Department of Veterans Affairs (“VA”) Hospital. Pl.’s
Dep. 91:15-20; 97:21–98:6; see also FAC ¶ 11 (stating the plaintiff “was handcuffed and put in
the back of a SWAT truck.”). The plaintiff avers that he “admitted himself voluntarily for three
days” to the VA Hospital because “[h]aving weapons pointed at him upon leaving his apartment
triggered his PTSD hyper-vigilance and caused [an] irregular heartbeat.” FAC ¶ 19. “On the
third day at the VA Hospital, [the plaintiff] was released into police custody, arrested, booked at
5th District, and taken to a local Mental Health Clinic to be reviewed as a suicide risk.” Id. ¶ 20.
The plaintiff was charged on February 8, 2010, with “three counts of Possession of an
Unregistered Firearm, in violation of D.C. Code § 7-2502.01 and seven counts of Unlawful
Possession of Ammunition, in violation of D.C. Code § 7-2506.01.” Pl.’s SMF ¶ 32. Upon
determination that the plaintiff was not a suicide risk, he was held “in the D.C. jail, where he
remained until February 19[, 2010], when he was released on his own recognizance to report to
Pretrial Services weekly.” FAC ¶ 21.
Upon returning to his apartment, sixteen days after his release, the plaintiff found his
“front door unlocked and unsecured.” Id. ¶ 22. The plaintiff alleges that MPD officers “had left
the electric stove on, had cut open every zipped bag, had dumped every box and drawer, had
be removed’ from Plaintiff’s apartment.” Pl.’s SMF ¶ 91. As the Incident Report makes clear, Lt. Glover was not
the Incident Commander, a role that was assigned instead to Captain Mark Beach. Incident Rep. at 3. Moreover, at
the time Crime Scene Search technicians cataloged and seized items in the plaintiff’s apartment, the scene was no
longer under the control of the Special Operations Division, of which the ERT and EOD unit are components. See
Incident Rep. at 5 (“All other evidence was recovered by Crime Scene Search. The target location was turned over
to the Fifth District and Crime Scene Search at 0730 hours.”). Thus, no colorable dispute of material fact exists that
Lt. Glover did not order the seizure of items in the plaintiff’s apartment or physically seize any items himself.
Similarly, the plaintiff does not allege that Sgt. Pope, a member of the ERT, or Ofc. Leone, a member of the EOD
unit, seized any items. See generally FAC. Even if the plaintiff’s assertion were correct, however, “if police are
lawfully in a position from which they view an object, and if the officers have a lawful right of access to the object,
they may seize it without a warrant.” Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (citing Horton v.
California, 496 U.S. 128, 136–37 (1990)); see Kentucky v. King, 131 S. Ct. 1849, 1858 (2011) (citing Horton, 496
U.S. at 136-140 (1990)).
5
broken locked boxes from under the bed and the closet, and emptied shelves into piles in each
room.” Id. The plaintiff’s tropical fish, held in a 150 gallon aquarium, were dead. Id. The
plaintiff further alleges that MPD officers broke the locked boxes that contained his three
firearms and seized them along with numerous rounds of ammunition. Id. ¶ 17.
On April 21, 2012, upon the plaintiff’s motion in his criminal case, the D.C. Superior
Court “determined the police unlawfully searched Plaintiff’s home and granted Plaintiff’s motion
to suppress” the “firearms and ammunition whose possession was at issue in the case on the basis
that the police unlawfully seized the evidence by a warrantless search with no exigent
circumstances.” Pl.’s SMF ¶¶ 33–34. Consequently, “on May 18, 2012, the Superior Court
entered a nolle prosequi on all [criminal] counts” against the plaintiff. Id. ¶ 35.
Before the suppression order and dismissal of the criminal case against the plaintiff, he
filed suit in this Court on February 1, 2012, against the District of Columbia and twenty-five
unnamed defendants alleging, in a single count, that the defendants violated 42 U.S.C. § 1983 by
violating the plaintiff’s right to be free from unreasonable searches and seizures under the Fourth
Amendment to the United States Constitution while acting under color of state law. See
generally Compl., ECF No. 1. The plaintiff filed an amended complaint on February 8, 2013,
naming the previously unnamed individual defendants. See FAC ¶¶ 3–4y.
Over the ensuing two years, the parties engaged in extensive discovery and all but three
of the individual defendants and the District of Columbia were dismissed from the suit.5 The
plaintiff voluntarily dismissed sixteen defendant MPD officers, Joint Stipulation of Dismissal of
5
The Court denied the District of Columbia’s motion to dismiss, ECF No. 3, at a hearing on the motion held on
September 14, 2012, finding that the plaintiff had pleaded adequately, for the purposes of Federal Rule of Civil
Procedure 12(b)(6), that a policy or custom of the District of Columbia caused a violation of the plaintiff’s Fourth
Amendment right to be free from unreasonable searches and seizures. See Monell v. Department of Social Services
of City of New York, 436 U.S. 658 (1978).
6
Seven Defendants at 1, ECF No. 78 (dismissing claims against Defendants Wendell
Cunningham, Joseph Dolan, Thomas Miller, Peter Schumacher, Daryl Thompson, Joseph
Williams, and Charles Yarbaugh); Joint Stipulation of Dismissal at 1, ECF No. 118 (dismissing
Defendants Dorian DeSantis, Jeffrey Henderson, Darrell Isom, William Powell, Joy Preston,
Paul Riggins, Hogan Samels, William Washington, Carlton Wicker, Sr., and William Wright),
and the Court granted Defendants Mark Beach and Burt Henry’s motion to dismiss, pursuant to
Federal Rule of Civil Procedure 12(b)(6), Memorandum and Order at 5, ECF No. 69. In
response to Orders to Show Cause why proof of timely service had not been filed, pursuant to
Federal Rules of Civil Procedure 4(m) and 4(l)(1), as well as Local Civil Rule 5.3, as to
Defendants James Greene and Lawrence Heinz, Order to Show Cause at 1, ECF No. 113; Order
to Show Cause at 1, ECF No. 121, the plaintiff voluntarily dismissed those defendants as well.
Joint Stipulation of Dismissal at 1, ECF No. 115 (dismissing Defendant James Greene); Joint
Stipulation of Dismissal at 1, ECF No. 122 (dismissing Defendant Lawrence Heinz). Thus, the
remaining defendants are (1) the District of Columbia; (2) Lt. Robert Glover; (3) Sgt. Kevin
Pope; and (4) Ofc. Mark Leone.
Each of the remaining defendants filed motions for summary judgment, ECF Nos. 76
(District of Columbia), 79 (Glover), 81 (Pope & Leone), which motions were denied on March 6,
2015, see Minute Orders, Mar. 6, 2015. In these motions, the parties agreed that the lawfulness
of the searches challenged in this case rested on whether the MPD officers had both probable
cause and exigent circumstances to conduct the searches without a warrant. See Mem. Supp.
Def. Glover’s Mot. Summ. J. (“Glover’s MSJ Mem.”) at 18, ECF No. 79 (“In order to conduct a
search without a warrant, the officer must have both probable cause and exigent
circumstances.”); Mem. Supp. Defs. Desantis, Isom, Riggins, Samels, Wicker, Wright, Pope,
7
Leone, and Powell’s Mot. Summ. J. (“Pope & Leone’s MSJ Mem.”) at 5, ECF No. 81 (“[A]
search without a warrant is legal if the officer if [sic] both probable cause and exigent
circumstances exist for the search.”); Pl.’s Opp’n Defs.’ Mots. Summ. J. (“Pl.’s MSJ Opp’n”) at
1, ECF No. 86 (“[W]ell settled law requires a police officer to have both (1) probable cause to
search, and (2) exigent circumstances that require entering the dwelling to conduct the search
before a judicial warrant can reasonably be secured.”). As this issue was framed by the parties,
the Court concluded that issues of material fact precluded entry of summary judgment, since at
least four material facts pertaining to the existence of probable cause and exigent circumstances
at the time of the challenged searches were identified as disputed in each Order denying
summary judgment. See Minute Orders, Mar. 6, 2015 (citing Tolan v. Cotton, 134 S. Ct. 1861,
1865–66 (2014)). The parties proceeded to prepare and submit motions in limine, ECF Nos.
104–06, and a Joint Pretrial Statement, ECF No. 110, in preparation for trial.6
In the four month period between the denial of summary judgment and the pretrial
conference, held July 24, 2015, opinions in four cases addressing qualified immunity in section
1983 claims were released, all of which constitute binding authority on this Court, and all of
which resulted in the extension of qualified immunity protection to law enforcement officers.
See Taylor v. Barkes, 135 S. Ct. 2042 (issued June 1, 2015); City and County of San Francisco v.
Sheehan, 135 S. Ct. 1765 (2015) (issued May 18, 2015); Fox v. District of Columbia, No. 14-
7042, 2015 WL 4385290 (D.C. Cir. July 17, 2015); Lash v. Lemke, 786 F.3d 1 (D.C. Cir. 2015)
(issued May 15, 2015).7 These cases clarified the applicability of qualified immunity in section
6
Although denial of a “summary judgment motion [] based on a claim of qualified immunity” is immediately
appealable as a collateral order, since such denial “is both important and completely separate from the merits of the
action,” Plumhoff v. Rickard, 134 S. Ct. 2012, 2018–19 (2014), none of the individual defendants appealed the
Court’s denial of summary judgment.
7
A fifth case, Flythe v. District of Columbia, 791 F.3d 13 (D.C. Cir. 2015), issued on June 19, 2015, found a
genuine issue of material fact precluded summary judgment on qualified immunity grounds, but the facts in that case
are far removed from the instant matter. In Flythe, the D.C. Circuit held that an officer who shot and killed a
8
1983 cases such that reconsideration of the denial of the defendant’s summary judgment motions
is appropriate.
The Court notified the parties that the Court, on its own motion, pursuant to Rule 54(b),
was reconsidering the prior denials of the defendants’ summary judgment motions, and directed
the parties to be prepared to address such reconsideration at the pretrial conference held July 24,
2015. Minute Order, July 22, 2015. At the pretrial conference, the parties requested additional
time to submit supplemental briefs and exhibits in connection with the Court’s reconsideration of
the denials of the defendants’ motions for summary judgment. See Hrg. Tr. 25:1–26:24. That
request was granted, id. 26:4-20, the parties timely made their supplemental submissions, and the
Court has carefully considered these filings. See Defs.’ Suppl. Mem.; Pl.’s Suppl. Opp’n; Defs.’
Suppl. Reply.
II. LEGAL STANDARDS
A. Reconsideration of Interlocutory Order Under Federal Rule of Civil
Procedure 54(b)
Federal Rule of Civil Procedure 54(b) authorizes the reconsideration of “any order or
other decision, however designated, that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties” because such an order “does not end the action as to any
of the claims or parties” and, thus, “may be revised at any time before the entry of a judgment
suspect based on uncorroborated and contradicted assertions that the suspect charged the officer with a knife was not
entitled to summary judgment. Citing the egregious circumstances of the incident in Flythe, the D.C. Circuit relied
in part on the fact that “every circuit to have confronted [the] question” of qualified immunity “where the police
officer killed the only other witness to the incident” had found a need to engage in “a fairly critical assessment of the
forensic evidence . . . to decide whether the officer’s testimony could reasonably be rejected at a trial.” Flythe, 791
F.3d at 19 (quoting Plakas v. Drinski, 19 F.3d 1143, 1147 (7th Cir. 1994)). The D.C. Circuit found multiple
contradictory witness reports, as well as evidence that the officer who fired the fatal shots tested positive for
amphetamines just “four days after the killing” and that the MPD “fired him after concluding that he lied about
using illegal methamphetamines,” sufficient to raise material factual disputes about the reliability of the officer’s
testimony such that the case should proceed to a jury. Id. at 21. Given the unique factual scenario in Flythe, the
D.C. Circuit’s holding in that case is of limited relevance to the instant matter.
9
adjudicating all the claims and all the parties’ rights and liabilities.” FED. R. CIV. P. 54(b). A
summary judgment motion that “ensure[s] that litigation will continue in the District Court” is
properly considered an interlocutory order since it is not a “final decision” of the Court. United
States v. Rose, 28 F.3d 181, 185 (D.C. Cir. 1994); see also 3 William W. Schwarzer et al.,
FEDERAL CIVIL PROCEDURE BEFORE TRIAL § 14:367 (2013)(“Denial of a summary judgment
motion is an interlocutory order” and “[d]istrict courts have discretion to entertain successive
summary judgment motions on the same (or different) grounds.”).
Consequently, a court may reconsider, sua sponte, its prior interlocutory order denying
summary judgment to a party, so long as such reconsideration meets the standard set forth in
Rule 54(b). That standard is a lenient one that “differs from the standards applied to final
judgments under Federal Rules of Civil Procedure 59(e) and 60(b).” Rogers v. Mabus, 699 F.
Supp. 2d 73, 76 (D.D.C. 2010) (quoting Williams v. Savage, 569 F. Supp. 2d 99, 108 (D.D.C.
2008)). Rule 54(b) “recognizes [the district court’s] inherent power to reconsider an
interlocutory order ‘as justice requires.’” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc.,
630 F.3d 217, 227 (D.C. Cir. 2011) (quoting Greene v. Union Mut. Life Ins. Co. of Am., 764 F.2d
19, 22-23 (1st Cir. 1985) (Breyer, J.); Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000)
(quoting FED. R. CIV. P. 60(b) Advisory Comm. Notes). “‘As justice requires’ indicates concrete
considerations of whether the court ‘has patently misunderstood a party, has made a decision
outside the adversarial issues presented to the [c]ourt by the parties, has made an error not of
reasoning, but of apprehension, or where a controlling or significant change in the law or facts
[has occurred] since the submission of the issue to the Court.” Judicial Watch v. Dep’t of Army,
466 F. Supp. 2d 112, 123 (D.D.C. 2006) (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C.
10
2004)); see also Act Now to Stop War & End Racism Coalition v. District of Columbia (Act
Now), 286 F.R.D. 117, 125 (D.D.C. 2012).
B. Summary Judgment Under Federal Rule of Civil Procedure 56
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Summary judgment is properly
granted against a party who, “after adequate time for discovery and upon motion, . . . fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The burden is on the moving party to demonstrate that an “absence of a
genuine issue of material fact” in dispute. Id. at 323.
In ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Tolan v. Cotton, 134 S. Ct.
1861, 1863 (2014) (quoting Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477 U.S. 242,
255 (1986)) (alteration in original). Specifically, “courts may not resolve genuine disputes of
fact in favor of the party seeking summary judgment.” Id. at 1866 (citing Brosseau v. Haugen,
543 U.S. 194, 195 n.2 (2004)). For a factual dispute to be “genuine,” the nonmoving party must
establish more than “[t]he mere existence of a scintilla of evidence in support of [its] position,”
Liberty Lobby, 477 U.S. at 252. “When, opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
Lash, 786 F.3d at 6 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). While the Court is only
required to consider the materials explicitly cited by the parties, it may on its own accord
consider “other materials in the record.” FED. R. CIV. P. 56(c)(3).
11
The nonmoving party must present specific facts that would enable a reasonable jury to
find in his favor. See, e.g., FED. R. CIV. P. 56(c)(1); Equal Rights Ctr. v. Post Props., 633 F.3d
1136, 1141 n.3 (D.C. Cir. 2011) (noting that at summary judgment stage, plaintiff “can no longer
rest on such ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’
. . . which for purposes of the summary judgment motion will be taken to be true.’” (quoting
Sierra Club v. EPA, 292 F.3d 895, 898–99 (D.C. Cir. 2002)) (ellipsis and alterations in
original)). “If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Liberty Lobby, 477 U.S. at 249–50 (citations omitted). “[A]
complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. In that situation, “[t]he
moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has
failed to make a sufficient showing on an essential element of her case with respect to which she
has the burden of proof.” Id.
C. Qualified Immunity
In suits brought under 42 U.S.C. § 1983, “[p]ublic officials are immune from suit . . .
unless they have ‘violated a statutory or constitutional right that was clearly established at the
time of the challenged conduct.’” Sheehan, 135 S. Ct. at 1774 (quoting Plumhoff v. Rickard, 134
S. Ct. 2012, 2023 (2014)). The doctrine “exists to protect officers ‘from undue interference with
their duties and from potentially disabling threats of liability.’” Lash, 786 F.3d at 5 (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982)). “Qualified immunity ‘gives government
officials breathing room to make reasonable but mistaken judgments’ and ‘protects all but the
plainly incompetent or those who knowingly violate the law.’” Messerschmidt v. Millender, 132
S. Ct. 1235, 1244 (2012) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011)).
Consequently, whether qualified immunity applies “‘generally turns on the objective legal
12
reasonableness of the [official’s] action, assessed in light of the legal rules that were clearly
established at the time.’” Id. at 1245 (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)).
The Supreme Court in Saucier v. Katz, 533 U.S. 194, 201 (2001), mandated a two-step
protocol for evaluating a government officials’ qualified immunity defense to a § 1983 claim.
First, the court must determine whether the plaintiff has “alleged facts showing a violation of a
constitutional right,” and, second, the court must decide “whether the constitutional right was
clearly established at the time of the incident.” Fox, 2015 WL 4385290, at *2 (quoting Pearson
v. Callahan, 555 U.S. 223, 232 (2009)). The test is flexible in that a court may address either of
the two steps first. Pearson, 555 U.S. at 242; Fox, 2015 WL 4385290, at *3 (same).
A right is “clearly established” if it is “sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Taylor, 135 S. Ct. at 2044
(quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)). “‘Ordinarily, in order for the law to
be clearly established, there must be a Supreme Court or [] Circuit decision on point, or the
clearly established weight of authority from other courts must have found the law to be as the
plaintiff maintains.’” Doe v. District of Columbia, No. 13-7140, 2015 WL 4727142, at *6 (D.C.
Cir. Aug. 11, 2015) (quoting Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001)). In other
words, “existing precedent must have placed the statutory or constitutional question beyond
debate.” al-Kidd, 131 S. Ct. at 2083.
III. DISCUSSION
Throughout much of this litigation, the plaintiff and the defendants have predicated their
arguments on the same erroneous premise: that all warrantless searches conducted by police
must be justified by probable cause combined with exigent circumstances. Pl.’s Suppl. Opp’n at
13
15; Glover’s MSJ Mem. at 18.8 While “it is a basic principle of Fourth Amendment law that
searches and seizures inside a home without a warrant are presumptively unreasonable,” Groh v.
Ramirez, 540 U.S. 551, 559 (2004), the Supreme Court has set out “narrow and well-delineated
exceptions to the warrant requirement,” Flippo v. West Virginia, 528 U.S. 11, 13 (1999) (per
curiam), that do not require probable cause. In applying an erroneous standard, the parties
obscured the true question at issue in this matter: whether the defendants’ actions in searching
for injured persons and explosives were reasonable in light of the defendants’ duty to protect the
public-at-large, rather than in connection with any criminal investigative function. Thus, the
following analysis proceeds in three parts. First, the doctrines of community caretaking, exigent
circumstances, and emergency aid, which are subsets of police searches exempt from the Fourth
Amendment’s warrant and probable cause requirements are described in detail. Second, the
individual defendants’ qualified immunity defense is evaluated in light of these overlapping
doctrines. Finally, the case against the municipal defendant is reviewed.
A. Exemptions From The Fourth Amendment Warrant And Probable Cause
Requirements
The parties are correct that, when engaging in a law enforcement function, police officers
must either have a warrant or probable cause plus exigent circumstances justifying a warrantless
search. See, e.g., City of Los Angeles v. Patel, 135 S. Ct. 2443, 2452 (2015) (“[T]he Court has
repeatedly held that ‘searches conducted outside the judicial process, without prior approval by
[a] judge or [a] magistrate [judge], are per se unreasonable.” (all but first alteration in original));
In re Sealed Case, 153 F.3d 759, 764 (D.C. Cir. 1998) (“‘a search or seizure carried out on a
8
In their supplemental reply filed on August 13, 2015, the defendants assert, for the first time, that “probable cause
and exigent circumstances are not both necessary to justify warrantless entry into a home” when “there is basis to
believe there is an immediate need to protect the lives or safety of themselves or others.” Defs.’ Suppl. Reply at 2
(emphasis in original).
14
suspect’s premises without a warrant is per se unreasonable, unless the police can show . . . the
presence of ‘exigent circumstances.’’” (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474–
75 (1971)) (alteration in original)). The plaintiff argues that this familiar standard is absolute,
without exception. Pl.’s Suppl. Opp’n at 15 (citing Kirk v. Louisiana, 536 U.S.C. 635, 638
(2002); Katz v. United States, 389 U.S. 347, 357 (1967); United States v. Dawkins, 17 F.3d 399,
403 (D.C. Cir. 1994); and United States v. Socey, 846 F.2d 1439, 1444 n.5 (D.C. Cir. 1988)). To
the contrary, the Supreme Court has made clear that the context in which a search takes place is
determinative of whether a warrant or probable cause is necessary for a search or seizure to
comport with the Fourth Amendment.
The Supreme Court’s decision in City of Los Angeles v. Patel illustrates this point. Patel
involved a Fourth Amendment challenge to a statute requiring hotel operators to provide guests’
identification records at any time upon a request from police. 135 S. Ct. at 2452. The Supreme
Court struck down the statute at issue, since it allowed for no precompliance review, but
explained that not all such statutes must be rejected. “Search regimes where no warrant is ever
required may be reasonable where ‘special needs . . . make the warrant and probable-cause
requirement impracticable.’” Id. at 2451–52 (quoting Skinner v. Railway Labor Executives
Ass’n, 489 U.S. 602 (1989)) (alterations in original). Fourth Amendment exceptions that fall into
this “special needs” category include the “administrative search” exception, which was
unsuccessfully invoked in Patel, and, of particular relevance to the instant matter, the “exigent
circumstances” exception. See id.
As the Seventh Circuit recently pointed out, the law “recognizes that police sometimes
take actions not for any criminal law enforcement purposes but rather to protect members of the
public.” Sutterfield v. City of Milwaukee, 751 F.3d 542, 553 (7th Cir. 2014). The factual
15
scenario in Sutterfield case bears many similarities to the instant matter. In Sutterfield, police
officers entered the home of a woman, who had told her psychiatrist she planned to commit
suicide while wearing an empty holster, despite the woman telling the police that “she was fine
and that she did not want anyone to enter her residence.” Id. at 547. The police officers
subsequently effected a forced entry into the plaintiff’s home and handcuffed her pursuant to a
state statute that allows for involuntary assessment of individuals experiencing mental health
issues under certain circumstances. See id. at 545–47. While “conduct[ing] a protective sweep
of the home,” officers forced open a locked “compact disc carrying case,” discovering “a semi-
automatic handgun inside.” Id. at 547. The officers seized the gun and took the plaintiff to a
psychiatric hospital for evaluation. Id.
The Seventh Circuit found the officers were entitled to qualified immunity because, inter
alia, the police were not acting in a law enforcement capacity and their actions were reasonable
in context. See id. at 576. In such circumstances, the Sutterfield court noted, when officers are
acting as so-called “community caretakers,” any “searches (including home entries) . . . are
deemed exempt from the Fourth Amendment warrant requirement.” Id. at 553–54. The
Sutterfield court, in a thorough and scholarly opinion, identified three distinct subsets of these
exempt searches, namely, “the community caretaking doctrine, the emergency aid doctrine, and
the exigent circumstances doctrine.” Id. at 553. Each is described below.
1. The Community Caretaking Doctrine
The “community caretaking” doctrine was first recognized by the Supreme Court in Cady
v. Dombrowski, 413 U.S. 433 (1973). Sutterfield, 751 F.3d at 554. In Cady, the Supreme Court
held that a vehicular search to locate the service revolver of an off-duty police officer, after he
wrecked his car in a drunk driving incident, was reasonable because such a search was motivated
by “concern for the safety of the general public who might be endangered if an intruder” into the
16
unguarded storage area where the car was being kept “removed a revolver from the trunk of the
vehicle.” Cady, 413 U.S. at 447. Indeed, the Cady Court noted that “[l]ocal police officers . . .
frequently investigate vehicle accidents in which there is no claim of criminal liability and
engage in what, for want of a better term, may be described as community caretaking functions,
totally divorced from the detection, investigation, or acquisition of evidence relating to the
violation of a criminal statute.” Id. at 441. In Cady, the search for the officer’s revolver led
police to unlock the car’s trunk, where bloody clothes and other evidence of a murder were
discovered. Id. at 437. Bolstering the reasonableness of the search in Cady were the Supreme
Court’s findings that the officers who searched the plaintiff’s car were following standard police
procedure and were “ignorant of the fact that a murder, or any other crime, had been committed.”
Id. at 447.
The holding in Cady has evolved into the line of cases supporting so-called “inventory
searches” of seized automobiles, Sutterfield, 751 F.3d at 555, but the Supreme Court’s
nomenclature of “community caretaking” continues to be used by many courts, including the
District of Columbia Court of Appeals, to describe this doctrinal exception to the Fourth
Amendment warrant and probable cause requirements. In Hawkins v. United States, 113 A.3d
216, 221–22 (D.C. 2015), a case involving a vehicular search, the D.C. Court of Appeals recently
adopted a four part test to determine whether a “law enforcement officer’s community caretaking
conduct [is] reasonable.” Id. First, the defendant asserting the community caretaking exception
must show “by specific and articulable facts that the government’s conduct was totally divorced
from the detection, investigation, or acquisition of evidence relating to the violation of a criminal
statute.” Id. at 222. Thus, the community caretaker doctrine does not require an officer to have
“probable cause” to believe a crime is being or has been committed, which is a prerequisite for a
17
standard criminal warrant. Id. Second, the defendant must prove that “the government’s
conduct was reasonable considering the availability, feasibility, and effectiveness of alternatives
to the officer’s action.” Id. Third, the defendant must show that “the officer’s action ended
when the citizen or community was no longer in need of assistance.” Id. Finally, the defendant
must show that “the government’s interests outweigh the citizen’s interest in being free from
minor government interference.” Id. Moreover, District of Columbia law “does not require the
government to pursue the least restrictive means of correcting the problem” that gave rise to the
officer’s action. Id.9
The community caretaking doctrine can be difficult to define. Sutterfield, 751 F.3d at
555–56; Hawkins, 113 A.3d at 221; Pleasant-Bey v. United States, 988 A.2d 496, 502 (D.C.
2010). In Sutterfield, the court surveyed federal case law regarding the exception and noted that
the Seventh, “Third, Ninth, and Tenth circuits have confined the community caretaking
exception to the automobile context,” while “the Fifth, Sixth, and Eighth circuits have relied on
the community caretaking exception to justify warrantless searches of the home.” 751 F.3d at
556 (collecting cases). The First, Fourth, and Eleventh Circuits have declined to rule explicitly
9
In 2010, when the events at issue in this matter took place, the D.C. Court of Appeals was reluctant to apply the
community caretaking doctrine since “‘[w]hat community caretaking involves and what boundaries upon it exist
have simply not been explained to an extent’ that would permit [the Court] to comfortably apply that doctrine.”
Pleasant-Bey v. United States, 988 A.2d 496, 502 (D.C. 2010) (quoting Hunsberger v. Wood, 570 F.3d 546, 554 (4th
Cir. 2009)). Nevertheless, the community caretaking doctrine itself has existed since Cady was decided in 1973, and
the D.C. Circuit recognized its potential application to police searches of automobiles in 2003 in United States v.
Maple, 348 F.3d 260, 263 (D.C. Cir. 2003). The Maple court cited Cady for the proposition that police “engage in
what . . . may be described as community caretaking functions, totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute.” Id. (quoting Cady, 413 U.S. at 441). Thus,
although the four-part test set out in Hawkins could not have been known by the defendants in the instant matter in
2010, the existence and potential application of the community caretaking exception is reasonable to consider for
qualified immunity purposes. See Youngbey v. March, 676 F.3d 1114, 1117 (D.C. Cir. 2012) (“[T]he protection of
qualified immunity is available if ‘a reasonable officer could have believed that [his or her actions were] lawful, in
light of clearly established law and the information the officers possessed.’”) (quoting Wilson v. Layne, 526 U.S.
603, 615 (1999)).
18
on whether the doctrine extends to searches of the home. Id. Similarly, state courts have
differed in their application of the doctrine. Hawkins, 113 A.3d at 221.
In the face of widespread differences among courts at both the state and federal levels in
the application of the community caretaking doctrine to situations not involving automobiles, the
D.C. Court of Appeals has not expressly opined whether the test articulated in Hawkins applies
solely to automobiles or more broadly. Arguably, the Hawkins court implicitly recognized an
expanded scope of the doctrine by citing Brigham City v. Stuart, 547 U.S. 398, 403 (2006), for
the contention that searches pursuant to the community caretaking doctrine “should be evaluated
as a Fourth Amendment search.” Hawkins, 113 A.3d at 222; id. at 221–22 (“The facts of the
instant case lead us to further adopt a hybrid of the reasonableness and balancing tests, in light of
the totality of the circumstances, to assess whether an officer’s community caretaking conduct
comports with the Fourth Amendment.”). In another community caretaking decision issued six
months before Hawkins, the D.C. Court of Appeals similarly hinted that the doctrine may apply
beyond automobile cases. Davis v. United States, 110 A.3d 590, 595 n.9 (D.C. 2015) (“[T]his
court has recognized that the community caretaking function may apply outside that context, at
least in ‘exceptional circumstances.’” (quoting United States v. Gaskin, 368 A.2d 1138, 1139
(D.C. 1977)).
Although the Hawkins decision sets forth the District of Columbia’s view of the
community caretaking doctrine, this Court is not bound by that decision in determining whether
the search in the instant matter actually violated the Fourth Amendment, regardless of whether it
meets the Hawkins test. See Sutterfield, 751 F.3d at 557 (noting that where state court
interpretation of community caretaking doctrine conflicted with Circuit doctrine, Circuit doctrine
controlled). Yet, local court interpretations of the contours of the community caretaking doctrine
19
are clearly relevant in evaluating whether police officers are entitled to qualified immunity for a
search that the plaintiff claims violates the Fourth Amendment.
2. The Exigent Circumstances Doctrine
The Supreme Court expressly identified and articulated the exigent circumstances
exception to the Fourth Amendment’s warrant requirement, ironically, in a case that eliminated
another such exception. In Mincey v. Arizona, 437 U.S. 385, 388 (1978), the Supreme Court
reversed a state court judgment that “the warrantless search of a homicide scene is permissible
under the Fourth and Fourteenth Amendments.” The so-called “murder scene exception”
allowed law enforcement officers, who “were legally on the premises in the first instance,” to
execute “a reasonable, warrantless search of the scene of a homicide—or of a serious personal
injury with likelihood of death where there is reason to suspect foul play,” without violating the
Fourth Amendment. Id. at 389–90.
The Mincey Court rejected the exception, holding that “the generic exception delineated
by the Arizona Supreme Court” was invalid under the Fourth Amendment. Id. at 390. In doing
so, however, the Mincey Court noted that it did “not question the right of police to respond to
emergency situations” and “the Fourth Amendment does not bar police officers from making
warrantless entries and searches when they reasonably believe that a person within is in need of
immediate aid.” Id. at 392. In holding that “warrants are generally required to search a person’s
home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so
compelling that the warrantless search is objectively reasonable under the Fourth Amendment,”
id. at 393–94, the Supreme Court cited various instances where searches were found to be
reasonable that, absent the exigencies, would have amounted to constitutional violations. See id.
Among the examples given by the Supreme Court were circumstances that either required
probable cause that a crime was being committed or the presence of probable cause was implied
20
as part of the exception, including “hot pursuit” of a criminal suspect, id. at 394 (citing Warden
v. Hayden, 387 U.S. 294, 298–300 (1967) (finding warrantless search conducted in “hot pursuit”
of suspect reasonable)); a search incident to arrest, id. (citing Chimel v. California, 395 U.S. 752,
765–66 (1969) (finding search to secure the person of, and immediate area around, a detained
suspect reasonable)); and preservation of evidence, id. (citing Schmerber v. California, 384 U.S.
757, 770–71 (1966) (finding search to prevent the imminent destruction of evidence
reasonable)). These examples provide the precedent for the legal principle relied upon by the
plaintiff in the instant matter that warrantless searches require both probable cause and exigent
circumstances to be lawful under the Fourth Amendment.
Yet, the Mincey Court explicitly recognized another type of search where probable cause
was not required. The Court cited Michigan v. Tyler, 436 U.S. 499, 509–10 (1978), in which the
Court held that “officials need no warrant to remain in a building for a reasonable time to
investigate the cause of a blaze after it has been extinguished,” since “it would defy reason to
suppose that firemen must secure a warrant or consent before entering a burning structure to put
out the blaze.” The Tyler Court also noted that “once in a building for this purpose” of
extinguishing a fire, “firefighters may seize arson evidence that is in plain view.” Id. at 509.
The Tyler rationale differed significantly from that of Hayden, Schmerber, and Chimel. In the
latter, probable cause to believe a crime had taken place was necessary to justify what would
otherwise be an unreasonable search. In the former, however, the Court held that firefighters,
acting to mitigate “an exigency of sufficient proportions to render a warrantless entry
‘reasonable,’” needed no probable cause that a crime had occurred, or that evidence of
contraband would be found, to either enter the building or remain in the building for a reasonable
period of time to determine the cause of the blaze. Id. at 509–10. Thus, the “exigent
21
circumstances” doctrine may cover both types of circumstances where probable cause is required
to exist and where it is not.
The D.C. Circuit expressly recognized the exigent circumstances doctrine, divorced from
the probable cause requirement, as early as 1979 in United States v. Hendrix, 595 F.2d 883, 885–
86 (1979). There, the Circuit upheld the warrantless entry by police officers into an apartment
when consent was provided by an alleged domestic violence victim, who lived in the apartment
with her alleged abuser. The Hendrix Court found that, even had the victim’s consent not been
given to search the apartment, exigent circumstances justified the search since the presence of a
firearm in the home constituted a “threat to human life.” Id. at 886. Moreover, the D.C. Circuit
noted that, in the circumstances at issue in Hendrix, a delay of several hours to obtain a warrant
was unacceptably long, since the suspect, who had been detained prior to the search, was
ultimately arrested only for disorderly conduct. Id. The Court found the likelihood that the
suspect could obtain his release and return to his home where the firearm was stored before the
police could obtain a warrant was another sufficient reason to justify a warrantless search of the
premises. Id. A Supreme Court case nearly thirty years later, Georgia v. Randolph, 547 U.S.
103, 120 (2006), found that consent of one co-occupant in the face of a lack of consent from the
other was insufficient to allow a warrantless search, thus abrogating one of the D.C. Circuit’s
grounds for decision in Hendrix. Nevertheless, the Randolph Court noted that the ultimate result
in Hendrix would have been no different, since the D.C. Circuit properly found exigent
circumstances supported the warrantless entry. Id. at 119. Thus, for purposes of the instant
matter, application of the exigent circumstances doctrine where no probable cause is required, as
approved in Hendrix, remains good law.
22
While it is true that “courts have not spelled out a definition of ‘exigency’ with any
precision,” United States v. Dawkins, 17 F.3d 399, 405 (D.C. Cir. 1994), one clearly established
exigency is “‘[t]he need to protect or preserve life or avoid serious injury,’” United States v.
Goree, 365 F.3d 1086, 1089 (D.C. Cir. 2004) (quoting Mincey, 437 U.S. at 392) (alteration in
original). Determining the reasonableness of a warrantless search under such circumstances is
“‘judged according to the totality of the circumstances,’ and the standard ‘is an objective one,
focusing on what a reasonable, experienced police officer would believe.’” Goree, 365 F.3d at
1090 (quoting In re Sealed Case, 153 F.3d at 766). A warrantless search under exigent
circumstances is not without restrictions. The Supreme Court and the D.C. Circuit have made
clear that such searches may be “no broader than necessary,” United States v. Mason, 966 F.2d
1488, 1492 (D.C. Cir. 1992), and “must be strictly circumscribed by the exigencies which justify
its initiation,” Goree, 365 F.3d at 1090 (quoting Mincey, 437 U.S. at 393) (internal quotation
marks omitted).
3. The Emergency Aid Doctrine
The third exception to the Fourth Amendment’s warrant requirement discussed in
Sutterfield and relevant to the instant matter is the “emergency aid doctrine, which recognizes
that a warrantless entry into the home may be appropriate when police enter for an urgent
purpose other than to arrest a suspect or to look for evidence of a crime.” Sutterfield, 751 F.3d at
557. The Seventh Circuit opined that this exception has come to be viewed as a “subset” of the
exigent circumstances doctrine in the wake of the Supreme Court’s decision in Brigham City v.
Stuart, 547 U.S. 398 (2006). See Sutterfield, 751 F.3d at 558.
In Brigham City, the specific question at issue was “whether police may enter a home
without a warrant when they have an objectively reasonable basis for believing that an occupant
is seriously injured or imminently threatened with such injury.” Brigham City, 547 U.S. at 400.
23
In that case, police officers were investigating a noise complaint at a house and observed
“through a screen door and windows-an altercation taking place in the kitchen of the home.” Id.
at 401. After seeing a juvenile break free of the people trying to restrain him and punch an adult
in the face, the officers entered the kitchen by opening a screen door, identified themselves, and
remained until the altercation had ceased. Id. The Supreme Court held that “in these
circumstances, the officers had an objectively reasonable basis for believing both that the injured
adult might need help and that the violence in the kitchen was just beginning.” Id. at 406.
Brigham City reinforced two important aspects of the emergency aid doctrine. First, the
Supreme Court noted that while the state court “considered the officers’ subjective motivations
relevant,” in determining whether the emergency aid doctrine applied, the Supreme Court’s
“cases have repeatedly rejected this approach. Id. at 404. An action is ‘reasonable’ under the
Fourth Amendment regardless of the individual officer’s state of mind, ‘as long as the
circumstances, viewed objectively, justify [the] action.’” Id. (quoting Scott v. United States, 436
U.S. 128, 138 (1978)) (emphasis in original); see id. at 402 (quoting In re Sealed Case, 153 F.3d
at 766, for proposition that “the standard for exigent circumstances is an objective one.”).
Second, Brigham City affirmed the principle that police officers may act prophylactically
to protect citizens from potential as well as actual violence. Id. at 406. Rather than requiring
officers in Brigham City to “wait until another blow rendered someone ‘unconscious’ or ‘semi-
conscious’ or worse before entering,” the Supreme Court noted that “[t]he role of a peace officer
includes preventing violence and restoring order, not simply rendering first aid to casualties.” Id.
The Supreme Court’s holding in Brigham City echoes comments the Court had made two months
prior to the Brigham City opinion in Randolph, where the Court noted a fundamental difference
between when police may enter a dwelling to search for evidence as opposed to entering
24
“without committing a trespass.” 547 U.S. at 118. The Randolph Court opined that an officer
was entirely justified in entering “a dwelling to protect a resident from domestic violence . . . or
to determine whether violence (or threat of violence) has just occurred or is about to occur,
however much a spouse or other co-tenant objected.” Id. Most importantly for the instant
matter, the Randolph Court telegraphed the holding announced two months later in Brigham
City, when it recognized “[t]he undoubted right of the police to enter [a residence] in order to
protect a victim.” Id. at 118–19; accord Hawkins v. United States, 113 A.3d at 220.
* * *
In sum, at least three exceptions to the Fourth Amendment’s warrant and probable cause
requirement exist: when officers are acting as community caretakers; when officers are
responding to exigent circumstances; and when officers are endeavoring to provide emergency
aid. The parties’ dispute over whether the individual defendants had “probable cause” in the
sense of whether the defendants had a reason to believe evidence of a crime was present in the
plaintiff’s apartment to warrant a search is simply inapposite to the matters at issue. As a result,
many, if not all, of the disputed issues of material facts identified by the parties and relied upon
by the Court in its initial ruling on the defendants’ motions for summary judgment, see Minute
Orders, March 6, 2015, are immaterial to determining whether a Fourth Amendment violation
occurred and whether the individual defendants are entitled to qualified immunity for their
actions. An examination of the individual defendants’ actions in the context of the community
caretaking doctrine, the exigent circumstances doctrine and the emergency aid doctrine, each of
which provides an exception to the Fourth Amendment’s warrant and probable cause
requirements, follows.
25
B. The Individual Defendants Are Entitled To Qualified Immunity
Three individual defendants remain in the instant suit: MPD Lt. Glover, who commanded
the Emergency Response Team (“ERT”) and Explosive Ordnance Disposal (“EOD”) Unit; MPD
Sgt. Kevin Pope, the sergeant whose team made the initial entry into the plaintiff’s apartment;
and MPD Ofc. Mark Leone, the bomb technician who swept the apartment for explosives and
hazardous materials. See supra Part I. Lieutenant Glover ordered both the ERT, which included
Sgt. Pope, and the EOD unit, which included Ofc. Leone, to search the plaintiff’s apartment. See
Glover SMF ¶¶ 27, 32; Pl.’s SMF ¶¶ 58, 69. If the searches ordered by Lt. Glover did not violate
any clearly-established right under the Fourth Amendment, all three individual defendants are
entitled to qualified immunity under the second prong of the Saucier test. Thus, the central
question to be decided is whether Lt. Glover’s actions were reasonable under clearly established
law.
The plaintiff argues that Lt. Glover’s actions were unreasonable because he lacked
probable cause to enter the plaintiff’s apartment and any exigent circumstances were
extinguished when the plaintiff left his apartment. See Pl.’s Suppl. Opp’n at 5–11.10 The first
argument is a red herring, as explained previously, since no probable cause was necessary to
conduct the searches in question, given that the officers involved were not acting in a law
10
At the hearing held July 24, 2015, the plaintiff was asked to define the contours of the right the plaintiff claims
was violated, beyond the general “the police are not allowed to effect a warrantless entry into a person’s home
without probable cause.” Hrg. Tr. 29:12-14. In his opposition, the plaintiff did not attempt to delineate the
allegedly violated right more clearly, as requested by the Court. See generally Pl.’s Suppl. Opp’n. Rather, the
plaintiff cites Kirk, 536 U.S. at 638, Katz, 389 U.S. at 357, Dawkins, 17 F.3d at 403, Socey, 846 F.2d at 1444 n.5,
and United States v. Timberlake, 896 F.2d 592, 597–98 (D.C. Cir. 1990), for the proposition that police require both
exigent circumstances and probable cause to conduct a warrantless search of a home. Pl.’s Suppl. Opp’n at 14–15.
This response is inadequate for two reasons. First, defining the right as one to be free from a warrantless search
unless probable cause and exigent are present, is to define the right at the “high level of generality” the Supreme
Court rejected in Sheehan. See Sheehan, 135 S. Ct. at 1776 (quoting al-Kidd, 131 S. Ct. at 2084). Second, the
plaintiff’s proposition, as discussed supra, in Part III.A, is incorrect as a matter of law: probable cause is not always
required for a warrantless search. Thus, the cases cited by the plaintiff, which stand merely for the general
proposition that warrantless entries into homes are presumptively unreasonable, are of little value to deciding the
instant matter.
26
enforcement capacity but in their capacity as protectors of public safety. See, e.g., Hawkins, 113
A.3d at 220. As for the second argument, the plaintiff does not challenge the existence of the
facts that Lt. Glover cites as the reason he ordered the ERT and EOD Unit searches, but rather
challenges the legal significance of those facts, namely, whether a reasonable officer possessing
the knowledge Lt. Glover had at the time would have ordered the searches. See Pl.’s Suppl.
Opp’n at 5–11. Given the lack of any factual dispute over what Lt. Glover says he knew, which
is corroborated by other evidence in the record, the objective reasonableness of his actions is a
question of law appropriate for the Court to determine.
The D.C. Circuit has admonished that, in § 1983 cases such as this one, “[d]etermining
that a constitutional right exists and has been abridged by official conduct is not only difficult at
times, but asks much of a court that should resolve matters on constitutional grounds only when
there is no other way to do so.” Lash, 786 F.3d at 5 (citing Pearson, 555 U.S. at 241). Of
course, consistently failing to decide constitutional questions in favor of recognizing merely a
lack of clarity as to the appropriate answer was the precise result the Supreme Court sought to
prevent in originally requiring rigid adherence to the framework of deciding whether a
constitutional right was violated before deciding whether the right was clearly established at the
time. See Saucier v. Katz, 533 U.S. at 201 (“In the course of determining whether a
constitutional right was violated on the premises alleged, a court might find it necessary to set
forth principles which will become the basis for a holding that a right is clearly established. This
is the process for the law’s elaboration from case to case, and it is one reason for our insisting
upon turning to the existence or nonexistence of a constitutional right as the first inquiry.”),
receded from by Pearson, 555 U.S. at 241. As discussed next, the individual defendants are
27
entitled to qualified immunity under both prongs of the Saucier test, a conclusion that also
resolves the liability of the municipal defendant.
1. Second Saucier Prong: The Individual Defendants Violated No Clearly-
Established Fourth Amendment Right
Perhaps the clearest principle to be drawn from the foregoing discussion of the
community caretaking, exigent circumstances, and emergency aid doctrines is that these
doctrines are often ill-defined, overlapping, and difficult to distinguish from one another. See
Sutterfield, 751 F.3d at 579 (finding, despite “uncertainty as to which legal framework best
applies to the warrantless actions of the police in these circumstances, the police could have
believed that [state] precedents, if not the federal cases, authorized them to take these actions in
order to protect [the plaintiff’s] well-being as well as the well-being of anyone else . . . who
might have access to [the plaintiff’s] home in her absence”). Indeed, as previously noted, even
the parties’ lawyers in this action seem to have misunderstood the applicable principles in the
first round of summary judgment briefing, necessitating this reconsideration. The parties
reliance in their initial summary judgment briefing on an incorrect standard is perhaps due to
what the Seventh Circuit recognized as a “persist[ent] [] lack of clarity in Fourth Amendment
case law as to the appropriate legal framework that should be applied to warrantless intrusions
motivated by purposes other than law enforcement and evidence-gathering.” Id. at 551–52
(finding “tentative nature of some of [the court’s] analysis appropriate” in light of, inter alia,
“the lack of clarity in the case law, and the shallowness of the briefing” before it); id. at 553 n.5
(noting that “[s]cholars have frequently remarked on the lack of clarity in judicial articulation
and application of the three doctrines” providing exceptions to the warrant requirement); id. at
553 (noting “some degree of overlap between the doctrines” of community caretaking,
28
emergency aid and exigent circumstances, and that “the distinctions between them are not always
clear”).
Considering this gray area of the law, coupled with the tension inherent in a barricade
situation in the middle of a freezing, winter night, this Court must carefully heed the Supreme
Court and D.C. Circuit’s frequent refrain that the appropriate “question [for qualified immunity
purposes] is whether, in light of precedent existing at the time, [an officer] was ‘plainly
incompetent’” in taking the challenged action. Stanton v. Sims, 134 S. Ct. 3, 5 (2013).
The Supreme Court’s discussion in Stanton of the state of the law regarding whether a police
officer’s warrantless entry into a home while in hot pursuit of a misdemeanant is remarkably
similar to the state of the law regarding the aforementioned doctrinal exceptions to the warrant
and probable cause requirements: “To summarize the law at the time . . . [t]wo opinions of [the
Supreme] Court were equivocal on the lawfulness of [the] entry; two opinions of the State Court
of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was
readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified
immunity in the wake of that opinion; and the federal and state courts of last resort around the
nation were sharply divided.” Id. at 7. In such circumstances, the Supreme Court held, the
officer “may have been mistaken in believing his actions were justified, but he was not ‘plainly
incompetent.’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
In the instant matter, where the circuits are divided on whether the community caretaking
exception applies to warrantless entries into the home, see Sutterfield, 751 F.3d at 556; the D.C.
Circuit in an analogous factual scenario found the officer’s warrantless entry into a home to be
justified, Hendrix, 595 F.2d at 886; and other Supreme Court and federal appellate court
opinions indicating the officers’ actions would likely be justified, see Brigham City, 547 U.S. at
29
406; Mora v. City of Gaithersburg, 519 F.3d 216 (4th Cir. 2008), it cannot be said that Lt. Glover
was “plainly incompetent” for issuing his orders, or that Sgt. Pope and Ofc. Leone were “plainly
incompetent” for following them. Thus, at the very least, the plaintiff cannot show that the
individual defendants violated a “right [that] was clearly established.” Pearson, 555 U.S. at 232.
Thus, these individual MPD officer defendants are entitled to qualified immunity and grant of
summary judgment in their favor.
2. First Saucier Prong: Individual Defendants’ Actions Did Not Violate
Fourth Amendment Rights of Plaintiff
This leaves as the remaining defendant, the District of Columbia, for which the defense
of qualified immunity is not available. County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5
(1998). On the issue of municipal liability, the parties have focused on the District’s policies or
customs that may have contributed to the plaintiff’s alleged Fourth Amendment violation. See
Def. District of Columbia’s Mot. Summ. J. at 9–13, ECF No. 76; Pl.’s MSJ Opp’n at 31–39. To
resolve whether this municipal defendant may be subject to liability, however, examination of
the first prong of the Saucier qualified immunity test—whether a constitutional violation
occurred in the first instance—is dispositive not only of the individual defendants’ entitlement to
qualified immunity but also for claim against the District of Columbia. Consideration of all three
of the doctrines discussed supra, in Part III.A, compels the conclusion that the individual
defendants committed no actual Fourth Amendment violation.
a) The Community Caretaking Doctrine
The plaintiff predicates his claim of a Fourth Amendment violation on the lack of
probable cause for the search of his apartment and, in so doing, highlights Lt. Glover’s
deposition testimony that this officer did not believe he needed probable cause to enter the
plaintiff’s apartment because “probable cause is if we intended to arrest anybody. We had no
30
intent to arrest anybody.” Pl.’s SMF ¶ 54. The plaintiff reasserts this contention in slightly
different language in his supplemental opposition by stating “[t]he law clearly prohibits police
officers from entering someone’s apartment to investigate whether there might possibly be
someone else inside.” Pl.’s Opp’n at 7. Under the community caretaking doctrine, the law is not
nearly so clear; in certain contexts, the police may lawfully enter a residence to investigate
whether there might be someone else inside. See Sutterfield, 751 F.3d at 557.
As noted, supra, in Part III.A.1, in Hawkins, the D.C. Court of Appeals established a four
part test for determining if the community caretaking exception applies to police action.
Hawkins, 113 A.3d at 221–22. The government must show (1) “specific and articulable facts
that the government’s conduct was totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute[;]” (2) “the government’s
conduct was reasonable considering the availability, feasibility, and effectiveness of alternatives
to the officer’s action[;]” (3) “the officer’s action ended when the citizen or community was no
longer in need of assistance[;]” and (4) “the government’s interests outweigh the citizen’s
interest in being free from minor government interference.” Id. at 222. Lieutenant Glover’s
actions meet all four prongs of the test.
First, Lt. Glover’s deposition testimony make clear that the Emergency Response Team
Entry Team did not enter the plaintiff’s apartment to detect, investigate, or acquire evidence of a
statutory violation. See id. Lieutenant Glover testified that he “directed the members of the
Emergency Response Team Entry Team to enter and search for any human threats that remained
or victims,” and he ordered the EOD unit “to enter and check for any hazardous materials that
could remain on the scene and be dangerous to the public or anybody else in that block or area.”
Pl.’s MSJ Opp’n Ex. 2 (Deposition of Lt. Robert Glover (“Glover Dep.”)) 10:15-22, ECF No.
31
87-1. Neither of these purposes involved searching for evidence of a statutory violation. From
an objective standpoint, the purpose of the search was directed toward identifying and assisting
any individuals who may have been in the apartment after the plaintiff left, not to obtain any
evidence of a crime.
Lieutenant Glover admits that the ERT had substantial uncertainty about what, if
anything, the entry team members would find in the apartment. He stated “we were not certain
at that point in time whether [the plaintiff] was inside the location by himself, whether there was
another person that could harm us or somebody else, whether there was any victims inside.” Id.
13:9-12. The plaintiff seizes upon this uncertainty to assert that the police “point only to mere
speculation that someone else might have been in Plaintiff’s apartment.” Pl.’s Suppl. Opp’n at 1.
Indeed, the officers were blunt about their uncertainty whether other people were in the
apartment who may have been in need of assistance. Based on the undisputed facts available to
Lt. Glover at the time, however, a reasonable officer could have believed there was a need to
enter the apartment to determine, conclusively, whether any additional human threats or victims
were inside.
The facts include the following: First, Lt. Glover was informed that the plaintiff told the
suicide hotline employee that the plaintiff “didn’t intend to harm anyone else.” Glover Dep.
32:21. The plaintiff highlights that the plaintiff did not “mention that he . . . planned to use
firearms to hurt himself or others,” see Pl.’s Suppl. Opp’n at 2, but that does not obviate the
significance of the plaintiff’s reported reference to other persons. Second, the plaintiff’s landlord
stated that “there was a connection [from] her house [upstairs] to the basement,” where the
plaintiff had his apartment, though this assertion later proved false. Glover Dep. 16:14-17.
Third, the landlord informed the police that the plaintiff lived alone but he had an ex-girlfriend
32
who would sometimes stay the night and that other people would sometimes spend the night in
the plaintiff’s apartment. Id. 17:12-16. Based on this information and the plaintiff’s ambiguous
statement, Lt. Glover testified at his deposition that the plaintiff “left the question open whether
there was anybody else inside” his apartment. Id. 18:3-4. Such a conclusion is not unreasonable
under the circumstances, namely, an admittedly mentally disturbed individual who had, as far as
Lt. Glover knew, voluntarily called a suicide hotline, and is significantly bolstered by additional
facts learned by Lt. Glover before ordering the challenged searches.
Upon learning about the plaintiff’s ex-girlfriend, another officer who is not a defendant in
this action, reached the ex-girlfriend on her cell phone. Id. 35:13-21. Based on that
conversation, Lt. Glover was advised that the ex-girlfriend stated the plaintiff “had a green duffel
bag inside with military items that she’d personally seen” that she had been told not to touch. Id.
36:17-21. She further indicated that the plaintiff was an Army veteran who served in Iraq and
Afghanistan, “that he was an expert in IEDs, detection and mitigation, and that he trained other
people to recognize things and handle those types of incidents.” Id. at 37:1-5. She also stated
that she and the plaintiff “had had domestic issues” and that the plaintiff had “been taking
medications.” Id. 37:5-6.
Additionally, Lt. Glover knew that the plaintiff had initially lied to officers who
contacted him by stating he was at another location more than twelve blocks away when he was
actually at home. Id. 24:3-8. Lt. Glover also believed there had been a natural gas leak in the
recent past that might have resulted in the concentration of natural gas in the plaintiff’s
apartment. Id. 38:1–39:6.
Lieutenant Glover’s description during his deposition of the totality of the circumstances
supports his assertion that an entrance to search for other threats or victims was necessary, and
33
that such a search was divorced from any law enforcement, investigative purpose. He testified
that:
[Y]ou have a veteran who’s suffering from self-described posttraumatic stress
disorder, taking medications, threatening to commit suicide, telling a crisis worker
that he’s got a gun to his head, who then calls our 911 center to dispatch [Fifth
District officers]. There’s a reported gas leak in the area, don’t know where the
girlfriend is calling from, the deception of misdirecting us to where his actual
whereabouts were; the fact that we had somebody telling us that there was this
bag in there with items that she had seen and couldn’t really describe to us exactly
what they were intended for.
Id. 40:7-20. Lieutenant Glover’s order to the EOD Unit to sweep the plaintiff’s apartment for
potential hazardous materials was similarly not motivated by any attempt to find a statutory
violation. Instead, Lt. Glover testified that the EOD Unit was sent into the plaintiff’s apartment
with “no intent to make an arrest. There was no intent to do anything other than to mitigate any
hazardous materials or devices that were potential [sic] inside at the time of this incident.” Id.
88:22–89:4. As Lt. Glover summarized the circumstances confronting him and his fellow
officers, the ERT and EOD Unit’s “responsibility as the Police Department, as with the Fire
Department, is to ensure public safety. That’s what was done in this matter. We got [the
plaintiff] to come out successfully unharmed. Success.” Id. 149:5-9.
When viewed in the totality of the circumstances, the defendants have shown that the first
prong of the Hawkins test is met, since no reasonable jury could find that there were not “specific
and articulable facts that the government’s conduct was totally divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a criminal statute.” Hawkins,
113 A.3d at 222.
The second prong of the Hawkins test considers whether “the government’s conduct was
reasonable considering the availability, feasibility, and effectiveness of alternatives to the
officer’s action.” Id. In this instance, the plaintiff complains only of Lt. Glover’s actions in
34
ordering the search of the plaintiff’s home for potential additional victims and hazardous
materials. The clear implication of the plaintiff’s argument that the warrantless entry of the
police into his home was improper is that the police should have obtained a warrant before
entering. See Pl.’s Suppl. Opp’n at 6–7 (arguing police entry was improper absent “precise,
articulable information that another person was inside Plaintiff’s apartment, let alone injured”).
The plaintiff’s argument illuminates the fundamental incompatibility of traditional “probable
cause” jurisprudence with entries and searches made pursuant to the community caretaking
doctrine.
As the Sutterfield court pointed out, the community caretaking doctrine “presumes that
the police are not acting for any law enforcement purpose,” thus rendering the question of
“whether or not there is time to seek a traditional criminal warrant [] immaterial.” Sutterfield,
751 F.3d at 561. The Sutterfield Court further explained, “whether there was time to seek a
warrant loses its relevance in the emergency aid subset of exigency cases. The passage of time
may remain relevant as a measure of whether there was a true emergency justifying the intrusion
into someone’s home, but not in terms of whether a warrant could have been sought.” Id. at 564.
The record is clear that the entry into the plaintiff’s apartment ordered by Lt. Glover was not
motivated by a search for evidence of a crime. See Glover Dep. 18:7-10 (“[W]e have to do due
diligence to go inside and make sure there’s no victims or anybody else that can remain to hurt
anybody else.”). Indeed, Lt. Glover asserts affirmatively that he did not have probable cause to
enter, stating “[e]ntry wasn’t made on probable cause. There was no crime that we knew of at
that point in time.” Id. 41:13-15.
It is hornbook law that a police officer seeking to enter a private residence without
consent must present a neutral magistrate with sufficient probable cause to believe that evidence
35
of a crime would be uncovered during a specific search of the residence. See Sutterfield, 751
F.3d at 561. In cases where the community caretaking doctrine is applied, such recourse to a
neutral magistrate is unavailable since, by definition, the police are not entering a private
residence to search for evidence of a crime; rather, they are entering the residence to protect
public safety. See id. This is precisely the situation described by Lt. Glover. He states the ERT
and EOD Unit “weren’t investigating a crime . . . . [i]t’s not a crime to threaten to commit
suicide,” when they entered and searched the plaintiff’s apartment. Glover Dep. 41:22-42:2. In
Lt. Glover’s view, the ERT and EOD Unit’s role was “to keep everybody safe including anyone
that may remain in the apartment,” using skills and training that “exceed[] the capability of basic
patrol officers.” Id. 42:8-12. Lieutenant Glover notes that there was no way for the officers on
the scene to know “that [the plaintiff] hadn’t cut somebody up or tied them up in the bathroom
that [they] didn’t know about.” Id. 42:13-15. “[I]t’s irresponsible not to check on the welfare
and with hundred percent certainty make sure nobody else is inside that’s being either victimized
or being held against their will that we don’t know about.” Id. 42:20–43:1.
Thus, to accomplish Lt. Glover’s goal—to ensure there were no other human victims or
threats inside the plaintiff’s apartment and that the apartment was clear of hazardous materials,
see id. 42:20–43:1; 44:9-17—the police had either to obtain the plaintiff’s voluntary consent to
enter or effect a warrantless entry. The plaintiff admits that he locked his front door to prevent
the officers from entering his apartment. Pl.’s MSJ Opp’n Ex. 1 (Deposition of Plaintiff (“Pl.’s
Dep.”)) 77:12-17, ECF No. 87-1 (“And when I opened the door and came out, I pulled the door
shut securely to make sure that my dog could not get out. And then also I did not want anybody
in my apartment. So the door was locked, and I was on the outside.”). The plaintiff avers that at
least one officer asked the plaintiff “for the key to [his] apartment,” to which the plaintiff
36
responded he was “not giving [the officer] consent to go into [the plaintiff’s] place.” Id. 94:12-
14. Consequently, the second prong of the Hawkins test is met since, to fulfill their community
caretaking responsibility, the officers’ had no alternative to the warrantless entry, given the
absence of probable cause sufficient to obtain a criminal warrant and the plaintiff’s election not
to give consent to a search.11
The third prong of the Hawkins test asks whether “the officer’s action ended when the
citizen or community was no longer in need of assistance.” Hawkins, 113 A.3d at 222. In the
instant matter, Lt. Glover ordered two searches: one by the ERT to search for people, and one by
the EOD Unit to search for “any hazardous materials that could continue to harm somebody if
left on the scene.” Glover Dep. 43:9-15; 44:9-17.12 After the ERT determined the plaintiff’s
apartment contained no other persons, the EOD Unit was asked to clear the apartment for “any
hazardous materials or devices,” id. 57:16, based on Lt. Glover’s “[u]nderstanding [of] the
potential for [the plaintiff] to be in possession of military items, based upon his military service .
. . the previously detected odor of natural gas, and his current mental state,” id. 59:6-12.
In response to the plaintiff’s counsel’s question at his deposition, Lt. Glover explained
via a hypothetical why the EOD unit was required before Lt. Glover could be assured the
“community was no longer in need of assistance.” See Hawkins, 113 A.3d at 222. Lieutenant
Glover noted that if the police “allow the landlady,” who lived above the plaintiff’s apartment,
“to go back upstairs thinking everything’s fine and everything’s been dealt with,” despite the
11
The Hawkins court noted that District of Columbia law “does not require the government to pursue the least
restrictive means of correcting the problem” that gave rise to the officer’s action. Hawkins, 113 A.3d at 222.
12
A third entry of the plaintiff’s apartment was conducted by the MPD’s “Crime Scene Search” team, but that
search was not ordered by Lt. Glover, nor did it involve any of the remaining individual defendants in this matter.
See Glover Depo. 156:10-21 (noting scene was returned to control of Fifth District officers after EOD unit left);
Incident Rep. at 5 (“All other evidence was recovered by Crime Scene Search.”). This third search is, therefore, not
properly before the Court. It was during this third search that the plaintiff’s weapons were seized, see Incident Rep.
at 5, which unregistered weapons provided the basis for the subsequent criminal charges against the plaintiff.
37
earlier concern about a gas leak and potential military equipment, the police would be
responsible if “[t]he gas gets turned back on, somebody throws a light switch, [and] the place
blows up.” Glover Dep. 63:10-14. In other words, given the information available to Lt. Glover
at the time the ERT had cleared the plaintiff’s apartment, uncertainty remained as to whether the
threats to the community had been fully abated.
During the EOD Unit search, several firearms were located in the plaintiff’s apartment.
Id. 156:10-12 (noting Lt. Glover “made sure somebody from [the Fifth District] was still inside
[the plaintiff’s apartment] based upon the fact that we had unsecured firearms inside at that
point.”). Along with the firearms, the EOD unit located fireworks, which were “turned . . . over .
. . [to] the fire marshal’s office,” while a “military whistler device and smoke canisters that were
fused were taken down to the EOD bunkers and secured into the bunkers that are required to
secure those types of devices.” Id. 156:13-17. Lieutenant Glover avers that the searches he
ordered ended once the plaintiff’s apartment was deemed to be secure from hazardous materials
and free of victims. Id. 150:10-13 (“Once all hazards and threat to public safety were a hundred
percent guaranteed, concluded, mitigated, handled, contained, responded to, we turn that scene
back over to the requesting district.”).
The plaintiff contends that no exigent circumstances justified the search because any
threat dissipated once the plaintiff had left the apartment. See Pl.’s Suppl. Opp’n at 8. The
plaintiff relies, in part, on a Fourth Circuit case, Yengel v. United States, 711 F.3d 392 (4th Cir.
2013), for the proposition that “‘the presence of explosive materials must be tied to objective
facts that sufficiently increase the likelihood, urgency, and magnitude of the threat to the level of
an emergency’ and that the ‘possible existence of a stable, inert explosive device, without
objective facts that increase the threat of danger, does not create an exigency to justify a
38
warrantless search.’” Id. at 6 (quoting Yengel, 711 F.3d at 398). Under Yengel, the plaintiff
contends, the EOD Unit’s search of the plaintiff’s apartment was not supported by exigent
circumstances. Id. at 8.
Yengel is easily distinguishable from the instant matter, however.13 First, Yengel was a
criminal case where the exclusion of evidence was at issue, and the Fourth Circuit was reviewing
a District Court’s suppression of evidence for “clear error.” Yengel, 711 F.3d at 396. This is a
decidedly more deferential standard than the objective, de novo inquiry this Court must
undertake in the instant matter to assess the reasonableness of the defendants’ actions. The scale
in Yengel, due to the District Court’s suppression of the evidence in question, was weighted
against a finding of reasonableness. See id.
13
The defendants rely upon Mora v. City of Gaithersburg, 519 F.3d 216 (4th Cir. 2008), to bolster the defendants’
contention that exigent circumstances existed to justify the searches of the plaintiff’s apartment. See Defs.’ Suppl.
Mem. at 8–9; Defs.’ Suppl. Reply at 5–6. Mora is supportive of the defendants’ position, but several key
differences between Mora and the instant matter limit its usefulness to the present analysis. In Mora, a firefighter
called a “healthcare hotline operator” and told her he was “suicidal, had weapons in his apartment, could understand
shooting people at work, and said ‘I might as well die at work.’” Mora, 519 F.3d at 220. One of the plaintiff’s co-
workers told police officers that the plaintiff’s implicit threat to execute a workplace shooting “should be taken
seriously.” Id. Within eleven minutes of police receiving the call from the healthcare hotline operator, the plaintiff
was in custody, but police proceeded to enter the plaintiff’s apartment after the arrest without a warrant. Id. Inside
the apartment, police found “twelve handguns, eight rifles, one shotgun . . . ammunition, gun accessories, and what
police called ‘survival literature’ in every room but the bathroom.’” Id.
The Fourth Circuit affirmed the reasonableness of the search, highlighting the police officers’ reasonable belief that
the plaintiff in Mora was about to commit a mass murder at his workplace. Id. at 219 (citing shootings at
Columbine High School, Virginia Tech, and workplaces in Omaha and Oklahoma City as examples of people
“isolated but heavily armed, filled the brim with rage and aguish, and bent not just on murder, but on indiscriminate
slaughter followed, frequently, by suicide”); id. at 223 (opining that “[p]olice [] simply must be entitled to take
effective preventive action when evidence surfaces of an individual who intends slaughter” and collecting cases
where school districts’ decisions to expel or suspend students suspected of planning a mass shooting were upheld);
id. at 226 (“Our analysis begins with what the district court called the ‘salient, primary fact’ in this case: the
overwhelming justification police had for rushing immediately to [the plaintiff’s] home and taking him into custody.
[The plaintiff’s] phone call to the hotline operator, as she reported it to the police, showed a man on the edge, a man
who was armed, suicidal, and inclined to kill his co-workers on the way out. His last, chilling remark, ‘I might as
well die at work,’ was ambiguous to be sure, but it intimates a massacre, and his co-worker confirmed that the threat
was serious.”).
By contrast to Mora, the plaintiff here did not make the type of confirmed, overt threat to others that the Fourth
Circuit concluded was the “salient, primary fact” for its holding. See id. at 226. The egregious nature of the threat
in Mora thus reduces its comparability to the facts in the instant matter. Nevertheless, the defendants are correct that
Mora supports the defendants’ contention that a warrantless search of an apartment after a suicidal suspect has left
may be reasonable under the Fourth Amendment, depending on the associated context.
39
Second, in Yengel, the police officer on the scene was told by the defendant’s wife that
the defendant kept “a large number of firearms and a ‘grenade’ inside the [defendant’s] house,”
but that the “grenade” was in a guest bedroom closet, which “was locked with a combination
keypad and thumbprint scanner.” Id. at 395. The officer “did not notify explosive experts, did
not evacuate the house or nearby homes, did not remove [a] sleeping child from the room located
directly next to the room where the ‘grenade’ was allegedly stored” and “simply pried open the
closet with a screwdriver.” Id. After the officer saw “a variety of military equipment” inside the
closet, he evacuated the defendant’s house and surrounding houses and called in an EOD unit.
Id. The Fourth Circuit held that exigent circumstances did not exist to justify the officer’s
warrantless entry into the locked closet because, inter alia, the threat from the “grenade” was
“stable” and “the scope of any danger was quite limited[;]” the “immobile and inaccessible
location of the threat further diminished the scope of any possible danger” since the item was
“inside a locked closet . . . to which neither [the defendant’s wife], nor anyone else other than
[the defendant], had ready access[;]” and “no officers on the scene sought to evacuate the nearby
residences, or, in particular, to evacuate [the defendant’s wife’s] young son who was sleeping in
the room directly next to the alleged grenade” until after forcing entry into the locked closet. Id.
at 398–99 (emphasis in original).
Yengel stands in stark contrast to the instant matter. Here, the defendants did not know
the precise nature of the threat and whether any explosive devices were “stable,” Glover Dep.
36:17–37:1 (noting plaintiff’s ex-girlfriend had told police of a green duffel bag with “military
items that she’d personally seen” but the ex-girlfriend “couldn’t tell us exactly what was in the
bag”). The defendants had no idea whether potential hazardous materials were in secured
containers, such as the locked closet in Yengel, prior to the inspection of the apartment by the
40
EOD unit. Finally, the defendants had initiated an evacuation of surrounding residences and
cordoned off the area well before any entry attempt was made or any EOD search conducted.
See id. 31:8-11 (noting Lt. Glover’s position throughout incident was “a safe distance away
inside one of our command trucks with, I would say, two and a half, three blocks south of the
incident”); 63:11 (noting upstairs neighbor needed to be “allow[ed] . . . to go back upstairs” to
her residence). The threat in Yengel was known, secured, and stable, while the threat in the
instant matter, as understood by the police officers, was unknown, possibly unsecure and
possibly unstable. At best, from the plaintiff’s perspective, Yengel is inapposite to the instant
matter and, at worse, militates in favor of the reasonableness of the defendants’ actions.
In any event, the searches that Lt. Glover ordered to be conducted by the ERT and the
EOD Unit did not continue beyond the point at which the plaintiff’s apartment was rendered
clear of potential victims, threats, and hazardous materials. Consequently, the third Hawkins
prong is satisfied.
The fourth and last Hawkins prong is a balancing test measuring whether “the
government’s interests outweigh the citizen’s interest in being free from minor government
interference.” Hawkins, 113 A.3d at 222. This balancing weighs heavily in favor of the
defendants. As the Supreme Court has noted, “concern for the safety of the general public who
might be endangered” is a legitimate reason to conduct a warrantless search under the
community caretaking doctrine. See Cady, 413 U.S. at 447. Lieutenant Glover ordered the ERT
and EOD unit searches with the express purpose of identifying and providing aid to any
individuals who may have been inside the plaintiff’s apartment and unknown to the police, and
securing any hazardous materials so as to protect the people in the building and surrounding
neighborhood. See supra Part III.B.2.a. With respect to both searches, Lt. Glover was acting not
41
in his law enforcement capacity but in his role as a protector of public safety, which is a
substantial government interest. See Brigham City, 547 U.S. at 406 (“The role of a peace officer
includes preventing violence and restoring order, not simply rendering first aid to casualties . . .
.”).
To be sure, the Fourth Amendment “unequivocally establishes the proposition that ‘at the
very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and
there be free from unreasonable governmental intrusion.’” Payton v. New York, 445 U.S. 573,
589–90 (1980) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)) (alterations in
original). The Fourth Amendment requires an assessment of the reasonableness of a given
intrusion, with only “unreasonable searches” violating the rights guaranteed by the Constitution.
See U.S. CONST. AMEND. IV (“The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”).
Ultimately, this reasonableness requirement is at the core of each of the three doctrines detailed
supra in Part III.A. In this instance, the plaintiff’s interest in his own privacy within his home
pales in comparison to the need for the defendants to determine if anyone else was injured inside
his apartment after the plaintiff surrendered to the police and if the plaintiff’s apartment
represented a threat to community safety. The fourth prong of the Hawkins test is therefore met.
Since Lt. Glover has shown that no rational jury could find that his orders to the ERT to
conduct a search for potential human threats or victims, and to the EOD Unit to conduct a search
for hazardous materials in the plaintiff’s apartment, were unreasonable under the community
caretaking doctrine, the Court holds that the warrantless entry and search of his home by the
ERT and OED Units did not violate the plaintiff’s Fourth Amendment right. Consequently, the
42
individual defendants are, again, entitled to qualified immunity under the first Saucier prong and
to summary judgment. See Doe, 2015 WL 4727142, at *5.
Yet, the fuzzy contours of the community caretaking doctrine give the Court pause.
While the D.C. Court of Appeals, in explicitly adopting the doctrine, declined to limit its
application to automobile searches, and, indeed, seemed implicitly to extend the doctrine to the
home by citing Brigham City, see Hawkins, 113 A.3d at 222, Hawkins was, after all, a case
involving an automobile, id. at 221. The D.C. Circuit does not appear to have addressed the
community caretaking doctrine and its potential application to warrantless searches of homes at
all. Thus, if the community caretaking doctrine does extend to permit warrantless entries and
searches of homes under appropriate circumstances, the individual defendants’ actions fit
comfortably within the doctrine here, and no Fourth Amendment violation occurred under
application of this doctrine. See Sutterfield, 751 F.3d at 561 (“As a matter of doctrine, then, the
community caretaking doctrine would potentially be the best fit for this case, in that it captures
the beneficent purpose for which the police entered [the plaintiff’s] home”). Even if the
community care doctrine does not extend to homes in this Circuit, however, the officers’ actions
were also justified under the exigent circumstances and emergency aid doctrines, each of which
is discussed below.
b) The Exigent Circumstances Doctrine
Determining whether the exigent circumstances doctrine excused the need for a warrant
and for probable cause in conducting a search is, similarly to the community caretaking doctrine,
a question of reasonableness. See Goree, 365 F.3d at 1089. The test is objective and takes into
account the “totality of the circumstances” confronting the official asserting the doctrine. Id. As
noted, such a search is reasonable provided that it is “no broader than necessary,” Mason, 966
43
F.2d at 1492, and “strictly circumscribed by the exigencies which justify its initiation,” Goree,
365 F.3d at 1090 (quoting Mincey, 437 U.S. at 393) (internal quotation marks omitted).
Lieutenant Glover identifies “‘[t]he need to protect or preserve life or avoid serious
injury,’” id., as the exigency justifying the two searches he ordered of the plaintiff’s apartment.
See, e.g., Glover Dep. 13:13-14 (“So the exigency remained, and the team entered and cleared
for any human hazards or threats”); id. 16:3-7 (“Main priority was making sure [the plaintiff]
was safe, and to make sure that everybody else remained safe, and that there was [sic] no other
continued human hazards inside the [apartment] at that point in time”); id. 42:10-12 (“we have a
responsibility to keep everybody safe including anyone that may remain in the apartment”).
As discussed, supra, it was objectively reasonable for Lt. Glover to believe that, even
after the plaintiff exited his apartment, a continuing need existed to check for any potential
human victims or threats, warranting his orders for the ERT to sweep the plaintiff’s apartment,
and the EOD Unit to sweep for hazardous materials. See supra Part III.B.2.a. Thus, the only
question as to whether the exigent circumstances doctrine properly applies to Lt. Glover’s orders
pertains to whether the searches were “broader than necessary,” Mason, 966 F.2d at 1492, or
exceeded the “strictly circumscribed” scope delineated “by the exigencies which justify” the
search, Goree, 365 F.3d at 1090.
The plaintiff offers two challenges to the application of the exigent circumstances
doctrine: (1) when the apartment was searched, the “Plaintiff was seized and posed no threat to
himself or to others,” Pl.’s Suppl. Opp’n at 1, and (2) Lt. Glover had no reason to believe
additional people or hazardous materials were present in the plaintiff’s apartment, id. at 1–2.
Neither argument is persuasive.
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First, the plaintiff argues that the exigent circumstances, if they existed, ended when the
plaintiff was seized. See id. at 6–7 (noting “Plaintiff was seized” when search took place and
“Plaintiff posed no threat to himself or others” after he was seized). This argument misses the
point: the exigent circumstances doctrine encompasses not only the actions the plaintiff may take
in the future, but also the actions the plaintiff has already taken, or could cause to be taken after
his seizure ceased. The D.C. Circuit’s reasoning in Hendrix effectively rebuts the plaintiff’s
argument on this score.
In Hendrix, police were called to the scene of an alleged domestic violence incident.
Hendrix, 595 F.2d at 884. Before the police arrived, the defendant’s wife had already left the
apartment where “a violent day-long argument” had occurred, but her baby remained in the
apartment with her husband. Id. Upon their arrival, the defendant’s wife asked the police to “get
her baby and take the sawed-off shotgun out of her house,” since her husband had threatened her
with the gun. Id. The police talked the defendant out of the apartment without incident, but
when “he continued threatening his wife (in front of the police) . . . . he was placed under arrest
for disorderly conduct.” Id. at 885. Following the defendant’s arrest, the police took the keys
from him and entered the apartment to seize the sawed-off shotgun. Id.
As noted supra in Part III.A.2., the D.C. Circuit in Hendrix held the search constitutional
on two grounds: consent and exigent circumstances. Id. Also, as previously noted, since consent
to search was only given by the defendant’s wife, not the defendant, the consent basis for the
holding was abrogated by the Supreme Court’s ruling in Georgia v. Randolph that “a warrantless
search of a shared dwelling for evidence over the express refusal of consent by a physically
present resident cannot be justified as reasonable as to” the non-consenting resident “on the basis
of consent given to the police by another resident.” 547 U.S. at 120. Nevertheless, the
45
alternative basis for the Hendrix Court’s ruling remains good law: even if consent had not been
given, the search was still justified on the basis of exigent circumstances alone, a conclusion
cited with approval by the Randolph Court. See id. at 119.
The D.C. Circuit noted that even though the defendant in Hendrix was out of the
apartment and in custody, a “threat to human life,” namely, the threat to the defendant’s wife and
baby, “was obviously present” due to “the existence of the contraband sawed-off shotgun on the
premises and available for use by Hendrix.” Hendrix, 595 F.2d at 886. The “early hour” of the
seizure ensured that “it would have taken at least a few hours to obtain a warrant, during which
period appellant, who had been arrested merely for disorderly conduct, likely would have been
able to secure his release, return home, and conceal or use the shotgun again.” Id. Moreover, the
D.C. Circuit found probative the fact that the police “were informed at the scene that [the
defendant] possessed a sawed-off shotgun[,] which under federal law is a contraband article” and
the defendant’s wife “appeared hysterical and was obviously worried about what her husband
might do.” Id.
In the instant matter, the plaintiff was believed to be suicidal, Glover Dep. 19:16-20, and
Lt. Glover had been informed that the plaintiff possessed firearms and “military items,” id.
36:18. When the plaintiff left his apartment, he was not placed under arrest, but was instead
taken for evaluation at a medical facility. Id. 47:21–48:2 (“There was no intent to lock up [the
plaintiff] that morning. It’s not ERT’s responsibility. It’s not EOD’s responsibility. We weren’t
going in to look for evidence.”); id. 149:14-18 (noting Fifth District officers’ “intent was not to
arrest [the plaintiff]” and that “the morning of this incident . . . a PD 251 incident report was
taken, not an offense report, for sick person to the hospital.”). Indeed, in his deposition, Lt.
46
Glover described the difficulty with obtaining a warrant, had a warrant been necessary in this
situation, due to the time of the incident:
If it’s after hours, it can take – if you can get things in line where somebody will
answer the phone and you don’t have to call down through the next attorney in
line to review the affidavits, and you can find the first on-call judge, and they’re
actually awake and answer the phone, it can take anywhere from four to five
hours or longer. And I've had it on a weekend when I was in homicide where we
had to wait 12 hours to process a crime scene that had no exigent factors or
circumstances, we knew there were no victims inside, there was no armed threat
to anybody, there was no continuing danger, where we secured the premises and
waited 12 hours. That was not the case in this situation.
Glover Dep. 147:11–148:3. Thus, the plaintiff’s assertion that the “exigent circumstances were
dispelled once Plaintiff was seized,” Pl.’s Suppl. Opp’n at 10, is plainly belied by the D.C.
Circuit’s decision in Hendrix, given the analogous factual circumstances between the two cases.
As for the plaintiff’s second argument, that Lt. Glover had no reason to believe that there
were other individuals or hazardous materials in the plaintiff’s apartment, the Court has already
addressed and rejected that argument. See supra Part III.B.2.a. Lieutenant Glover had an
objectively reasonable belief that it was necessary to sweep the plaintiff’s apartment for potential
human victims, threats, or hazardous materials. See id. The plaintiff does not dispute that the
ERT and EOD Unit did nothing more than search for people and hazardous materials. See
generally Pl.’s MSJ Opp’n; Pl.’s Suppl. Opp’n. Rather, the plaintiff asserts that the search itself
was unreasonable due, in the plaintiff’s view, to the lack of evidence supporting the continued
existence of an exigency. Pl.’s Suppl. Opp’n at 9 (“[W]hen [E]OD entered and searched, after
ERT searched and found no one in the apartment, any reasonable suspicion of imminent danger
was already dispelled.”). Thus, this second argument fails as well, since the searches ordered by
Glover, for people, threats, and hazardous material, were strictly tailored to the exigency that
existed—the potential presence of other victims and the potential presence of hazardous
materials—and, at least insofar as Lt. Glover and his ERT and EOD Unit were concerned, lasted
47
no longer than it took to dispel the exigency. See Mason, 966 F.2d at 1492; Goree, 365 F.3d at
1090.14
Based on the totality of the circumstances, Lt. Glover’s actions to order a search of the
plaintiff’s apartment for potential human victims, threats, and hazardous materials were
reasonable, since he was faced with an admittedly unstable individual who had called a suicide
hotline, admitted to having firearms, lied to investigators about his whereabouts, and was known
to possess unknown military items. Therefore, under the exigent circumstances doctrine, Lt.
Glover’s orders to search the plaintiff’s apartment were not unreasonable and, thus, did not
violate the plaintiff’s Fourth Amendment rights.
3. The Emergency Aid Doctrine
Lieutenant Glover’s orders to search the plaintiff’s apartment for people, threats, and
hazardous materials, fits comfortably within the emergency aid doctrine, in addition to the
exigent circumstances doctrine and the community caretaking doctrine. To the extent that the
emergency aid doctrine differs from the exigent circumstances doctrine, the emergency aid
doctrine requires only an objectively reasonable belief “that it was necessary to enter a home in
order to ‘render assistance or prevent harm to persons or property within.’” Sutterfield, 751 F.3d
at 557–58 (quoting Sheik-Abdi v. McClellan, 37 F.3d 1240, 1244 (7th Cir. 1994)); Hopkins v.
Bonvicino, 573 F.3d 752, 763 (9th Cir. 2009) (noting exception to warrant and probable cause
requirement where officer “has ‘reasonable grounds’ to believe an emergency is at hand and that
[the officer’s] immediate attention is required”); United States v. Jenkins, 329 F.3d 579, 581 (7th
Cir. 2003) (affirming reasonableness of warrantless search based on “reasonabl[e] fear[] for the
safety of someone inside the premises” where, after responding to reported assault, officer found
14
To reiterate, Lt. Glover, Sgt. Pope and Ofc. Leone were not present when the plaintiff’s firearms were seized,
which was the seizure at issue in the underlying criminal matter. See supra Part I.
48
front door to residence open and heard noise “that sounded like a person standing up and falling
down”); United States v. Moss, 963 F.2d 673 (4th Cir. 1992) (noting cases in which “warrantless
entry into self-storage warehouse units [was] proper where doors [were] visibly forced, in order
to protect property” and where “police responded to [a] report of [a] stabbing”). The Supreme
Court recently reaffirmed this doctrine in Sheehan, affirming the 9th Circuit’s finding that a
warrantless entry into a home was justified under the emergency aid exception, since “[l]aw
enforcement officers may enter a home without a warrant to render emergency assistance to an
injured occupant or to protect an occupant from imminent injury.” Sheehan, 135 S. Ct. at 1774–
75 (quoting Brigham City, 547 U.S. at 403); see also Evans v. United States, No. 13-CM-1173,
2015 WL 4714146, at *2 (D.C. Aug. 6, 2015) (noting District of Columbia recognizes
“emergency aid” exception provided “police have ‘probable cause to believe that immediate
entry [was] necessary,’” but cautioning previously recognized test might be more stringent than
that required by Brigham City (quoting United States v. Booth, 455 A.2d 1351, 1355 (D.C.
1983)).
In the instant matter, this test for the emergency aid doctrine is plainly met. Lieutenant
Glover had an objectively reasonable belief that other people could have been in the plaintiff’s
home who were in need of assistance or were in danger of harm, thus necessitating the entry of
the ERT. See supra Part III.B.1.a–b. In addition, Lt. Glover’s belief that the presence of
“military items” could represent hazardous materials in need of mitigation, such that the EOD
Unit’s search was necessary to prevent harm to people or property, was also objectively
reasonable. See id. As the Supreme Court noted in Brigham City, “[t]he role of a peace officer
includes preventing violence and restoring order, not simply rendering first aid to the casualties;
an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too
49
one-sided.” 547 U.S. at 406. Rather, Lt. Glover acted in an objectively reasonable manner in
ordering the searches of the plaintiff’s apartment in this instance both to “render[] first aid to
[any] casualties” and to prevent the occurrence of another “bout” that threatened community
safety.
Thus, if Lt. Glover’s actions were not justified by the community caretaking doctrine and
the exigent circumstances doctrine, which they were, they were justified by the emergency aid
doctrine since the ERT and EOD Units’ searches were designed only to identify and provide aid
to potential individuals who may have been need of assistance and to prevent any further harm to
the plaintiff’s property or surrounding resident’s property caused by any hazardous materials
remaining.
* * *
Under the community caretaking, exigent circumstances, and emergency aid doctrines,
Lt. Glover’s orders to the ERT and EOD Unit to enter without a warrant and search the
plaintiff’s apartment for people, threats, and hazardous materials were objectively reasonable
and, therefore, did not violate the plaintiff’s Fourth Amendment rights. Lieutenant Glover is,
consequently, entitled to qualified immunity. Since the searches were reasonable, and Sgt. Pope
and Ofc. Leone merely participated in the searches, see supra Part I, these two individual
defendants are similarly entitled to qualified immunity.15 Summary judgment is granted to the
three individual defendants.
15
Sgt. Pope and Ofc. Leone would also likely be entitled to qualified immunity since the parties do not dispute that
these individual defendants were merely following the orders given by Lt. Glover in executing the two searches.
See Elkins v. District of Columbia, 690 F.3d 554, 568–69 (D.C. Cir. 2012) (noting an officer is entitled to “‘rely on a
fellow officer or agent who does (or by position should) know the substantive law and facts and who (based on that
knowledge) asserts’ that some action is lawful.” (quoting Liu v. Phillips, 234 F.3d 55, 57 (1st Cir. 2000)). The
plaintiff’s contention that Wesby v. District of Columbia, 765 F.3d 13, 29 (D.C. Cir. 2014), militates in favor of
liability for these two defendants is unpersuasive. Pl.’s Suppl. Opp’n at 12. In Wesby, the officers held personally
liable for false arrest “were actively involved in surveying the scene and gathering information regarding the
Plaintiffs’ knowledge and reason” for their allegedly unlawful presence in a home, a critical element for the offense
50
C. The Municipal Defendant Is Entitled To Summary Judgment
Since the Court has found that the individual defendants did not violate the plaintiff’s
Fourth Amendment rights, the dismissal of the municipal defendant must follow. “To hold the
District liable, the [plaintiff] must show (1) a Constitutional violation, and (2) that the District
was responsible for that violation.” Doe, 2015 WL 4727142, at *7. The plaintiff has failed to
show a constitutional violation. See supra Part III.B.2. Inevitably, then, any potential § 1983
claim against the District of Columbia must fail and summary judgment must be granted to the
municipal defendant. See id.16
IV. CONCLUSION
Resolution of Fourth Amendment challenges that turn on the objective reasonableness of
police action requires consideration of the totality of the circumstances. Ohio v. Robinette, 519
U.S. 33, 34 (1996) (noting that touchstone of Fourth Amendment is reasonableness, which “is
measured in objective terms by examining the totality of the circumstances”). Consequently,
context matters. Without context, the defendants’ actions in this case appear to be a textbook
example of a Fourth Amendment violation: the defendants ignored the plaintiff’s explicit refusal
for which the plaintiffs were arrested. Wesby, 765 F.3d at 28–29. By contrast, in the instant matter, the plaintiff has
failed to show that either Sgt. Pope or Ofc. Leone conducted any independent review of the facts at the scene
contributing to the need for the search prior to their entrance into the plaintiff’s apartment on Lt. Glover’s orders.
Whether either defendant was following an MPD “unwritten policy,” Pl.’s Suppl. Opp’n at 12–13, is immaterial,
since these defendants were (1) expressly ordered to conduct the two searches and (2) those searches were non-
violative of the Fourth Amendment. In sum, even if the searches did violate the Fourth Amendment, which they did
not, and even if the right violated was clearly established, which it was not, these two defendants would still be
entitled to qualified immunity since they were under no obligation to verify independently that the orders issued by
Lt. Glover were lawful. See Elkins, 690 F.3d at 568–69.
16
Although neither party, in their supplemental memoranda, addressed the question of continued viability of the
plaintiff’s claim against the District of Columbia, the plaintiff has conceded in previous submissions that a “jury
must find one or more of the individual defendants to have violated Plaintiff’s constitutional right to be free from an
unreasonable search of his dwelling before the jury can find that a District policy also caused that violation.” Pl.’s
Suppl. Briefing at 1, ECF No. 116. Since the Court has found that no reasonable jury could find that any individual
defendant violated the plaintiff’s Fourth Amendment right, see supra, a jury, a fortiori, could not find that a
“District policy also caused [a] violation.” Id. Consequently, reconsideration of the Court’s previous denial of the
District of Columbia’s motion for summary judgment is warranted based on the grant of summary judgment to the
individual defendants.
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to consent to a search and, without a warrant and without probable cause, broke down the locked
door to the plaintiff’s apartment and searched it. Indeed, the “intrusions upon [the plaintiff’s]
privacy were profound” and reach “the core of the privacy protected by the Fourth Amendment,”
namely: “the right to be let alone in one’s home.” Sutterfield, 751 F.3d at 550–551 (citing Kyllo
v. United States, 533 U.S. 27, 31 (2001); Silverman, 365 U.S. at 511; Payton, 445 U.S. at 589–
90). “Although the officers took each of these actions for benevolent reasons, from [the
plaintiff’s] perspective—and from the perspective of anyone in a similar situation who did not
wish assistance—these were serious intrusions upon the sanctity of [the plaintiff’s] home and []
person.” Id. at 551.
Yet, this view tells only half the story. In context, the defendants were confronted with
an admittedly armed, mentally ill, potentially suicidal subject, who ignored police entreaties to
exit his home for hours, triggering a “barricade” situation with dozens of police officers
surrounding the home with the sole purpose of preventing a tragedy. The police knew the
subject’s ex-girlfriend was alive, but they did not know where she was and she had told them
about her “domestic issues” with the plaintiff. The plaintiff was a veteran known to keep
military equipment of an unknown type in his residence, and the first officers on the scene
encountered a smell of natural gas so strong that they instructed the gas company to shut off
service to two homes. When the plaintiff finally emerged, he locked his door and told police
officers he did not want them going inside his apartment. Under these circumstances, and under
the exceptions to the Fourth Amendment’s warrant and probable cause requirements recognized
by the Supreme Court, the D.C. Circuit, and the D.C. Court of Appeals, the plaintiff did not
suffer a constitutional violation when the police entered his home solely to determine whether
any people, threats, or hazardous materials were inside.
52
Accordingly, the Court vacates its prior orders denying summary judgment to the
individual defendants—Lt. Glover, Sgt. Pope and Ofc. Leone—and the District of Columbia, and
grants summary judgment to those defendants. Since this Memorandum Opinion resolves all
claims against all remaining defendants, the plaintiff’s and defendants’ three pending Motions in
limine, ECF Nos. 104–06, are denied as moot.
An Order consistent with this Memorandum Opinion will issue contemporaneously.
Date: August 25, 2015 Digitally signed by Hon. Beryl A. Howell
DN: cn=Hon. Beryl A. Howell, o=U.S. District Court
for the District of Columbia, ou=United States
District Court Judge,
__________________________
email=Howell_Chambers@dcd.uscourts.gov, c=US
Date: 2015.08.25 12:06:56 -04'00'
BERYL A. HOWELL
United States District Judge
53