Barham, Jeffrey v. Ramsey, Charles H.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2005 Decided January 13, 2006

No. 04-5388

JEFFREY BARHAM, ET AL.,

APPELLEES

v.

CHARLES H. RAMSEY, IN HIS INDIVIDUAL CAPACITY AND IN

HIS OFFICIAL CAPACITY AS CHIEF OF POLICE, MPD,

APPELLANT

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Consolidated with

04-5389

Appeals from the United States District Court

for the District of Columbia

(No. 02cv02283)

Robert E. Deso, Jr. argued the cause and filed the briefs for

appellant Peter Newsham.

Mark H. Tuohey, III argued the cause for appellant Charles

H. Ramsey. With him on the briefs were Robert J. Spagnoletti,

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Attorney General, Office of Attorney General for the District of

Columbia, Edward E. Schwab, Deputy Attorney General, Mary

L. Wilson, Assistant Attorney General, John M. Faust and Justin

M. Shellaway.

Mara Verheyden-Hilliard argued the cause for appellees.

With her on the brief was Carl Messineo.

Before: HENDERSON and RANDOLPH, Circuit Judges, and

EDWARDS,* Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Plaintiffs-appellees

(“plaintiffs”) represent a class of individuals arrested by the

District of Columbia’s Metropolitan Police Department

(“MPD”) during the morning of a large-scale “anti-

globalization” protest on September 27, 2002. Demonstrators

staged protests throughout the city that morning, and a number

of police actions ensued. Plaintiffs in this case were detained

when police officers, following the order of Assistant Chief

Peter Newsham, cordoned off the perimeter of Pershing Park in

northwest Washington, D.C. and arrested everyone there.

Newsham purported to have witnessed widespread infractions

that morning by “demonstrators,” including traffic violations

and scattered acts of vandalism. After observing activities in

Pershing Park for about an hour – during which pedestrian

traffic flowed freely in and out of the park – Newsham issued

the arrest order. Before the arrests occurred, Newsham spoke

with MPD Chief Charles Ramsey, who arrived on the scene in

the course of monitoring events throughout the city. Ramsey

did not question Newsham’s decision. Newsham and Ramsey

*

Senior Circuit Judge Edwards was in regular active service at

the time of oral argument.

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concede that the mass arrest was executed with no prior warning

to the occupants of the park to disperse and no warning to them

that arrest was imminent. In the end, 386 people were arrested.

Plaintiffs sued Ramsey and Newsham (“appellants”) and

several other city and federal officials. Plaintiffs claimed, inter

alia, that the arrests violated their Fourth Amendment rights to

be free from arrest without probable cause. Appellants moved

for summary judgment, arguing that their status as police

officers conferred qualified immunity from liability and

precluded plaintiffs from moving forward with litigation against

them. The District Court denied their motion, holding that

MPD’s arrest of hundreds of individuals assembled in the

exercise of First Amendment rights, without first issuing an

order to disperse followed by a reasonable opportunity to

comply, violated plaintiffs’ clearly established constitutional

rights, thus stripping appellants of any qualified immunity.

Barham v. Ramsey, 338 F. Supp. 2d 48, 56-63 (D.D.C. 2004).

Appellants now seek an interlocutory appeal of that decision.

With respect to Newsham, we affirm the trial court’s ruling

that his alleged actions violated the plaintiffs’ clearly established

constitutional rights. Undisputed evidence reveals that

Newsham arrested an undifferentiated mass of people on the

basis of crimes committed by a handful of individuals who were

never identified. Because nothing in the record suggests that

Newsham had particularized probable cause to arrest each of the

386 persons caught in the police sweep, see Ybarra v. Illinois,

444 U.S. 85 (1979), his claim to qualified immunity raises no

genuine issue as to any material fact, see FED. R. CIV. P. 56(c).

Newsham has no entitlement to qualified immunity.

Ramsey’s situation is somewhat different. The Chief

admitted having “tacitly approved” Newsham’s arrest order.

His entitlement to qualified immunity thus turns on whether he

knew that the park had not been cleared of individuals who were

not observed breaking the law. Based on the record assembled

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for summary judgment, it is not possible for us to answer that

question. Because Ramsey’s claim for immunity turns on the

resolution of factual disputes regarding his participation in the

events of September 27, 2002, his appeal is premature. See

Johnson v. Jones, 515 U.S. 304 (1995).

I. BACKGROUND

A. The Events at Pershing Park

The events relevant to this appeal took place on September

27, 2002, the start of a weekend of demonstrations in

Washington, D.C. protesting the annual meetings of the World

Bank and the International Monetary Fund. Similar protests had

taken place in major cities around the world in the years

preceding the 2002 meetings – most notably, a protest in Seattle

that disrupted a meeting of the World Trade Organization in

1999, which in turn spawned a string of “anti-globalization”

protests. These earlier protests apparently formed a backdrop

against which MPD officials prepared for the September 2002

meetings.

In the weeks leading up to the protests, MPD’s Civil

Disturbance Unit braced for an influx of protestors. Ramsey

commanded the department throughout the pre-protest planning

and allegedly told members of his staff that officers should

overlook minor violations of the law in order to accommodate

demonstrators. Newsham was assigned responsibility for a

particular zone of the city, which included Pershing Park.

Members of the Civil Disturbance Unit apparently were aware

of publicly available information that some demonstrators

intended to “shut down the city” using obstructive tactics

employed in earlier protests. Appellants place special emphasis

on MPD’s concern that demonstrators would form “sleeping

dragons,” i.e., groups of protestors knotted together in city

streets to clog traffic arteries.

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On the morning of the arrests, Newsham traveled through

his zone of the city, monitoring reports on his radio and

observing the unfolding protest action. According to Newsham,

he learned that protestors “had taken to the streets and were

disregarding verbal and hand instructions from MPD officers to

get up on the sidewalks.” Newsham Statement of Material Facts

¶ 39, Joint Appendix (“J.A.”) 105. He also claims that “some of

the demonstrators in his zone who were unlawfully marching

through the streets were also knocking over trash containers and

newspaper vending machines, and that at least one store window

had been smashed by the demonstrators.” Id. ¶ 40, J.A. 106.

Upon arriving at Pershing Park, Newsham surveilled the

scene for approximately 45 minutes. During this time, he saw

a steady stream of individuals entering the park, and he says he

saw some protestors “taunting police officers,” as well as others

“beating on drums and chanting and dancing in an organized

manner.” Id. ¶¶ 46-47, J.A. 107. It is clear, however, that

Newsham encountered a dynamic and diverse situation. The

“demonstrators” Newsham described never operated as a

cohesive unit that entered or left the park intact. Newsham

never asserted that the park was empty before “demonstrators”

began entering it, nor that everyone who was not a protestor left

the park as demonstrators entered. Rather, Newsham stated that

“demonstrators” streamed into the park continuously, from

“every direction” and over an extended period of time. Id. ¶ 45,

J.A. 107. Ultimately, everything in the record indicates that a

diverse flow of human traffic entered and exited the park as long

as its perimeter remained unsealed. And there is nothing in the

record to indicate that officers attempted to distinguish between

persons who were lawfully in the park and had engaged in no

lawless activity before entering and persons who were engaging

in unlawful activity in the park or had done so before entering

the scene.

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Having surveyed these activities, Newsham decided that the

protestors “had no intention of concluding their demonstration

and dispersing,” and that they may have been inclined to

transport their demonstration out of the park and into the street.

Id. ¶ 48, J.A. 107. At some point during his observation of the

park, Newsham conferred with U.S. Park Police Major Richard

Murphy. Murphy informed Newsham that, although there were

no permits issued for assemblies in the park that day, his officers

would not initiate arrests. Murphy explained that if he issued an

order to arrest without first issuing three successive warnings, he

would violate his agency’s mass arrest policy. Newsham

nonetheless decided to cordon off the park and place its

occupants under arrest, and he enlisted the help of the U.S. Park

Police to provide backup. By about 10:15 a.m., the park was

sealed.

Newsham did not order any persons to clear the park before

directing his officers to conduct the mass arrest, and he did not

warn the persons in the park that arrest was imminent. He cites

two reasons for failing to warn those subject to the arrest: (1) he

“believed that probable cause already existed to arrest the

demonstrators because of their unlawful actions prior to

converging on Pershing Park, as well as their unlawful

demonstration in Pershing Park,” and (2) he worried that

allowing the park’s occupants to scatter into the streets would

cause further disruption. Id. ¶ 54, J.A. 109 (emphasis added).

Sometime after Newsham decided to cordon off the park,

Chief Ramsey arrived on the scene. Newsham advised the Chief

that he believed there was “probable cause to arrest persons who

had entered the park at the time they arrived in the park, based

upon offenses they had committed before entering Pershing

Park, without ordering them to disperse.” Ramsey Decl. ¶ 18,

Supplemental J.A. 21. Based on this conversation, Ramsey

believed that Newsham in fact had probable cause to initiate the

arrests, and he therefore did not issue a countermanding order.

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Ramsey also says, however, that he did not realize that the park

contained people who had not been previously observed

engaging in unlawful activity. Id. ¶¶ 21, 23, Supplemental J.A.

21-22.

After the park was cordoned off, 386 people were arrested.

All were charged with Failure to Obey an Officer, a violation of

the traffic regulation that gives police officers authority to direct

motorists and pedestrians in order to ensure traffic safety. D.C.

MUN. REGS. tit. 18, § 2000.2 (1997). According to plaintiffs, the

individuals arrested were “taken into detention and held

overnight in punitive conditions, restrained and contorted in

stress and duress positions . . . with periods of arrest lasting as

many as 30+ hours.” Plaintiffs’ Br. at 4.

B. Proceedings Before the District Court

In November 2002, several individuals who had been

arrested during the September protests filed suit naming federal

and city officials as defendants. The complaint challenged the

Pershing Park arrests, alleging violations of plaintiffs’ rights

under the First, Fourth, and Fourteenth Amendments, as well as

false arrest, imprisonment, and conversion. In essence, plaintiffs

charged that law enforcement officials “trapped” them in

Pershing Park and then, by effecting a mass arrest without

warning, unconstitutionally detained everyone present. Their

suit also alleges constitutional violations connected to the

conditions of their confinement, but those claims are not salient

to this appeal. The District Court certified a class of individuals

who were arrested in Pershing Park. The trial court allowed a

separate group of individual plaintiffs to opt out of the class.

Those plaintiffs subsequently settled their claims and their case

has been dismissed. See Abbate v. Ramsey, 355 F. Supp. 2d 377

(D.D.C. 2005).

On September 24, 2004, the District Court issued a

memorandum opinion addressing claims by three city officials

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– Ramsey, Newsham, and Mayor Anthony Williams – that they

enjoy qualified immunity from personal liability. To evaluate

those claims, the District Court set out to determine whether the

Pershing Park arrests violated plaintiffs’ constitutional rights

and, if so, whether those rights had been clearly established at

the time. Based on an analysis of this circuit’s case law, the trial

court answered both questions in the affirmative. The District

Court held that police officers who intend to capture a large

group in a mass arrest must first order members of the group to

disperse and then provide a reasonable opportunity to comply.

The court held that failure to conform to these standards

constitutes a violation of a clearly established constitutional

right and deprives an official of qualified immunity.

The District Court next analyzed the actions of each

defendant seeking qualified immunity. First, as to Newsham,

the court found that charging hundreds of individuals with

failure to obey a police order without first ordering them to

disperse “is nothing short of ludicrous.” Barham, 338 F. Supp.

2d at 57-58. Relying principally on Dellums v. Powell, 566

F.2d 167 (D.C. Cir. 1977), the trial court held that arresting

every occupant of Pershing Park without prior notice to disperse,

and without probable cause to believe that each arrestee had

committed a crime, violated clearly established constitutional

law. Newsham was thus found to have no qualified immunity

from personal liability for his actions. For similar reasons, the

trial court denied Ramsey’s plea for qualified immunity.

Starting from the premises set out in its analysis of Newsham’s

status, the court held that “a reasonable police chief”

encountering the events unfolding in Pershing Park “would

recognize the need – and indeed the duty – to ask a subordinate

officer whether a dispersal order had been given prior to

ratifying a mass arrest.” 338 F. Supp. 2d at 61. With respect to

Mayor Williams, however, the trial court found that his actions

were too remote from the constitutional violations to expose him

to personal liability. Id. at 63-65. Ramsey and Newsham now

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appeal the District Court’s denials of their claims for qualified

immunity.

II. ANALYSIS

A. Appellate Jurisdiction and Standard of Review

We begin by noting our jurisdiction to hear this appeal. 28

U.S.C. § 1291 authorizes appellate courts to hear appeals only

from “final decisions” of the district court. The “denial of a

claim of qualified immunity falls within the ‘small class’ of

collateral orders subject to immediate appeal under that statute

despite the absence of a final judgment.” Moore v. Hartman,

388 F.3d 871, 875 (D.C. Cir. 2004) (citing Mitchell v. Forsyth,

472 U.S. 511, 524-25, 530 (1985)). To take a contrary stance

would eviscerate the doctrine of qualified immunity, since it

would force certain deserving officials to undergo the burdens

of litigation that the doctrine is meant to obviate. Thus, § 1291

confers jurisdiction to review the District Court’s rejection of

Newsham’s motion.

This grant of jurisdiction, however, does not extend to

Ramsey’s claim to qualified immunity. We are authorized to

review a denial of summary judgment invoking official

immunity only insofar as doing so requires us to resolve purely

legal issues. See Johnson, 515 U.S. at 307. As we discuss in

greater detail below, because Ramsey’s claim cannot be

disposed of on purely legal grounds, we lack appellate

jurisdiction to resolve the ongoing controversies it raises.

We review the District Court’s denial of summary judgment

de novo. Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d

1024, 1031 (D.C. Cir. 2004). A party is entitled to summary

judgment only if the record shows that “there is no genuine issue

as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” FED. R. CIV. P. 56(c).

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B. Assistant Chief Newsham’s Claim to Qualified Immunity

“Qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Int’l Action

Ctr. v. United States, 365 F.3d 20, 24 (D.C. Cir. 2004) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The doctrine

recognizes the hardships of subjecting public officials to the

rigors of litigation, but it balances that concern against the

interest in allowing citizens to vindicate their constitutional

rights. Id. To ensure the proper maintenance of that balance,

the Supreme Court has designed a two-part inquiry to determine

whether a government official is protected by qualified

immunity. First, there is a “threshold question: Taken in the

light most favorable to the party asserting the injury, do the facts

alleged show the officer’s conduct violated a constitutional

right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). If that

question is answered in the affirmative, “the next, sequential

step is to ask whether the right was clearly established.” Id.

In addressing the second question, courts must frame their

inquiry at the right “level of generality.” Anderson v. Creighton,

483 U.S. 635, 639 (1987). In other words, it is not enough to

say that it is clearly established that police officers may not

subject individuals to unreasonable searches and seizures.

Rather, the “contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing

violates that right.” Id. at 640. Prior decisional law need not

have supplied a “precise formulation” of the applicable

constitutional standard in order to overcome an official’s

qualified immunity, but the “relevant, dispositive inquiry in

determining whether a right is clearly established is whether it

would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier, 533 U.S. at

202.

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In this case, it is clear that the “threshold question” for

evaluating Newsham’s claim to qualified immunity must be

answered in the affirmative, because “the facts alleged show the

officer’s conduct violated a constitutional right,” id. at 201. The

essence of plaintiffs’ claim is that a diverse assemblage of

people – including many who were engaging in political speech

protected by the First Amendment and others who were merely

there as observers or passersby – was caught in a mass arrest

that was devoid of probable cause. See First Am. Comp.,

Barham v. Ramsey, 338 F. Supp. 2d 48 (D.D.C. 2004) (No. CA

02-2283). Probable cause to make an arrest requires a showing

that the police had “enough information to ‘warrant a man of

reasonable caution in the belief’ that a crime has been

committed and that the person arrested has committed it.”

United States v. Short, 570 F.2d 1051, 1053 (D.C. Cir. 1978)

(quoting Bailey v. United States, 389 F.2d 305, 309 (D.C. Cir.

1967) (internal quotations omitted)). Plaintiffs allege that the

crowd exhibited no behavior that could allow a reasonable

officer to believe everyone present had committed a crime.

They also contend that the assemblage was targeted for political

suppression. These allegations, if true, constitute a violation of

the Fourth Amendment.

We have no trouble in concluding that plaintiffs’ Fourth

Amendment rights were clearly established in the circumstances

of the mass arrest. No reasonable officer in Newsham’s position

could have believed that probable cause existed to order the

sudden arrest of every individual in Pershing Park. Even

assuming that Newsham had probable cause to believe that some

people present that morning had committed arrestable offenses,

he nonetheless lacked probable cause for detaining everyone

who happened to be in the park.

It is firmly established that, to comport with the Fourth

Amendment, a warrantless search or seizure must be predicated

on particularized probable cause. “Where the standard is

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probable cause, a search or seizure of a person must be

supported by probable cause particularized with respect to that

person. This requirement cannot be undercut or avoided by

simply pointing to the fact that coincidentally there exists

probable cause to search or seize another . . . .” Ybarra, 444

U.S. at 91. While the Supreme Court has emphasized that “the

probable-cause standard is a practical, non-technical

conception,” it has made clear that the “substance of all the

definitions of probable cause is a reasonable ground for belief of

guilt, and that the belief of guilt must be particularized with

respect to the person to be searched or seized.” Maryland v.

Pringle, 540 U.S. 366, 370-71 (2003) (internal quotations and

citations omitted). Most significantly, Fourth Amendment case

law makes clear that an officer cannot predicate a search or

seizure on an individual’s “mere propinquity to others

independently suspected of criminal activity.” Ybarra, 444 U.S.

at 91.

The mass arrest at Pershing Park violated the clearly

established Fourth Amendment rights of plaintiffs by detaining

them without particularized probable cause. Everyone arrested

in the park was charged with Failure to Obey an Officer. See

Final Report Relative to Complaints of Alleged Misconduct

Made at the October 24, 2002, Hearing of the Committee on the

Judiciary of the Council of the District of Columbia Concerning

the IMF/World Bank Protests at 8, J.A. 610. The ordinance

underlying that offense, a traffic violation, states:

No person shall fail or refuse to comply with any lawful

order or direction of any police officer, police cadet, or

civilian crossing guard invested by law with authority to

direct, control, or regulate traffic. This section shall apply

to pedestrians and to the operators of vehicles.

D.C. MUN. REG. tit. 18, § 2000.2. We share the District Court’s

conclusion that appellants cannot conceivably impute to

Newsham probable cause to believe each person in Pershing

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Park at the moment of arrest had violated this ordinance. See

Barham, 338 F. Supp. 2d at 57-58 (“the ‘failure to obey’ charge

is nothing short of ludicrous”). This conclusion requires no

elaboration.

Throughout this litigation, however, appellants have tried

to excavate probable cause not from the official reason for

arrest, but from the scattered acts of lawlessness that Newsham

and others had witnessed that morning. While Newsham is

correct that an arrest may pass Fourth Amendment muster even

if the only objectively discernible probable cause related to

conduct far removed from the offense charged by the arresting

officer, see Devenpeck v. Alford, 125 S. Ct. 588, 594 (2004), he

has failed to show any objective basis for arresting the entire

mass of people who happened to inhabit the park. Quite simply,

Newsham had no basis for suspecting that all of the occupants

of Pershing Park were then breaking the law or that they had

broken the law before entering the park. Vague allegations that

“demonstrators” committed offenses will not compensate for

this shortcoming.

Appellants have attempted to justify the sweep by focusing

on allegedly illegal activities observed near the scene of the

arrest before “demonstrators” converged on Pershing Park.

Indeed, Newsham evidently justified his decision to Ramsey by

citing the unlawfulness that he claims to have witnessed earlier

that morning in the surrounding areas. Traffic offenses and

scattered acts of vandalism by unidentified individuals in the

streets, however, could not have incriminated all of the

individuals who happened to occupy the park when Newsham

ordered the arrest. Even to the extent that Newsham asserts that

some “demonstrators” were unlawfully assembled in the park,

he has made no effort to ascribe misdeeds to the specific

individuals arrested. Nowhere have appellants suggested that

the particular individuals observed committing violations were

the same people arrested; instead, they refer generically to what

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“demonstrators” were seen doing. This is the upshot of making

arrests based on the plaintiffs’ occupancy of a randomly selected

zone, rather than participation in unlawful behavior. While we

have no reason to doubt that unlawful activity might have

occurred in the course of the protest – with some individuals

engaging in disorderly conduct, for example – the simple,

dispositive fact here is that appellants have proffered no facts

capable of supporting the proposition that Newsham had

reasonable, particularized grounds to believe every one of the

386 people arrested was observed committing a crime.

The fluidity of movement in and around the park preceding

the arrests further discredits any attempt to discern probable

cause to arrest every person who happened to be there.

Newsham concedes that pedestrian traffic flowed freely into the

park in the hour before the arrests, and he never presents any

reason to doubt that it moved just as freely out of the park. The

record sheds no light on how many individuals in the park had

previously violated the law. Nor does it reveal probable cause

to arrest everyone in the park for participating in an “unlawful

assembly.” There is no indication of how an officer might

distinguish between a “demonstrator” and a person walking to

work or enjoying a stroll through the park, let alone how one

would distinguish someone engaged in an allegedly illegal

assembly from a passerby interested in hearing the political

speech of protestors. Ultimately, this case is not about a group

of lawbreakers entering an uninhabited park and then remaining

united inside. Nothing suggests that unlawful actors who may

have entered the park remained there or that law-abiding persons

stayed outside. Thus, after letting significant time elapse while

a diverse crowd entered and exited the park freely, police

arrested everyone who happened to occupy the park at a

particular, randomly chosen moment. No authority supports the

proposition that such an arrest, wholly lacking in particularized

probable cause and almost certainly swallowing lawful

bystanders, is constitutionally viable.

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Newsham’s insistence on referring generically to the

individuals who were arrested as “demonstrators” hints at one

other possible justification for casting a net across the entire

park: that police are permitted to control an undifferentiated

mass of people if necessary to quell a large-scale demonstration

that has become unruly or violent. The parties’ arguments

before this court, as well as the District Court’s analysis below,

focus much attention on the circumstances under which police

may deal with a group of demonstrators in the aggregate. Our

cases addressing mass arrest situations have countenanced broad

sweeps under certain limited conditions. But those cases lend

no support to Newsham’s claim for qualified immunity.

Our case law addressing large-scale demonstration

scenarios does not suspend – or even qualify – the normal

operation of the Fourth Amendment’s probable cause

requirements. Rather, this case law merely amplifies one

essential premise that has a bearing on the case at hand: when

compelling circumstances are present, the police may be

justified in detaining an undifferentiated crowd of protestors, but

only after providing a lawful order to disperse followed by a

reasonable opportunity to comply with that order. Two cases

spell this out.

First, in Washington Mobilization Committee v. Cullinane,

566 F.2d 107 (D.C. Cir. 1977), we addressed the First

Amendment implications of the District of Columbia’s “police

line” regulation and “failure to move-on” ordinance, which had

been invoked by police confronting violently disruptive anti-war

protests. The court began by noting the absence of evidence

suggesting any police bias against the content of the protestors’

message. Id. at 119-20. Then, in response to a contention that

the challenged police practices encroached on the First

Amendment because they resulted in the arrest of some innocent

people, the court explained that: “It is the tenor of the

demonstration as a whole that determines whether the police

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may intervene; and if it is substantially infected with violence or

obstruction the police may act to control it as a unit.” Id. at 120.

The First Amendment does not conflict with the need for

flexibility when dealing with large, unruly assemblies:

“Confronted with a mob the police cannot be expected to single

out individuals; they may deal with the crowd as a unit.” Id.

However, the Cullinane decision includes an important caveat:

We do not suggest of course that one who has violated no

law may be arrested for the offenses of those who have

been violent or obstructive. As we have seen however the

police may validly order violent or obstructive

demonstrators to disperse or clear the streets. If any

demonstrator or bystander refuses to obey such an order

after fair notice and opportunity to comply, his arrest does

not violate the Constitution even though he has not

previously been violent or obstructive.

Id. In this case, police officials faced a fluid situation in

Pershing Park. There was a significant time lag between the

demonstrators’ disruption of traffic and their assembly in the

park. People were in the park before the demonstrators arrived

and countless individuals flowed freely in and out of the park

after the demonstrators arrived. Newsham does not deny that

many individuals in the park were law-abiding. Indeed, it is

undisputed that, at the time of the mass arrest, Newsham had no

basis for suspecting that all of the occupants of Pershing Park

were then breaking the law or that they had broken the law

before entering the park. In such circumstances, Cullinane

instructs that police officers may quell an unruly demonstration

by “deal[ing] with the crowd as a unit” only after invoking a

valid legal mechanism for clearing the area and then providing

an opportunity for affected persons to follow an order to

disperse. Id. The Fourth Amendment demands nothing less in

a circumstance such as this. See Ybarra, 444 U.S. at 91.

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Shortly after the decision in Cullinane was issued, the court

had another occasion to explain the constitutional limits on mass

arrests of demonstrators in Dellums. Upholding a jury’s verdict

that the U.S. Capitol Police Chief was liable for violating the

rights of demonstrators arrested on Capitol Hill, Dellums held

that a group of demonstrators lawfully gathered on the Capitol

steps could not be arrested unless the Chief had reason to

believe (1) that the demonstrators could be validly evicted under

the Capitol Grounds ordinance, (2) that the police gave

demonstrators an order to disperse that “apprised the crowd as

a whole that it was under an obligation to leave,” and (3) that

there had been a “reasonable opportunity” to comply. Dellums,

566 F.2d at 183. Dellums emphasized that “the ‘fair notice’

required by the Cullinane court is notice reasonably likely to

have reached all of the crowd despite any noise the

demonstrators may have been making.” Id. at 181-82 n.31.

Close analysis of Dellums and Cullinane reveals just how

indefensible Newsham’s actions were. As a prerequisite to

instituting a mass arrest intended to defuse a volatile

demonstration, police must have a valid legal basis for clearing

the area. Newsham has never invoked any such legal predicate.

Even if he had one – for example, if his officers were authorized

to form a police line and incrementally close off the park – he

could not “deal with the crowd as a unit” unless he first issued

an order to disperse and then provided a reasonable period of

time to comply with that order. Nothing in our earlier cases

ratified Newsham’s actions. More important, Dellums and

Cullinane put Newsham, a reasonable police officer, on notice

that the Constitution does not tolerate the unwarranted,

indiscriminate arrest of hundreds of individuals as a response to

the demonstration that he faced.

Institutionally, moreover, MPD clearly grasped the

constitutional rights elaborated in the applicable case law.

MPD’s Manual for Mass Demonstrations and Responding to

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Civil Disturbances instructs officers on the protocol for dealing

with situations like the one Newsham faced. Under the

guidelines established by the department (which are only

partially reproduced in the record), officers seeking to disperse

a crowd must “attempt to verbally persuade the crowd to

disperse of its own accord” by issuing an “initial warning”

followed by a “final warning.” Then, “if, after a reasonable

amount of time following the final warning, the crowd continues

in its refusal to disperse, the unit commander shall direct that the

violators be arrested.” MPD Manual for Mass Demonstrations

and Responding to Civil Disturbances at 21, J.A. 564.

Significantly, the MPD Manual acknowledges that its

procedures embody judicially enunciated constitutional

principles. It prefaces the discussion of mass arrest procedures

by noting: “Following the civil disturbances of April 1968,

procedures were developed by the Metropolitan Police

Department, in cooperation with the courts, to provide for the

speedy, but fair administration of justice during mass arrest

situations.” Id. at 22, J.A. 565. The procedures now in place

apparently resulted from “court ordered prescriptions against

certain mass arrest techniques followed during the April 1971[]

disorders.” Id. Standing alone, an internal procedure might not

create a predicate for piercing an officer’s qualified immunity.

Groh v. Ramirez, 540 U.S. 551, 564 n.7 (2004). But framed as

a response to “court ordered prescriptions,” it is further proof

that the rights violated by Newsham were clearly established

when he acted.

C. Chief Ramsey’s Claim to Immunity

Having found that the mass arrest Newsham ordered

violated clearly established constitutional rights, we now

examine whether Chief Ramsey’s involvement with the arrest

deprives him of qualified immunity. Ramsey’s participation in

the arrests is distinct from Newsham’s in a critical respect: he

denies knowing that the park had not been cleared of law-

19

abiding bystanders. If this claim is validated, Ramsey might be

entitled to maintain his qualified immunity. The record

assembled for summary judgment, however, does not permit a

definitive resolution of this factual question. Thus, under the

Supreme Court’s holding in Johnson, 515 U.S. at 307, the

District Court’s decision denying Ramsey’s motion for summary

judgment is not appealable.

As noted above, denials of summary judgment on qualified

immunity grounds fall within the “small class” of non-final

orders suitable for review. But this extension of appellate

jurisdiction is not endlessly elastic. The Supreme Court has

instructed that when the District Court’s decision correctly

“resolved a fact-related dispute about the pretrial record,”

namely, that the evidence in the pretrial record revealed a

genuine issue of fact for trial, immediate appellate review is not

available. Id. The Court explained that the justification for

reviewing certain denials of summary judgment followed from

the importance of appellate court intervention to protect officials

from standing trial if a district court erroneously articulated a

clearly established principle of constitutional law. Id. at 312.

That justification evaporates, however, when an immediate

appeal would require a reviewing court to delve into the

underlying merits of a case. The Court expressed particular

wariness about forcing appellate courts to prematurely untangle

“factual controversies about, for example, intent – controversies

that, before trial, may seem nebulous.” Id. at 316. Because we

find that Ramsey’s claim to immunity turns on just such a

factual controversy, which we are not situated to resolve one

way or another, we conclude that we lack jurisdiction to make

the findings necessary to definitively rule on his claim for

qualified immunity.

The critical question in adjudicating Ramsey’s claim to

qualified immunity is whether he knew all of the salient facts

that rendered the mass arrest unconstitutional – in particular,

20

whether he knew that there was no basis for believing Pershing

Park contained only individuals for whom there was probable

cause to make an arrest. On the record assembled for summary

judgment, the dispositive facts are ambiguous. Newsham stated

that he informed Ramsey of his plans to arrest everyone in the

park, and that he “believed there was probable cause to arrest the

demonstrators” based on offenses witnessed by police.

Newsham Decl. ¶ 18, J.A. 116. Ramsey submitted two

statements about his exchange with Newsham, which bring to

the fore the problem in assessing Ramsey’s entitlement to

qualified immunity. First, after recounting the briefing he

received from Newsham, Ramsey claimed that he “believed . . .

that probable cause existed to support the arrest of persons in

Pershing Park” and that Newsham executed the arrests

“correctly believing that . . . Chief Ramsey tacitly approved

[Assistant Chief] Newsham’s decision.” Mayor Anthony A.

Williams’ & Chief Charles H. Ramsey’s Corrected Statement of

Material Facts ¶ 38, J.A. 134. He further claimed that he “did

not realize, at that point, that the park had not, in fact, been

cleared of people before it came to be a holding area for

individuals that officers had observed engaged in illegal conduct

before those individuals entered the park or that orders to

disperse had not been given to the crowd.” Id. ¶ 39, J.A. 135.

In a subsequent statement, Ramsey repeated his assertion that he

“did not realize” the park had not been cleared before being

populated by lawbreakers, Ramsey Decl. ¶ 23, Supplemental

J.A. 22, but he also stated that “Newsham advised that he

believed that persons who had not been involved in unlawful

activity had been provided an opportunity to leave the park,” id.

¶ 21, Supplemental J.A. 21.

In order to prevail on his motion for summary judgment,

Ramsey needed to show that there was “no genuine issue as to

any material fact and that [he was] entitled to a judgment as a

matter of law” on the question of whether he facilitated,

approved, or condoned Newsham’s actions. FED. R. CIV. P.

21

56(c). That determination hinged on how knowledgeable

Ramsey was about the conditions surrounding Newsham’s

actions. Merely being Newsham’s supervisor was not enough

to attach liability to Ramsey. Int’l Action Ctr., 365 F.3d at 27.

But if he knowingly allowed a subordinate to transgress

constitutional limits, then Ramsey courted liability. “A

supervisor who merely fails to detect and prevent a subordinate's

misconduct . . . cannot be liable for that misconduct. ‘The

supervisor[] must know about the conduct and facilitate it,

approve it, condone it, or turn a blind eye for fear of what they

might see.’” Id. at 28 (quoting Jones v. City of Chicago, 856

F.2d 985, 992 (7th Cir. 1988)) ( second alteration in original).

The record precludes the conclusion that no genuine issue

existed as to Ramsey’s degree of knowledge about the situation

he confronted. First, and most significantly, Ramsey’s

statement that he “did not realize” the park had not been cleared

is not enough to establish an undisputed fact, because both he

and others submitted statements that do not square with

Ramsey’s denial. There appears to be a contradiction between

Ramsey’s initial claim that he “tacitly approved” Newsham’s

actions without having discussed whether the park was cleared,

and his subsequent statement that Newsham assured him the

park had in fact been cleared of innocent persons. And, after

reviewing the record before it, the District Court opined that

“[a]t worst, Chief Ramsey knew the dispersal order had not been

given and thus deliberately flaunted [sic] existing law and MPD

policies; at best, he turned a ‘blind eye’ to the situation and

refused to ask the questions necessary to ascertain whether

arrests were constitutionally permitted.” Barham, 338 F. Supp.

2d at 62. Ramsey arrived on the scene to find a large public

space, teeming with people and bounded by a perimeter that

allowed easy access and egress until it was sealed by police.

The plausibility of his claim that he thought all law-abiding

bystanders had been evacuated, while hundreds of lawbreakers

were corralled into an enclosed area, is not ascertainable from

22

the record. These factual puzzles are not susceptible to

resolution on the record before us. Nor are they for us to decide.

They are issues for the fact finder, and the District Court was

therefore correct in allowing the claims against Ramsey to

proceed.

III. CONCLUSION

For the foregoing reasons, we affirm the District Court’s

denial of Newsham’s motion for summary judgment, and we

conclude that we lack jurisdiction to review its denial of

Ramsey’s motion.