Doe v. Metropolitan Police Department

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 26, 2005 Decided April 25, 2006

No. 04-7114

JOHN DOE ET AL.,

APPELLANTS

v.

METROPOLITAN POLICE DEPARTMENT

OF THE DISTRICT OF COLUMBIA ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 03cv02379)

Damon W.D. Wright argued the cause for the appellant.

Carol E. Bruce was on brief. Neal Goldfarb entered an

appearance.

Mary L. Wilson, Assistant Attorney General, District of

Columbia, argued the cause for the appellees. Robert J.

Spagnoletti, Attorney General, and Edward E. Schwab, Deputy

Attorney General, District of Columbia, were on brief.

Before: HENDERSON and GRIFFITH, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

2

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: The

Metropolitan Police Department (MPD) of the District of

Columbia (District) arrested the appellants, John Doe and Jane

Doe I, II, III and IV, for underage possession and/or

consumption of alcoholic beverages. The Does appeal the

district court’s dismissal of their consequent constitutional

claims brought against the MPD and various D.C. officials.

They argue that, because their arrests and detentions were based

on their violation of a civil statute, probable cause to believe a

crime had been committed did not exist; accordingly, the MPD’s

actions violated their Fourth Amendment rights. Because the

version of the underage possession/consumption law in effect

when John Doe was arrested was not unambiguously a civil

offense, we affirm the district court’s dismissal albeit on a

different ground. The version of the law under which the four

Jane Does were arrested, however, described an unambiguously

civil offense and we therefore reverse the district court’s

dismissal of their claims and remand those claims for further

proceedings.

I.

A. Factual Background

Between September 2000 and October 2003, MPD officers

arrested each of the five Does, all under 21 years of age at the

time of arrest, for allegedly violating the District’s law

prohibiting underage possession and/or consumption of

alcoholic beverages.1 In September 2000 John Doe was walking

down H Street N.W. carrying a package of closed containers of

1

The statute changed from 2000 to 2003, as we discuss infra.

3

beer.2 He was approached by a uniformed MPD officer who

placed him under arrest. The officer took him to the police

station where he was held for seven hours. Before being

released, he was issued a citation to appear in court to answer a

single charge of violating the underage possession law, D.C.

Code § 25-130.3 The MPD arrested the four Jane Does between

October 9 and October 11, 2003, pursuant to D.C. Code § 25-

1002(a), the 2001 version of the underage possession and/or

consumption law.4 Jane Doe I was arrested at a pub after

undercover MPD officers were told she was consuming an

alcoholic beverage belonging to another pub patron. The

officers removed her from the pub, arrested and handcuffed her,

and transported her to the police station. She was held for more

than three hours, issued a citation for underage consumption of

alcohol and released. MPD officers arrested the other three Jane

Does while they were walking together down Wisconsin Avenue

N.W. carrying paper bags of closed containers of alcoholic

beverages. The three were arrested, their belongings were

searched and they were taken to the police station. Each was

held for more than three hours and, before being released, each

was issued a citation for underage possession of alcohol.

2

We base the background facts on the allegations of the complaint.

See Wagener et al. v. SBC Pension Benefit Plan, 407 F.3d 395, 401

(D.C. Cir. 2005) (on review of dismissal, we “accept[] the factual

allegations made in the complaint as true and giv[e] plaintiffs the

benefit of all inferences that can reasonably be drawn from their

allegations”).

3

John Doe was arrested under the 1997 version of the law. See

note 9 infra for text.

4

See note 10 infra for text.

4

In November 2003, the five Does filed a six-count

complaint, individually and on behalf of a class of similarly

situated persons,5 against the MPD, the D.C. Office of the

Attorney General, Mayor Anthony Williams and D.C.

Corporation Counsel Robert Spagnoletti in their official

capacities only, Chief of Police Charles H. Ramsey and

Lieutenant Patrick Burke in their individual and official

capacities, and an unspecified number of unidentified arresting

officers in their individual and official capacities (collectively

the District). They alleged the District’s actions were

unconstitutional under both the Fourth and Fifth Amendments

to the United States Constitution and they sought equitable relief

and money damages under 42 U.S.C. § 1983. The Does claimed

that an arrest made under D.C.’s underage

possession/consumption law was unlawful because the law set

forth a civil, not criminal, offense; they were therefore arrested

without probable cause in violation of the Fourth Amendment.6

The Does asserted federal question jurisdiction under 28 U.S.C.

§§ 1331 and 1343 and supplemental jurisdiction over various

common law tort claims under 28 U.S.C. § 1367.7 The Does

also sought a temporary restraining order (TRO) and preliminary

injunctive relief to prohibit the MPD from making any arrest in

the future under the underage possession/consumption law.

5

The district court dismissed the action before the plaintiffs moved

for class certification. See John Doe v. District of Columbia, No. 03-

02379, at 2 (D.D.C. Jan. 28, 2004).

6

The Does do not argue their Fifth Amendment claim before us.

7

The tort claims included false imprisonment, false arrest,

negligence, assault and battery, intentional infliction of emotional

distress and malicious prosecution. See Compl. ¶¶ 152–82.

5

The District opposed the TRO petition, arguing that the

district court lacked jurisdiction based on our decision in

Barwood, Inc. v. District of Columbia, 202 F.3d 290 (D.C. Cir.

2000), where we held that an arrest in violation of state law does

not in and of itself implicate the Fourth Amendment. We

declared that “[m]ere inconsistency with state, or even federal,

law will not suffice to create a Fourth Amendment cause of

action.” Barwood, 202 F.3d at 294. The Barwood holding, the

District claimed, meant that the district court was without

subject-matter jurisdiction because an arrest in violation of state

law failed to allege a constitutional claim. Mem. in Opp’n to

Pl.’s Mot. for TRO at 2–4 (Record Document 5).

On January 28, 2004, the district court dismissed the

complaint under Federal Rule of Civil Procedure 12(b)(1),

concluding that “[f]or a Fourth Amendment violation to arise,

the arrest must violate the Fourth Amendment of its own accord,

for some reason other than the mere fact that the arrest was

unauthorized under state law.” John Doe v. District of

Columbia, No. 03-2379, at 6 (D.D.C. Jan. 28, 2004). Because

Barwood held that an arrest unauthorized under state law does

not constitute a Fourth Amendment violation, the Does’ “Fourth

Amendment claims do not form a basis on which the Court can

exercise jurisdiction over Plaintiffs’ suit.” Id. The Does timely

appealed.

B. Statutory Background

In 1984, in response to federal legislation reducing

transportation funding to any state that did not raise its legal

drinking age to 21, see 23 U.S.C. § 158, the Council of the

District of Columbia (D.C. Council) enacted a statute making it

unlawful for any person under 21 to consume alcohol or for

anyone to sell alcohol to any person under 21. Any underage

person who misrepresented his age in order to purchase alcohol

6

was guilty of a misdemeanor, subject to a $25 fine or

imprisonment for up to 10 days in the event of non-payment.

D.C. Code § 25-130 (1991). In 1994 the Council amended

section 25-130 to prohibit anyone under 21 years of age from

possessing, purchasing or consuming alcoholic beverages. It

also added a revocation of driving privileges penalty for

violation of the law. D.C. Code § 25-130 (1995) (1994 law).

The 1994 law deleted the misdemeanor offense of false

representation of age; instead, it incorporated by cross-reference

section 25-132, the catch-all provision of the District’s Alcohol

Beverage Control Act (ABC Act), which provided for

imprisonment of up to one year for any violation thereof. See

D.C. Code § 25-831 (2005) (formerly D.C. Code § 25-132

(1981)).

The following year, in District of Columbia v. Morrissey,

668 A.2d 792 (D.C. 1995), the D.C. Court of Appeals construed

a violation of the 1994 law to constitute a misdemeanor because

of its reference to the residual misdemeanor penalty in section

25-132. In dictum,8 the writing judge noted that “[i]f the

Council did not intend to make the conduct with which

Morrissey has been charged a crime subject to trial by jury and

punishable by, inter alia, a year in prison, then clarifying

legislation should be enacted. Rewriting the statute to make it

more humane transcends the judicial function.” Morrissey, 668

A.2d at 801.

8

The writing judge included the dictum in a separate section at the

end of the opinion entitled “Judge Schwelb’s Views.” Morrissey, 668

A.2d at 800.

7

In 1997, the D.C. Council again amended section 25-130.

See D.C. Code § 25-130(a) (1997 law).9 The 1997 law no

longer cross-referenced section 25-132 and instead added

specific penalties for statutory violations, including a “civil”

fine, “as an alternative sanction for any infraction.” D.C. Code

§ 25-130(b-2) (emphasis added). The Council included a

9

The relevant text of the 1997 law is as follows:

§ 25-130. Purchase, possession, or consumption by

persons under 21; misrepresentation of age; penalties.

(a) No person who is under 21 years of age shall

purchase, attempt to purchase, possess, or drink any

alcoholic beverage in the District . . . .

(b) No person shall falsely represent his or her age, or

possess or present as proof of age an identification

document which is any way fraudulent, for the

purpose of procuring an alcoholic beverage in the

District.

(b-1) Any person under 21 years of age who falsely

represents his or her age for the purpose of procuring

any alcoholic beverage shall be deemed guilty of a

misdemeanor and be fined for each offense not more

than $300, and in default in the payment shall be

imprisoned not exceeding 30 days.

(b-2) A civil fine may be imposed as an alternative

sanction for any infraction of this section . . . .

(c) In addition to the penalties provided in

subsections (b-1) and (b-2) of this section, any person

who violates any provision of this section shall be

subject to the following additional penalties:

[(1)–(3): setting out revocation of driving privilege

penalties].

8

criminal penalty for misrepresenting one’s age in order to

purchase alcohol; anyone under 21 who did so was guilty of a

misdemeanor and subject to a $300 fine or imprisonment not to

exceed 30 days for non-payment. See D.C. Code § 25-130(b-1).

Despite the deletion of the reference to section 25-132 and

notwithstanding the alternative civil fine sanction, the District

continued to follow Morrissey, prosecuting underage possession

violators criminally as it had under the 1994 law. As noted, the

1997 law was in effect when John Doe was arrested in

September 2000.

In October 2000, Brett Cass, who had been convicted of

underage possession of alcohol under the 1997 law and

sentenced to probation, challenged his conviction, claiming the

statute prescribed only a civil penalty for underage possession.

In a decision issued three years later, the D.C. Court of Appeals

found the 1997 law’s criminal sanction inapplicable to underage

possession and therefore concluded that a violation of subsection

(a) of section 25-130 constituted a civil offense. Cass v. District

of Columbia, 829 A.2d 480 (D.C. 2003). The court based its

decision on two points of statutory interpretation and one point

drawn from legislative history. First, it construed the

misdemeanor provision set forth in section 25-130(b-1) to apply,

in its own words, only to falsely representing one’s age for the

purpose of purchasing alcoholic beverages. Second, it

considered the misdemeanor provision of section 25-132, the

catch-all penalty statute no longer cross-referenced in section

25-130 but nonetheless applicable by its own terms to any

violation of the ABC Act “for which no specific penalty is

provided,” inapplicable to underage possession because the 1997

law did provide specific penalties, to wit: the civil fine included

in section 25-130(b-2) and the revocation of driving privileges

included in section 25-130(c). Underage possession of alcohol,

the court concluded, was punishable by civil fine only, with the

9

“additional” revocation of driving privileges sanction. Id. at

485. The court also found from the legislative history the fact

that the Council “stripped the basis for the Morrissey holding

from the statute and replaced it with lesser penalties lends strong

support to our statutory analysis.” Id. at 488. Accordingly, it

reversed Cass’s conviction.

Before the Cass decision, but after Cass brought his lawsuit,

the District amended section 25-130 yet again. See D.C. Code

§ 25-1002 (2001) (2001 law).10 The 2001 law had been enacted

10

The relevant text of the 2001 law is as follows:

§ 25-1002. Purchase, possession, or consumption by

person under 21; misrepresentation of age; penalties.

(a) No person who is under 21 years of age shall

purchase, attempt to purchase, possess, or drink an

alcoholic beverage in the District . . . .

(b)(1) No person shall falsely represent his or her age,

or possess or present as proof of age an identification

document which is in any way fraudulent, for the

purpose of purchasing, possessing, or drinking an

alcoholic beverage in the District.

(2) No person shall falsely represent his or her age, or

possess or present as proof of age an identification

document which is in any way fraudulent, for the

purpose of purchasing, possessing, or drinking an

alcoholic beverage in the District.

(3) For the purpose of determining valid

representation of age, each person shall be required to

present to the establishment owner or representative

at least one form of valid identification, which shall

have been issued by an agency of government (local,

state, federal, or foreign) and shall contain the name,

date of birth, signature, and photograph of the

10

individual.

(c) Any person under 21 years of age who falsely

represents his or her age for the purpose of

purchasing, possessing or drinking an alcoholic

beverage shall be deemed guilty of a misdemeanor

and, upon conviction, shall be fined for each offense

not more than $300; provided, that in default of the

payment of the fine, the person shall be imprisoned

for a period not exceeding 30 days.

(d) In addition to the penalties provided in subsection

(c) of this section, any person who violates any

provision of this section shall be subject to the

following penalties:

[(1)–(3): setting out revocation of driving privileges

penalties].

(e)(1) As an alternative sanction to the misdemeanor

penalties provided in subsection (c) of this section,

a person who violates subsection (a) or (b) of this

section shall be subject to the following civil

penalties:

(A) upon the first violation, a penalty of $300;

(B) upon the second violation, a penalty of $600; and

(C) upon the third and subsequent violations, a

penalty of $1,000 and the suspension of his or her

driving privileges in the District for one year.

(e)(2) ABRA inspectors or officers of the

Metropolitan Police Department may enforce the

provisions of this subsection by issuing a notice of

civil infraction for a violation of subsections (a) or

11

by the time the Cass opinion issued but the court in Cass made

clear that its opinion did not decide any issue under the statute

as amended, that is, under the 2001 law. See Cass, 829 A.2d at

481 n.1. The 2001 law retained the “in addition to” language of

subsection (d), referring to revocation of driving privileges. The

2001 law also did not refer to section 25-132, the ABC Act

misdemeanor penalty provision. It added language stating that

anyone who violated subsection (a), the subsection prohibiting

underage possession and/or consumption, was subject to “civil

penalties” as an “alternative sanction to the misdemeanor

penalties” provided in subsection (c) for misrepresenting one’s

age. Compare § 25-130(b-2) (1997) with § 25-1002(e-1) (2001).

As noted, the 2001 law was in effect when Jane Does I through

IV were arrested in October 2003.11

II.

A. Jurisdiction

We review de novo the dismissal of a complaint for lack of

subject matter jurisdiction. Empagran S.A. v. F. Hoffman-

LaRoche, Ltd., 315 F.3d 338, 343 (D.C. Cir. 2003). The district

court’s 12(b)(1) dismissal relied on our holding in Barwood,

supra. There, several suburban taxicab companies and their

drivers sought injunctive relief from a “reciprocity regulation”

promulgated by the D.C. Taxicab Commission that restricted the

circumstances under which suburban taxicabs could transport

District passengers and, most relevant here, subjected any

(b) of this section in accordance with Chapter 18 of

Title 2. A violation of this subsection shall be

adjudicated under Chapter 18 of Title 2.

(Emphases added.)

11

The statute was amended yet again in 2004. See D.C. Code §

25-1002 (2004).

12

violator to criminal sanction.12 The Barwood plaintiffs asserted

federal question jurisdiction by arguing, first, that any alteration

in the reciprocity agreements that existed between suburban

taxicab companies and their District counterparts as to when

suburban taxicabs could operate in the District and vice-versa

was exclusively within the mayor’s power and therefore beyond

the Commission’s authority; accordingly, any arrest made

pursuant to the ultra vires regulation violated the Fourth

Amendment. No probable cause could exist, the plaintiffs

argued, if the law making the conduct criminal was itself

invalid. We agreed that their argument had “an initial

plausibility: if an arrest without probable cause violates the

Fourth Amendment, then surely one for which no cause could

possibly exist must do so.” Barwood, 202 F.3d at 294 (emphasis

in original). We concluded, however, that the argument proved

too much and, if accepted, would transform “[e]very arrest

claimed to violate state law” into a cause of action under federal

law even if the plaintiff’s challenge rested “on state law theories

having no connection whatever with the policies underlying the

Fourth Amendment. . . . Mere inconsistency with state, or even

federal, law will not suffice to create a Fourth Amendment cause

of action (unless, of course, the inconsistency is with the Fourth

Amendment itself).” Id. Because there were “no allegations of

federal constitutional violations independent of the purported

violations of District of Columbia law,” we vacated the

12

The District claimed that the authority to arrest a violator of the

reciprocity regulation came from the District’s General License Law,

providing that “any person violating . . . any regulation made by the

Council under the authority of this chapter shall upon conviction be

fined not more than $300 or imprisoned for not more than 90 days.”

D.C. Code. § 47-2846; Barwood, Inc. v. District of Columbia, No. 98-

1901, at 6 (D.D.C. Feb. 16, 1999).

13

preliminary injunction and remanded with instructions to

dismiss the complaint. Id. at 292.

The proper disposition of a complaint like the Barwood

complaint—and the one we ultimately followed in that case,

notwithstanding initially using 12(b)(1) language13—is not a

dismissal based on lack of jurisdiction inasmuch as section 1983

itself provides the basis for federal question jurisdiction under

42 U.S.C. § 1331 and the court must assume jurisdiction before

deciding whether a cause of action exists. See Bell v. Hood, 327

U.S. 678, 682 (1946) (“[T]he court must assume jurisdiction to

decide whether the allegations state a cause of action on which

the court can grant relief . . . . [T]he failure to state a proper

cause of action calls for a judgment on the merits and not for a

dismissal for want of jurisdiction. Whether the complaint states

a cause of action on which relief could be granted is a question

of law and just as issues of fact it must be decided after and not

before the court has assumed jurisdiction over the

controversy.”). Instead the complaint should be dismissed for

failure to state a claim. See Barwood, 202 F.3d at 294 (“[M]ere

inconsistency with state, or even federal, law will not suffice to

create a Fourth Amendment cause of action.”) (emphasis

added).14 If a claim brought under 42 U.S.C. § 1983 does not

13

See Barwood, 202 F.3d at 292 (“Because there are no allegations

of federal constitutional violations independent of the purported

violations of District of Columbia law (or at any rate no such

allegations for which plaintiffs have standing), there is no subject

matter jurisdiction.”) (emphasis added).

14

Although the court in Barwood assumed that it had jurisdiction

to decide whether a constitutional claim had been alleged, its wording

was less than clear. See supra note 13. Because of the ambiguity, the

district court mistakenly assumed that the Barwood court had held that

it lacked jurisdiction. See Doe v. District of Columbia, No. 03-2379,

14

state a constitutional claim, it is subject to dismissal under Rule

12(b)(6), not Rule 12(b)(1). See Fraternal Order of Police

Dep’t of Corr. Labor Comm. v. Anthony A. Williams, 375 F.3d

1141, 1143–44 (D.C. Cir. 2004) (district court erred in granting

motion to dismiss § 1983 claim for lack of subject matter

jurisdiction under Rule 12(b)(1) because appellant “sought

recovery directly under the Constitution or laws of the United

States” and such claim could be dismissed under Rule 12(b)(1)

only if it met “wholly insubstantial or frivolous” standard

described in Best v. Kelley, 39 F.3d 328, 330 (D.C. Cir. 1994));

see also Albright v. Oliver, 510 U.S. 266, 271 (1994) (affirming

dismissal of § 1983 claim under Rule 12(b)(6) because

malicious prosecution claim not cognizable under due process

clause).

In Barwood, whether or not a suburban taxicab driver could

be arrested for violating the criminal reciprocity regulation

depended on the regulation’s validity and its validity depended

on whether or not the regulation had been properly adopted—an

issue of state law that no law enforcement officer could be

expected to resolve. Accordingly, the invalid enactment claim

was insufficient to state a cause of action under the Constitution.

By the same token, if an arrest under a federal criminal statute

were similarly challenged on the ground that it had been

invalidly enacted, a constitutional claim would not lie. If the

underlying statute—federal or state—were plainly civil,

however, Barwood would be inapplicable and a challenge to an

arrest thereunder would state a Fourth Amendment cause of

action.

Barwood’s relevance here, therefore, turns on whether the

relevant underage possession and/or consumption law—both the

1997 and the 2001 versions—unambiguously made underage

at 6 (D.D.C. Jan 28, 2004).

15

possession or consumption a civil offense. If it did, the Does are

correct in maintaining that Barwood is inapplicable. If,

however, the law’s civil nature was unclear, the District

correctly asserts that Barwood would preclude the Does’ cause

of action because it would hinge on a state law issue, that is,

whether the law created a civil or criminal offense. With these

principles in mind, we turn first to John Doe’s arrest which, as

noted earlier, was based on the 1997 law.

B. John Doe

Given that John Doe’s arrest took place almost three years

before the Cass decision, which interpreted the 1997 law to

create a civil offense, the Does cannot argue that the 1997 law

was “by definition” civil at the time of John Doe’s arrest.15 As

the court in Cass noted, the 1997 law’s cross-references to the

punishments located in different sections and subsections “lead

the reader in a circle,” Cass, 829 A.2d at 481.16 Subsection (b-

2), for example, provided for the imposition of a civil fine as an

15

They nevertheless state—without supporting argument—that the

1997 law was “by definition” a civil offense when John Doe was

arrested. See Appellant’s Br. 7.

16

At oral argument the Does’ counsel conceded the 1997 law’s

ambiguity, stating that whether it made underage possession a civil or

criminal offense was not “crystal clear.” Oral Arg. at 44:02. The

uncertainty could have been avoided if the D.C. Council had simply

added a subsection providing “Any person who is under 21 and

possesses, purchases or consumes alcohol shall be subject only to civil

penalties,” rather than lifting penalties from other subsections via

cross-reference. It has done so in other statutes. See D.C. Code § 50-

1401.01(d-1) (anyone who operates a motor vehicle in the District

with a license expired for less than ninety days “shall be subject to a

civil fine . . . and shall not be subject to the criminal penalties

contained in subsection (d) of this section”).

16

“alternative sanction” for any infraction of section 25-130,

indicating that a penalty other than a civil fine could also be

imposed for underage possession. The alternative to the civil

fine, however, could not have referred to the driving privileges

penalties listed in subsection (c) because (c) stated that the

driving privileges penalties were “in addition” to the penalties

included in both subsection (b-1)—the misdemeanor

penalty—and subsection (b-2)—the civil fine—for a violation

“of any provision of this section.” § 25-130(c). Because

subsection (b-1) provided that anyone who falsely represented

his age for the purpose of purchasing alcohol was “deemed

guilty of a misdemeanor” and subsection (c) provided driving

privileges revocation as an “additional” punishment, whether the

1997 law intended the (b-1) criminal penalty as an “alternative”

to the civil fine for underage possession is unclear.17 John Doe

challenged the validity of his arrest under a local law that may

or may not have constituted a crime at the time and, in so doing,

he raised a state law issue only.18

17

The legislative history is, not surprisingly, inconclusive; the

preamble to the 1997 law states that the intent was “[t]o amend the

[ABC Act] to provide for criminal and civil penalties for

misrepresentation of age or purchase, possession, or consumption of

alcoholic beverages by persons under 21 years of age.” 43 D.C. Reg.

4515 (1996) (emphasis added).

18

The District also argues that because the issue of whether the

1997 and 2001 laws authorized arrest for underage possession is an

issue of unsettled state law, the Pullman abstention doctrine applies

and supports affirming the dismissal. Pullman abstention “holds that

‘when a federal constitutional claim is premised on an unsettled

question of state law, the federal court should stay its hand in order to

provide the state courts an opportunity to settle the underlying state-

law question and thus avoid the possibility of unnecessarily deciding

a constitutional question.’ ” See JMM Corp. v. District of Columbia,

378 F.3d 1117, 1124 (D.C. Cir. 2004) (quoting Harris County

17

Because the 1997 law was ambiguous as to whether

underage possession constituted a crime, however, probable

cause existed for the MPD officer to arrest John Doe. Whether

probable cause exists is determined by looking at all of the facts

and circumstances at the time of the arrest, including the

knowledge and experience of the arresting officer. See United

States v. Kayode, 254 F.3d 204, 209 (D.C. Cir. 2001), cert.

denied, 534 U.S. 1147 (2002). If those facts and circumstances

are “sufficient to warrant a prudent man in believing that the

petitioner had committed or was committing an offense,” then

the police officer will be found to have had probable cause and

the resulting arrest valid. Beck v. Ohio, 379 U.S. 89, 91 (1964).

The facts and circumstances surrounding John Doe’s arrest were

the following: An MPD officer, encountering an underage

person in possession of alcoholic beverages, sought to enforce

the local law prohibiting such possession; the District had

routinely criminally prosecuted underage possession of alcohol

in the past, see Compl. ¶ 34; whether or not such possession

constituted a criminal or civil offense was unclear at the time of

arrest; and the ambiguity was not removed until three years later

when the Cass decision issued. A prudent person could have

reasonably believed that underage possession of alcoholic

beverages was a crime and that John Doe could be arrested for

it. We therefore affirm the district court’s dismissal of John

Doe’s claim, although we do so with prejudice and pursuant to

Rule 12(b)(6)—not 12(b)(1)—because his claim failed to state

a cause of action. See Fraternal Order of Police Dep’t of Corr.

Labor Comm., 375 F.3d at 1143–44 (affirming—under Rule

12(b)(6)—dismissal originally granted under 12(b)(1)).

Comm’rs Court v. Moore, 420 U.S. 77, 83 (1975)). Because of our

disposition, we express no opinion on the applicability of Pullman

abstention—the District’s “alternative theory.” See Appellee’s Br. 23.

18

C. Jane Does (I, II, III and IV)

The arrest of the four Jane Does under the 2001 law is

another matter. That law, unlike the one governing John Doe’s

arrest in 2000, plainly establishes the underage possession

and/or consumption of alcohol as a civil offense. In the 2001

version, the Council amended the civil fines provision to provide

that any person who violates subsection (a) “shall” be subject to

“the following civil penalties” as an “alternative” to the

misdemeanor penalty imposed for false representation of one’s

age. § 25-1002 (e)(1) (emphases added). The change removed

any ambiguity regarding whether a violation of subsection

(a)—the underage possession and/or consumption

provision—constituted an offense to which the misdemeanor

penalty included in subsection (c) for misrepresenting one’s age

could apply. The plain language of the 2001 law manifested that

it could not; application of the “alternative” misdemeanor

sanction to a violation of subsection (a) was not permitted as it

could have been under the 1997 law.

The four Jane Does, as alleged violators of subsection

(a)—but not (c)—of the 2001 law, were subject to the civil

penalties of subsection (e) and the additional revocation of

driving privileges penalty of subsection (d). The newly-added

subsection (e)(2) also supports the facially civil nature of the

underage possession and consumption prohibition by providing

that “officers of the Metropolitan Police Department may

enforce the provisions of this subsection by issuing a notice of

civil infraction for a violation of subsections (a) or (b) of this

section.” § 25-1002(e)(2) (emphasis added). Subsequent

interpretations by the D.C. Superior Court, while too late to give

notice to the MPD of the civil nature of a violation of subsection

(a) at the time the four Jane Does were arrested in 2003, also

support our conclusion. See, e.g., District of Columbia v.

19

Kaplan, Crim. No. D-1042-03, at 6–7 (D.C. Super. Ct. Dec. 24,

2003); District of Columbia v. Rothkoff, No. D-1896-01, at 5–7

(D.C. Super. Ct. Nov. 7, 2003).

Because the four Jane Does were arrested for a civil offense,

their claims state a cause of action under the Fourth

Amendment. The district court’s dismissal of their complaint is

therefore reversed and their case is remanded for further

proceedings.19

19

We note that while we have the authority to affirm the dismissal

of the Jane Does’ Fourth Amendment claim on the merits

notwithstanding the district court dismissed for lack of jurisdiction,

see Flynt v. Rumsfeld, 355 F.3d 697, 698 (D.C. Cir.), cert. denied, 543

U.S. 925 (2004), we decline to do so. Both parties have argued the

merits of the Does’ constitutional claim on appeal but several issues

related to that claim have yet to be litigated, including whether the

arresting officers are entitled to qualified immunity. See Brosseau v.

Haugen, 543 U.S. 194, 198 (2004) (“Qualified immunity shields an

officer from suit when she makes a decision that, even if

constitutionally deficient, reasonably misapprehends the law

governing the circumstances she confronted.”) (citing Saucier v. Katz,

533 U.S. 194, 206 (2001)). We leave the resolution of this issue, and

others, to the district court on remand. We do, however, comment

briefly on one of our holdings.

In United States v. Bookhardt, 277 F.3d 558 (D.C. Cir. 2002), we

held that an arrest “where the crime charged was not actually a crime”

is invalid. Id. at 565 n.9. In Bookhardt, the government conceded that

the offense for which a police officer had initially arrested Bookhardt

(driving with a license expired for fewer than 90 days) was civil in

nature under D.C. law and therefore did not authorize an arrest. It

argued, however, that the arresting officer had probable cause to

believe that Bookhardt had been driving recklessly, a criminal offense

for which he could be arrested. We applied the rule established in

Whren v. United States, 517 U.S. 806, 813 (1996), and expanded in

Arkansas v. Sullivan, 532 U.S. 769, 772 (2001) (applying Whren

20

III.

For the foregoing reasons, we affirm the district court’s

dismissal of John Doe’s claim pursuant to Federal Rule of Civil

Procedure 12(b)(6) and with prejudice. We reverse the

dismissal of the four Jane Does’ claims and remand for further

proceedings consistent with this opinion.

So ordered.

objective probable cause rule for civil traffic stop to criminal arrest),

which requires the court to determine the existence of probable cause

objectively without regard to “[s]ubjective intentions [which] play no

role in ordinary, probable-cause Fourth Amendment analysis.”

Although the civil offense for which Bookhardt was arrested did not

authorize arrest, the offense for which there was probable cause to

believe he had committed did so and his arrest was therefore lawful.

Bookhardt, 277 F.3d at 565 & n.11 (citing Whren and Sullivan).

Although the District labels the Bookhardt discussion dictum because

of the government’s concession there, we are not so sure. Whether the

offense for which one is arrested is not in fact a crime or the offense

is in fact a crime but the arresting officer lacks probable cause to

believe the crime has been committed, “an arrest in either

circumstance is equally invalid and the only question under our

precedents is whether another, valid ground for arrest exists.”

Bookhardt, 277 F.3d at 565 n.9; see also Allen v. City of Portland, 73

F.3d 232, 237 (9th Cir. 1995) (“probable cause can only exist in

relation to criminal conduct”); Peterson v. City of Plymouth, 60 F.3d

469, 477 (8th Cir. 1995) (arrest lacked probable cause because arrestee

lacked criminal intent); Moore v. Marketplace Rest., 754 F.2d 1336,

1334–35 (7th Cir. 1985) (same). Because we remand, however, we

need not decide the issue.