Barham v. Salazar

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2008 Decided February 20, 2009

No. 07-5305

JEFFREY BARHAM, ET AL.,

APPELLEES

v.

KENNETH LEE SALAZAR, SECRETARY,

DEPARTMENT OF INTERIOR, ET AL.,

APPELLANTS

Consolidated with 07-5306

Appeals from the United States District Court

for the District of Columbia

(No. 02cv02283)

Marina Utgoff Braswell, Assistant U.S. Attorney, argued

the cause for federal appellants. With her on the briefs were

Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence,

Assistant U.S. Attorney. Rudolph Contreras, Assistant U.S.

Attorney, entered an appearance.

Jonathan Turley argued the cause for appellees. With him

on the brief were Carl Messineo, Mara Verheyden-Hilliard, and

Daniel C. Schwartz.

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Before: SENTELLE, Chief Judge, and HENDERSON and

GARLAND, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

Concurring opinion filed by Circuit Judge HENDERSON.

SENTELLE, Chief Judge: Appellant Richard Murphy, a

United States Park Police official at the time of the events in

question, was sued in his personal capacity for his participation

in a mass arrest that occurred during demonstrations in

September 2002 in protest against policies of the World Bank

and International Monetary Fund. Murphy argued to the district

court that he was entitled to qualified immunity, under which he

would be shielded from liability. The district court denied

Murphy’s motion to dismiss and for summary judgment on the

basis of qualified immunity, and Murphy filed the instant

interlocutory appeal. Controlling precedent establishes that our

jurisdiction to hear interlocutory appeals in qualified immunity

cases does not extend to appeals in which the underlying

decision relies upon resolution of disputed facts. Because

Murphy’s claim to qualified immunity depends on resolving

facts in dispute, we conclude that we lack jurisdiction to review

the district court’s determination.

Background

The factual history of this case has been set forth in detail

before. See Barham v. Ramsey, 434 F.3d 565, 569-71 (D.C. Cir.

2006); Barham v. Ramsey, 338 F.Supp.2d 48, 52-54 (D.D.C.

2004). We will therefore focus only on the facts necessary to

resolve the issue before us.

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On Friday, September 27, 2002, mass demonstrations were

held in Washington, D.C., protesting the meetings of the World

Bank and International Monetary Fund. Around 8:15 a.m. a

large group of individuals began to gather in General John

Pershing Park (“Pershing Park” or “Park”), located on

Pennsylvania Ave., N.W., between 14th Street and 15th Street,

across from the White House grounds. At about this same time,

officers of the Metropolitan Police Department (“MPD”), led by

Assistant Chief Peter Newsham, began stationing around the

perimeter of the Park. About an hour later, United States Park

Police officers, after being informed of the gathering, arrived at

Pershing Park led by appellant Major Richard Murphy, who, at

that time, was Commander of the Special Forces Branch of the

U.S. Park Police. Around 9:20 a.m., an MPD officer asked

Murphy to assist the MPD in surrounding the Park, at which

point Park Police officers were sent to the north and south sides

of the Park. Murphy had two separate exchanges with MPD

Assistant Chief Newsham. According to Murphy, during the

first exchange, Newsham asked Murphy if those in the Park

could be arrested for demonstrating without a permit. Murphy

responded that they could be arrested, but that it was Park Police

policy not to arrest unless the demonstrators had first been

warned and given an opportunity to disperse. Soon thereafter,

Newsham informed Murphy that the individuals in Pershing

Park were going to be arrested for failure to obey a police order

to disperse that was given to them before they entered the Park.

Around this same time MPD Chief Charles Ramsey arrived

on the scene. He too was informed by Newsham that the

individuals in the Park were going to be arrested. All persons in

the Park were subsequently arrested for failure to obey an

officer. Many of those arrested later brought suit against various

police agencies and officials, alleging constitutional, statutory,

and common law violations stemming from the arrests. MPD

Chief Ramsey, Assistant Chief Newsham, and Park Police

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Major Murphy were also sued in their individual capacities. The

essence of the suit is that the defendants violated the plaintiffs’

constitutional rights when the police cordoned off Pershing Park

and then initiated a mass arrest. In the district court, Murphy

filed a motion to dismiss the case against him on grounds of

qualified immunity. Pursuant to Int’l Action Ctr. v. United

States, “[q]ualified 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.’” 365 F.3d 20,

24 (D.C. Cir. 2004) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). The district court denied the motion. Murphy

appeals.

Discussion

We have had prior occasion to address two other claims of

qualified immunity by police officials involved in a mass arrest.

See Barham v. Ramsey, 434 F.3d 565, 569-71 (D.C. Cir. 2006)

(“Ramsey”). We began our analysis there, as we do here, by

noting that 28 U.S.C. § 1291 gives appellate courts jurisdiction

over “final decisions” of the district courts. Id. at 571.

Ordinarily, district court final decisions are appealable only at

the conclusion of district court proceedings. There are,

however, certain types of district court decisions that are too

important and too independent of the merits of the action to

await the end of district court proceedings before appellate

review is allowed. See Cohen v. Beneficial Indus. Loan, 337

U.S. 541, 546 (1949). Included in this category of interlocutory

appeals is a denial by the district court of qualified immunity.

As we noted in Ramsey, qualified immunity shields certain

deserving officials from undergoing the burdens of litigation,

and if denial of a claim of qualified immunity were not

immediately appealable then the doctrine would be eviscerated.

434 F.3d at 571. However, “this extension of appellate

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jurisdiction is not endlessly elastic.” Id. at 577. In Johnson v.

Jones, the Supreme Court held that immediate appellate review

is not allowed if a district court’s decision “resolved a fact-

related dispute about the pre-trial record.” 515 U.S. 304, 307

(1995); see also Ramsey, 434 F.3d at 571.

In Ramsey, MPD Police Chief Ramsey and Assistant Police

Chief Newsham moved to dismiss the suits against them under

the doctrine of qualified immunity. The district court denied the

motions, and on interlocutory appeal we affirmed the district

court’s denial of Newsham’s motion. Nevertheless, we

concluded that we lacked jurisdiction to review the court’s

denial of Ramsey’s motion.

In discussing Newsham’s qualified immunity claims, we

first made reference to the two-part inquiry set forth in Saucier

v. Katz, 533 U.S. 194, 201 (2001), for determining whether a

government official is protected by qualified immunity.* See

Ramsey, 434 F.3d at 572. Under that inquiry, a court determines

the threshold question of whether, taking the facts in the light

most favorable to the alleged injured party, “the facts alleged

show the officer’s conduct violated a constitutional right.” Id.

(quoting Saucier, 533 U.S. at 201). If that question is answered

in the affirmative, the court then asks whether the constitutional

right was clearly established. Ramsey, 434 F.3d at 572 (citing

Saucier, 533 U.S. at 201). In Newsham’s case, we answered the

threshold question in the affirmative, as the plaintiffs’ complaint

was that they were arrested without probable cause while

engaged in acts protected by the First Amendment. Ramsey, 434

F.3d at 572. We also answered the second question in the

*

We note that the Supreme Court recently held “that the

Saucier protocol should not be regarded as mandatory in all cases.”

Pearson v. Callahan, – S. Ct. –, 2009 WL 128768 (U.S.), at *11

(Jan. 21, 2009).

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affirmative, finding that Newsham did not have probable cause

to make the mass arrests because he “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.”

Id. at 574. And we further noted the “fluidity of movement in

and around the Park,” as well as Newsham’s not denying that

many individuals in the Park were law-abiding, as additional

grounds for concluding that there was no probable cause for the

mass arrest. Id. We consequently affirmed the district court’s

denial of Newsham’s request for qualified immunity. Id. at 579.

We next considered Chief Ramsey’s qualified immunity

claim. Id. at 577-78. We noted that, according to the record

assembled for summary judgment, at some point after Newsham

ordered the Park to be cordoned off, Ramsey arrived on the

scene. Id. at 577. At this point, Newsham stated to Ramsey

that there was probable cause to arrest those in the Park for

offenses committed before they entered the Park. Id. Ramsey

stated that he was unaware that the Park contained individuals

who were not previously observed engaging in unlawful

activity. Id. at 578. Ramsey’s situation was different from

Newsham’s, we observed, in that Ramsey denied knowing that

the Park had not been cleared of law-abiding individuals. Id.

We noted that if this claim by Ramsey was valid then Ramsey

might be entitled to qualified immunity. Id. But we also noted

that, because of contradictions in the record concerning

Ramsey’s claim, this factual question could not be answered

definitively. Id. Accordingly, under the Supreme Court’s

holding in Johnson v. Jones, we concluded that the denial of

qualified immunity to Ramsey was not reviewable on

interlocutory appeal. Id. at 577-578.

In its consideration of Murphy’s request for qualified

immunity in the present case, the district court relied on our

disposition of Newsham’s qualified immunity claim in Ramsey.

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Chang v. United States, Civ. Action Nos. 02-2010, 02-2283,

2007 WL 2007335, at *10 (D.D.C. July 10, 2007). The district

court first noted that, in denying Newsham’s claim for qualified

immunity, this court rejected Newsham’s argument that there

was probable cause for the arrests based on the failure to obey

a police order. Id. The district court also noted that we held that

Newsham had presented “no facts capable of supporting the

proposition that Newsham had reasonable, particularized

grounds to believe that every one of the 386 people arrested was

observed committing a crime.” Id. (quoting Ramsey, 434 F.3d

at 574). Further, the court noted that this court had pointed to

the fluidity of movement in and around the Park preceding the

arrests as a further basis for discrediting any attempt by

Newsham to argue probable cause. Chang, 2007 WL 2007335,

at *10 (citing Ramsey, 434 F.3d at 574). The district court

found no relevant distinction between Murphy’s conduct and

Newsham’s. Chang, 2007 WL 2007335, at *10. In its opinion

the court concluded that “Murphy cannot point to undisputed

facts that suggest that the Park Police had a basis for believing

that Pershing Park contained only individuals for whom there

was probable cause to make an arrest.” Chang, 2007 WL

2007335, at *9. The court determined that, when Murphy

arrived at the Park, he observed people entering and leaving the

Park, he made no independent assessment of whether there was

probable cause to arrest all individuals in the Park, and he did

not see any violent activity by individuals there. Chang, 2007

WL 2007335, at *10. The district court further determined that,

although Newsham told Murphy that those in the Park were

being arrested for disobeying a police order, Murphy did not

know which order, who disobeyed it, or when the disobedience

occurred. Id. Based on these determinations, the district court

concluded that it was not reasonable for Murphy, in participating

in the mass arrests, to rely only on Newsham’s statement that all

of the individuals in the Park were being arrested for failing to

obey a police order. Id. The district court consequently denied

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Murphy’s motions to dismiss and for summary judgment on the

ground of qualified immunity. Id.

On review, however, we conclude that Murphy’s situation

is more analogous to Ramsey’s than to Newsham’s, and

consequently we lack jurisdiction over this interlocutory appeal.

According to Murphy, early on the morning of the

demonstrations, he was in Park Police mobile headquarters near

the White House; his main objective at the time of the

demonstrations was the security of the White House. While at

mobile headquarters, Murphy received reports that protestors in

different parts of the city were marching in the streets, as well as

reports that intersections were being disrupted. After receiving

a radio transmission that protestors were in Pershing Park,

across from the White House grounds, Murphy left mobile

headquarters and proceeded towards the Park. Upon arrival, he

observed individuals in the Park, and he was then stopped by an

MPD official who asked Murphy for Park Police help in holding

those individuals in the Park. Murphy stated that at this time he

was “scampering around,” and that he felt this was an “urgent

situation” as he wanted to prevent movement of those in the

Park towards the White House. Soon thereafter, Murphy was

approached by Assistant Chief Newsham, at which time

Newsham asked Murphy if the group in Pershing Park had a

permit to demonstrate there. After Murphy advised that the

group did not, Newsham asked Murphy if those in the Park

could be arrested for demonstrating without a permit. Murphy

replied that they could be arrested, but that it was Park Police

policy to order such groups to disperse first. Murphy then

overheard a high ranking MPD official state that those in the

Park had been involved in acts of vandalism and other crimes

before they had arrived at the Park. A second conversation with

Newsham then ensued, during which Newsham indicated to

Murphy that the individuals in the Park were going to be

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arrested for failing to obey a police order to get out of the street

made prior to their congregating in the Park. Murphy ordered

his men to assist MPD in forming lines around the Park to

prevent those inside from leaving. At the same time, however,

it appears that Murphy saw, at least from a distance, individuals

freely coming and going from the Park.

In Ramsey, we noted that a critical question in deciding

Ramsey’s claim to qualified immunity turned on “[t]he

plausibility of his claim that he thought all law-abiding

bystanders had been evacuated, while hundreds of lawbreakers

were corralled into an enclosed area.” Ramsey, 434 F.3d at 578.

Ramsey claimed that he did not know that Pershing Park had not

been cleared of law-abiding bystanders before the mass arrests

were conducted. Id. We found, however, that that claim was not

undisputed, and consequently that Johnson v. Jones barred us

from exercising jurisdiction over an interlocutory appeal on

factual issues. Id. at 577-78. Here, if Murphy shows that he had

an objectively reasonable “basis for believing that Pershing Park

contained only individuals for whom there was probable cause

to make an arrest,” id. at 577, then he may be entitled to qualified

immunity. But the record assembled so far does not lead to a

determination as to whether Murphy in fact has this basis.

Murphy states that he trusted Newsham that probable cause

existed to arrest those in the Park. But this statement is not

enough to establish an undisputed fact. Following our

disposition of Chief Ramsey’s claims in Ramsey, we conclude

that Murphy’s claim that he had a basis for believing that there

was probable cause to arrest all individuals in Pershing Park

cannot be determined on the record before us. See id. Moreover,

this issue is not for this court to decide; rather, it is an issue to be

determined by a fact finder, and “the District Court was therefore

correct in allowing the claims against [Murphy] to proceed.” Id.

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Conclusion

For the foregoing reasons we conclude that we lack

jurisdiction to review the district court’s denial of Murphy’s

motions regarding qualified immunity.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

Although I agree with my colleagues that we lack jurisdiction to

review the district court’s denial of Murphy’s claim to qualified

immunity because of a factual dispute, I write separately to

emphasize a point of law. In United States v. Hensley, 469 U.S.

221 (1985), the United States Supreme Court concluded that a

police officer may make a Terry stop in “objective reliance” on

a “flyer or bulletin . . . issued on the basis of articulable facts

supporting a reasonable suspicion.” 469 U.S. at 232. The Court

noted that even if the flyer were issued absent reasonable

suspicion, “the officers making the stop may have a good-faith

defense to any civil suit.” Id. Similarly, an officer may rely on

another officer’s determination of probable cause to make an

arrest, which will often be the case in a rapidly evolving—and

potentially deteriorating—situation like the one confronting

Murphy. See id. at 231 (“‘[E]ffective law enforcement cannot

be conducted unless police officers can act on directions and

information transmitted by one officer to another and . . .

officers, who must often act swiftly, cannot be expected to

cross-examine their fellow officers about the foundation for the

transmitted information.’” (quoting United States v. Robinson,

536 F.2d 1298, 1299 (9th Cir. 1976)); United States v.

Loundmannz, 472 F.2d 1376, 1379 (D.C. Cir. 1972) (probable

cause exists if officer ordering arrest has “adequate first-hand

knowledge to support a finding of probable cause” even though

arresting officer does not have first-hand knowledge); Daniels

v. United States, 393 F.2d 359, 361 (D.C. Cir. 1968) (“There is

no requirement that the arresting officer have sufficient firsthand

knowledge to constitute probable cause. It is enough that the

police officer initiating the chain of communication either had

firsthand knowledge or received his information from some

person . . . who it seems reasonable to believe is telling the

truth.”). As noted by the majority, Murphy states that he relied

on Newsham’s determination that probable cause existed to

arrest the hundreds of individuals in Pershing Park for failure to

obey a police order before entering the Park. Murphy’s reliance,

however, must be objectively reasonable for him to be clothed

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with qualified immunity. Murphy states that he “had nothing in

the way of an opinion or reason . . . to contradict or not to

believe what [Newsham] was telling [him] was true.” Tr. of

Deposition of Richard Murphy at 252:10-13, Barham v. Ramsey,

Civ. No. 02-2283 (D.D.C. Feb. 2, 2005) (Dep. Tr.). But

Murphy’s statement that he “s[aw] citizens coming and going

from a distance further on the south side of Pershing Park in the

vicinity of 14th Street,” Dep. Tr. 229:13-15, creates a genuine

issue of material fact regarding whether his reliance on

Newsham’s determination that probable cause existed to arrest

every individual in the Park was objectively reasonable.

Murphy differs in this respect from Newsham, whom we earlier

found not entitled to qualified immunity as a matter of law.

Barham v. Ramsey, 434 F.3d 565, 568 (D.C. Cir. 2006). I read

the majority opinion, Maj. Op. at 9, to leave open the possibility

that Murphy, like MPD Chief Charles Ramsey, may yet have

qualified immunity if the facts are resolved in his favor. See

Barham, 434 F.3d at 568 (“[Ramsey’s] 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 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.”).