Wesby v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 27, 2014 Decided September 2, 2014

No. 12-7127

THEODORE WESBY, ET AL.,

APPELLEES

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLANTS

EDWIN ESPINOSA, OFFICER - METROPOLITAN POLICE

DEPARTMENT, IN BOTH HIS OFFICIAL AND INDIVIDUAL

CAPACITIES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-00501)

Carl J. Schifferle, Assistant Attorney General, Office of

the Attorney General for the District of Columbia, argued the

cause for appellants. With him on the briefs were Irvin B.

Nathan, Attorney General, Todd S. Kim, Solicitor General,

and Donna M. Murasky, Deputy Solicitor General, at the time

the briefs were filed. Loren L. AliKhan, Deputy Solicitor

General, entered an appearance.

2

Gregory L. Lattimer argued the cause and filed the brief

for appellees.

Before: BROWN and PILLARD, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.

Dissenting opinion filed by Circuit Judge BROWN.

PILLARD, Circuit Judge: A group of late-night partygoers

responded to a friend’s invitation to gather at a home in the

District of Columbia. The host had told some friends she was

moving into a new place and they should come by for a party.

Some of them informally extended the invitation to their own

friends, resulting in a group of twenty-one people convening

at the house. With the festivities well underway,

Metropolitan Police Department (“MPD”) officers responded

to a neighbor’s complaint of illegal activity. When the police

arrived, the host was not there. The officers reached her by

phone, and then called the person she identified as the

property owner, only to discover that the putative host had not

finalized any rental agreement and so lacked the right to

authorize the soiree. The officers arrested everyone present

for unlawful entry. But because it was undisputed that the

arresting officers knew the Plaintiffs had been invited to the

house by a woman that they reasonably believed to be its

lawful occupant, the officers lacked probable cause for the

arrest. Nor was there probable cause to arrest for disorderly

conduct because the evidence failed to show any disturbance

of sufficient magnitude to violate local law. We accordingly

affirm the district court’s grant of summary judgment to

Plaintiffs on the ground that the arrests violated their clearly

established Fourth Amendment rights and District of

Columbia law against false arrest. Because the supervising

3

police sergeant at the scene also overstepped clear law in

directing the arrests, the district court also correctly held the

District of Columbia liable for negligent supervision.

I.

The District of Columbia and two police officers in their

individual capacities appeal the district court’s liability

determinations resulting from the grant of partial summary

judgment against them. The court granted partial summary

judgment in Plaintiffs’ favor because, given the

uncontroverted evidence of record regarding the information

known to the sergeant and two of the officers at the time of

the arrests, no reasonable officer in their shoes could have

found probable cause to arrest any of the Plaintiffs. The

court’s grant of summary judgment was only partial, however,

in several ways: First, the court denied Plaintiffs’ motion for

summary judgment against several other officers in the face

of factual disputes about what they knew at the scene; the

Plaintiffs then abandoned those claims and the court

dismissed them with prejudice. Second, the court granted the

Defendants’ cross-motion for summary judgment on claims

against all of the officers in their official capacities,

dismissing those claims, too, with prejudice. Finally, the

Plaintiffs’ summary judgment motion was limited to liability,

leaving remedial determinations to the jury. At a trial on

damages, the jury awarded each Plaintiff between $35,000

and $50,000 in compensatory damages. The only questions

on this appeal address the validity of the partial summary

judgment liability holding.

For purposes of appeal of a grant of a plaintiff’s motion

for summary judgment, we view the facts in the light most

favorable to defendants. In the early morning hours of March

16, 2008, the MPD dispatched officers to investigate a

4

complaint of illegal activities taking place at a house in

Washington, D.C. The officers heard loud music as they

approached the house and, upon entering, saw people acting

in a way they viewed as consistent “with activity being

conducted in strip clubs for profit”—several scantily clad

women with money tucked into garter belts, in addition to

“spectators . . . drinking alcoholic beverages and holding

[U.S.] currency in their hands.” Some of the guests scattered

into other rooms when the police arrived. The parties dispute

how fully the house was “furnished,” but the police observed

at least some folding chairs, a mattress, and working

electricity and plumbing.1

One of the Defendants-Appellants, Officer Anthony

Campanale, took photographs of the scene and, along with

other officers, interviewed everyone present to find out what

they were doing at the house. The partygoers gave conflicting

responses, with some saying they were there for a birthday

party and others that the occasion was a bachelor party.

Someone told Officer Campanale that a woman referred to as

“Peaches” had given them permission to be in the house;

others said that they had been invited to the party by another

guest. Peaches was not at the house. Nobody who was

present claimed to live there or could identify who owned the

house.

Another Defendant-Appellant, Officer Andre Parker,

spoke to a woman who told him that Peaches “was renting the

house from the grandson of the owner who had recently

1

The record also contains inconsistencies regarding what, if any,

contraband the police found. For example, the arrest report says that

Officer Parker recovered marijuana inside the house, but he acknowledged

in his deposition that he smelled—but did not find—marijuana.

Moreover, nothing in the record indicates that any of the officers observed

any drug-related activity.

5

passed away and that [the grandson] had given permission for

all individuals to be in the house.” The woman then used her

cell phone to call Peaches. Officer Parker spoke to Peaches,

who refused to return to the house because she said she would

be arrested if she did. When Officer Parker asked who gave

her permission to be at the house, Peaches told Officer Parker

that he could “confirm it with the grandson.” Officer Parker

then used the same phone to call the apparent owner,

identified in the record only as Mr. Hughes, who told Officer

Parker that he was trying to work out a lease arrangement

with Peaches but had yet to do so.2 Hughes also told Officer

Parker that the people in the house did not have his

permission to be there that evening.

Sergeant Andre Suber, an MPD supervisor who was

acting as the watch commander that night, arrived on the

scene after the officers had begun their investigation. The

officers briefed Sergeant Suber, including telling him about

Parker’s conversations with Peaches and Hughes. Sergeant

Suber also spoke to Peaches directly by phone. According to

Sergeant Suber, Peaches told him that “she was possibly

renting the house from the owner who was fixing the house

up for her” and that she “gave the people who were inside the

place, told them they could have the bachelor party.” As the

police continued to talk to Peaches, she acknowledged that

she did not have permission to use the house. On that basis—

and notwithstanding the undisputed statements of both the

guests and Peaches that she had given them permission to be

at the house—Sergeant Suber ordered the officers to arrest

everyone for unlawful entry.

2

The record does not make clear how Officer Parker obtained Hughes’s

contact information or whether, at the time of the arrests, the police had

made any independent efforts to verify that Hughes was in fact the owner

of the house.

6

After the police arrested and transported the partygoers to

the police station, Sergeant Suber and the lieutenant taking

over as watch commander discussed the appropriate charges

for the Plaintiffs. According to Sergeant Suber, the lieutenant

decided to change the charge to disorderly conduct after

speaking with a representative from the District of Columbia

Attorney General’s office. Sergeant Suber disagreed, but the

lieutenant overruled him. The officers who had been at the

house, including Sergeant Suber, each testified that they had

neither seen nor heard anything to justify a disorderly conduct

charge.

Sixteen of the arrestees sued five officers for false arrest

under 42 U.S.C. § 1983, the officers and the District for false

arrest under common law, and the District for negligent

supervision. On cross-motions for partial summary judgment

as to liability, the district court granted the parties’ motions in

part and denied both motions on some issues. The court ruled

in favor of the Plaintiffs on their claims of false arrest against

Officers Parker and Campanale in their individual capacities,

and on the common law false arrest and negligent supervision

claims against the District. Defendants appeal these liability

determinations.

II.

We review de novo a district court’s summary judgment

ruling, “apply[ing] the same standard of review applicable to

the underlying claims in the district court.” Defenders of

Wildlife v. Gutierrez, 532 F.3d 913, 918 (D.C. Cir. 2008). A

party is entitled to summary judgment where, “viewing the

evidence in the light most favorable to the nonmoving party

and drawing all reasonable inferences in the nonmoving

party’s favor,” Ne. Hosp. Corp. v. Sebelius, 657 F.3d 1, 4

(D.C. Cir. 2011), this Court determines that “there is no

7

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a).

We begin with Plaintiffs’ entitlement to summary

judgment on their Section 1983 and common-law false arrest

claims. Because “[t]he elements of a constitutional claim for

false arrest are substantially identical to the elements of a

common-law false arrest claim,” we address the merits of

those claims together. See Scott v. District of Columbia, 101

F.3d 748, 753-54 (D.C. Cir. 1996) (citing Dellums v. Powell,

566 F.2d 167, 175 (D.C. Cir. 1977)). As with most false-

arrest claims, Plaintiffs’ claims “turn on the issue of whether

the arresting officer[s] had probable cause to believe that

[Plaintiffs] committed a crime.” Id. at 754. Defendants argue

that the district court erred in finding the arrests unsupported

by probable cause because, in their view, the officers had

objectively valid bases to arrest the Plaintiffs both for

unlawful entry and disorderly conduct. In the alternative,

Defendants contend that, even if probable cause were lacking,

the officers are shielded from liability by qualified immunity

and a common-law privilege. We address these contentions

in turn.

A.

The assessment of probable cause is an objective one.

An arrest is supported by probable cause if, “at the moment

the arrest was made, . . . the facts and circumstances within

[the arresting officers’] knowledge and of which they had

reasonably trustworthy information were sufficient to warrant

a prudent man in believing” that the suspect has committed or

is committing a crime. Beck v. Ohio, 379 U.S. 89, 91 (1964).

Based on the undisputed facts relevant to the knowledge

the police had at the time of the arrests, and “giv[ing] due

8

weight to inferences drawn” by the officers, we consider de

novo whether those facts support a determination of probable

cause to arrest. Ornelas v. United States, 517 U.S. 690, 697,

699 (1996). Defendants contend that they were justified in

arresting Plaintiffs for unlawful entry and disorderly conduct.

To determine whether they had probable cause to believe that

Plaintiffs were violating District of Columbia law, we look to

District law to identify the elements of each of those offenses.

See Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). Upon

examination of the relevant statutes and case law, we

conclude that no reasonable officer could have concluded that

there was probable cause to arrest Plaintiffs for either crime.

Unlawful Entry. At the time of Plaintiffs’ arrests,

District of Columbia law made it a misdemeanor for a person

to, “without lawful authority, . . . enter, or attempt to enter,

any public or private dwelling, building, or other property, or

part of such dwelling, building, or other property, against the

will of the lawful occupant or of the person lawfully in charge

thereof.” D.C. Code § 22-3302 (2008).3 To sustain a

conviction for unlawful entry, the government must prove that

“(1) the accused entered or attempted to enter public or

private premises or property; (2) he did so without lawful

authority; (3) he did so against the express will of the lawful

occupant or owner; and (4) general intent to enter.” Culp v.

United States, 486 A.2d 1174, 1176 (D.C. 1985).

The probable-cause inquiry in this case centers on the

third and fourth elements, which together identify the

culpable mental state for unlawful entry. See Ortberg v.

United States, 81 A.3d 303, 305 (D.C. 2013). Specifically,

3

Both the unlawful-entry statute (D.C. Code § 22-3302) and the

disorderly-conduct statute (D.C. Code § 22-1321) have been amended

since the events at issue here. Throughout this opinion, we refer to the

versions of the statutes in effect during the relevant time period.

9

the question is whether a reasonable officer with the

information that the officers had at the time of the arrests

could have concluded that Plaintiffs knew or should have

known they had entered the house “against the will of the

lawful occupant or of the person lawfully in charge thereof,”

and intended to act in the face of that knowledge. D.C. Code

§ 22-3302; see Ortberg, 81 A.3d at 305; Artisst v. United

States, 554 A.2d 327, 330 (D.C. 1989).

Probable cause “does not require the same type of

specific evidence of each element of the offense as would be

needed to support a conviction.” Adams v. Williams, 407 U.S.

143, 149 (1972). But the police cannot establish probable

cause without at least some evidence supporting the elements

of a particular offense, including the requisite mental state.

United States v. Christian, 187 F.3d 663, 667 (D.C. Cir.

1999). Because the offense of parading without a permit, for

example, requires knowledge that no permit issued, “officers

who make such an arrest must have reasonable grounds to

believe” that the suspects knew no permit had been granted.

Carr v. District of Columbia, 587 F.3d 401, 410-11 (D.C. Cir.

2009).

In this case, the officers on the scene had three pieces of

information that could bear on whether the Plaintiffs knew or

should have known that they had entered a house against the

owner’s express will. First, the officers had Plaintiffs’

statements that they had been invited to some kind of party at

the house, with inconsistent and conflicting statements about

the type of party. Second, the officers had explicit,

uncontroverted statements from Peaches and a guest at the

scene that Peaches had told the people inside the house that

they could be there. Finally, the officers had a statement by

the claimed owner of the house that he had been trying

10

unsuccessfully to arrange a lease with Peaches and that he had

not given the people in the house permission to be there.

As a preliminary matter, Defendants argue that Peaches’

invitation is irrelevant to the determination of probable cause,

because whether the Plaintiffs had a bona fide belief in their

right to enter the house “simply raises a defense for the

criminal trial.” That argument misses the mark. The District

of Columbia Court of Appeals recently reiterated that “the

existence of a reasonable, good faith belief [in permission to

enter] is a valid defense precisely because it precludes the

government from proving what it must—that a defendant

knew or should have known that his entry was against the will

of the lawful occupant.” Ortberg, 81 A.3d at 309 (emphasis

added).

It is true that, if prosecuted for unlawful entry, a

defendant may raise as a defense that he entered the building

“with a good purpose and with a bona fide belief of his right

to enter.” Smith v. United States, 281 A.2d 438, 439 (D.C.

1971); see United States v. Thomas, 444 F.2d 919, 926 (D.C.

Cir. 1971); Ortberg, 81 A.3d at 308-09. But the cases

interpreting the unlawful-entry statute are clear and consistent

that such a defense is available precisely because a person

with a good purpose and bona fide belief of her right to enter

“lacks the element of criminal intent required” by the statute.

Smith, 281 A.2d at 439; see also McGloin v. United States,

232 A.2d 90, 91 (D.C. 1967) (dismissing concern about

unintentional violations of the statute, because “one who

enters for a good purpose and with a bona fide belief of his

right to enter is not guilty of unlawful entry”); Bowman, 212

A.2d 610, 611-12 (D.C. 1965) (“[O]ne who enters . . . for a

good purpose and with bona fide belief of his right to enter

. . . would not be guilty of an unlawful entry . . . .”).

11

Thus, contrary to Defendants’ argument, Peaches’

invitation is central to our consideration of whether a

reasonable officer could have believed that the Plaintiffs had

entered the house unlawfully. That is because, in the absence

of any conflicting information, Peaches’ invitation vitiates the

necessary element of Plaintiffs’ intent to enter against the will

of the lawful owner. A reasonably prudent officer aware that

the Plaintiffs gathered pursuant to an invitation from someone

with apparent (if illusory) authority could not conclude that

they had entered unlawfully.

Ignoring the significance of Peaches’ invitation,

Defendants argue that Hughes’s statement that he had not

given the Plaintiffs permission to be in the house is

dispositive because a homeowner’s denial that he has given

permission to enter his property is sufficient to establish

probable cause to arrest for unlawful entry. We disagree.

Importantly, Hughes never said that he or anyone else had

told the Plaintiffs that they were not welcome in the house.

Peaches eventually admitted that she did not have permission

to be in the house or to invite others, but there is no evidence

that she had told the Plaintiffs as much. Indeed, the evidence

is uniform that the arrestees all were invited, and there is

simply no evidence in the record that they had any reason to

think the invitation was invalid. All of the information that

the police had gathered by the time of the arrest made clear

that Plaintiffs had every reason to think that they had entered

the house with the express consent of someone they believed

to be the lawful occupant.4 Accordingly, there was no

4

For this reason, Defendants’ contention that arresting officers are not

required to “sift through conflicting evidence or resolve issues of

credibility” is beside the point. Multiple officers on the scene testified that

they did not observe anything leading them to believe that the Plaintiffs

had any reason to think they lacked the right to be in the house. There is

also no evidence that the officers asked either Peaches or Hughes whether

12

probable cause for the officers to believe that the Plaintiffs

entered the house knowing that they did so against the will of

the owner or occupant.

The cases on which Defendants rely do not compel a

different conclusion. Citing to McGloin, 232 A.2d 90, and

Culp, 486 A.2d 1174, Defendants argue that Hughes’s

statement was sufficient because “[t]he offense of unlawful

entry does not require any kind of prior warning in the case of

a private dwelling.” Br. for Appellants 22. Culp and

McGloin establish that an owner of a private dwelling need

not post any sign or warning in order to express an intent to

exclude the general public. See Culp, 486 A.2d at 1177

(probable cause for unlawful entry where the building is

vacant and “the property itself reveals indications of a

continued claim of possession by the owner or manager”);

McGloin, 232 A.2d at 91 (“[S]urely no one would contend

that one may lawfully enter a private dwelling house simply

because there is no sign or warning forbidding entry.”). But

those cases do not apply here, because the Plaintiffs did not

simply find a house that appealed to them and walk in off the

street; they entered the specified home at the invitation of

someone they reasonably believed was an authorized

inhabitant.

Defendants’ reading of Culp and McGloin would provide

probable cause to arrest for unlawful entry any individual in a

the Plaintiffs knew that Peaches had no right to be in the house. Had they

asked such questions and gotten an affirmative answer, Defendants’

argument would carry weight. See Wright v. City of Philadelphia, 409

F.3d 595, 603 (3d Cir. 2005) (officers entitled to discredit Section 1983

plaintiff’s innocent explanation for entry into a house in the face of

conflicting evidence); Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir.

2002) (probable cause to make an arrest based on inculpatory statements

by a reliable informant, notwithstanding exculpatory statements from the

suspect that “tended to discredit [the informant’s] version of events”).

13

private dwelling without the express permission of the owner.

Such a rule would transform the unlawful-entry statute from

one barring entry “against the will of the owner” into one

criminalizing entry “without the express invitation of the

owner.” A brunch host who overstays her lease does not

thereby expose her invited guests to arrest for unlawful entry,

nor does a person summoned onto property by a stranger who

appears to be the lawful inhabitant commit the crime of

unlawful entry if she reasonably fails to recognize that the

stranger is not the owner at all, but a traveling salesman.

What the unlawful-entry law requires is some showing that

the individual entered a place that she knew or should have

known she was not entitled to be.

The cases Defendants cite merely recognize that certain

factual circumstances not present here make it reasonable to

infer an interloper’s intent to enter against the will of the

owner. McGloin, for example, upheld an unlawful-entry

conviction where the defendant entered an apartment

building, ran up the fire escape and then onto the roof, and

said first that he was looking for his cat and then “for a friend

named DeWitt who lived in the building,” when no one by

that name lived there. 232 A.2d at 90. In his defense,

McGloin relied on Bowman, where the court held that an

entry into a semi-public space was not unlawful unless the

owner had given an express “warning to keep off,” which

could be expressed verbally or “by sign.” See McGloin, 232

A.2d at 91 (quoting Bowman, 212 A.2d at 611).

Distinguishing Bowman, the court emphasized that McGloin

entered “not a public or semi-public building,” but an

apartment building containing four private family dwellings.

Id. Under such circumstances, it was “more than plain that

wandering through the building, climbing on the roof or

perching on the fire escape would be against the will of the

owner.” Id.

14

Culp addressed what inferences the police may

reasonably draw when a person enters a property that appears

to be vacant. In that case, the police saw three men, including

the defendant, inside a “dilapidated” public housing property.

See Culp, 486 A.2d at 1175. The men tried to leave through

the back door when they saw the police approaching, and the

defendant “could not explain his presence” when the officers

asked what he was doing there. Id. Culp challenged his arrest

for unlawful entry on the basis that the police lacked probable

cause to believe that he knew he was entering the house

against the will of the occupant. See id. The court found that

the officers had probable cause to arrest Culp because “there

were sufficient indications of efforts by [the housing

authority] to protect the property against intruders that the

officers could reasonably conclude that [Culp] knowingly

entered against the will of the person lawfully in charge.” Id.

at 1177 (quotation marks and ellipsis omitted). The housing

authority had made “continuous and diligent efforts to board

up the house” and at least some of the windows remained

boarded up when Culp entered. Id.

The arresting officers in this case, unlike those in

McGloin and Culp, observed nothing inconsistent with the

reason the Plaintiffs gave for being there—a reason that was

corroborated, rather than undermined, by the information that

Peaches gave to the officers: Peaches had invited them to her

new apartment. Defendants point to the “highly suspicious

and incriminating” activities the officers observed in the

house to bolster the argument that the officers had no reason

to credit the Plaintiffs’ explanation for their presence. But the

officers acknowledged that, other than the ostensible unlawful

entry, they did not see anyone engaging in illegal conduct.

Moreover, the activities they did observe—scantily clad

women dancing, bills slipped into their garter belts, and

15

people drinking—were consistent with Plaintiffs’

explanations that they were there for a bachelor or birthday

party.5 To the extent that people scattered or hid when the

police entered the house, such behavior may be “suggestive”

of wrongdoing, but is not sufficient standing alone to create

probable cause. See Illinois v. Wardlow, 528 U.S. 119, 124

(2000) (noting that unprovoked flight “is not necessarily

indicative of wrongdoing,” but is suggestive enough that,

given other circumstances, may justify further investigation).

To the extent that the party involved semi-nude dancing or

stripping, it is hardly surprising that participants would retreat

as officers entered off the street.

As the district court explained, this is not a case in which

“the property was boarded up, door latches were broken, no

trespassing signs were posted or the manner of securing the

property indicated that the owner wanted others to keep out.”

Wesby v. District of Columbia, 841 F. Supp. 2d 20, 33

(D.D.C. 2012). Notwithstanding the parties’ dueling

characterizations of how furnished and inhabited the house

appeared, there is nothing in the record suggesting that the

condition of the house, on its own, should have alerted the

Plaintiffs that they were unwelcome. To the contrary, that the

house had sparse furnishings and functioning utilities was

entirely consistent with one individual’s statement to Officer

Parker that Peaches was the new tenant in a house previously

occupied by the owner’s recently deceased grandfather.

5

In their brief, Defendants suggest that the evidence “showed that the

suspects were using the house for unlawful activities, including drug use

and prostitution” and cite to a variety of criminal statutes prohibiting that

type of conduct. Br. for Appellants 30. Notably, however, Defendants do

not attempt to justify Plaintiffs’ arrests on any of those grounds, and

entirely ignore that the officers uniformly testified that they did not see

any evidence of drugs or similar illegal activity.

16

It bears emphasizing that Defendants are incorrect to

suggest that our conclusion could render the unlawful-entry

statute “unenforceable in most circumstances” or leave the

police “powerless to make arrests for unlawful entry” in

analogous situations. Br. for Appellants 24. The police were

by no means powerless in this case. At a minimum, after

speaking with Hughes and determining that he had not given

Peaches permission to use the house, the officers could have

told the Plaintiffs that they lacked permission to be there and

so must leave. Had the officers “personally asked [the

Plaintiffs] to leave and [the Plaintiffs] had refused,” such a

refusal would have supplied the probable cause the officers

needed to make an arrest for unlawful entry. District of

Columbia v. Murphy, 631 A.2d 34, 38 (D.C. 1993); see id. at

37 (“The offense of unlawful entry includes . . . cases where a

person who has entered the premises with permission

subsequently refuses to leave after being asked to do so by

someone lawfully in charge.”).

In sum, when faced with the facts and circumstances

presented in this case—and, in particular, without any

evidence that the Plaintiffs knew or should have known they

were in the house against the will of the owner or lawful

occupant—a reasonable officer could not have believed there

was probable cause to arrest the Plaintiffs for unlawful entry.

Disorderly Conduct. Defendants argue in the alternative

that the officers had probable cause to arrest the Plaintiffs for

disorderly conduct. At the time of the Plaintiffs’ arrests, the

relevant statute made it a crime to “shout[] or make[] a noise

either outside or inside a building during the nighttime to the

annoyance or disturbance of any considerable number of

persons,” either with the intent “to provoke a breach of the

peace, or under circumstances such that a breach of the peace

may be occasioned thereby.” D.C. Code § 22-1321(3) (2008).

17

The “breach of the peace” clause qualifies the remainder of

the statute “and sets forth an essential element of the offense.”

In re T.L., 996 A.2d 805, 810 (D.C. 2010).

Plaintiffs point to the evidence in the record that the

arresting officers themselves did not believe there was

evidence to support a disorderly conduct charge. As long as

the arresting officers “had an objectively valid ground upon

which” to make an arrest, however, the subjective knowledge

and intent of the officers is irrelevant. United States v.

Bookhardt, 277 F.3d 558, 566 (D.C. Cir. 2002); see Whren v.

United States, 517 U.S. 806, 813 (1996). Thus, even where

police do not believe evidence suffices, or are unsure which

of several offenses the suspect may have committed, an arrest

is valid so long as, on the facts of which the officers were

aware, an objective observer can discern probable cause. See,

e.g., United States v. Broadie, 452 F.3d 875, 881 (D.C. Cir.

2006) (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004));

Bookhardt, 277 F.3d at 566; United States v. Prandy-Binett,

995 F.2d 1069, 1073-74 (D.C. Cir. 1993); see also Jaegly v.

Couch, 439 F.3d 149, 154 (2d Cir. 2006) (Sotomayor, J.)

(“[W]hen faced with a claim for false arrest, we focus on the

validity of the arrest, and not on the validity of each charge.”).

Defendants are thus correct that the arresting officers’

subjective belief that they lacked probable cause to arrest the

Plaintiffs for disorderly conduct is not dispositive. What

matters is whether, on the facts the officers knew at the time,

a reasonably prudent officer could have found that the

Plaintiffs were engaging in disorderly conduct. See Whren,

517 U.S. at 813; Bookhardt, 277 F.3d at 566.

The officers here, however, accurately estimated the

evidence as inadequate to support probable cause to believe

that the Plaintiffs’ conduct was disorderly. As the district

court recognized, some evidence suggested “the police were

18

told of reports of a loud party or loud music and some officers

heard loud music upon arrival.” Wesby, 841 F. Supp. 2d at

34. But Defendants exaggerate the nature and quantum of

that evidence as showing that Plaintiffs had “disturbed the

tranquility and nighttime slumber of the community

residents.” Br. for Appellants 32. The evidence on which

Defendants rely shows nothing more than that one neighbor

had called to complain about noise that evening.6 A

disorderly conduct violation under District of Columbia law

requires that an arrestee disturbed a “considerable number of

persons” and acted “under circumstances such that a breach of

the peace may” have been occasioned by that arrestee’s

6

To the extent that the Defendants rely on Officer Campanale’s trial

testimony, that testimony was not before the district court at summary

judgment and therefore is not part of the record on review of the grant of

summary judgment. See Biegas v. Quickway Carriers, Inc., 573 F.3d 365,

374 (6th Cir. 2009); U.S. East Telecommc’ns, Inc. v. US West Commc’ns

Servs., Inc., 38 F.3d 1289, 1301 (2d Cir. 1994). On the other hand, to the

extent that Defendants refer to statements in the summary judgment record

reflecting complaints from neighbors about the noise emanating from the

house, such evidence is entitled to our consideration. Plaintiffs object to

some of that evidence based on the prohibition against hearsay. See Greer

v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (“[S]heer hearsay . . .

counts for nothing on summary judgment.” (internal quotation marks

omitted)). But those statements would not be admitted for their truth (e.g.,

whether there was in fact loud music) but instead to show what

information the officers had about the nature and scope of the disturbance

at the time of the arrest. See Fed. R. Evid. 801(c); Royall v. Nat’l Ass’n of

Letter Carriers, AFL-CIO, 548 F.3d 137, 145 (D.C. Cir. 2008)

(considering, on summary judgment, evidence contested as hearsay on the

basis that statements were not offered for the truth of the matter asserted);

see also Draper v. United States, 358 U.S. 307, 311-12 (1959) (rejecting

contention that officers may not consider hearsay in probable cause

assessment). As our discussion makes clear, however, that evidence is

relevant to the legal determination of probable cause. See, e.g., United

States v. Branch, 545 F.2d 177, 184-85 (D.C. Cir. 1976) (emphasizing that

the probable cause determination in Draper, though based in part on

hearsay evidence, was appropriate because that evidence “was explicitly

detailed and corroborated by events as they transpired”).

19

conduct. D.C. Code § 22-1321 (2008); In re T.L., 996 A.2d at

808-09 (concluding that defendant did not create “breach of

the peace” within the meaning of the statute despite the fact

that “some ten to fifteen people left their town houses” in

order to observe the “clamor” that defendant caused by

yelling loudly on the street). Even viewing it, as we must, in

the light most favorable to the Defendants, the evidence here

simply does not rise to that level.7

For all of these reasons, we conclude that the officers

lacked probable cause to arrest the Plaintiffs for unlawful

entry or disorderly conduct.

B.

Having concluded that Plaintiffs’ arrests were

unsupported by probable cause, we must consider whether

qualified immunity shields the officers from liability. “An

officer is entitled to qualified immunity, despite having

engaged in constitutionally deficient conduct, if, in doing so,

she did not violate ‘clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Brosseau v. Haugen, 543 U.S. 194, 205 (2004)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). If

Officers Parker and Campanale had “an objectively

reasonable basis for believing that the facts and circumstances

surrounding [Plaintiffs’] arrest were sufficient to establish

probable cause,” Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C.

Cir. 1993) (citing Malley v. Briggs, 475 U.S. 335, 341

7

Our conclusion that there was insufficient evidence for a reasonable

officer to conclude that the noise from the house had disturbed a

considerable number of people necessarily forecloses Defendants’

argument that “there was probable cause to believe the plaintiffs, as a

group, had engaged in disorderly conduct.” See Br. for Appellants 33

(citing Carr, 587 F.3d at 407).

20

(1986)), they would be immune from Plaintiffs’ suit for

damages.

As with all cases examining whether a particular right

was sufficiently clear, “[w]e begin by establishing the

appropriate level of generality at which to analyze the right at

issue.” Johnson v. District of Columbia, 528 F.3d 969, 975

(D.C. Cir. 2008); see, e.g., Wilson v. Layne, 526 U.S. 603,

614-15 (1999); Anderson v. Creighton, 483 U.S. 635, 639-40

(1987). Here, the question is whether, in light of clearly

established law and the information that Officers Parker and

Campanale had at the time, it was objectively reasonable for

them to conclude that there was probable cause to believe

Plaintiffs were engaging in either unlawful entry or disorderly

conduct. See Wilson, 526 U.S. at 615. This inquiry into the

“objective legal reasonableness” of the officers’ actions

parallels but does not duplicate the reasonableness aspect of

the Fourth Amendment probable cause analysis. See Johnson,

528 F.3d at 976 (describing the two Saucier steps as “distinct

but overlapping”).

To determine whether the officers “strayed beyond

clearly established bounds of lawfulness,” id., we look first to

“cases of controlling authority,” Youngbey v. March, 676 F.3d

1114, 1117 (D.C. Cir. 2012) (quoting Wilson, 526 U.S. at

617). It is not enough to reiterate that the Fourth

Amendment’s restrictions against arrest without probable

cause are clearly established; the inquiry must be made more

contextually, at a finer level of specificity. At the same time,

“[w]e need not identify cases with materially similar facts, but

have only to show that the state of the law at the time of the

incident gave the officer[s] fair warning” that their particular

conduct was unconstitutional. Johnson, 528 F.3d at 976

(brackets, ellipsis, and quotation marks omitted).

21

Turning first to the claim of false arrest for unlawful

entry, we conclude that no reasonable officer could have

believed there was probable cause to arrest Plaintiffs for

entering unlawfully where, as here, there was uncontroverted

evidence that Plaintiffs believed they had entered at the

invitation of a lawful occupant. Defendants argue that,

because no case identified by Plaintiffs had “invalidated an

arrest for unlawful entry under similar circumstances,” it was

not clearly established that arresting Plaintiffs for unlawful

entry was unconstitutional. But that is not the applicable

standard. Qualified immunity need not be granted every time

police act unlawfully in a way that courts have yet to

specifically address. See, e.g., Safford Unified Sch. Dist. No.

1 v. Redding, 557 U.S. 364, 377 (2009) (“To be established

clearly, . . . there is no need that the very action in question

have previously been held unlawful.” (brackets and internal

quotation marks omitted)); Hope v. Pelzer, 536 U.S. 730, 741

(2002) (“[O]fficials can still be on notice that their conduct

violates established law even in novel factual

circumstances.”).

The law in this jurisdiction has been well established for

decades that probable cause to arrest requires at least some

evidence that the arrestee’s conduct meets each of the

necessary elements of the offense that the officers believe

supports arrest, including any state-of-mind element. See,

e.g., Carr, 587 F.3d at 410-11; Christian, 187 F.3d at 667.

Under District of Columbia law, criminal intent is a necessary

element of the offense of unlawful entry. A person who has a

good purpose and bona fide belief of her right to enter “lacks

the element of criminal intent required” to violate the

unlawful-entry statute. Smith, 281 A.2d at 439.

Notwithstanding Defendants’ suggestion to the contrary, see

Oral Arg. Rec. at 5:40-5:52, District of Columbia unlawful-

entry law predating the conduct in this case plainly required

22

that a suspect “knew or should have known that his entry was

unwanted.” Ortberg, 81 A.3d at 308 (collecting cases); see

also id. at 307-08 (explaining that, although “lack[ing] some

precision,” prior discussions of “the mental states for entry

and for doing so ‘against the will’ of the lawful occupant are

both clearly discernible and distinct”).

The controlling case law in this jurisdiction therefore

made perfectly clear at the time of the events in this case that

probable cause required some evidence that the Plaintiffs

knew or should have known that they were entering against

the will of the lawful owner. Defendants are simply incorrect

to suggest that the officers could not have known that

uncontroverted evidence of an invitation to enter the premises

would vitiate probable cause for unlawful entry. See Harlow,

457 U.S. at 819 (“[A] reasonably competent public official

should know the law governing his conduct.”).

The same analysis holds true with respect to the clarity of

the Fourth Amendment right against false arrest for disorderly

conduct. Defendants contend that the law was not clearly

established at the time of Plaintiffs’ arrests because there was

no case law interpreting the specific provision of the statute

on which Defendants rely. They correctly point out that the

first case from the District of Columbia Court of Appeals

interpreting subsection (3) of D.C. Code § 22-1321 was

decided after the arrests in this case. See In re T.L., 996 A.2d

at 810 (“This is the first prosecution under subsection (3) of

the statute that has come to our attention.”). But the plain text

of that provision requires the disturbance of a “considerable

number of persons.” D.C. Code § 22-1321(3). Whatever a

“considerable number of persons” means, surely it must mean

something more than a single individual. And yet there is no

evidence in this case that the loud music the officers heard

when approaching the house disturbed anyone other than one

neighbor who had complained.

23

Put differently, we believe that the language of the

disorderly conduct statute, standing alone, was sufficient to

give fair notice that there was no probable cause to make an

arrest under these circumstances. We do not doubt, as the In

re T.L. court acknowledged, that some parts of that provision

may “pose their own interpretive issues.” 996 A.2d at 810.

That does not mean, however, that distinct elements of the

offense were unclear in the absence of case law interpreting

the statute. See United States v. Lanier, 520 U.S. 259, 266-67

(1997) (analogizing clearly established standard to fair

warning principles in the context of criminal prosecutions,

and noting that “the touchstone is whether the statute, either

standing alone or as construed, made it reasonably clear at

the relevant time that the defendant’s conduct was criminal”

(emphasis added)); cf. Vinyard v. Wilson, 311 F.3d 1340,

1350 (11th Cir. 2002) (noting that “the pertinent federal

statute or federal constitutional provision in some cases will

be specific enough to establish clearly the law applicable to

particular conduct and circumstances and to overcome

qualified immunity, even in the total absence of case law”).

Finally, we reject Defendants’ arguments that Officers

Parker and Campanale cannot be held liable under Section

1983 because (1) they followed Sergeant Suber’s order to

arrest the Plaintiffs, and (2) they were not each individually

responsible for each of the Plaintiffs’ arrests.

An officer is not necessarily entitled to qualified

immunity simply because he relies on a supervisor’s decision

to arrest. In evaluating the objective legal reasonableness of

an officer’s position for purposes of qualified immunity,

approval by a superior officer is “pertinent” but not

“dispositive.” Messerschmidt v. Millender, 132 S. Ct. 1235,

1249 (2012); cf. Malley v. Briggs, 475 U.S. 335, 345-46

(1986) (rejecting the notion that approval of a warrant by a

neutral magistrate automatically establishes qualified

24

immunity, and requiring instead that the officer exercise his

own “reasonable professional judgment”). Defendants argue

to the contrary primarily in reliance on Elkins v. District of

Columbia, 690 F.3d 554 (D.C. Cir. 2012), in which we held

that an inspector from the Historic Preservation Office, a

government agency “charged with protecting the city’s

historic structures,” was entitled to qualified immunity for her

unlawful seizure of the plaintiff’s notebooks. Id. at 559, 567-

68. Elkins held that, although the inspector had been

personally involved in the unconstitutional seizure, it was

reasonable for her not to know that her actions were unlawful.

See id. at 568 (“The appropriate question for us to ask is

whether it would have been clear to a reasonable official in

[the inspector’s] situation that seizing [the plaintiff’s]

notebook was unlawful.”). Significantly, the inspector in that

case was not a law enforcement officer at all, but “a junior

member of the search team present to take pictures in an

inspection led by police and her superiors.” Id. Moreover,

the Elkins court emphasized in granting qualified immunity

that, although the inspector ultimately “relied upon the

judgment of her supervisor and the police officer in charge,”

she did not blindly follow their orders. Id. Rather, she first

“asked [them] about the permissible scope of the search.” Id.

Based on those and other factors, the court concluded that her

actions, “though mistaken, were not unreasonable.” Id.

(citing Pearson v. Callahan, 555 U.S. 223, 244 (2009)).

The circumstances here, unlike in Elkins, do not show the

officers’ unquestioning reliance on Sergeant Suber’s arrest

order to be reasonable. See id. at 569 (“Whether an official’s

reliance [on her supervisor] is reasonable will always turn on

several factors . . . .”). In contrast to the historic preservation

investigator in Elkins, Officers Parker and Campanale are

police officers with the independent authority to make arrests

while on patrol. Indeed, had Sergeant Suber not come out to

25

the scene, they would have had to make the arrest

determinations on their own. Police officers charged with

enforcing the criminal statutes are expected to know the

limitations on their authority, see Harlow, 457 U.S. at 819,

and, as discussed above, a reasonably competent officer faced

with the information the officers had gathered in this case

should have known that he lacked probable cause to make an

arrest.

This is also not a case, like Elkins and the decisions cited

therein, in which the defendant officers played little or no role

in the investigation. See Elkins, 690 F.3d at 569 (citing, by

way of example, a case in which officers did not play a “key

role in the overall investigation”). Here, Officers Parker and

Campanale were actively involved in surveying the scene and

gathering information regarding the Plaintiffs’ knowledge and

reason for being in the house, and Officer Parker spoke to

both Peaches and Hughes by phone. Both officers, moreover,

were aware of the key uncontroverted facts in this case: that

Peaches had invited the Plaintiffs to the house, and that the

Plaintiffs had no reason to doubt that Peaches had the right to

extend such an invitation. Under these circumstances, it was

not reasonable for the officers to rely on Sergeant Suber’s

unlawful decision to arrest the Plaintiffs. Yet another factor

present in Elkins but missing in this case is that neither

Officer Parker nor Officer Campanale raised the question—to

Sergeant Suber or anyone else—whether there was evidence

that the Plaintiffs knew or should have known that their

presence in the house was unauthorized. Indeed, there is no

evidence in the record suggesting that Officer Parker or

Officer Campanale in fact disagreed with Sergeant Suber’s

determination that there was probable cause for an arrest but

carried out the arrests because they were under orders to do

so.

26

That the officers were apparently as confused or

uninformed about the law as their supervisor does not make it

reasonable for them to have arrested the Plaintiffs in reliance

on his flawed assessment. Cf. Malley, 475 U.S. at 346 n.9

(“The officer . . . cannot excuse his own default by pointing to

the greater incompetence of the magistrate.”); Messerschmidt,

132 S. Ct. at 1252 (Kagan, J., concurring in part and

dissenting in part) (2012) (“[W]hat we said in Malley about a

magistrate’s authorization applies still more strongly to the

approval of other police officers . . . .”). This Court has never

held that qualified immunity permits an officer to escape

liability for his unconstitutional conduct simply by invoking

the defense that he was “just following orders.” See generally

Hobson v. Wilson, 737 F.2d 1, 67 (D.C. Cir. 1984) (statement

denying petition for rehearing) (per curiam) (rejecting with

“no hesitation” the defendants’ argument, raised for the first

time in petition for rehearing, that the existence of an illegal

policy excused low-level government officials from liability).

Indeed, “[i]n its most extreme form, this argument amounts to

the contention that obedience to higher authority should

excuse disobedience to law, no matter how central the law is

to the preservation of citizens’ rights.” Id. For good reason,

this Court has never adopted such a rule.

That leaves us with the contention that Officers Parker

and Campanale cannot be held liable because they did not

personally arrest each of the Plaintiffs. But Defendants’

argument misapprehends the applicable legal standard for

causation in the Section 1983 context. As this court has

recognized, the Plaintiffs were required to “produce evidence

‘that each [officer], through [his] own individual actions, has

violated the Constitution.’” Elkins, 690 F.3d at 564 (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Here, the cause

of the group arrest was the investigation and erroneous

determination regarding probable cause. Both Officers Parker

27

and Campanale were the hub of that investigation: they

gathered evidence, including photographs of the people in the

house, and actively participated in questioning the Plaintiffs

and other key witnesses such as Hughes and Peaches. See id.

at 566-68 (assessing whether the evidence showed that the

individual officers caused the unlawful seizure, and noting in

one instance that the defendant’s actions were “instrumental

to the seizure”). In this context, that is sufficient to establish

causation. See, e.g., KRL v. Estate of Moore, 512 F.3d 1184,

1193 (9th Cir. 2008) (denying qualified immunity to an

officer who relied on a facially invalid warrant in conducting

a search because he played “an integral role in the overall

investigation” that led to the issuance of the defective

warrant); Hall v. Shipley, 932 F.2d 1147, 1154 (6th Cir. 1991)

(recognizing general rule that mere presence is insufficient to

create liability, but upholding denial of qualified immunity

based on record evidence that the officer had been “the prime

mover” in obtaining the search warrant and “participated in

the search once inside the dwelling” (internal quotation marks

omitted)); James v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990)

(officers who did not physically perform pat-down but who

“remained armed on the premises throughout the entire

search” could be held liable under Section 1983 as

“participants rather than bystanders”).

Because the common-law privilege Defendants invoke

overlaps with but is harder to establish than qualified

immunity, the Defendants’ argument on that score “fails for

essentially the same reasons already set forth.” District of

Columbia v. Minor, 740 A.2d 523, 531 (D.C. 1999) (noting

that the standard for common-law privilege “resembles

the section 1983 probable cause and qualified immunity

standards . . . (with the added clear articulation of the

requirement of good faith)”); cf. Bradshaw v. District of

Columbia, 43 A.3d 318, 323 (D.C. 2012) (explaining that

28

although the officer “need not demonstrate probable cause in

the constitutional sense” for privilege to attach, the officer

must show “(1) he or she believed, in good faith, that his or

her conduct was lawful, and (2) this belief was reasonable”

(brackets and internal quotation marks omitted)).

Accordingly, we affirm the district court’s judgment insofar

as it relates to Plaintiffs’ Section 1983 and common-law false

arrest claims.

III.

Finally, we address the District’s claim that the district

court erred in granting summary judgment to the Plaintiffs on

their common-law negligent supervision claim. The District

makes two arguments in support of its contention that the

district court erred. First, the District contends that the

negligent supervision claim must fail because the arrests were

supported by probable cause, so either the standard of care

was met or there was no underlying tort. That argument,

however, is foreclosed by our conclusion that the officers

lacked probable cause to arrest the Plaintiffs.

Second, the District argues that it was entitled to

summary judgment on this claim because the Plaintiffs failed

to present expert testimony regarding the standard of care.

We disagree. District of Columbia law requires expert

testimony only where “the subject in question is so distinctly

related to some science, profession or occupation as to be

beyond the ken of the average layperson.” Godfrey v.

Iverson, 559 F.3d 569, 572 (D.C. Cir. 2009) (quoting District

of Columbia v. Arnold & Porter, 756 A.2d 427, 433 (D.C.

2000)). Moreover, although the District correctly points out

that courts often require expert testimony where the training

and supervision of police officers is concerned, see Br. for

Appellants 43 (citing cases), the fact that the supervising

29

official was on the scene and directed the officers to make the

unlawful arrests distinguishes this case from those in which

expert testimony has been required. See Godfrey, 559 F.3d at

573 (no expert testimony required where “the individual with

supervisory authority (Iverson) was present when his

employee (his personal bodyguard Kane) committed the

tortious acts”); District of Columbia v. Tulin, 994 A.2d 788,

797 (D.C. 2010) (no expert testimony required where police

sergeants were on the scene and authorized arrest without

inquiring into “critical information” about the incident).

Indeed, the undisputed facts in this case demonstrate that

Sergeant Suber, one of the District’s supervisory officials,

directed his subordinates to make an arrest that he should

have known was unsupported by probable cause. That is

sufficient to entitle the Plaintiffs to judgment as a matter of

law on their negligent supervision claim. See Phelan v. City

of Mount Rainier, 805 A.2d 930, 937-38 (D.C. 2002) (“To

establish a cause of action for negligent supervision, a

plaintiff must show: that the employer knew or should have

known its employee behaved in a dangerous or otherwise

incompetent manner, and that the employer, armed with that

actual or constructive knowledge, failed to adequately

supervise the employee.” (internal quotation marks omitted)).

* * *

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

judgment.

So ordered.

BROWN, Circuit Judge, dissenting:

The court today articulates a broad new rule—one that

essentially removes most species of unlawful entry from the

criminal code. Officers must prove individuals occupying

private property know their entry is unauthorized; otherwise

police lack probable cause to make arrests. Moreover, any

plausible explanation resolves the question of culpability in

the suspects’ favor. Thus, unless the property is posted with

signs or boarded up and attempts to prevent access have been

deliberately breached, i.e., there is direct evidence of

unauthorized entry, law enforcement’s options are limited to

politely asking any putative invitee to leave.

I respectfully dissent.

I

Summary resolution is inappropriate where—as here—

the probable cause determination turns on close questions of

credibility, as well as the reasonability of inferences regarding

culpable states of mind that officers draw from a complicated

factual context. See Media Gen., Inc. v. Tomlin, 387 F.3d

865, 871 (D.C. Cir. 2004) (“[Where] the material facts are

susceptible to divergent inferences . . . the [] Court ha[s] no

basis upon which to grant summary judgment.”).

The Court concludes that, as a matter of law, no

reasonably prudent officer could believe Plaintiffs entered

unlawfully because the undisputed evidence shows an

individual with (illusory) authority invited their entry,

vitiating Plaintiffs’ formation of the requisite intent. Maj. Op.

at 11. Yet the mere presence of an invitation by one with

ostensible authority is not dispositive if, under the totality of

the circumstances, the officers could still conclude the

suspects knew or reasonably should have known their

invitation was against the will of the lawful owner. See

2

Ortberg v. United States, 81 A.3d at 308 (D.C. 2013). The

absence of direct, affirmative proof of a culpable mental state

is not the same thing as undisputed evidence of innocence.

The court relies on two primary precedents to raise the

bar, but neither Ortberg v. United States, 81 A.3d 303 (D.C.

2013) nor United States v. Christian, 187 F.3d 663 (D.C. Cir.

1999) justifies the impossible standard for finding probable

cause the court now proposes. Channeling Dr. Frankenstein,

the court cobbles together a few recognizable parts to build a

grotesque and unnatural whole. In Ortberg, the court

recognized a bona fide belief in the right to enter as a defense

to a charge of unlawful entry. Ortberg was not a probable

cause case; it confirmed that all elements of unlawful entry,

including requisite criminal intent, are necessary to sustain a

conviction, while emphasizing that bona fide belief must have

some reasonable basis. It is “not sufficient that an accused

merely claim a belief of a right to enter.” Id. at 309, n.12.

United States v. Christian does impose a higher probable

cause standard but that case is distinguishable. First,

Christian involved a specific intent crime. See generally

Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994)

(“[A]n officer need not have probable cause for every element

of an offense[,]. . . however, when specific intent is a required

element of the offense, the arresting officer must have

probable cause for that element.”). Second, Christian did not

require direct evidence. The court cited Adams v. Williams,

407 U.S. 143, 149 (1972), acknowledging that the

circumstances surrounding an arrest may support the

necessary inference of unlawful possession. Christian, 187

F.3d at 406. The problem with the government’s argument in

Christian was not the absence of direct proof of criminal

intent, it was the absence of any evidence whatsoever of

3

unlawful possession. “[T]he officers [therefore] lacked

probable cause to believe a crime had been committed.” Id.

Today’s decision undercuts the ability of officers to arrest

suspects in the absence of direct, affirmative proof of a

culpable mental state; proof that must exceed a nebulous but

heightened sufficiency burden that the Court declines to

specify. The Court’s decision broadly extends Ortberg and

Christian to apply standards designed for materially disparate

contexts to the probable cause inquiry for general intent

crimes. Cf. Pierce v. United States, 402 A.2d 1237, 1246 n.2

(D.C. Cir. 1979) (“Sentences out of context rarely mean what

they seem to say.”). As a result, the Court finds officers may

only lawfully arrest suspects for unlawful entry where the

officers have evidence affirmatively proving each element of

an offense, including clear proof of what the suspect knew or

reasonably should have known. But cf. 1 Corinthians 2:11

(“For who knows a person’s thoughts except their own spirit

within them?”). This is tantamount to an invitation to abuse

vacation rentals or houses being marketed for sale or lease

where prospective tenants can gain entry and retain or

misappropriate a key or a lockbox combination, or leave a

point of entry unsecured. Such a heightened threshold is not

called for under our precedents. For general intent crimes,

“[p]robable cause does not require the same type of specific

evidence of each element of the offense as would be needed

to support a conviction,” Adams v. Williams, 407 U.S. 143,

149 (1972). The proper inquiry is not whether the element of

knowledge was conclusively satisfied; it is instead whether,

based on the totality of the circumstances, officers could

reasonably believe Plaintiffs committed the offense of

unlawful entry.

The Court concludes there was insufficient evidence to

support arrest because the evidence that Plaintiffs were

4

invitees was uncontradicted, noting the presence of semi-nude

dancing and the semi-furnished state of the home are

consistent with Plaintiffs’ contentions of their innocent

attendance at a party. Maj. Op. at 15–16. A jury might credit

Plaintiffs’ depiction of events, their claims of innocent

reliance upon a credible invitation, and conclude they lacked

knowledge of the unlawfulness of their entry. However, for

purposes of summary judgment, Plaintiffs’ lack of knowledge

must not be merely “consistent” with the evidence gathered

by the police. Instead, Plaintiffs’ lack of knowledge must be

the only reasonable inference the officers could draw.

Here the totality of the circumstances could cause

reasonable minds to question whether Plaintiffs were as

blameless as the attendees of a Sunday brunch whose

imprudent host has overstayed her lease. Contra Maj. Op. at

13 (finding this case indistinguishable from such a scenario).

The officers responded to a call reporting illegal activity in a

home at least some residents of the neighborhood knew to be

vacant. As the officers entered, the partygoers’ first response

was to scatter into different rooms or hide. The house’s

interior was bare and in disarray; beyond fixtures or large

appliances, it contained only folding chairs and food, and one

room upstairs had a bare mattress and lighted candles—along

with “females . . . that had provocative clothing on with

money in . . . their garter belt[s].” Parker Dep. 14:12–16. 1

After rounding up and interviewing the partygoers, the

officers found their claim to lawful entry was an invitation

1

The Court characterizes such minimalist furnishings as consistent

with a new tenant. Maj. Op. at 16. But the sparseness of the

house’s decor is also consistent with a temporarily unoccupied

home; a venue choice that reasonably discerning guests might find

somewhat abnormal—though perhaps not conclusively so—for a

run-of-the-mill house party.

5

from the house’s supposed tenant, Peaches, who was

“throwing a party.” However, Peaches was not actually

present when the officers arrived on the scene. The

partygoers also gave inconsistent explanations for the party to

which they had allegedly been invited. Some claimed to be

attending a birthday party while others insisted it was a

bachelor’s party; in any event, none could identify the guest

of honor.

When ultimately reached by telephone, Peaches admitted

to inviting various partygoers, and claimed she had

permission to enter, an assertion she quickly recanted in a

series of conflicting answers she made to investigators before

becoming evasive and hanging up. The officers also

confirmed from the actual owner that the house had been

vacant since its last resident’s death, the current owner was

attempting to rent the property out, and neither Peaches nor

anyone else had the owner’s permission to enter or use the

premises.

The totality of the evidence does not need to show the

officers’ beliefs regarding the unlawfulness of Plaintiffs’

entry were “correct or more true than false. A practical,

nontechnical probability . . . is all that is required.” Texas v.

Brown, 460 U.S. 730, 742 (1983). The surrounding context

may not convince a jury to find probable cause. But likewise,

taken in the light most favorable to the officers, the facts are

not so clear cut that no reasonable officer could believe the

partygoers knew or should have known Peaches’ invitation

was not credible or that their entry into the home was not

properly authorized.

This is not a case where officers “turn[ed] a blind eye

toward potentially exculpatory evidence in an effort to pin a

crime on someone.” Ahlers v. Schebil, 188 F.3d 365, 372 (6th

6

Cir. 1999). Nor did officers lack “any” evidence Plaintiffs

committed the offense of unlawful entry. See Christian, 187

F.3d at 667. The circumstances surrounding the arrest were

sufficient to support the inference that the suspects knew or

reasonably should have known their entry was unlawful.

“[T]he real key . . . [to probable cause] is how [an]

observed transaction fits into the totality of the

circumstances.” Jefferson v. United States, 906 A.2d 885,

888 (D.C. 2006) (noting observation of a one-way transfer of

an unidentified object can, in some cases, support probable

cause for an unlawful two-way exchange of drugs for money).

The officers did not ignore Plaintiffs’ potentially exculpatory

claims of invitation. See Fridley v. Horrighs, 291 F.3d 867,

874–75 (6th Cir. 2002) (officers may not ignore exculpatory

facts that tend to negate an element of an offense). Instead,

during the course of a fast-moving investigation, officers

considered and investigated Plaintiffs’ statements, and

rendered a determination that their claims of bona fide good

faith were insufficiently credible to overcome the surrounding

facts and circumstances. See Minch v. D.C., 952 A.2d 929,

937–38 (D.C. 2008) (noting police suspicion was reasonably

based on appellant’s evasiveness and equivocation,

particularly in a fast-moving investigation).

The very purpose of a totality of the circumstances

inquiry is to allow law enforcement officers to approach such

ambiguous facts and self-interested or unreliable statements

with an appropriately healthy dose of skepticism, and decline

to give credence to evidence the officers deem unreliable

under the circumstances. Cf. Illinois v. Gates, 462 U.S. 213,

243 n.13 (1983) (“In making a determination of probable

cause the relevant inquiry is not whether particular conduct is

‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches

to particular types of non-criminal acts.”). The Court’s

7

holding to the contrary ensures that all but the most

implausible claims of invitation must be credited and radically

narrows the capacity of officers to use their experience and

prudent judgment to assess the credibility of the self-

interested statements of intruders who claim to have been

“invited” and have not overtly forced their entry into a home.

In light of the facts known to the officers at the time of

the arrests, summary judgment is unwarranted on the question

of probable cause for unlawful entry. From their

investigation, the officers knew the house was an unoccupied

private rental dwelling, which would likely not require a sign

or express warning forbidding entry. See McGloin v. United

States, 232 A.2d 90, 91 (D.C. 1967). They further determined

none of the Plaintiffs owned or rented the house; that the

property was, in fact, vacant; and the true owner had provided

neither the partygoers nor any tenants with permission to

enter, see Culp v. United States, 486 A.2d 1174, 1177 n.4

(D.C. 1985) (“[T]he arresting officers’ knowledge that the

property is vacant and closed to the public is material to a

determination of probable cause.”). Plaintiffs’ party was

taking place in a home so sparsely furnished as to be

consistent with a vacant building; the guests’ immediate

response to the presence of police was to run and hide, an

action suggestive of consciousness of guilt; the partygoers

gave conflicting accounts about “why” the party was being

held; and they purported to rely on an invitation from a

“tenant” who was not actually present. When reached by

telephone the “tenant” gave conflicting accounts as to her

own permission to access the home, finally admitted she

lacked any right to use the house, and—upon further

questioning—became evasive and yelled at officers before

hanging up.

8

Based on this evidence, taken in the light most favorable

to the officers, a reasonable person could disbelieve Plaintiffs’

claim of innocent entry based on a credible invitation. See

Parsons v. U.S., 15 A.3d 276, 280 (D.C. 2011) (“[T]he

informant’s general credibility and the reliability of the

information he or she provides are important factors in a

probable cause assessment”); see also United States v. Project

on Gov’t Oversight, 454 F.3d 306, 313 (D.C. Cir. 2006)

(“Evaluation of the credibility of witnesses must be left to the

factfinder, and the need to assess the credibility of witnesses

is precisely what places this dispute outside the proper realm

of summary judgment.”). A rational juror could find the

officers reasonably believed Plaintiffs either knew, or should

have known, Peaches’ invitation was unauthorized and that

use of the house was not otherwise permissible.

At its fringes probable cause is a nebulous construct. See

Jefferson v. United States, 906 A.2d 885, 887 (D.C. 2006).

(“The probable-cause standard is incapable of precise

definition . . . because it deals with probabilities and depends

on the totality of the circumstances.”). In factually complex

circumstances, like the present one, the probable cause

inquiry requires weighing the credibility of statements from

multiple parties and witnesses, and consideration of the

reasonable inferences officers may draw from idiosyncratic

facts. Resolution of such a credibility laden and fact specific

inquiry is properly reserved for the jury. The Court errs in

concluding such a case is appropriate for preliminary

resolution at summary judgment. See George v. Leavitt, 407

F.3d 405, 413 (D.C. Cir. 2005) (“[A]t the summary judgment

stage, a judge may not make credibility determinations, weigh

the evidence, or draw inferences from the facts-these are jury

functions, not those of a judge ruling on a motion for

summary judgment. . . . Although a jury may ultimately

decide to credit the version of the events described by [a

9

defendant] over that offered by [a plaintiff], this is not a basis

upon which a court may rest in granting a motion for

summary judgment.”).

More troubling still, by subverting the appropriate

standard for probable cause, the Court effectively excises

unlawful entry from the District’s criminal code for cases

where intruders claim they were invited and have not

obviously and forcibly obtained entrance to a currently

unoccupied private dwelling. Such a conclusion is not

compelled by either our case law or common sense; officers

are simply not required to credit the exonerating statements of

suspected wrongdoers where the totality of the circumstances

suggests such claims should be treated with skepticism.

II

Even assuming Plaintiffs’ arrests were not supported by

adequate probable cause for unlawful entry, qualified

immunity shields the officers from individual liability for

Plaintiffs’ section 1983 claims because the officers’ “conduct

[did] not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”

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

added); see also DeGraff v. D.C., 120 F.3d 298, 302 (D.C.

Cir. 1997) (“[T]he scope of qualified immunity must be

evaluated using the [] ‘objective reasonableness’ criteria.”).

For purposes of qualified immunity, “‘[c]learly

established’ . . . means that “[t]he contours of the right must

be sufficiently clear that a reasonable [officer] would

understand that what he is doing violates that right.” Wilson

v. Layne, 526 U.S. 603, 614-15 (1999). While, “[t]his is not

to say that an official action is protected by qualified

immunity unless the very action in question has been

10

previously held unlawful,” id., courts should nonetheless

“examine the asserted right at a relatively high level of

specificity, and on a fact-specific, case-by-case basis,”

O’Malley v. City of Flint, 652 F.3d 662, 668 (6th Cir. 2011).

And in reviewing the pre-existing law, the officers’

“unlawfulness must be apparent” to support a finding that

qualified immunity does not apply. Wilson, 526 U.S. at 615;

Wardlaw v. Pickett, 1 F.3d 1297, 1301 (D.C. Cir. 1993)

(suggesting the “unlawfulness of the defendants [must be] so

apparent that no reasonable officer could have believed in the

lawfulness of his actions”).

Here the pre-existing law of unlawful entry is not so clear

that a reasonable officer would have known he lacked

probable cause to arrest Plaintiffs. The officers were faced

with an unusual factual scenario, not well represented in the

controlling case law. The property where Plaintiffs were

found was somewhere between an occupied private dwelling

and a vacant or abandoned building. The situation the

officers encountered rests uneasily between two distinct

strands of District law. Compare McGloin, 232 A.2d at 91

(“[N]o one would contend that one may lawfully enter a

private dwelling house simply because there is no sign or

warning forbidding entry.”) with Culp, 486 A.2d at 1177

(noting boarded windows gives sufficient warning an

abandoned building should not be entered). 2

Neither line of cases unambiguously controls. The law of

unlawful entry for abandoned properties has traditionally

dealt with obviously decrepit buildings, e.g., Culp, 486 A.2d

2

The Court finds it “important[]”there was no evidence the home’s

true owner told Plaintiffs they were not welcome. Maj. Op. at 11.

It is unclear from the case law, however, such a warning is required

for a temporarily unoccupied but not obviously abandoned

residence. See McGloin, 232 A.2d at 90–91.

11

at 1175 (noting the house was missing a rear door, its

windows were shattered, and the interior was in “shambles”),

while unlawful entry of private dwellings has generally dealt

with traditionally occupied residences, apartments, or semi-

public buildings. See, e.g., McGloin, 232 A.2d at 91;

Bowman v. United States, 212 A.2d 610, 611-12 (D.C. 1963).

Neither line of cases encompasses a scenario where

individuals claim to be the social guests of a tenant of a

(vacant) property to which the tenant has no actual possessory

interest—much less a scenario where the putative tenant is

herself not present on the scene and refuses to otherwise

cooperate with officers’ ongoing investigation. Moreover, to

the extent the pre-existing law is broadly comparable, a

reasonable person could find it supports an officer’s finding

of probable cause where a trespassers claim of invitation is

deemed insufficiently credible. See, e.g., McGloin, 232 A.2d

at 90–91 (upholding the conviction of person found in

nonpublic areas of a private apartment building, despite his

excuse he was looking for a cat or a friend who lived in the

building); Kozlovska v. United States, 30 A.3d 799, 800–801

(D.C. 2011) (upholding the conviction of a woman who

claimed an employee permitted her to use the building).

Thus, in the absence of pre-existing case law clearly

establishing the contours of Plaintiffs’ rights, the officers

were shielded by qualified immunity when, acting under color

of state law, they reasonably arrested plaintiffs for unlawful

entry. The case law of course requires officers to have some

evidence the alleged trespassers committed the offense of

unlawful entry. See Maj. Op. at 21–22. Yet nothing in the

District’s law requires officers to credit the statement of the

intruders regarding their own purportedly innocent mental

state where the surrounding facts and circumstances cast

doubt on the veracity of such claims. The officers were

therefore entitled to the protection of qualified immunity and

12

the “breathing room” it gives them to make reasonable—

albeit potentially mistaken—judgments under novel

circumstances unexplored by the law when they took the

challenged action. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085

(2011).