Fox v. Government of the District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 16, 2015 Decided July 17, 2015

No. 14-7042

BARBARA FOX,

APPELLANT

v.

GOVERNMENT OF THE DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-02118)

Caleb S. Fox argued the cause and filed the briefs for

appellant.

James C. McKay Jr., Senior Assistant Attorney General,

Office of the Attorney General for the District of Columbia,

argued the cause for appellees. With him on the brief were

Eugene A. Adams, Interim Attorney General for the District of

Columbia, Todd S. Kim, Solicitor General, and Loren L.

AliKhan, Deputy Solicitor General.

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Before: ROGERS and MILLETT, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

SENTELLE, Senior Circuit Judge: Barbara Fox filed an

action under 42 U.S.C. § 1983 alleging that a police officer

violated her Fourth Amendment right when, during her

husband’s traffic stop and arrest, the officer ordered her to get

out of the car and put her hands on the hood. The district

court granted the police officer’s motion for judgment on the

pleadings because the factual allegations in the complaint do

not plausibly suggest that the officer violated Mrs. Fox’s

clearly established Fourth Amendment right. We affirm the

judgment.

I.

For the purposes of this appeal, we accept as true the

facts alleged in the complaint. See Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1273 (D.C. Cir. 1994).

Around 5:00 p.m. on Saturday, December 20, 2008,

Hamilton P. Fox III drove his wife to a pharmacy. While she

went in to pick up medication, Mr. Fox “remained in his

standing and running vehicle” near a sign reading “No

Parking / Loading Zone / For Commercial Vehicles Only /

7:00 a.m. to 6:30 p.m. / Monday – Saturday” and another sign

reading “No Standing or Parking Anytime.” Second Am.

Compl. ¶¶ 25–26, Fox v. District of Columbia, 924 F. Supp.

2d 264 (D.D.C. 2013) (No. 10-2118) (“SAC”). Shortly after

Mr. Fox stopped his car, Metropolitan Police Department

Officer Brett L. Squires pulled up in a marked police car and

told Mr. Fox that he could not park there. Mr. Fox claimed he

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was not parking—he was simply “standing while waiting for

his wife.” Id. ¶ 29. “Gotta move your car, Sir,” Officer

Squires replied. Id. ¶ 30. Mr. Fox became “incredulous” and

“asked to speak with a supervisor to discuss the matter.”

Id. ¶ 31. Officer Squires told Mr. Fox to wait on the

sidewalk.

Mr. Fox waited for about fifteen minutes. Eventually,

Mrs. Fox returned, asked what was going on, and got into the

car. Mr. Fox then got back into his car and attempted to

leave, but Officer Squires stopped him. Officer Squires

explained that, because Mr. Fox asked to speak with a

supervisor, he needed to wait for a supervisor to arrive.

Shortly thereafter, several “police officers swarmed the

scene.” Id. ¶ 35.

While police officers arrested her husband, Mrs. Fox got

out of the car to ask what was happening. She was ordered to

get back into the car, and she complied. When Metropolitan

Police Department Officer Alfred L. Boyd approached the

car, Mrs. Fox again asked what was happening. “Shut up,”

responded Officer Boyd. Id. ¶ 42. For a third time, Mrs. Fox

asked what was happening, and Officer Boyd told her “if he

had to tell her to shut up again, he would arrest her.” Id.

“Mrs. Fox started crying, and asked why she could not ask a

question.” Id. ¶ 43. Officer Boyd then ordered her out of the

car and told her to put her hands on the hood. Mrs. Fox

complied. Another police officer asked Mrs. Fox for her

driver’s license to see if there were any outstanding warrants

or issues. Finding none, he returned the driver’s license and

let Mrs. Fox leave.

Mr. and Mrs. Fox brought a civil action for damages

under § 1983 against the District of Columbia and Officers

Squires and Boyd in their individual capacities. Under

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Count 1, the only cause of action relevant to this appeal, Mrs.

Fox alleged that Officer Boyd violated her “well-established

right under the Fourth Amendment to the United States

Constitution to be free from unreasonable searches and

seizures” when he “stopp[ed] and detain[ed]” her. Id. ¶ 55.

Officer Boyd moved for judgment on the pleadings for

Count 1, arguing that he is protected by qualified immunity.

The district court explained, to overcome Officer Boyd’s

claim to qualified immunity, Mrs. Fox needed to establish

that: (1) Officer Boyd’s conduct violated her constitutional

right; and (2) “the ‘right at issue was clearly established at the

time of [Officer Boyd’s] alleged misconduct.’” Fox, 924 F.

Supp. 2d at 269 (quoting Pearson v. Callahan, 555 U.S. 223,

232 (2009)) (internal quotation marks omitted). The district

court held that Mrs. Fox satisfied neither requirement. “[T]he

factual allegations in the complaint do not plausibly suggest

that [Officer Boyd] violated Mrs. Fox’s clearly established

Fourth Amendment rights.” Id. at 266–67.

Based on the allegations in the complaint, Mr. Fox

violated at least one District of Columbia traffic regulation

when he parked his car in a commercial loading zone. Id. at

270 (citing D.C. Mun. Regs. Tit. 18, § 2402). Because

Officer Squires could have issued a notice of infraction for the

violation, the district court explained that “Officer Squires

was legally permitted to detain Mr. Fox—and his passenger

Mrs. Fox—while he addressed the situation.” Id. at 271. “In

this case,” the district court noted, “Mrs. Fox admit[ted] that

she became progressively more upset as [the officers] arrested

her husband,” and that she “attempted to get out of the car,

kept asking what was happening, and ultimately started

crying.” Id. (footnote omitted). Under these circumstances,

the district court concluded that Officer Boyd, “[i]n response

to [Mrs. Fox’s] escalating emotional state, . . . lawfully

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ordered her to get out of the car and place her hands on the

vehicle in order to protect himself and the other officers on

the scene and to prevent her from interfering with their arrest

of Mr. Fox.” Id. (citing Rogala v. District of Columbia, 161

F.3d 44, 45 (D.C. Cir. 1998)).

Holding that Officer’s Boyd’s brief detention of Mrs. Fox

did not violate her clearly established Fourth Amendment

right, the district court granted Officer Boyd’s motion for

judgment on the pleadings as to Count 1. Id. at 271–72. Mrs.

Fox timely appealed.

II.

We review a district court’s grant of a motion for

judgment on the pleadings “de novo, taking the complaint’s

factual allegations as true.” Mpoy v. Rhee, 758 F.3d 285, 287

(D.C. Cir. 2014).

The doctrine of qualified immunity protects police

officers “from suit under 42 U.S.C. § 1983 unless they have

violated a statutory or constitutional right that was clearly

established at the time of the challenged conduct.” City &

County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774

(2015) (internal quotation marks and citation omitted). To

overcome Officer Boyd’s claim to qualified immunity, we

need to determine: (1) whether Mrs. Fox alleged facts

showing a violation of a constitutional right; and, if so,

(2) whether the constitutional right was clearly established at

the time of the incident. Pearson, 555 U.S. at 232

(summarizing the two-step analysis mandated by Saucier v.

Katz, 533 U.S. 194, 201 (2001)).

In Pearson, the Supreme Court modified Saucier’s two-

step analysis, declaring that the sequence of the two steps

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“should not be regarded as an inflexible requirement.” 555

U.S. at 227; see also Plumhoff v. Rickhard, 134 S. Ct. 2012,

2020 (2014) (same). Instead, lower courts may “exercise

their sound discretion in deciding which of the two prongs of

the qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at hand.”

Pearson, 555 U.S. at 236. Given the circumstances of this

particular case, we begin and end our analysis with the second

requirement.

At a minimum, Officer Boyd contends that he is entitled

to qualified immunity because Mrs. Fox’s opening brief fails

to “argue that her right not to be seized in these particular

circumstances was ‘clearly established,’ let alone identify

what decisions of the Supreme Court or the courts of appeals

clearly established that right.” Appellee’s Br. 25. We agree

and thus conclude that Mrs. Fox forfeited this argument. In

her reply brief, Mrs. Fox explains that her opening brief

included several citations to cases, which, in her view, show

that her Fourth Amendment right was clearly established

when Officer Boyd seized her. See Reply Br. 11–13 (listing

Maryland v. Wilson, 519 U.S. 408 (1997); Whren v. United

States, 517 U.S. 806 (1996); Pennsylvania v. Mimms, 434

U.S. 106 (1977) (per curiam); and Terry v. Ohio, 392 U.S. 1

(1968)). Yet, Mrs. Fox never argued in her opening brief that

any of these cases (standing alone or read together) clearly

established a Fourth Amendment violation under the

circumstances of her seizure. And critically, she made no

effort to identify the “contours of the right” at issue, let alone

in a manner that would make it “clear to a reasonable official

that his conduct was unlawful in the situation he confronted.”

Saucier, 533 U.S. at 202 (internal quotation marks and

citation omitted). As a result, she forfeited the argument.

City of Waukesha v. EPA, 320 F.3d 228, 250 n.22 (D.C. Cir.

2003) (per curiam) (argument inadequately raised in an

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opening brief is waived); see also Am. Wildlands v.

Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008) (argument

first appearing in a reply brief is forfeited).

Even if we were to reach the merits, it is not at all clear

that Mrs. Fox could prevail. For a constitutional right to be

clearly established, “[t]he contours of the right must be

sufficiently clear that a reasonable [police officer] would

understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). “We do

not require a case directly on point, but existing precedent

must have placed the . . . constitutional question beyond

debate.” Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011).

The merits question would be whether, given the

circumstances of her alleged seizure, Mrs. Fox’s Fourth

Amendment right was “clearly established by prior case law”

when Officer Boyd ordered her to get out of the car and put

her hands on the hood during her husband’s traffic stop.

Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (quotation

marks omitted).

Some prior case law at least arguably supports Officer

Boyd’s position that it was not clearly established. For

example, a police officer can order the driver and any

passengers to get out of the vehicle during a lawful traffic

stop, see Wilson, 519 U.S. at 415; Mimms, 434 U.S. at 111,

without any “cause to believe any occupant of the vehicle is

involved in criminal activity,” Arizona v. Johnson, 555 U.S.

323, 326 (2009). Moreover, the subjective intentions of the

officer cannot invalidate the officer’s “objectively justifiable

behavior under the Fourth Amendment.” Whren, 517 U.S. at

812. Mrs. Fox in her opening brief has neither cited nor

discussed any cases suggesting that Officer Boyd’s actions

were objectively unreasonable given the circumstances of her

alleged seizure. Officer Boyd, on the other hand, suggests

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that ordering Mrs. Fox to get out of the car during her

husband’s arrest was a reasonable precautionary measure.

Appellee’s Br. 21–22 (discussing Rogala, 161 F.3d at 47–54,

and United States v. Moorefield, 111 F.3d 10, 13 (3d Cir.

1997)).

Conversely, Mrs. Fox’s position is far from being without

support. Each of the above cases which might support the

officer’s position is to some degree distinguishable. Among

other potential issues, the Supreme Court has made clear that

“a traffic stop ‘can become unlawful if it is prolonged beyond

the time reasonably required to complete th[e] mission’ of

issuing a warning ticket.” Rodriguez v. United States, 135 S.

Ct. 1609, 1614–15 (2015) (quoting Illinois v. Caballes, 543

U.S. 405, 407 (2005)). Certainly, a plausible argument can be

made that the officer’s conduct in the present case crossed

that constitutional line. That, however, is not good enough to

pierce the officer’s claim of qualified immunity. Under

Saucier and Pearson and their progeny, the piercing requires

a violation of a constitutional right clearly established at the

time of the incident. Not only has Mrs. Fox not established

that her right not to be seized in the circumstances of this case

was “clearly established,” she did not even argue this matter

in her opening brief. As also noted above, where a litigant

has forfeited an argument by not raising it in the opening

brief, we need not reach it. In short, we need not decide the

constitutional issue because Mrs. Fox has not properly

brought it before us.

Given the circumstances of Mrs. Fox’s alleged seizure,

nothing in her brief shows that existing precedent has placed

her Fourth Amendment right beyond debate. See Al-Kidd,

131 S. Ct. at 2083. Consequently, Mrs. Fox has not shown

that Officer Boyd violated her clearly established Fourth

Amendment right when he ordered her to get out of the car

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and put her hands on the hood during her husband’s traffic

stop.

***

We affirm the district court’s judgment in favor of

Officer Boyd.

So ordered.