Dukore v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2015 Decided August 25, 2015

No. 13-7150

SAMUEL DUKORE AND KELLY CANAVAN,

APPELLANTS

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-00409)

Jeffrey Light argued the cause and filed the briefs for

appellants.

Stacy L. Anderson, Senior Assistant Attorney General,

Office of the Attorney General for the District of Columbia,

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

Irvin B. Nathan, Attorney General at the time the brief was

filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan,

Deputy Solicitor General.

Before: TATEL and MILLETT, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.

2

MILLETT, Circuit Judge: The “Occupy Movement”

claims as its purpose the exposure of “how the wealthiest 1%

of society are promulgating an unfair global economy[.]”

Second Amended Complaint ¶ 11. A “core component” of

the movement’s message is “peaceful protests, or

‘occupations’” accomplished through the “physical

occupation” of public spaces, which is “expressed through the

establishment of tents.” Id. ¶ 14.

In the District of Columbia, however, a municipal

regulation forbids any person from “set[ting] up,

maintain[ing], or establish[ing] any camp or any temporary

place of abode in any tent” on public property without the

Mayor’s authorization. D.C. Code. Mun. Regs. Title 24,

§ 121.1. Occupy members Samuel Dukore and Kelly

Canavan were arrested for violating that regulation when, late

one February evening, they assembled and sat inside an

Occupy tent on a sidewalk by Merrill Lynch’s office in

Washington, D.C. Dukore and Canavan then sued, alleging

that their arrests violated their rights under the federal

Constitution and District law. Because their arrests did not

violate clearly established law, we affirm the district court’s

dismissal of their complaint.

I

Statutory and Regulatory Background

A District of Columbia municipal regulation provides

that:

No person or persons shall set up, maintain, or establish

any camp or any temporary place of abode in any tent,

wagon, van, automobile, truck, or house trailer, of any

3

description, or in any combination, on public or private

property, without the consent of the Mayor of the District

of Columbia.

D.C. Code. Mun. Regs. Title 24, § 121.1.

The District’s First Amendment Assemblies Act

provides, as relevant here, that “individuals conducting a First

Amendment assembly * * * may use a stand or structure so

long as it does not prevent others from using the sidewalk.”

D.C. Code § 5-331.05(g). The Assemblies Act cautions,

however, that assemblies and protests may be subject to

“reasonable time, place, and manner restrictions[.]” D.C.

Code § 5-331.04(b).

Factual Background

Because the district court dismissed the complaint for

failure to state a claim, we must accept as true the following

facts as alleged in the Second Amended Complaint

(“Complaint”). See Klayman v. Zuckerberg, 753 F.3d 1354,

1357 (D.C. Cir. 2014).

On the evening of February 13, 2012, Dukore and

Canavan joined with a group of fewer than fifty protesters and

set up tents on the sidewalk outside Merrill Lynch’s

Washington, D.C., office to “express Plaintiffs’ statement of

the 99% taking back society and government from the grip of

banking and financial institutions[.]” Complaint ¶ 20. The

tents, which “clearly identified the protest as part of Occupy

DC,” did not prevent others from using the sidewalk. Id.

Some time after the protesters had set up their tents, officers

from the Metropolitan Police Department instructed them to

remove their tents or face arrest. Id. ¶ 24. The officers

4

repeated that directive about forty-five minutes later, at which

point the protesters took down all of the tents. Id. ¶ 25.

But Dukore and Canavan then reassembled one of the

tents and sat down inside of it. Complaint ¶ 26. There was

“no visible sleeping/living equipment inside or around the

tent[.]” Id. ¶ 28. After three warnings, the police arrested

Dukore and Canavan for violating the regulation against

setting up a temporary abode on public grounds. Id. ¶ 26.

The arrest occurred “at approximately 10:44 p.m.” Dukore

Br. 14 n.8; see also District Br. 24. Dukore and Canavan

were released “approximately 3-4 hours later,” and the

charges were subsequently “no-papered” (that is, dropped).

Complaint ¶ 26. The tent was seized, and Dukore and

Canavan were not told how they could retrieve it. Id. ¶ 27.

They believe that the tent was destroyed. Id.

Procedural History

Dukore and Canavan filed suit in the United States

District Court for the District of Columbia alleging (i) false

arrest and false imprisonment under District of Columbia law,

(ii) wrongful conversion of their tent, (iii) retaliatory arrest in

violation of the First Amendment, (iv) arrest without probable

cause in violation of the Fourth Amendment, and (v)

deprivation of their tent without due process, in violation of

the Fifth Amendment. Complaint ¶¶ 37–60. The Complaint

named as defendants the District of Columbia, several police

officers, and an Inspector at the District’s Department of

Consumer and Regulatory Affairs, who allegedly advised the

officers on the scene of the applicability of the temporary-

abode regulation (collectively, “the District”). Complaint

¶¶ 3–6.

The district court granted the District’s motion to dismiss.

It concluded that Dukore and Canavan had failed to state a

5

claim for false arrest or imprisonment, or for the alleged Fifth

Amendment violation, and that the individual defendants were

entitled to qualified immunity on the First and Fourth

Amendment claims. The court dismissed all of those counts

with prejudice. See Dukore v. District of Columbia, 970 F.

Supp. 2d 23, 34 (D.D.C. 2013). The court also ruled that

Dukore and Canavan had stated a claim for conversion, but at

their request, dismissed that count of the complaint “without

prejudice to re-file in [D.C.] Superior Court.” Id. at 34 n.9

(internal quotation marks omitted). The court designated its

order dismissing the action as “a final, appealable order.”

J.A. 41.

Dukore and Canavan timely appealed. The conversion

claim is not at issue on appeal because the district court

dismissed it at Dukore’s and Canavan’s request. Dukore and

Canavan have also chosen not to press their Fifth Amendment

due process claim on appeal, so the district court’s dismissal

of that claim is conclusive.

II

Analysis

Jurisdiction

The first order of business is always to decide whether

we can decide the appeal. The district court had federal

question jurisdiction over the constitutional claims, 28 U.S.C.

§ 1331 and 42 U.S.C. § 1988, and supplemental jurisdiction

over the related District law claims, 28 U.S.C. § 1367. This

court has appellate jurisdiction under 28 U.S.C. § 1291 over

“final decisions” of the district court.

Confirming our jurisdiction is usually an easy task in

cases where plaintiffs with obvious standing raise federal

6

questions on appeal from a federal district court’s final

judgment. There is a wrinkle in this case though: the district

court’s final judgment included the dismissal of one claim—

the conversion claim—without prejudice, at Dukore’s and

Canavan’s request. The federal courts of appeals have issued

conflicting decisions on whether and when a voluntary

dismissal without prejudice constitutes a final judgment for

purposes of appeal. See, e.g., Robinson-Reeder v. American

Council on Education, 571 F.3d 1333, 1338–1339 (D.C. Cir.

2009); see also Blue v. District of Columbia Public Schools,

764 F.3d 11, 17 (D.C. Cir. 2014) (collecting cases).

A decision “is not final, ordinarily, unless it ends the

litigation on the merits and leaves nothing for the [district]

court to do but execute the judgment.” Cunningham v.

Hamilton County, 527 U.S. 198, 204 (1999) (internal

quotation marks omitted). Accordingly, when a district court

resolves some, but not all, of the claims in a complaint, the

judgment is generally non-final and non-appealable. See, e.g.,

Cambridge Holdings Group, Inc. v. Federal Ins. Co., 489

F.3d 1356, 1359–1360 (D.C. Cir. 2007). The only way to

take an appeal from such a partial disposition is if the district

court both chooses to “direct entry of a final judgment as to

one or more, but fewer than all, claims or parties,” and

“expressly determines that there is no just reason for delay.”

Fed. R. Civ. P. 54(b). 1

1

A small class of orders may qualify for interlocutory appeal. See,

e.g., Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 106

(2009) (describing collateral order doctrine); see also In re District

of Columbia, --- F.3d ---, 2015 WL 3916061, at *2 (D.C. Cir. June

26, 2015) (interlocutory appeal of class certification under Fed. R.

Civ. P. 23(f)); 28 U.S.C. § 1292 (jurisdiction to review certain

interlocutory orders). This case does not involve any such order.

7

Parties cannot stipulate their way out of the final

judgment rule or Rule 54(b)’s strict limitations. The

“voluntary but non-prejudicial dismissal[] of remaining

claims” is “insufficient to render final and appealable a prior

order disposing of only part of the case.” Blue, 764 F.3d at

17; see also Robinson-Reeder, 571 F.3d at 1338–1340.

The question in this case is whether the district court’s

dismissal of the conversion claim without prejudice as part of

a single order dismissing the entire action ran afoul of that

jurisdictional rule. We hold that it did not, because the

district court, not the parties, controlled the terms of dismissal

in this case, and the final judgment dismissing the action in

full in a single, dispositive order protects against manipulation

of the courts’ jurisdiction.

In Blue, the district court dismissed the plaintiff’s claims

against one defendant but not another. 764 F.3d at 14. As a

result, the case against the remaining defendant remained

active and unresolved, and the district court declined to certify

its partial judgment for appeal under Rule 54(b). The plaintiff

then tried to bypass the district court’s declination by entering

a joint stipulation of dismissal without prejudice with the

remaining defendant, “subject to a confidential settlement

agreement with a tolling provision” that would have permitted

a refiling of the claim after the appeal. Id. at 16; see also id.

at 14–15.

We held that such a party-initiated voluntary dismissal,

especially in the wake of the district court’s decision denying

certification under Rule 54(b), was insufficient to render the

court’s judgment final for purposes of appellate jurisdiction.

Blue, 764 F.3d at 19. Otherwise parties would be free to

entirely supplant the district court’s screening function—the

court’s role as “dispatcher”—under Rule 54(b), and could

8

make final a case with which neither the district court nor the

parties are genuinely done. Id. at 18. The entry of a minute

order by the district court did not suffice because it was a

mere “ministerial acknowledgement of the parties’ joint

stipulation,” which the district court was obliged to grant

unless it found prejudice to the defendant. Id. at 19.

Similarly, in Robinson-Reeder, the district court

dismissed some claims in the complaint, but left one claim

unresolved. 571 F.3d at 1335–1336. Before the district court

ruled on the defendant’s motion to dismiss the remaining

claim, the parties filed a joint stipulation dismissing the final

claim without prejudice. Id. at 1336. We held that such a

voluntary stipulation by the parties does not satisfy Rule

54(b)’s requirement of an express determination by the

district court that a partial dismissal should be treated as final.

That is because dismissal was “accomplished by stipulation of

the parties alone pursuant to Federal Rule of Civil Procedure

41(a)(1).” Robinson-Reeder, 571 F.3d at 1339. We

accordingly dismissed the appeal for lack of jurisdiction. Id.

at 1339–1340.

This case bears no relevant similarity to Blue or

Robinson-Reeder. Here, the district court entered a single,

final judgment, designated as such by the court itself, in

which “all pending claims against all parties were resolved.”

Outlaw v. Airtech Air Conditioning & Heating, Inc., 412 F.3d

156, 162 (D.C. Cir. 2005) (Roberts, J.). Absent appellate

reversal, the federal action is concluded with nothing left to

be done.

While the voluntary dismissal without prejudice may

allow Dukore and Canavan to refile their local law claim in

District of Columbia Superior Court, the action’s dismissal

from federal court is conclusive because there is no basis for

federal jurisdiction to refile that claim by itself. See Murray

9

v. Gilmore, 406 F.3d 708, 712 (D.C. Cir. 2005) (appealable

dismissal of an action signified by district court designating

its order as “final and appealable”); Ciralsky v. CIA, 355 F.3d

661, 667 (D.C. Cir. 2004) (“Although it is true that [the

plaintiff] may be able to re-file because the dismissal was

without prejudice, that does not change the fact that, in the

absence of such an affirmative act on [plaintiff’s] part, the

case is at an end.”). The district court accordingly fulfilled its

function as “gatekeeper for the court of appeals,” Blue, 764

F.3d at 18, and the court alone determined when the case was

over and its order became final. The district court’s control of

the disposition and issuance of a single final judgment

eliminated the “risk [of] empowering parties to take over” the

district court’s “dispatcher function” that can arise from

partial dispositions. Id. 2

With our jurisdiction assured, we press on to the merits.

Probable Cause to Arrest

Disposition of Dukore’s and Canavan’s Fourth

Amendment and false arrest claims hinges largely on the

2

To be sure, the district court’s labeling its order as “final and

appealable,” standing alone, ordinarily would not render that order

appealable under Rule 54(b). See Blackman v. District of

Columbia, 456 F.3d 167, 176 (D.C. Cir. 2006) (“[E]ven if the

record indicates no just reason for delay, an order is not final under

Rule 54(b) unless it contains the ‘express determination’ thereof.”).

But this is not a Rule 54(b) case; the court itself entered final

judgment, and the absence of party manipulation, along with

Dukore’s and Canavan’s inability to reinitiate federal court

litigation of the voluntarily dismissed conversion claim, dispose of

the finality concerns that underlay Blue and Robinson-Reeder.

10

existence or not of probable cause to justify Dukore’s and

Canavan’s arrests. Because probable cause was present, we

affirm the dismissal of both claims.

Probable cause exists “when known facts and

circumstances are sufficient to warrant [an officer] of

reasonable prudence in the belief that an offense has been or

is being committed.” United States v. Davis, 458 F.2d 819,

821 (D.C. Cir. 1972). The probable cause standard does “not

demand any showing that such a belief be correct or more

likely true than false.” Texas v. Brown, 460 U.S. 730, 742

(1983). The existence of probable cause thus turns on

objective considerations, rather than the actual mental state of

the arresting officer. See, e.g., United States v. Jackson, 415

F.3d 88, 91 (D.C. Cir. 2005).

We hold that the arresting officers had probable cause to

conclude that Dukore and Canavan had violated the

temporary-abode regulation. There is no dispute that Dukore

and Canavan “set up” a “tent” on public property, within the

meaning of the District regulation, D.C. Code. Mun. Regs.

Title 24, § 121.1. See Complaint ¶ 26. So the probable-cause

question boils down to whether it was reasonably prudent for

the arresting officers to conclude that, in doing so, Dukore

and Canavan set up a “temporary place of abode.” We have

no doubt that the officers’ judgment was reasonable under the

circumstances. The plain meaning of “temporary” is short-

term in duration. To be sure, the time must still be long

enough for the stay to count as an “abode” rather than a place

of passing respite. If the officers reasonably perceived that

Dukore and Canavan intended to stay through the night hours,

that would suffice. Cf. United States v. Lyons, 706 F.2d 321,

327 (D.C. Cir. 1983) (reasonable expectation of privacy for

Fourth Amendment purposes in hotel room occupied for a

single night).

11

A reasonable officer could have concluded, on these

facts, that Dukore and Canavan intended to occupy the tent

through the night hours. To begin with, Dukore and Canavan

set up a tent in which they then took shelter. A central

purpose for such a tent is to serve as a temporary place of

shelter and abode. See WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 2356 (1993) (defining a “tent”

as a “collapsible shelter * * * used for camping outdoors (as

by soldiers or vacationers)”). And this was not just any tent.

As the complaint avers, the tents at the protest were “clearly

identified” with the Occupy D.C. movement, the purpose of

which was use of the tent for the “physical occupation” of

protest sites. Complaint ¶¶ 14–20. An occupation, by its very

nature, requires some length of time—longer than just passing

through. Or so a reasonable officer could conclude.

In addition, Dukore and Canavan did not merely

assemble a tent on public property late at night. They

reassembled their tent and stayed in it after officers had twice

ordered them to take the tents down and had thrice warned

that they could not lawfully remain inside the reassembled

tent. Complaint ¶ 26. A reasonable officer could interpret

that defiance as exhibiting an intent to stay put inside their

tent for some time. Doubly so given the late night hour when

this all transpired. The only likely options for Dukore and

Canavan at nearly 11:00 p.m. would have been to go home or

stay for a good part of the night. Reassembling and then

occupying the tent in the face of contrary orders by police

strongly suggested the latter possibility.

Dukore and Canavan assail this conclusion on three

grounds, but none works. First, they focus on the

requirement that the tent be a place of “abode” and emphasize

that the tent contained no bedding, heat, or other living

equipment to get them through a cold February night. Those

12

are fair points. But not enough to change the outcome. The

essence of probable cause is making close judgment calls

based on oftentimes conflicting information. See, e.g.,

Galarnyk v. Fraser, 687 F.3d 1070, 1075 (8th Cir. 2012)

(“[A]n officer faced with conflicting information * * * may

still have probable cause and need not conduct a mini-trial

before effectuating an arrest.”) (internal citations and

quotation marks omitted). Given that the Occupy

Movement’s animating purpose is to oppose economic

injustice and poverty, and that the plaintiffs displayed that

message openly on signs attached to their tent, see Complaint

¶ 28, a reasonable officer could conclude that enduring a

deliberately spartan abode at the feet of Merrill Lynch was

itself part of the protestors’ message. Surely a Winnebago

would have sent the wrong signal.

Second, Dukore and Canavan emphasize that they had

occupied the tent only for “a matter of minutes or hours, not

days.” Dukore Br. 16. “Days” are not needed for a tent to be

a “temporary” abode; “hours” can be enough. Beyond that,

the argument forgets that what cut Dukore’s and Canavan’s

protest short was the intervention of the police. The police

did not need to wait all night for the offense to be completed

to reasonably conclude that Dukore and Canavan had “set up”

a temporary place of abode, D.C. Code. Mun. Regs. Title 24,

§ 121.1.

Third, Dukore and Canavan argue that, notwithstanding

the temporary-abode regulation, the District’s Assemblies Act

protects their right to use a “structure,” specifically a tent, as

part of a protest. D.C. Code § 5-331.05(g). That argument

overlooks that the Assemblies Act expressly allows for

“reasonable time, place, and manner restrictions” on

expressive activity. D.C. Code § 5-331.04(b). The

prohibition on that structure turning into a temporary abode is

13

precisely such a reasonable time and manner restriction on

protest activities. Cf. Clark v. Community for Creative Non-

Violence, 468 U.S. 288, 294 (1984) (“[S]ymbolic tents * * *

may be expressive and part of the message delivered by [a]

demonstration [but that] does not make the ban [on sleeping

on the National Mall] any less a limitation on the manner of

demonstrating, for reasonable time, place, or manner

regulations normally have the purpose and direct effect of

limiting expression but are nevertheless valid.”).

In sum, because the arresting officers had probable cause

to believe that Dukore’s and Canavan’s late-night reassembly

and persisting occupation of their tent constituted the setting

up of a temporary place of abode, in violation of D.C. law, the

arrest did not violate the Fourth Amendment or constitute a

false arrest. See Scales, 973 A.2d at 729.

Retaliatory Arrest

Dukore and Canavan also argue that the officers arrested

them in retaliation for their protest, in violation of their First

Amendment rights. Qualified immunity bars that claim,

however, because at the time of their arrest it was not clearly

established that an arrest supported by probable cause could

violate the First Amendment’s protection against retaliation. 3

The doctrine of qualified immunity entitles officers to

immunity from suit unless their conduct violated “clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

3

Dukore and Canavan do not argue that the temporary-abode

regulation is so facially unconstitutional that a reasonable officer

would know that an arrest for violating the regulation, even if

supported by probable cause, would violate the First Amendment.

14

U.S. 800, 818 (1982)). Qualified immunity considers the

state of the law not with 20-20 hindsight, but at the time of the

challenged conduct. See, e.g., Kalka v. Hawk, 215 F.3d 90,

94 (D.C. Cir. 2000). And a right will be held to have been

clearly established at the time of an alleged violation if it

would have been “clear to a reasonable officer that his

conduct was unlawful in the situation that he confronted.”

Saucier v. Katz, 533 U.S. 194, 202 (2001). If the right in

question was not clearly established, we need not broach the

question of whether a constitutional violation occurred

because the officers are entitled to qualified immunity

regardless. See Pearson, 555 U.S. at 236.

In reviewing a grant of qualified immunity, we must

consider the right asserted “not as a broad general proposition,

but in a particularized sense so that the contours of the right

are clear[.]” Reichle v. Howards, 132 S. Ct. 2088, 2094

(2012) (internal citations and quotation marks omitted). So

the right we must consider in this case is “not the general right

to be free from retaliation for one’s speech,” but rather “the

more specific right to be free from a retaliatory arrest that is

otherwise supported by probable cause.” Id.

The Supreme Court has “never held that there is such a

right.” Reichle, 132 S. Ct. at 2094. Nor was there in

February 2012 (nor is there now) any settled consensus view

in this court or other federal courts of appeals such that “the

statutory or constitutional question” has been placed “beyond

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

see also Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011)

(to determine clearly established law, “we look to cases from

the Supreme Court and this court, as well as to cases from

other courts exhibiting a consensus view—if there is one”)

(internal citations and quotation marks omitted). Quite the

opposite, in July 2011, this court recognized that the federal

15

courts of appeals were split on whether a plaintiff claiming

retaliatory arrest had to show that the arrest lacked probable

cause, and expressly declined to take sides. See Moore, 644

F.3d at 423 n.8. That means that, at the time of the arrests in

this case, precedent in this and other circuits was either

inconclusive or actively in conflict on whether the existence

of probable cause precluded an arrest from being deemed

“retaliatory.” That is a far cry from placing the question

beyond debate.

Dukore and Canavan argue that the right to be free from

retaliation under the First Amendment is clearly established.

And they argue that the only confusion in the law concerned

retaliatory prosecutions, as discussed in Hartman v. Moore,

547 U.S. 250 (2006). Dukore and Canavan further contend

that any ripples of uncertainty generated by Hartman in other

jurisdictions did not unsettle this circuit’s law, because we

have recognized that “retaliatory arrest and retaliatory

prosecution are distinct constitutional violations[.]” Moore v.

Hartman, 704 F.3d 1003, 1004 (D.C. Cir. 2013). The absence

of confusion in this jurisdiction, they conclude, left as

governing law for the officers the clearly established

background right to be free from retaliation under the First

Amendment.

That argument turns the qualified immunity burden

upside down. It is Dukore’s and Canavan’s burden to show

that the particular right in question—narrowly described to fit

the factual pattern confronting the officers, see Reichle, 132 S.

Ct. at 2094—was clearly established. It was not the District’s

burden to show that the right had been called into question.

The generality of Dukore’s and Canavan’s constitutional

principle and the widespread instability in the law on the

precise question of probable-cause arrests prevent them from

discharging that duty.

16

III

Conclusion

The district court’s decision to dismiss one count of the

complaint without prejudice, as part of its final order

dismissing the action in its entirety, did not deprive this court

of appellate jurisdiction. On the merits, we affirm the

judgment of dismissal.

So ordered.