Wesby v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed: February 8, 2016

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)

On Petition for Rehearing En Banc

_____

Before: GARLAND, Chief Judge; HENDERSON,** ROGERS,

TATEL, BROWN,** GRIFFITH,** KAVANAUGH,** SRINIVASAN,

MILLETT, PILLARD, ** AND WILKINS,* Circuit Judges

2

ORDER

Appellants= petition for rehearing en banc and the

response thereto were circulated to the full court, and a vote

was requested. Thereafter, a majority of the judges eligible to

participate did not vote in favor of the petition. Upon

consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Ken Meadows

Deputy Clerk

* Circuit Judge Wilkins did not participate in this matter.

** Circuit Judges Henderson, Brown, Griffith, and

Kavanaugh would grant the petition for rehearing en banc.

** A statement by Circuit Judge Pillard and Senior Circuit

Judge Edwards, concurring in the denial of rehearing en banc,

is attached. Pursuant to Fed. R. App. P. 35(a), Senior Judge

Edwards, a member of the merits panel, did not participate in

the vote whether to grant rehearing en banc.

** A statement by Circuit Judge Kavanaugh, with whom

Circuit Judges Henderson, Brown, and Griffith join,

dissenting from the denial of rehearing en banc, is attached.

PILLARD, Circuit Judge, and EDWARDS, Senior Circuit

Judge, concurring in the denial of rehearing en banc: The

panel opinion has none of the ambition that Judge Kavanaugh,

dissenting from denial of rehearing en banc, attributes to it. It

does not alter the law of probable cause or the law of qualified

immunity. The panel agrees with virtually everything the

dissent says about the law. Our disagreement is about the

facts.

I.

The dissent accuses us of establishing new rules of law.

We have done no such thing. In fact, we view the law the

same way the dissent does.

1. The dissent asserts that we created a new rule “that

officers are required to believe the statements of suspected

trespassers who claim that they have permission to be on the

property.” Dissent 18. It contends that our opinion obliges

officers to accept suspects’ implausible protestations of

innocence and ignore other, circumstantial evidence of

culpability. Id. at 9-10. That is not the law, nor did we so

hold.

Rather, we agree with the dissent that, if the facts of

which officers are aware and the reasonable inferences that

arise from those facts cast doubt on a suspect’s story, officers

need not credit the suspect. See id. at 12, 18. Indeed, our

opinion specifically acknowledges that officers are “entitled

to discredit” a suspect’s claims of an “innocent explanation

for entry into a house in the face of conflicting evidence,”

Wesby v. District of Columbia, 765 F.3d 13, 21 n.4 (D.C. Cir.

2014) (citing Wright v. City of Philadelphia, 409 F.3d 595,

603 (3d Cir. 2005)); if other facts give rise to probable cause,

the officer may arrest, “notwithstanding exculpatory

statements from the suspect,” id. (quoting Dahl v. Holley, 312

F.3d 1228, 1234 (11th Cir. 2002)).

2

We also acknowledged that circumstantial evidence may

“make it reasonable to infer” that a suspect has a culpable

state of mind. Id. at 22. To reach that conclusion, officers do

not need trial-worthy evidence. We expressly noted that

“[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.’” See id. at 20 (quoting Adams v.

Williams, 407 U.S. 143, 149 (1972)). The dissent agrees. See

Dissent 7 (“To have probable cause to arrest, a police officer

does not need proof beyond a reasonable doubt, or even by a

preponderance of the evidence, that an individual committed a

crime.”).

Taking these points together, so long as there is evidence

giving rise to probable cause—even if that evidence is only

circumstantial and short of preponderant—officers may

lawfully arrest, no matter what a suspect claims in his or her

own defense. There is nothing novel about our view. The

dissent’s sampling of cases from across the circuits confirms

that it is widely held. See id. at 11-14.

2. The dissent worries that our opinion erodes the

protection qualified immunity provides officers who must

make “on-the-spot credibility judgments” and quickly

“resolve difficult mens rea questions.” Id. at 2, 11. Our first

point of agreement should put the dissent at ease—officers are

not required to take suspects at their word when they deny

their guilt. A second point also ought to assuage the dissent:

If officers mistakenly conclude that there is probable cause,

they are nonetheless entitled qualified immunity if their

mistake was reasonable. See Hunter v. Bryant, 502 U.S. 224,

227 (1991) (per curiam). Our opinion does not ignore or

weaken that important protection, which gives officers the

necessary “breathing room” to perform their difficult,

dangerous jobs and safeguard the public. Ashcroft v. al-Kidd,

3

131 S. Ct. 2074, 2085 (2011). It simply finds that a

reasonable officer could not conclude, based on the

information before these particular officers, that there was

probable cause.

It is also worth noting that this case is quite unusual, in

that the officers did not make any heat-of-the-moment

judgment calls about the partygoers’ mens rea or whether they

were telling the truth about having been invited. First,

nothing about the investigation was rushed and nothing about

the situation posed any imminent risk. The officers spent two

hours on the scene calmly assessing the situation, J.A. 381,

and more time back at the station deliberating over which

charge to bring. (The officers originally processed the

partygoers for unlawful entry, then dropped that charge and,

after discussing the case with representatives of the Attorney

General’s office, processed them for disorderly conduct, then

dropped that charge as well. J.A. 45-50.) Second, these

defendants did not in fact make any determinations about the

partygoers’ mindset, because they did not think either one

mattered. See infra 9 & n.1.

II.

We and the dissent agree on two other clearly established

points of law.

1. The dissent does not dispute our rather unexceptional

statement that arresting officers need “at least some evidence

that the arrestee’s conduct meets each of the necessary

elements of the offense that the officers believe supports

arrest.” Wesby, 765 F.3d at 26. When officers lack probable

cause to believe that a necessary element of an offense is

present, they lack probable cause to arrest. See id.; United

States v. Christian, 187 F.3d 663, 667 (D.C. Cir. 1999);

accord Wright, 409 F.3d at 602 (“Whether any particular set

4

of facts suggest that an arrest is justified by probable cause

requires an examination of the elements of the crime at

issue.”). The same is true when the only circumstances

officers observe amount to conduct that is privileged by a

defense.

Setting aside for the moment its particular application

here, the dissent seems to agree with that proposition as a

legal matter. See Dissent 10-11, 15. The dissent quotes with

approval a recent Second Circuit statement of the law that

officers must accept a suspect’s defense if “‘the facts

establishing that defense were so clearly apparent to the

officers on the scene as a matter of fact, that any reasonable

officer would have appreciated that there was no legal basis

for arresting plaintiffs.’” Id. at 15 (quoting Garcia v. Does,

779 F.3d 84, 93 (2nd Cir. 2015) (amended opinion)). Our

decision fully comports with Garcia. Our own prior decisions

and those of other courts are in accord. See Hutchins v.

District of Columbia, 188 F.3d 531, 535 (D.C. Cir. 1999) (en

banc) (noting that a police officer may detain a minor for

violating a curfew law if the “police officer reasonably

believes that an offense has occurred under the curfew law

and that no defense exists”); Tillman v. Wash. Metro. Area

Transit Auth., 695 A.2d 94, 96 (D.C. 1997) (acknowledging

the “unusual” possibility of circumstances that, “while

undoubtedly proving an unlawful act, nonetheless

demonstrated so clearly that the suspect lacked the required

intent that the police would not even have probable cause for

an arrest”); Estate of Dietrich v. Burrows, 167 F.3d 1007,

1012 (6th Cir. 1999) (observing that the “law has been clearly

established since at least the Supreme Court’s decision in

Carroll v. United States, [267 U.S. 132, 162 (1925)], that

probable cause determinations involve an examination of all

facts and circumstances within an officer’s knowledge at the

5

time of an arrest,” which includes an arrestee’s

“uncontroverted” defense).

2. In addition to agreeing that officers need “some

showing” of each element, Wesby, 765 F.3d at 22, we and the

dissent agree that the key element in this case was whether the

partygoers entered a place they knew or should have known

was off limits. The dissent does not dispute, nor could it, that

it is no crime for a person to enter premises without

authorization if that person has a bona fide belief that she is

permitted to enter. It frames the issue well:

It is undisputed that the partiers were on private

property without permission from an owner or renter,

and without other lawful authority. Therefore, this is a

case where the actus reus of the crime was complete.

The sole issue from the perspective of a reasonable

police officer was whether the partiers had the

necessary mens rea to commit the crime of trespassing.

If the partiers believed that they had permission from a

lawful owner or renter to use the house, then the

partiers did not commit the offense of trespassing

under D.C. law.

Dissent 9.

At the time of the challenged arrests, the law in the

District of Columbia had, indeed, long been clear that in

unlawful entry cases the suspect’s state of mind matters. See,

e.g., Artisst v. United States, 554 A.2d 327, 330 (D.C. 1989)

(affirming because the evidence showed “appellant’s intention

to be on the premises contrary to [the owner’s] will”); Culp v.

United States, 486 A.2d 1174, 1177 (D.C. 1985) (affirming

because “officers could reasonably conclude that appellant

knowingly entered ‘against the will of . . . the person lawfully

in charge’”). By the same token, it had long been clear that if

6

a person has “a bona fide belief” that he is permitted to enter,

“he lacks the element of criminal intent required by” the law

“and is not guilty of unlawful entry.” Smith v. United States,

281 A.2d 438, 439 (D.C. 1971); see McGloin v. United States,

232 A.2d 90, 91 (D.C. 1967). Although the Ortberg case,

which came down after these arrests, stated more precisely the

culpable state of mind required to prove unlawful entry,

Ortberg simply articulated what “decades of case law” had

already made “clear”—that the government must “establish

that the defendant knew or should have known that his entry

was unwanted.” Ortberg v. United States, 81 A.3d 303, 307

(D.C. 2013). Indeed, the model jury instruction for unlawful

entry going back to at least 1993 describes the required state

of mind in those terms. See Criminal Jury Instructions for the

District of Columbia, No. 4.36 (4th ed. 1993) (“The

government must prove beyond a reasonable doubt not only

that the defendant entered against the will of the lawful

occupant of the premises, but also that s/he knew, or should

have known, that s/he was entering against the will of the

occupant.”).

III.

The only criticism we have of the dissent’s view of the

law is that it would relieve the officers of their burden to

justify an arrest by effectively presuming probable cause if

nothing in the record forecloses it. The dissent commits that

error in sketching three scenarios, two that it describes as

supported by probable cause, and one that it acknowledges is

not. Dissent 14-15. The first possibility the dissent identifies

is that, although Peaches invited them, the partygoers knew or

might have known that she was not renting the house and so

could not lawfully invite them there. A second possibility is

that the partygoers might have lied to the police when they

said that Peaches invited them, and that Peaches then made up

7

a corresponding lie to give her friends cover. In the third

scenario, the partygoers told the truth that Peaches invited

them, and they had no reason to suspect that she was not

authorized to do so. The dissent contends that each scenario

is possible, and that “the officers did not have a way to rule

out either of the first two scenarios.” Id. at 15.

We have two responses. First, there is no evidence in the

record that suggests that the partygoers and Peaches cooked

up a plot to mislead the police, and the dissent points to none.

Instead, the dissent simply speculates, “[w]ho knows”

whether or how they might have coordinated? Id. at 14.

Certainly not the officers. They never—neither at the time of

the arrest nor during the subsequent litigation—pointed to a

circumstance tending to show that the partygoers and Peaches

were colluding.

Second, and more fundamentally, in suggesting that a

lack of information—a “who knows?” gap—could suffice to

support probable cause, the dissent advocates a position that

would impermissibly shift the burden of discerning probable

cause. Officers may not do what the dissent does—posit that

a person is up to no good and then ask whether there is clear

reason to rule out any theoretical wrongdoing. See Devenpeck

v. Alford, 543 U.S. 146, 152 (2004) (“Whether probable cause

exists depends upon the reasonable conclusion to be drawn

from the facts known to the arresting officer at the time of the

arrest.”); Adams, 407 U.S. at 148 (“Probable cause to arrest

depends ‘upon whether, 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) had committed or was committing

an offense.’” (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).

The probable cause requirement, even as flexible and

8

contextual as it appropriately is, authorizes arrest only when

the facts and circumstances give officers reason to believe

that someone is violating or has violated the law.

The bare, unsupported possibility that an officer might

have disbelieved the partygoers when they said they had been

invited is not ground for arrest—nor for qualified immunity.

Contra Dissent 19. The dissent contends that an officer’s

doubts about a suspect’s credibility count as “information”

that can controvert evidence dissipating probable cause. Id. at

10, 20. We do not disagree with that proposition as a legal

matter. When officers actually doubt a suspect’s credibility,

and when those doubts fairly arise from their observations and

the information available to them, officers may take their

doubts into account when assessing whether the totality

circumstances support probable case. See, e.g., McComas v.

Brickley, 673 F.3d 722, 726-27 (7th Cir. 2012); Wright, 409

F.3d at 603. The officers in this case, however, did not

actually doubt that the partygoers were telling the truth when

they said Peaches invited them. In fact, the officers did not

think the partygoers’ credibility mattered at all. They did not

think it mattered because they believed—incorrectly and

unreasonably—that the partygoers’ state of mind was legally

irrelevant.

IV.

Our disagreement with the dissent comes down to our

case-specific assessment of the circumstantial evidence in the

record.

We found that an officer could not conclude—not even

reasonably, though mistakenly—that the partygoers had a

culpable state of mind. It is not surprising that the record,

consisting of what the officers took note of at the time, lacks

evidence of what the partygoers knew, or even what they

9

ought to have known, about whether they had been

legitimately invited into the house. At the time of the arrest,

and even in this litigation, the defendants misunderstood the

clearly established elements of unlawful entry. They believed

(erroneously) that it did not matter what the partygoers knew

or did not know about their permission to be at the premises.

Once the owner told the officers he had not yet rented the

house to Peaches and he had not allowed the guests to attend a

party there, the officers believed they had all they needed.1

1

When opposing counsel asked Sergeant Suber at his

deposition if it mattered “whether or not [the partygoers] believed,

based upon what Peaches told them, that they had the right to be

there,” he answered, “Peaches nor the other individuals occupying

that location did not have the right to be there.” J.A. 48; see id. at

129 (“Q: And so what I’m trying to understand is why did you

reach that conclusion [that it was a lawful arrest] when you knew

that Peaches had given them permission to be there? [Suber]:

Because Peaches didn’t have permission to be there.”); see also id.

at 99 (deposition testimony of Defendant Officer Parker explaining

that Sergeant Suber decided to arrest everyone because the owner

had said that nobody had his permission to be in the house).

Even in their summary judgment papers, the defendants

continued to assert the irrelevance of the partygoers’ mindset. The

defendants acknowledged that “each of [the partygoers] admitted

that they were social guests,” but stressed that “this statement is not

material” because none of the plaintiffs owned the property and

liability turns on “whether MPD Officers reasonably believed that

the plaintiffs were not the owners and did not have a possessory

interest in the property.” J.A. 59 (Defs.’ Resp. to Pls.’ Statement of

Facts, ECF No. 30, Ex. 1 at 2). In their rehearing petition before

this court as well, the defendants suggest that it somehow was not

clearly established that the offense of unlawful entry includes a

state of mind requirement. See Pet. Reh’g En Banc 12 (contending

that the panel erred because it “found the law clearly established

10

Of course, even though the defendant officers in this case

did not seek to determine whether the partygoers themselves

knew or should have known that they were not authorized to

be present at the house, if the information known to the

officers when they made the arrests nonetheless fairly

suggested that the partygoers were or should have been aware

that they were unwelcome, the arrests would have been

lawful. See Whren v. United States, 517 U.S. 806, 813

(1996); United States v. Bookhardt, 277 F.3d 558, 565 (D.C.

Cir. 2002); United States v. Joyner, 492 F.2d 655, 656 (D.C.

Cir. 1974) (per curiam) (“[A]n arrest will be upheld if

probable cause exists to support arrest for an offense that is

not denominated as the reason for the arrest by the arresting

officer.”). And if the facts in the record could at least

arguably give rise to probable cause, the defendants would be

entitled to qualified immunity. See Hunter, 502 U.S. at 227;

Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C. Cir. 1993).

The dissent thinks an officer in the defendants’ position

could reasonably believe there was probable cause. Dissent

14-15. For the reasons explained in our opinion, we disagree

that the record here supports probable cause, either actually or

arguably. That is the extent of our disagreement, no more, no

less. Our dispute—whether these particular defendants are

entitled to qualified immunity on the plaintiff’s Fourth

Amendment claim—is entirely “fact-bound,” City & Cty. of

San Francisco v. Sheehan, 135 S. Ct. 1765, 1779 (2015)

(Scalia, J., concurring in part and dissenting in part), and

therefore hardly deserves the dissent’s doomsaying. As our

nearly complete agreement with the dissent on the governing

‘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’” (quoting Wesby, 765 F.3d at 27)). As

discussed in the court’s opinion and in the text, supra 5-6, that is a

misstatement of clearly established law.

11

principles underscores, we did not invent or invert any law to

reach the result in this case. And the thinness of the record is

quite anomalous, as it stems from the officers’ legal error at

the scene. We accordingly concur in the denial of rehearing

en banc.

KAVANAUGH, Circuit Judge, with whom Circuit Judges

HENDERSON, BROWN, and GRIFFITH join, dissenting from the

denial of rehearing en banc: In a series of recent qualified

immunity cases, the Supreme Court has repeatedly told the

courts of appeals that police officers may not be held liable

for damages unless the officers were “plainly incompetent” or

“knowingly violate[d]” clearly established law. Carroll v.

Carman, 135 S. Ct. 348, 350, slip op. at 4 (2014) (internal

quotation marks omitted). The Supreme Court “often corrects

lower courts when they wrongly subject individual officers to

liability.” City & County of San Francisco v. Sheehan, 135 S.

Ct. 1765, 1774 n.3, slip op. at 10 n.3 (2015). Indeed, in just

the past five years, the Supreme Court has issued 11 decisions

reversing federal courts of appeals in qualified immunity

cases, including five strongly worded summary reversals. See

Mullenix v. Luna, 136 S. Ct. 305 (2015) (summary reversal);

Taylor v. Barkes, 135 S. Ct. 2042 (2015) (summary reversal);

Sheehan, 135 S. Ct. 1765; Carroll, 135 S. Ct. 348 (summary

reversal); Plumhoff v. Rickard, 134 S. Ct. 2012 (2014); Wood

v. Moss, 134 S. Ct. 2056 (2014); Stanton v. Sims, 134 S. Ct. 3

(2013) (summary reversal); Reichle v. Howards, 132 S. Ct.

2088 (2012); Ryburn v. Huff, 132 S. Ct. 987 (2012) (summary

reversal); Messerschmidt v. Millender, 132 S. Ct. 1235

(2012); Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011).

In my view, the panel opinion in this case contravenes

those emphatic Supreme Court directives. Two D.C. police

officers have been held liable for a total of almost $1 million.

That equates to about 20 years of after-tax income for the

officers, not to mention the harm to their careers.1 For what?

1

As the Supreme Court has said: “Whatever contractual

obligations” the District of Columbia “may (or may not) have to

represent and indemnify the officers are not our concern. At a

minimum, these officers have a personal interest in the correctness

of the judgment below, which holds that they may have violated the

Constitution.” Sheehan, 135 S. Ct. at 1774 n.3, slip op. at 10 n.3.

2

For arresting for trespassing a group of people who were

partying late at night with drugs and strippers in a vacant

house that the partiers did not own or rent. To be sure, the

partiers claimed that they had permission from a woman

named Peaches to use the vacant house. But the officers soon

learned that Peaches herself did not have permission to use

the house. And the officers reasonably could have thought

that the partiers probably knew as much. Therefore, the

officers reasonably could have concluded that there was

probable cause to arrest the partiers for trespassing. The

officers were not “plainly incompetent” and did not

“knowingly violate” clearly established law when they made

these arrests. The officers are entitled to qualified immunity.

The Supreme Court has reminded us that qualified

immunity is important “to society as a whole.” Sheehan, 135

S. Ct. at 1774 n.3, slip op. at 10 n.3 (internal quotation marks

omitted). That holds true in this case. The Attorney General

for the District of Columbia has filed a vigorous petition for

rehearing en banc. The Attorney General’s petition

convincingly explains how the panel opinion will negatively

affect the ability of D.C. police officers to make the on-the-

spot credibility judgments that are essential for officers to

perform their dangerous jobs and protect the public. I would

grant the Attorney General’s petition.

Responding to this dissent, the panel majority says that it

agrees with this dissent about the law and that our

disagreement with one another is simply about how the law

applies to the facts. But that is true in most qualified

immunity cases. At a high enough level of generality, the law

of qualified immunity is settled, as are the relevant Fourth

Amendment principles. But what has concerned the Supreme

Court in numerous cases is how lower courts apply the

general qualified immunity and Fourth Amendment principles

3

to the facts of particular cases.2 That is my concern here as

well.

I

At about 1:00 a.m. on March 16, 2008, the District of

Columbia’s Metropolitan Police Department received a

complaint about loud music and possible illegal activity at a

house east of the Anacostia River between Benning Road and

East Capitol Street, a short distance northeast of RFK

Stadium. According to the caller, the house where the party

was taking place had been “vacant for several months.”

Metropolitan Police Department Arrest/Prosecution Report,

reprinted in Joint Appendix (“J.A.”) 73.

Police officers quickly responded to the scene. The

officers heard music coming from inside the house. After

knocking on the door and entering, the officers observed that

the house was sparsely furnished and “in disarray,” consistent

“with it being a vacant property.” Id. In the living room, they

saw a large group of people engaged in behavior consistent

“with activity being conducted in strip clubs for profit.” Id.

Several women were “dressed only in their bra and thong with

2

In similar en banc circumstances, another court of appeals

recently reconsidered a panel opinion about qualified immunity in a

false arrest case. In Garcia v. Jane & John Does 1-40, 779 F.3d 84

(2d Cir. 2015), Judge Calabresi and Judge Lynch, over the dissent

of Judge Livingston, originally denied the officers’ qualified

immunity motion. After the officers filed a strongly worded

petition for rehearing en banc, the three-judge panel unanimously

issued an amended opinion holding that the police officers were

entitled to qualified immunity. See id. at 87. Many of the issues in

that Second Circuit case resemble the issues in this case. I

respectfully suggest that similar re-examination of the original

panel opinion would have been warranted here.

4

money hanging out” of “their garter belts.” Officer Khan

Interrogatory, J.A. 163. The officers smelled marijuana.

When the officers entered, the partiers initially scattered into

other rooms.

The officers talked to everyone present in the house. The

21 people who were there told the officers conflicting stories

about what they were doing on the property. Some said they

were celebrating a birthday party. Most said it was a bachelor

party. But the guest of honor was not identified to the

officers.

The people in the house also gave conflicting stories

about who had supposedly given them permission to use the

house. No one could identify the owner of the house. Several

people said that they had been invited by other people. Some

said that a woman known as “Peaches” or “Tasty” had given

the partiers permission to use the house. But Peaches was not

present at the house.

Notwithstanding the conflicting stories and suspicious

circumstances, the officers did not immediately arrest the

partiers for trespassing. Rather, the officers took time to

further investigate the situation. The officers contacted both

Peaches and the owner of the house. They reached Peaches

by phone. The officers thought that Peaches was evasive.

Peaches said that she had given the partiers permission to use

the house. But when the officers asked who in turn had given

Peaches authority to use the house, Peaches responded that

she was “possibly renting the house from the owner,” who

was “fixing the house up for her.” Wesby v. District of

Columbia, 841 F. Supp. 2d 20, 25-26 (D.D.C. 2012)

(Deposition of Sergeant Suber). When pressed by the

officers, Peaches finally admitted that she did not have

authority to use the house. She refused to come to the house

5

because she said that she would be arrested. She hung up the

phone on the officers.

The officers then called the owner of the house, Mr.

Hughes. Mr. Hughes told the police officers that no one –

including Peaches – had authority to use the house.

After they had assessed the scene, talked to the partiers,

and gathered information from Peaches and Mr. Hughes, the

police officers arrested the people in the house for trespassing,

an offense known as “unlawful entry” under D.C. law.

Trespassing is a minor offense under D.C. law.3 Prosecutors

later decided not to pursue charges against the partiers.

After all of the charges arising out of the incident had

been dropped, many of the 21 people who had been arrested

turned around and sued the police officers and the District of

Columbia under Section 1983 and D.C. law. The plaintiffs

claimed that the officers had made the arrests without

probable cause. The officers countered that they had probable

cause to arrest the plaintiffs for trespassing. The officers also

asserted that, in any event, they were entitled to qualified

immunity for two distinct reasons. First, it was at least

reasonable for the officers to believe that they had probable

cause to arrest under these factual circumstances. And

second, the officers did not contravene any clearly established

law by making these arrests for trespassing.

On cross motions for summary judgment, the District

Court concluded that the officers did not have probable cause

to arrest and, moreover, were not entitled to qualified

immunity. The District Court granted summary judgment to

3

Under D.C. law, trespassing is punishable by a maximum jail

sentence of 180 days and a maximum fine of $1,000. D.C. Code

§ 22-3302.

6

the plaintiffs. After a trial on damages, a jury awarded the

plaintiffs $680,000. Attorney’s fees brought the total award

to almost $1 million. The police officers and the District of

Columbia are jointly and severally liable for that total.4

The District of Columbia and the police officers appealed

to this Court. A panel of this Court affirmed the judgment of

the District Court. The panel opinion concluded that the

police officers did not have probable cause to arrest the

plaintiffs and were not entitled to qualified immunity. Judge

Brown dissented. The District of Columbia and the police

4

For purposes of Section 1983 liability, the District of

Columbia is considered a municipality. See People for the Ethical

Treatment of Animals v. Gittens, 396 F.3d 416, 425 (D.C. Cir.

2005). As a municipality, the District of Columbia “cannot be held

liable solely because it employs a tortfeasor – or, in other words, a

municipality cannot be held liable under § 1983 on a respondeat

superior theory.” Singletary v. District of Columbia, 766 F.3d 66,

72 (D.C. Cir. 2014) (quoting Monell v. Department of Social

Services of the City of New York, 436 U.S. 658, 691 (1978))

(internal quotation marks omitted). The District of Columbia may

be held liable under Section 1983 only when the execution of a

government “policy or custom” inflicts an injury for which the

District of Columbia “as an entity is responsible under § 1983.” Id.

(quoting Monell, 436 U.S. at 694) (internal quotation marks

omitted).

In this case, the plaintiffs did not allege that a government

policy or custom led to the arrests. Because respondeat superior is

not a theory of liability in Section 1983 cases against

municipalities, the District of Columbia was therefore not liable for

the Section 1983 claims. The District of Columbia instead was

liable for the D.C. law claims. The damages award was not

apportioned between the Section 1983 and D.C. law claims. The

District of Columbia and the two officers are jointly and severally

liable for the full amount.

7

officers sought rehearing en banc. I would grant en banc

review.

II

The police officers persuasively argue that they had

probable cause to arrest the partiers for trespassing. But

regardless of whether the officers had probable cause, they are

entitled to qualified immunity because they at least

reasonably could have believed that they had probable cause.

Could the officers have walked away from the vacant house

filled with partiers? Sure. Could they have broken up the

party and then left? No doubt. Indeed, in retrospect, that

might well have been a better decision. But did the officers

act in a “plainly incompetent” manner or “knowingly violate”

clearly established law by making these arrests for

trespassing? No.

To begin with, the probable cause standard itself gives

police officers substantial leeway when determining whether

to make an arrest. As the Supreme Court has explained,

probable cause is a “fluid concept” that turns on “factual and

practical considerations of everyday life on which reasonable

and prudent” persons, “not legal technicians, act.” Illinois v.

Gates, 462 U.S. 213, 231-32 (1983) (internal quotation marks

omitted). Probable cause is “not readily, or even usefully,

reduced to a neat set of legal rules.” Id. at 232. To have

probable cause to arrest, a police officer does not need proof

beyond a reasonable doubt, or even by a preponderance of the

evidence, that an individual committed a crime. As the

Supreme Court has emphasized: “Finely tuned standards such

as proof beyond a reasonable doubt or by a preponderance of

the evidence” have “no place in the [probable-cause]

decision.” Florida v. Harris, 133 S. Ct. 1050, 1055, slip op.

8

at 5 (2013) (alteration in original) (internal quotation marks

omitted).

In damages suits against officers, the doctrine of qualified

immunity adds an extra dose of judicial deference to our

review of the officer’s probable cause determination. As a

general matter, qualified immunity “gives government

officials breathing room to make reasonable but mistaken

judgments” and “protects all but the plainly incompetent or

those who knowingly violate the law.” Carroll v. Carman,

135 S. Ct. 348, 350, slip op. at 4 (2014) (internal quotation

marks omitted). The “crucial question” is “whether the

official acted reasonably in the particular circumstances that

he or she faced.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023,

slip op. at 13 (2014).

In applying the qualified immunity doctrine to the issue

of probable cause to make arrests, the Supreme Court has said

that officers “who reasonably but mistakenly conclude that

probable cause is present are entitled to immunity.” Hunter v.

Bryant, 502 U.S. 224, 227 (1991) (internal quotation marks

omitted); see also Wardlaw v. Pickett, 1 F.3d 1297, 1304

(D.C. Cir. 1993). In accord with that Supreme Court

precedent, most courts of appeals – including our Court –

have ruled that officers may not be held liable for damages for

allegedly wrongful arrests so long as they had “arguable

probable cause” to make the arrest. See, e.g., Moore v.

Hartman, 644 F.3d 415, 422 (D.C. Cir. 2011), vacated on

other grounds, 132 S. Ct. 2740 (2012); Cox v. Hainey, 391

F.3d 25, 33 (1st Cir. 2004); Garcia v. Jane & John Does 1-40,

779 F.3d 84, 92 (2d Cir. 2015); Club Retro, L.L.C. v. Hilton,

568 F.3d 181, 207 (5th Cir. 2009); Greene v. Barber, 310

F.3d 889, 898 n.2 (6th Cir. 2002); McComas v. Brickley, 673

F.3d 722, 725 (7th Cir. 2012); Ulrich v. Pope County, 715

F.3d 1054, 1059 (8th Cir. 2013); Blankenhorn v. City of

9

Orange, 485 F.3d 463, 475 (9th Cir. 2007); Stonecipher v.

Valles, 759 F.3d 1134, 1141 (10th Cir. 2014); Morris v. Town

of Lexington Alabama, 748 F.3d 1316, 1324 (11th Cir. 2014).

Therefore, in suits alleging a lack of probable cause to

arrest, officers are not liable if they arguably had probable

cause – that is, if the officer reasonably could have believed

that there was probable cause to arrest.

As a result, the qualified immunity question in this case is

not whether the officers had probable cause to arrest the

partiers at the house. Rather, the question is whether the

officers reasonably could have believed that they had

probable cause to arrest for trespassing a group of people who

were having a party late at night with strippers and drugs in a

vacant house that none of the partiers owned or rented,

notwithstanding the partiers’ claims that they had permission

from a woman named Peaches to use the house.

The qualified immunity question in this case is readily

answered by a few basic principles of criminal law and

procedure. Under D.C. law, it is unlawful to enter private

property without permission from the owner or renter, or

without other lawful authority. See Ortberg v. United States,

81 A.3d 303, 306-07 (D.C. 2013). It is undisputed that the

partiers were on private property without permission from an

owner or renter, and without other lawful authority.

Therefore, this is a case where the actus reus of the crime was

complete. The sole issue from the perspective of a reasonable

police officer was whether the partiers had the necessary

mens rea to commit the crime of trespassing. If the partiers

believed that they had permission from a lawful owner or

renter to use the house, then the partiers did not commit the

offense of trespassing under D.C. law. See id. at 308-09.

10

The only question in this case, then, is whether the

officers could reasonably disbelieve the partiers when the

partiers said that they thought they had permission to use the

house.

In a case like this where the actus reas is complete and

the sole issue is the defendant’s mens rea, police officers

often must make credibility assessments on the spot,

sometimes in difficult circumstances. In those situations, are

police officers always required to believe the statements of

the suspects – in this case, the partiers in the house? Of

course not. Yet the panel opinion seems to say yes, at least

for this kind of case. According to the panel opinion, “in the

absence of any conflicting information,” a police officer does

not have probable cause to arrest people for trespassing if

those people claim that they were invited by “someone with

apparent (if illusory) authority.” Wesby v. District of

Columbia, 765 F.3d 13, 21 (D.C. Cir. 2014). And under the

panel’s approach, even if a reasonable police officer could

have doubted the credibility of the people claiming to have

been invited to the house, those credibility doubts do not

count as “conflicting information.” See id.

The panel opinion’s approach is not and has never been

the law. When police officers confront a situation in which

people appear to be engaged in unlawful activity, the officers

often hear a variety of mens rea-related excuses. “The drugs

in my locker aren’t mine.” “I don’t know how the loaded gun

got under my seat.” “I didn’t realize the under-aged high

school kids in my basement had a keg.” “I wasn’t looking at

child pornography on my computer, I was hacked.” “I don’t

know how the stolen money got in my trunk.” “I didn’t see

the red light.” “I punched my girlfriend in self-defense.”

11

But in the heat of the moment, police officers are entitled

to make reasonable credibility judgments and to disbelieve

protests of innocence from, for example, those holding a

smoking gun, or driving a car with a stash of drugs under the

seat, or partying late at night with strippers and drugs in a

vacant house without the owner or renter present. As Judge

Brown said, the law does not require 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.”

Wesby, 765 F.3d at 36 (Brown, J., dissenting). And as the

Second Circuit recently stated: A police officer is required to

accept a suspect’s mens rea-related defense only if, among

other things, “the facts establishing that defense were so

clearly apparent to the officers on the scene as a matter of

fact, that any reasonable officer would have appreciated that

there was no legal basis for arresting plaintiffs.” Garcia, 779

F.3d at 93.

Almost every court of appeals has recognized that

officers cannot be expected to definitively resolve difficult

mens rea questions in the few moments in which officers have

to decide whether to make an arrest. Consider the following

sample:

 “Once a police officer has a reasonable basis for

believing there is probable cause, he is not required to

explore and eliminate every theoretically plausible

claim of innocence before making an arrest.” Amobi

v. D.C. Department of Corrections, 755 F.3d 980, 990

(D.C. Cir. 2014) (internal quotation marks omitted).

 The “practical restraints on police in the field are

greater with respect to ascertaining intent and,

therefore, the latitude accorded to officers considering

12

the probable cause issue in the context of mens rea

crimes must be correspondingly great.” Cox v.

Hainey, 391 F.3d 25, 34 (1st Cir. 2004).

 “It is up to the factfinder to determine whether a

defendant’s story holds water, not the arresting

officer. . . . Once officers possess facts sufficient to

establish probable cause, they are neither required nor

allowed to sit as prosecutor, judge or jury. Their

function is to apprehend those suspected of

wrongdoing, and not to finally determine guilt through

a weighing of the evidence.” Krause v. Bennett, 887

F.2d 362, 372 (2d Cir. 1989).

 “Absent a confession, the officer considering the

probable cause issue in the context of crime requiring

a mens rea on the part of the suspect will always be

required to rely on circumstantial evidence regarding

the state of his or her mind.” Paff v. Kaltenbach, 204

F.3d 425, 437 (3d Cir. 2000).

 “The probable cause inquiry looks to the totality of the

circumstances; the standard does not require that

officers correctly resolve conflicting evidence or that

their determinations of credibility, were, in retrospect,

accurate.” Wright v. City of Philadelphia, 409 F.3d

595, 603 (3d Cir. 2005).

 In “considering the totality of the circumstances,” a

defendant’s “innocent explanations for his odd

behavior cannot eliminate the suspicious facts from

the probable cause calculus.” Sennett v. United States,

667 F.3d 531, 536 (4th Cir. 2012) (internal quotation

marks omitted).

13

 An investigator’s “failure to make a further

investigation into the suspect’s state of mind does not

constitute lack of probable cause if all objective

elements of a crime reasonably appear to have been

completed.” Brown v. Nationsbank Corp., 188 F.3d

579, 586 (5th Cir. 1999) (internal quotation marks

omitted).

 Police are “under no obligation to give any credence

to a suspect’s story . . . if the facts as initially

discovered provide probable cause.” Ahlers v.

Schebil, 188 F.3d 365, 371 (6th Cir. 1999) (internal

quotation marks omitted).

 “Many putative defendants protest their innocence,

and it is not the responsibility of law enforcement

officials to test such claims once probable cause has

been established.” Spiegel v. Cortese, 196 F.3d 717,

724 (7th Cir. 1999).

 “When an officer is faced with conflicting information

that cannot be immediately resolved,” the officer

“need not rely on an explanation given by the suspect”

and “may have arguable probable cause to arrest a

suspect.” Royster v. Nichols, 698 F.3d 681, 688 (8th

Cir. 2012) (internal quotation marks omitted).

 “Rarely will a suspect fail to proffer an innocent

explanation for his suspicious behavior. The test is

not whether the conduct under question is consistent

with innocent behavior; law enforcement officers do

not have to rule out the possibility of innocent

behavior.” Ramirez v. City of Buena Park, 560 F.3d

1012, 1024 (9th Cir. 2009) (internal quotation marks

omitted).

14

 The police officers “were not required” to forgo

arresting the defendant “based on initially discovered

facts showing probable cause simply because” the

defendant “offered a different explanation.” Marx v.

Gumbinner, 905 F.2d 1503, 1507 n.6 (11th Cir. 1990).

Here, in the brief time in which the officers had to decide

whether to make arrests, they could not definitively resolve

the difficult question of the partiers’ mens rea. Mr. Hughes,

the owner of the house, told the police officers that no one

had authority to use the house. At the same time, Peaches

told the officers that she had given the partiers permission to

use the house. But there were holes in Peaches’s story.

Under these circumstances, a reasonable officer could

interpret the situation in at least three different ways. First,

even if Peaches “invited” the partiers to use the house, maybe

the partiers still knew that Peaches did not really have lawful

authority to use the vacant house. In other words, maybe the

partiers were not unwittingly duped by Peaches but instead

knew or suspected that Peaches was not renting the house and

did not have authority to invite the partiers there. Second,

maybe the partiers were lying when they said that Peaches

had given them permission to use the house, and maybe

Peaches then played along and supplied cover for her friends

when the officers reached her on the phone. (Did someone

from the party text Peaches first to give her a heads-up? Who

knows.) Third, maybe the partiers were telling the whole

truth and were unwittingly misled by Peaches into thinking

that she had authority over the house.

In the first two scenarios, a reasonable officer would have

probable cause to arrest the partiers for trespassing. In the

15

third scenario, a reasonable officer would not have probable

cause to arrest.

But at the time of the arrests, the officers did not have a

way to rule out either of the first two scenarios. After all, a

police officer is required to accept a suspect’s mens rea-

related defense only if, among other things, “the facts

establishing that defense were so clearly apparent to the

officers on the scene as a matter of fact, that any reasonable

officer would have appreciated that there was no legal basis

for arresting plaintiffs.” Garcia, 779 F.3d at 93. In this case,

the officers had several reasons to doubt that the partiers were

telling the truth when they claimed that Peaches had given

them permission to use the house. The partiers were in a

vacant house late at night without the owner or renter present.

The partiers gave conflicting explanations for what they were

doing at the house, and about who had supposedly given them

permission to be there. The police officers also had several

reasons to doubt that Peaches was telling the truth. When the

officers contacted Peaches, she refused to come to the house

because she said she would be arrested, and she gave

conflicting accounts of her authority over the house.

Of course, maybe further investigation would ultimately

establish that the third scenario was in fact what had

happened. Maybe the partiers had been unwittingly misled by

Peaches into thinking that she had authority over the house.

But that was not the only reasonable interpretation of the

situation at the time of the arrests. And once “a police officer

has a reasonable basis for believing there is probable cause,

he is not required to explore and eliminate every theoretically

plausible claim of innocence before making an arrest.”

Amobi, 755 F.3d at 990 (internal quotation marks omitted).

16

In short, the officers were required to make an on-the-

spot credibility determination in a situation far removed from

the serenity and unhurried decisionmaking of an appellate

judge’s chambers. Under the circumstances, it was entirely

reasonable for the officers to have doubts about the partiers’

story and to conclude that there was probable cause to arrest

the partiers for trespassing. The police officers are entitled to

qualified immunity.5

III

The police officers are also entitled to qualified immunity

for a second, independent reason. At the time the officers

made the arrests here, the arrests violated no clearly

established statutory or constitutional right. Any such right

was created by the panel opinion in this case – years after the

officers made the arrests.

The Supreme Court has stated many times that officers

are entitled to qualified immunity unless a plaintiff can show

that “the official violated a statutory or constitutional right

that was clearly established at the time of the challenged

5

Qualified immunity examines whether police officers’

actions are “objectively reasonable,” not whether police officers

subjectively believe that their actions are reasonable. Moore, 644

F.3d at 423 n.7 (emphasis added) (quoting Wardlaw, 1 F.3d at

1305) (internal quotation marks omitted). The District Court’s

opinion noted that a few of the police officers at the scene

“erroneously believed that the question of whether Plaintiffs had

been invited onto the property was irrelevant.” Wesby v. District of

Columbia, 841 F. Supp. 2d 20, 38 n.15 (D.D.C. 2012). The panel

majority’s concurrence in the denial of rehearing en banc similarly

highlights the officers’ subjective beliefs. Concurrence 3, 8-9 &

n.1. But because qualified immunity is an objective inquiry, an

officer’s subjective belief about the law is not relevant to the

qualified immunity issue.

17

conduct.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023, slip

op. at 12 (2014) (internal quotation marks omitted); see also

Taylor v. Barkes, 135 S. Ct. 2042, 2044, slip op. at 3 (2015)

(summary reversal); City & County of San Francisco v.

Sheehan, 135 S. Ct. 1765, 1774, slip op. at 10 (2015); Carroll

v. Carman, 135 S. Ct. 348, 350, slip op. at 3 (2014) (summary

reversal); Wood v. Moss, 134 S. Ct. 2056, 2061, slip op. at 2

(2014); Stanton v. Sims, 134 S. Ct. 3, 4, slip op. at 3 (2013)

(summary reversal); Reichle v. Howards, 132 S. Ct. 2088,

2093, slip op. at 5 (2012); Ashcroft v. al-Kidd, 131 S. Ct.

2074, 2080, slip op. at 3 (2011).

“To be clearly established, a right must be sufficiently

clear that every reasonable official would have understood

that what he is doing violates that right.” Taylor, 135 S. Ct. at

2044, slip op. at 4 (internal quotation marks omitted). The

Supreme Court has emphasized that courts must “define the

clearly established right at issue on the basis of the specific

context of the case.” Tolan v. Cotton, 134 S. Ct. 1861, 1866,

slip op. at 7 (2014) (quoting Saucier v. Katz, 533 U.S. 194,

201 (2001)) (internal quotation marks omitted). The Court

has “repeatedly told courts . . . not to define clearly

established law at a high level of generality.” al-Kidd, 131 S.

Ct. at 2084, slip op. at 10. “Qualified immunity is no

immunity at all if clearly established law can simply be

defined” at a high level of generality. Sheehan, 135 S. Ct. at

1776, slip op. at 13 (internal quotation marks omitted).

That longstanding rule is one manifestation of the law’s

general concern about retroactive punishment or liability. See

generally Landgraf v. USI Film Products, 511 U.S. 244, 265-

67 (1994). It would be unfair for a court to impose monetary

liability on a police officer by creating a new legal rule and

then applying that new rule retroactively to punish the

officer’s conduct. Without “fair notice, an officer is entitled

18

to qualified immunity.” Sheehan, 135 S. Ct. at 1777, slip op.

at 15 (internal quotation marks omitted). Because “the focus

is on whether the officer had fair notice that her conduct was

unlawful, reasonableness is judged against the backdrop of

the law at the time of the conduct. If the law at that time did

not clearly establish that the officer’s conduct would violate

the Constitution, the officer should not be subject to liability

or, indeed, even the burdens of litigation.” Brosseau v.

Haugen, 543 U.S. 194, 198 (2004); see also Taylor, 135 S. Ct.

at 2045, slip op. at 5 (clearly established precedent must put

officials “on notice of any possible constitutional violation”);

Plumhoff, 134 S. Ct. at 2023, slip op. at 13 (“We did not

consider later decided cases” when determining whether an

officer violated clearly established law because those cases

“‘could not have given fair notice’” to the officer.).

At the time of the arrests here, no case had said that

officers are required to believe the statements of suspected

trespassers who claim that they have permission to be on the

property. On the contrary, as explained above, it was and is

settled law that officers do not automatically have to believe a

suspect’s excuses when the officers catch the suspect in the

midst of an activity that otherwise appears to be illegal. And

in the trespassing context in particular, the most relevant D.C.

trespassing cases supported arrest in this kind of case. See

Artisst v. United States, 554 A.2d 327, 330 n.1 (D.C. 1989);

McGloin v. United States, 232 A.2d 90, 91 (D.C. 1967).

In Artisst v. United States, for example, the defendant

argued that the evidence was not sufficient for a jury to

convict him for trespassing in a Georgetown University dorm.

554 A.2d at 329. Artisst claimed that he had entered the

building to buy soccer equipment from a dorm resident and

that he therefore lacked the necessary intent to commit

unlawful entry. Id. The D.C. Court of Appeals upheld the

19

conviction, finding that a jury could disbelieve Artisst’s

explanation. See id. at 330 n.1. But under the panel opinion

here, the police presumably could not even have arrested

Artisst, much less a jury have convicted him.

Similarly, in McGloin v. United States, the defendant

challenged his conviction for trespassing in an apartment

building. 232 A.2d at 90. McGloin told the arresting officer

that he had entered the building to look for his cat. Id.

McGloin later told the same officer that he had entered the

building to look for a friend. Id. The D.C. Court of Appeals

upheld McGloin’s conviction, noting that although “one who

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

right to enter is not guilty” of trespassing, this “is not such a

case.” Id. at 91. But again, under the panel opinion here, the

police presumably could not even have arrested McGloin,

much less a jury have convicted him.

The panel opinion sweeps that D.C. Court of Appeals

case law under the rug. The panel opinion does not analyze

Artisst, and it distinguishes McGloin as “merely” recognizing

that under certain circumstances, it is “reasonable to infer an

interloper’s intent to enter against the will of the owner.”

Wesby v. District of Columbia, 765 F.3d 13, 22 (D.C. Cir.

2014).

But the D.C. Court of Appeals case law is on point. In

my opinion, that case law clearly permits police officers to

arrest a person for trespassing even when that person claims

to have the right to be on the property, if a reasonable officer

could disbelieve the suspected trespasser. If juries in

trespassing cases can refuse to credit defendants’ explanations

for their unlawful presence in buildings, police officers surely

can do the same. After all, the standard of proof for

convictions is beyond a reasonable doubt, but the standard for

20

an arrest is the far lesser showing of probable cause. See

Florida v. Harris, 133 S. Ct. 1050, 1055, slip op. at 5 (2013).

But even apart from those D.C. Court of Appeals

decisions, one thing is crystal clear: No decision prior to the

panel opinion here had prohibited arrest under D.C. law in

these circumstances. This should have been a fairly easy case

for qualified immunity. Instead, the panel opinion did what

the Supreme Court has repeatedly told us not to do: The

panel opinion created a new rule and then applied that new

rule retroactively against the police officers. The panel

opinion held that “in the absence of any conflicting

information,” officers do not have probable cause to arrest

people for trespassing if those people claim that they were

invited by “someone with apparent (if illusory) authority.”

Wesby, 765 F.3d at 21. On top of that, the panel opinion

added a dubious gloss to its novel rule: Even if a reasonable

police officer could have doubted the credibility of the

trespassers who claimed to be invitees, those credibility

doubts do not count as “conflicting information.” What case

had ever articulated such a counterintuitive rule? Crickets.

Whatever the merits of the panel opinion’s new rule –

and I think it is divorced from the real world that police

officers face on a regular basis – it is still a new rule. And as

the Supreme Court has shouted from its First Street rooftop

for several years now, qualified immunity protects officers

from personal liability for violating rules that did not exist at

the time of the officers’ actions. See, e.g., Sheehan, 135 S. Ct.

at 1777, slip op. at 15; Plumhoff, 134 S. Ct. at 2023, slip op. at

13-14; Stanton, 134 S. Ct. at 7, slip op. at 8.6 The police

6

To be sure, “in an obvious case,” general constitutional

principles “can clearly establish the answer, even without a body of

relevant case law.” Brosseau, 543 U.S. at 199 (internal quotation

marks omitted). For example, the Supreme Court concluded that

21

officers in this case did not violate clearly established law

when they arrested the partiers. The officers are entitled to

qualified immunity.7

handcuffing a prison inmate to a hitching post for seven hours in

the sun and without water was an “obvious” violation of the Eighth

Amendment’s prohibition on cruel and unusual punishment. Hope

v. Pelzer, 536 U.S. 730, 738, 741 (2002). But the case before us

now is hardly an “obvious” case of unconstitutionality. Arresting

partiers late at night in a vacant house for trespassing when police

officers could reasonably doubt that the partiers had authority to use

the house is far from an “obvious” violation of constitutional rights

by police officers.

7

The plaintiffs brought suit against the police officers not only

under Section 1983 but also under D.C. law. Under D.C. law, a

police officer is not liable for the tort of false arrest if the police

officer had probable cause to make the arrest, or “if the officer can

demonstrate that (1) he or she believed, in good faith, that his [or

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

Bradshaw v. District of Columbia, 43 A.3d 318, 323 (D.C. 2012)

(alteration in original) (internal quotation marks omitted). Under

D.C. law, then, a police officer is entitled to immunity from a false

arrest suit if the officer both (i) reasonably could have believed that

there was probable cause to arrest and (ii) subjectively believed in

good faith that there was probable cause to arrest. As the D.C.

Court of Appeals has held, that “standard resembles the section

1983 probable cause and qualified immunity standards,” with “the

added clear articulation of the requirement of good faith.” District

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

This opinion has analyzed the objective aspect of the standard.

As to the subjective aspect, the two defendant police officers in this

case, Officers Parker and Campanale, believed in good faith that

they had probable cause to make the arrests because the officers

were unable to definitively determine if the partiers were telling the

truth when they claimed to have permission to use the house.

Officer Parker indicated that the officers made the arrests because

“one person said” that the partiers “didn’t have the right” to use the

22

***

The qualified immunity doctrine affords police officers

room to make reasonable judgments about whether they have

probable cause to make arrests. The Supreme Court has

emphasized that the doctrine protects all but the plainly

incompetent or those who knowingly violate clearly

established law. The officers in this case were not plainly

incompetent, nor did they knowingly violate clearly

established law. Anything but. Even if the officers ultimately

were wrong in concluding that they had probable cause (and I

do not think they were wrong), it was at least reasonable for

the officers to believe that they had probable cause under the

circumstances and applicable law. They should not be subject

to $1 million in damages and fees for their on-the-spot

decision to make these trespassing arrests. To be sure, I do

not dismiss the irritation and anguish, as well as the

reputational and economic harm, that can come from being

arrested. Police officers should never lightly take that step,

and the courts should not hesitate to impose liability when

officers act unreasonably in light of clearly established law.

But that is not what happened here, not by a long shot. I

respectfully dissent from this Court’s decision not to rehear

this case en banc.

house, and “one person said” that the partiers “did have the right”

to use the house. Deposition of Officer Parker, J.A. 99. Officer

Campanale similarly stated that the officers arrested the partiers

because “[n]obody could determine who was supposed to be inside

the residence,” and because the partiers were “present inside of a

location that” the partiers did “not have permission to be in.”

Deposition of Officer Campanale, J.A. 124.