Antoine Jones v. Steve Kirchner

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 21, 2016 Decided August 26, 2016

No. 14-5257

ANTOINE JONES,

APPELLANT

v.

STEVE KIRCHNER, D.C. MPD DETECTIVE, ET AL.,

APPELLEES

Consolidated with 15-5088

Appeals from the United States District Court

for the District of Columbia

(No. 1:12-cv-01334)

Anthony F. Shelley argued the cause for appellant. With

him on the briefs was Andrew T. Wise, Kathleen T. Wach, and

Arthur B. Spitzer. Adam W. Braskich entered an appearance.

Jeremy S. Simon, Assistant U.S. Attorney, argued the

cause for appellees. With him on the brief was R. Craig

Lawrence, Assistant U.S. Attorney. Peter C. Pfaffenroth,

Assistant U.S. Attorney, entered an appearance.

Before: WILKINS, Circuit Judge, and GINSBURG and

RANDOLPH, Senior Circuit Judges.

2

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

Opinion dissenting in part and concurring in the

judgment in part filed by Senior Circuit Judge RANDOLPH.

GINSBURG, Senior Circuit Judge: Plaintiff Antoine Jones

appeals the district court’s order dismissing his Bivens and

§ 1983 claims against individual agents of the Federal Bureau

of Investigation and a Metropolitan Police Department

detective arising out of a search of his home and his

coinciding arrest in 2005. 1 For the following reasons, we

affirm in part and reverse in part the order of the district court,

and remand this matter to that court for further proceedings.

I. Background

During the course of a narcotics investigation, a federal

magistrate judge in the District of Maryland signed a warrant

to search Antoine Jones’s home. The magistrate struck

language in the warrant form that would have permitted its

execution without time restrictions, causing the warrant to

read, in relevant part:

YOU ARE HEREBY COMMANDED to

search . . . the . . . place named above . . .

serving this warrant and making the search (in

the daytime – 6:00 A.M. to 10:00 P.M.)(at any

1

The district court also dismissed additional claims against these

and other defendants arising out of their search of an apartment and

a warehouse owned by Jones and for attaching a GPS tracking

device to his car, all without warrants. Jones does not appeal those

rulings.

3

time in the day or night as I find reasonable

cause has been established). 2

According to the allegations in Jones’s complaint, at 4:45

AM on October 24, 2005, one MPD detective and 11 FBI

agents executed the search warrant and arrested Jones at

gunpoint in his bedroom. Jones v. Kirchner, 66 F. Supp. 3d

237, 241 (D.D.C. 2014). During the course of the search, the

officers seized 30 to 40 boxes of personal property. Id.

Although Jones does not allege specifically what the boxes

contained, 3 he does allege the “Defendants found no evidence

of any crime at the [home],” and that the seizure therefore

“unlawfully exceeded the scope of the warrant.” Jones also

alleges the officers broke into and entered his home “using an

unauthorized key to gain entry,” “without knocking and

announcing” their presence, and without the justification of

“exigent circumstances.”

Jones has been incarcerated since his arrest. His first trial

resulted in a hung jury and a mistrial. He was convicted after

his second trial and sentenced to life in prison, but we

overturned his conviction after concluding the Fourth

Amendment prevented law enforcement officers from

installing a GPS tracking device on Jones’s car without a

2

The warrant and warrant return are reproduced as an Appendix to

this opinion.

3

Jones received a warrant receipt listing what was taken from his

home, but the descriptions are vague. See Warrant Return, Doc.

No. 619-7 in United States v. Jones, No. 05-cr-386 (D.D.C. May

22, 2012). For example, Box # 22 is described as containing

“Personal Papers in the name of A. Jones and Deniece Jones.” Box

# 16, meanwhile, is simply labelled “Misc. documents from Room

H, large bureau.”

4

warrant and using it to monitor his movements for 28 days.

United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010),

aff’d sub nom United States v. Jones, 132 S. Ct. 945 (2012).

Jones’s third trial resulted in another hung jury, after which he

pleaded guilty and was sentenced to 15 years in prison.

In this case, Jones alleges, among other things, that the

failure of the police to knock and announce before entering,

their seizure of the property contained in the boxes, and their

nighttime execution of the search violated his rights under the

Fourth Amendment to the Constitution of the United States.

See Am. Compl. ¶¶ 57-61. Jones sought damages from the

FBI agents pursuant to Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and

from the MPD officer pursuant to 42 U.S.C. § 1983. The

Defendants filed a motion to dismiss the case pursuant to

Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim, which motion the district court granted in full. Jones,

66 F. Supp. 3d 237.

The district court held that under the standard set forth in

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

Ashcroft v. Iqbal, 556 U.S. 662 (2009), Jones had failed to

“plead sufficient facts to raise his allegations” of a knock-and-

announce violation and an unlawful seizure “from possibility

to plausibility! [sic]” Id. at 245. Specifically, because the

complaint asserted Jones was upstairs at the time of the entry,

the district court said it “may infer that Mr. Jones did not hear

a knock and announce, but no more.” Id. With respect to the

seizure, the district court held the allegation was conclusory

because the complaint “does not identify what property was

seized, describe the scope of the [attached] warrant, nor allege

how the seized items exceeded that scope.” Id. at 246. The

district court also held the Defendants were entitled to

5

qualified immunity for their nighttime execution of the search

warrant. Jones timely appealed.

II. Analysis

“We review de novo the district court’s Rule 12(b)(6)

dismissal” of Jones’s claims, accepting all well-pleaded

factual allegations of the complaint as true and drawing in

Jones’s favor all reasonable inferences from those allegations.

Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1128-29

(D.C. Cir. 2015).

A. Plausibility of Allegations

The Fourth Amendment requires law enforcement

officers, before entering the premises to be searched, to

announce their presence and provide residents an opportunity

to open the door, see Wilson v. Arkansas, 514 U.S. 927, 931-

32 (1995), except under exigent circumstances, see Hudson v.

Michigan, 547 U.S. 586, 589-90 (2006). The Amendment

also requires that warrants “particularly describ[e] the place to

be searched, and the persons or things to be seized,” which

operates to “prevent[] the seizure of one thing under a warrant

describing another.” Marron v. United States, 275 U.S. 192,

195-96 (1927).

Jones’s complaint alleges the Defendants violated both

these limitations. A complaint must contain “sufficient

factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Iqbal, 556 U.S. at 678 (internal

quotations omitted). As required by Federal Rule of Civil

Procedure 8, the pleadings must “give the defendants fair

notice of what the claim is and the grounds upon which it

rests,” Twombly, 550 U.S. at 555 (internal quotations and

alterations omitted), but the Rule “does not require detailed

6

factual allegations,” Iqbal, 556 U.S. at 678 (internal

quotations omitted). The amended complaint easily meets

these minimum requirements. Taking Jones’s allegations as

true for the purpose of passing upon a motion to dismiss, see

Twombly, 550 U.S. at 555, he has made a prima facie

showing the Defendants violated the Fourth Amendment.

Jones can try to prove the knock-and-announce violation

by testifying that he did not hear a knock. If the Defendants

did, in fact, knock, then they can so testify to refute Jones’s

claim. The task of resolving the conflicting accounts would

fall to the finder of fact – judge or jury – who could decide

how much weight to assign Jones’s testimony after

considering all relevant evidence, such as the distance

between the bedroom and the front door and the volume of

the alleged knock. Credibility determinations are not for the

district court, especially at the motion to dismiss stage, before

evidence is available and before the Defendants have even

denied the allegations against them. See Howard v. Office of

Chief Admin. Officer of U.S. House of Representatives, 720

F.3d 939, 950 (D.C. Cir. 2013) (explaining that, at the motion

to dismiss stage, the “court must assess the legal feasibility of

the complaint, but may not weigh the evidence that might be

offered to support it”) (internal quotations and brackets

omitted); Neitzke v. Williams, 490 U.S. 319, 327 (1989)

(“Rule 12(b)(6) does not countenance . . . dismissals based on

a judge’s disbelief of a complaint’s factual allegations”);

Iqbal, 556 U.S. at 678 (The “plausibility standard is not akin

to a probability requirement”) (internal quotations omitted). 4

4

The Defendants also argue the knock-and-announce allegation

must be dismissed because it is asserted against the officers

collectively “for an alleged omission . . . by whoever was first to

enter the residence.” This is a frivolous argument. First, the order

of entry is a fact unknowable by the plaintiff before discovery.

Second, the defendants offer no authority holding or even

7

Jones’s allegation of unlawful seizure is also plausible.

Maybe all of the items in the 30 or more seized boxes fell

within the scope of the search warrant, specified in

Attachment A, Doc. No. 619-6 in Jones, 05-cr-386 (May 22,

2012). Maybe some or all of the items did not. The district

court will ultimately make that determination. Cf. United

States v. Geraldo, 271 F.3d 1112, 1118 (D.C. Cir. 2001). But

Rule 8, which provides a complainant must make “a short and

plain statement of the claim showing that the pleader is

entitled to relief,” did not require Jones, before discovery, to

identify each seized item and document and to show that each

fell outside the scope of the warrant.

B. Statute of Limitations

There is no federal limitations period or tolling rule for

actions brought under § 1983, so 42 U.S.C. § 1988, a

companion statute that governs the rules of decision

applicable to civil rights claims, directs federal courts to look

to state law to fill the gap. See Wilson v. Garcia, 471 U.S.

261, 266-68 (1985); see also Hardin v. Straub, 490 U.S. 536,

539 (1989) (applying state rule tolling the limitations period

for inmates in a § 1983 action); Earle v. District of Columbia,

707 F.3d 299, 305 (D.C. Cir. 2012) (applying the D.C. statute

of limitations in a § 1983 action brought in D.C.); Doe v. U.S.

Dep’t of Justice, 753 F.2d 1092, 1114 (D.C. Cir. 1985)

(applying the D.C. statute of limitations in a Bivens action

brought in D.C.). The Defendants argue we should apply

Maryland’s three-year statute of limitations because it is the

suggesting that only the first officer to enter is liable for a knock-

and-announce violation, nor any justification for deviating from the

rule that “a jointly committed . . . tort may result in joint liability on

the part of the tort-feasors.” Knell v. Feltman, 174 F.2d 662, 663

n.1 (D.C. Cir. 1949).

8

state in which the search took place. The search occurred in

2005, so the limitations period would have lapsed by the time

Jones filed his complaint in 2012.

We do not apply Maryland law in this case, however.

Where federal law is silent, § 1988 provides, “the common

law, as modified and changed by the constitution and statutes

of the State wherein the court having jurisdiction . . . is held”

shall govern unless application of the state law would be

inconsistent with the laws of the United States. (emphasis

added). See also Burnett v. Grattan, 468 U.S. 42, 47-48

(1984) (explaining that, if no federal rule governs a claim

asserted under the Civil Rights Acts, then courts are to

consider application of the laws “of the forum state”).

Because the District of Columbia is the forum “state” in this

case, pursuant to § 1988, we look to District law for the

applicable statute of limitations.

Quoting Wallace v. Kato, 549 U.S. 384 (2007), the

Defendants argue we must look to “the law of the State in

which the cause of action arose,” but that dictum does not

direct us to a different result. Id. at 387. In Wallace, the

Supreme Court held that federal law, rather than state law,

determines the accrual date of a § 1983 cause of action; which

state’s statute of limitations would have applied was not

disputed. 5 In fact, until 2009 no court had ever considered

5

Indeed, even if Wallace were controlling, it would still not be

clear that the phrase “the State in which the cause of action arose”

refers in this case to Maryland rather than to D.C. Other courts

have cited Wallace for the proposition that “[c]laims under § 1983

are governed by the forum state’s statute of limitations,” e.g., Myers

v. Koopman, 738 F.3d 1190, 1194 n.2 (10th Cir. 2013), an

interpretation probably attributable to the courts’ imprecise usage of

the phrase in § 1983 cases, cf. Haggard v. Stevens, 683 F.3d 714,

719 (6th Cir. 2012) (Clay, J., concurring).

9

“which statute of limitations is appropriate when the

constitutional tort occurred in a state other than the forum of

the litigation,” Malone v. Corrections Corp. of America, 553

F.3d 540, 542 (7th Cir. 2009). In Malone the court imported

the forum state’s choice-of-law rules to determine which

statute of limitations the forum state would apply. 553 F.3d

at 542. This approach makes good sense because a state’s

“statute[] of limitations cannot be divorced from the [other]

associated rules that determine how long a plaintiff has to

commence suit.” Id. at 542. Consulting the “D.C. choice-of-

law rules, we see that they treat statutes of limitations as

procedural, and therefore [ordinarily] mandate application of

the District’s own statute of limitations.” A.I. Trade Fin., Inc.

v. Petra Int’l Banking Corp., 62 F.3d 1454, 1458 (D.C. Cir.

1995).

Like Maryland, D.C. has a three-year statute of

limitations for personal injury actions such as this. See Earle,

707 F.3d at 305 (citing D.C. Code § 12-301(8)). Unlike

Maryland, however, the District tolls the statute of limitations

for causes of action that accrue while a plaintiff is imprisoned,

beginning at the time of his or her arrest. District of

Columbia v. Tinker, 691 A.2d 57, 64 (D.C. 1997) (citing D.C.

Code § 12-302(a)(3)). Tolling stops when the plaintiff is

released, but Jones has been imprisoned since his arrest in

2005. 6

6

Contrary to our dissenting colleague’s contention, see Dissent at

10 n.5, the pursuit of a uniform limitations period is not a valid

reason to ignore the clear text of § 1988 and instead import a

federal limitations period. “[T]he ‘state-borrowing doctrine’ may

not be lightly abandoned,” Lampf, Pleva, Lipkind, Prupis &

Petigrow v. Gilbertson, 501 U.S. 350, 357 (1991), particularly in a

federal civil rights case, where the Supreme Court plainly envisions

that different state legislatures will reasonably implement different

10

The Defendants nevertheless argue that tolling does not

apply because the alleged knock-and-announce violation

occurred immediately prior to Jones’s arrest. If the Council

of the District of Columbia did not require Jones to file his

lawsuit from his jail cell, however, then it surely did not

expect him to draft, file, and serve a complaint in the

moments between the officers’ entry into his home and his

arrest. In Rose v. Washington Times Co., 23 F.2d 993 (1928),

the D.C. Court of Appeals interpreted an earlier statute that

tolled a cause of action for libel during imprisonment. It

explained:

There can be no doubt that the word

imprisonment is used in this section in its plain,

ordinary meaning. Imprisonment is the act of

putting or confining a man in prison; the

restraint of a man’s personal liberty; coercion

exercised upon a person to prevent the free

exercise of his powers of locomotion.

Id. at 994 (quoting Hyde v. Nelson, 229 S.W. 200, 201 (Mo.

1921)). From the moment the Defendants entered Jones’s

home, he was not free to leave. Although he had not yet been

handcuffed or given Miranda warnings, his liberty was

sufficiently restrained that he was ‘imprisoned’ for purposes

of § 12-302(a)(3). The statute of limitations therefore has not

yet begun to run on Jones’s § 1983 or Bivens 7 claims.

statutes of limitations and tolling rules, see Hardin, 490 U.S. at

543-44.

7

Although our limitations analysis focuses upon the § 1983 claims,

the Bivens claims are governed by the same statute of limitations.

Bieneman v. City of Chi., 864 F.2d 463, 469 (7th Cir. 1988)

(“Actions under § 1983 and those under [Bivens] are identical save

for the replacement of a state actor (§ 1983) by a federal actor

11

C. Issue Preclusion

The Defendants argue Jones is collaterally estopped from

litigating the legality of the search and seizure because he

raised these issues during the criminal proceeding as part of

his motion to suppress. They also argue Jones’s claims are

barred by Heck v. Humphrey, in which the Supreme Court

held a § 1983 complaint must be dismissed if a favorable

judgment would necessarily impugn the validity of a prior

conviction, unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated. 512 U.S.

477 (1994). We reject both arguments.

1. Collateral Estoppel

Citing Allen v. McCurry, the Defendants contend Jones’s

claims are barred because they had already been resolved by

the district judge on Jones’s motion to suppress. See 449 U.S.

90, 105 (1980) (Section 1983 claim for unlawful search

barred by issue preclusion because the validity of the search

had already been resolved in denying the motion to suppress).

“[A]mong the most critical guarantees of fairness in applying

collateral estoppel,” however, “is the guarantee that the party

to be estopped had not only a full and fair opportunity but an

adequate incentive to litigate to the hilt the issues in

question.” Haring v. Prosise, 667 F.2d 1133, 1141 (4th Cir.

1981), affirmed 462 U.S. 306 (1983); see generally

(Bivens). No wonder the only . . . courts of appeals that have

addressed questions concerning limitations under Bivens have held

that the rules used for § 1983 suits will be applied in full force to

Bivens cases”); Sanchez v. United States, 49 F.3d 1329, 1330 (8th

Cir. 1995); Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991);

Chin v. Bowen, 833 F.2d 21, 23-34 (2d Cir. 1987); McSurley v.

Hutchison, 823 F.2d 1002, 1004-05 (6th Cir. 1987).

12

Restatement (Second) of Judgments (§§ 27-29 (1982)).

Unlike the defendant in McCurry, Jones had little incentive to

pursue further his motion to suppress because, whatever its

merits, the remedy for the alleged constitutional violations at

issue in this case probably would not have been suppression

of the evidence seized at his home. See Hudson, 547 U.S. at

593 (rejecting suppression as a remedy when the causal

connection between the discovery of the tainted evidence and

the constitutional violation – in that case, failure to knock and

announce – is remote). Collateral estoppel therefore does not

apply.

Our dissenting colleague argues that Jones is barred from

alleging the time of entry was 4:45 AM because on the

motion to suppress, the district judge found the officers had

entered after 6:00 AM. There are three problems with that

argument. First, the Defendants never mention the factual

finding that so animates the Dissent; after spending much of

their brief arguing that the search as alleged would not have

been unlawful, the Defendants said only that, “[h]aving

litigated th[is] claim[] unsuccessfully in the criminal

proceeding as part of a motion to suppress, Jones cannot now

re-litigate [it] in a civil proceeding.” Defs.’ Br. 41. That will

not do. “We apply forfeiture to unarticulated [legal and]

evidentiary theories not only because judges are not like pigs,

hunting for truffles buried in briefs or the record, but also

because such a rule ensures fairness to both parties.” Estate

of Parsons v. Palestinian Auth., 651 F.3d 118, 137 (D.C. Cir.

2011) (internal citations and quotations omitted).

Second, Jones had no more incentive to appeal that

finding than to appeal the conclusion that nighttime entry was

not unlawful. As we have already explained, the remedy for

the alleged violation likely would not have been suppression.

Furthermore, any purported incentive to appeal the

13

suppression ruling, as Jones points out, would have been

negated by Jones’s subsequent guilty plea, which rested at

least in part upon evidence that was not seized from his home.

See Reply Br. 25-26.

Third, collateral estoppel is particularly inappropriate

because the factual finding was not necessary to the district

court’s decision denying the motion. See Trial Transcript at

4, Doc. No. 70 in Jones, 05-cr-386 (Feb. 19, 2013) (“I’ve

already ruled five times it’s legally irrelevant. And I still

stand by that. But to the extent I need to make findings of

fact, I find that this search was executed after 6”); see

generally San Remo Hotel, L.P. v. City & Cnty. of San

Francisco, 545 U.S. 323, 336 n.16 (2005) (explaining that

collateral estoppel applies only to “an issue of fact or law

necessary to [the court’s] judgment”) (emphasis added). 8

Evanson v. United States, 84 F.3d 1452 (D.C. Cir. 1995),

aff’g 878 F. Supp. 1 (D.D.C. 1995), upon which the Dissent

(at 4-5) relies, is an unpublished summary affirmance that has

nothing to do with case at hand. The alleged constitutional

violations in Evanson were very different: they concerned

whether the officers’ entry was consensual and whether the

8

We do not hold, as the Dissent claims, that neither of two

alternative bases for a holding can estop a party from re-litigating

an issue in a future action. We simply note that, where a district

court has explicitly characterized a factual finding as “legally

irrelevant,” it is fair to say that particular finding was not

“necessary” to the court’s judgment. Cf. Halpern v. Schwartz, 426

F.2d 102, 105 (2d Cir. 1970) (“It is well established that although

an issue was fully litigated and a finding on the issue was made in

the prior litigation, the prior judgment will not foreclose

reconsideration of the same issue if that issue was not necessary to

the rendering of the prior judgment, and hence was incidental,

collateral, or immaterial to that judgment”).

14

arrest was supported by probable cause. But even if the

allegations had been identical, Evanson would have had an

incentive to appeal because the Supreme Court had not yet

decided Hudson. Further, the district court in Evanson noted

multiple times that an issue must be “necessary” to a

judgment for estoppel to apply. 878 F. Supp. at 3. As we

have explained, that was not the case here.

2. Heck v. Humphrey

Heck v. Humphrey is no bar to Jones’s claims. Jones’s

first conviction was vacated. Maynard, 615 F.3d at 549. His

current conviction rests upon his guilty plea, and “when a

defendant is convicted pursuant to his guilty plea rather than a

trial, the validity of that conviction cannot be affected by [his

proving] an alleged Fourth Amendment violation because the

conviction does not rest in any way on evidence that may

have been improperly seized.” Prosise, 462 U.S. at 321.

Further, because the remedy for the alleged violations likely

would not have been suppression, a favorable ruling in this

civil suit would not necessarily impugn Jones’s conviction

even if he had not pled guilty. See Heck, 512 U.S. at 487 n.7

(“Because of doctrines like . . . harmless error, . . . a § 1983

action, even if successful, would not necessarily imply that

the plaintiff’s conviction was unlawful”).

D. Qualified Immunity for the Timing of the Search

The district court dismissed Jones’s claim regarding the

execution of the search warrant at 4:45 AM on the ground that

the officers are entitled to qualified immunity, the doctrine

that “protects government officials from liability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

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

15

555 U.S. 223, 231 (2009) (internal quotation marks omitted).

Qualified immunity depends upon the answers to two

questions: (1) Did the officer’s conduct violate a

constitutional or statutory right? If so, (2) was that right

clearly established at the time of the violation? Saucier v.

Katz, 533 U.S. 194, 201 (2001). A right is “clearly

established” if precedent from a controlling authority or “a

robust consensus of cases of persuasive authority” put the

constitutional question beyond debate. Ashcroft v. al-Kidd,

563 U.S. 731, 742 (2011). In this case, the district court held

that there was no Fourth Amendment violation because the

“Fourth Amendment does not per se prohibit nighttime

searches,” 66 F. Supp. 3d at 246 (citing Youngbey v. March,

676 F.3d 1114, 1124 (D.C. Cir. 2012)), and that, in any event,

Jones “cites to no cases in the Supreme Court or [the D.C.]

Circuit clearly establishing that entry under the circumstances

alleged” here was unconstitutional, id.

The district court erred in holding there was no

constitutional violation. Jones does not allege the timing of

the search was unlawful merely because it took place at night;

he alleges it was unlawful because it violated an express

limitation on the face of the warrant.

The Fourth Amendment “guarantees . . . the absolute

right to be free from unreasonable searches and seizures.”

Bivens, 403 U.S. at 392. The search of a home is

presumptively unreasonable unless authorized by a warrant,

Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006),

which must be issued by a neutral judicial officer, see

Johnson v. United States, 333 U.S. 10, 13-14 (1948). Unlike

rules of criminal procedure and other sub-constitutional

bodies of law, violations of which may be unlawful but are

not necessarily unconstitutional, see Virginia v. Moore, 553

U.S. 164, 176 (2008) (“[W]hile States are free to

16

regulate . . . arrests however they desire, state restrictions do

not alter the Fourth Amendment’s protections”), compliance

with the limitations of a warrant is required by the

Constitution itself, Bivens, 403 U.S. at 394-95 n.7 (“[T]he

Fourth Amendment confines an officer executing a search

warrant strictly within the bounds set by the warrant”).

In this case the magistrate, as clearly indicated on the

face of the warrant, affirmatively denied the Defendants

permission to search Jones’s house before 6:00 AM. The

plaintiff alleges the Defendants nonetheless executed the

warrant at 4:45 AM. Just as a warrant is “dead,” and a search

undertaken pursuant to that warrant invalid, after the

expiration date on the warrant, Sgro v. United States, 287 U.S.

206, 212 (1932), a warrant is not yet alive, and a search is

likewise invalid, if executed before the time authorized in the

warrant. If the Defendants executed the warrant when the

magistrate said they could not, then they exceeded the

authorization of the warrant and, accordingly, violated the

Fourth Amendment. 9

In holding the alleged nighttime entry violated the Fourth

Amendment, we reject the Defendants’ argument that 21

U.S.C. § 879 overrode the time restrictions imposed by the

magistrate. That statute, which governs searches for evidence

of drug crimes, provides that a warrant “may be served at any

9

Our dissenting colleague says that when a “state warrant

authorized only a daytime search but the officers executed the

warrant at night,” courts have held there is no Fourth Amendment

violation. Dissent at 14 n. 7 (emphasis added) (citations omitted).

That mischaracterizes the cases. In each one, the warrant itself was

silent as to timing; any time restrictions derived from a state statute

or rule of criminal procedure, which are not incorporated by the

Fourth Amendment.

17

time of the day or night if the judge or United States

magistrate judge issuing the warrant is satisfied that there is

probable cause to believe that grounds exist for the warrant

and for its service at such time.” Unlike Federal Rule of

Criminal Procedure 41, which governs most searches and

requires an officer to demonstrate “good cause” before a

magistrate can authorize a nighttime search, § 879 “requires

no special showing for a nighttime search” beyond probable

cause for the warrant itself. Gooding v. United States, 416

U.S. 430, 458 (1974). Although this and other courts have

held a warrant issued pursuant to § 879 that is silent as to time

may permissibly be executed at night, see, e.g., United States

v. Burch, 156 F.3d 1315, 1325 (D.C. Cir. 1998), nothing in

the text of § 879 suggests it limits a magistrate’s discretion to

place restrictions upon a search.

Indeed, a statute purporting to restrict the power of a

court to define the limits of a reasonable search would raise a

serious constitutional question. Cf. Dickerson v. United

States, 530 U.S. 428, 437 (2000) (“Congress may not

legislatively supersede our decisions interpreting and applying

the Constitution”). 10 We need not resolve that question here,

however, because regardless whether the magistrate should

have permitted a nighttime search in this case, he did not.

The warrant requirement “provides the detached scrutiny of a

neutral magistrate, which is a more reliable safeguard against

improper searches than the hurried judgment of a law

enforcement officer engaged in the often competitive

10

Our dissenting colleague contends that Rule 41(a)(2)(B) and

(e)(2) impose just such restrictions. They do not. The rules merely

prevent a magistrate from authorizing a search that fails to meet

certain minimum requirements; they do not purport to require a

magistrate to authorize a search he has otherwise deemed

unreasonable.

18

enterprise of ferreting out crime.” United States v. Leon, 468

U.S. 897, 913-14 (1984) (internal quotations omitted). If the

executing officers believed the daytime-only limitation was

an improvident limitation or, as in United States v. Katoa, 379

F.3d 1203 (10th Cir. 2004), a mere drafting error, then they

had other options, including telephoning the magistrate to

authorize nighttime service, as the officers did in Katoa. See

also United States v. Voustianiouk, 685 F.3d 206, 216 (2d Cir.

2012) (explaining that a search of a second-floor apartment

violated the Fourth Amendment where the warrant authorized

a search of the first-floor apartment only and the officers

“could have called a magistrate judge on the telephone” on

the morning of the search after discovering the suspect

resided on the second floor). Simply ignoring the timing

limitation was not among the choices lawfully available to the

officers in this case.

Nevertheless, we agree with the district court that the

Defendants are entitled to qualified immunity, albeit for a

different reason: It was not clearly established in Maryland in

2005 that the Fourth Amendment prohibits the nighttime

execution of a daytime-only warrant. Although two of our

sister circuits had by then so held, see O’Rourke v. City of

Norman, 875 F.2d 1465 (10th Cir. 1989); United States v.

Merritt, 293 F.2d 742 (3d Cir. 1961), the Fourth Circuit,

within which this search occurred, did not come to the same

conclusion until after the search in this case. See Yanez-

Marquez v. Lynch, 789 F.3d 434, 466 (2015). Indeed, as the

Fourth Circuit noted in that case, an unpublished Fourth

Circuit opinion from 2009 had treated “a nighttime search

under the aegis of a daytime warrant as a mere Rule 41

violation, rather than as an unconstitutional search.” Id. at

467 (discussing United States v. Davis, 313 F. App’x 672).

To repeat, qualified immunity shields an officer from liability

unless he reasonably should have known his conduct would

19

violate the law. See Pearson, 555 U.S. at 231. If our learned

colleagues on the Fourth Circuit believed as recently as 2009

that the nighttime execution of a daytime-only warrant is not a

constitutional violation, then the police officers who work in

that jurisdiction cannot be faulted for failing to appreciate in

2005 that their conduct was unconstitutional.

Until 2009 the Supreme Court “required courts

considering qualified immunity claims to first address the

constitutional question, so as to promote ‘the law’s

elaboration from case to case.’” Camreta v. Greene, 563 U.S.

692, 707 (2011) (emphasis omitted) (quoting Saucier v. Katz,

553 U.S. 194, 201 (2001)). 11 Today, which part of the

qualified immunity analysis to address first is within the

“sound discretion” of the court. Pearson, 555 U.S. at 236.

Where “it is plain that a constitutional right is not clearly

established but far from obvious whether in fact there is such

a right,” it may make sense to avoid the constitutional

question. Id. at 237. This is not such a case, however. It

seems to us an unremarkable proposition that an officer must

respect a time limitation imposed by a magistrate and, indeed,

the three other circuits to consider the question reached the

same conclusion. In light of the Government’s argument to

the contrary, see Defs.’ Br. 36, we think it important to clarify

this point of law.

11

Our resolution of the constitutional question, although not

necessary to the grant of qualified immunity, is “not mere dictum in

the ordinary sense.” Bunting v. Mellen, 541 U.S. 1019, 1023

(2004) (Scalia, J., dissenting from denial of certiorari). Such

rulings “have a significant future effect on the conduct of public

officials . . . and the policies of the government units to which they

belong. And more: they are rulings self-consciously designed to

produce this effect, by establishing controlling law and preventing

invocations of immunity in later cases.” Camreta, 563 U.S. at 704-

05 (internal quotations and citations omitted).

20

Since Pearson, our court has often granted qualified

immunity without reaching the constitutional question, but

both the constitutional question and the answer are more clear

in this case than in any of those. Here we need only follow

the teaching of the Supreme Court, as have three other

circuits, in order to protect the public from a particular type of

unreasonable search. One of those circuits – the Fourth –

surrounds the District of Columbia on all sides, and officers

from Maryland and Virginia frequently cooperate with

officers from D.C. on investigations. Resolving the

constitutional question here ensures that officers will take care

to abide by a magistrate’s limitations regardless where in the

Washington area the search is executed.

Conservation of judicial resources, see Dissent at 11, is a

risible justification for avoiding a straightforward question

such as this, cf. Pearson, 555 U.S. at 236 (“there are cases in

which there would be little if any conservation of judicial

resources to be had by beginning and ending with a discussion

of the ‘clearly established’ prong”), especially in view of the

dramatic reduction in the caseload per judge of our court in

recent years. Nor is doubt about the actual time of entry a

relevant consideration in this case. That the facts of the case

are as yet unsettled is neither surprising nor unique; this

appeal is from the grant of a pre-answer motion to dismiss.

There is nothing improper about deciding a constitutional

question at this stage. Cf. al-Kidd, 563 U.S. at 734. Indeed,

we ordinarily decide questions of qualified immunity early in

order to avoid burdening officers with protracted litigation,

see Pearson, 555 U.S. at 232; under our dissenting

colleague’s approach, in contrast, we would never reach a

constitutional question as long as the defendant’s attorney

remembered to raise qualified immunity as a defense.

Although well-founded doubt about the veracity of a

21

plaintiff’s factual allegations might steer us toward

constitutional avoidance in some circumstances (e.g., where

the plaintiff’s account of the facts on summary judgment is

“utterly discredited by the clear [video] evidence,” Lash v.

Lemke, 786 F.3d 1, 6 (D.C. Cir. 2015)), those circumstances

are not present here, where the Defendants have not submitted

contrary evidence nor even filed an answer denying Jones’s

allegations. 12

As the Supreme Court has warned, perpetually

addressing only the clearly-established question “may

frustrate the development of constitutional precedent and the

promotion of law-abiding behavior.” Camreta, 563 U.S. at

706 (internal quotations omitted). We see no need to avoid

the constitutional question here.

III. Conclusion

We affirm the district court’s holding that the Defendants

have qualified immunity for the timing of the search, reverse

its dismissal of Jones’s claims for unlawful seizure and no-

knock entry, and remand this matter for further proceedings

consistent with this opinion.

So ordered.

12

Had they wanted to do so at this early stage of the litigation, the

defendants could have submitted affidavits denying that they

entered the plaintiff’s home before 6:00 a.m. Rule 12(d) allows a

party to convert a motion to dismiss into one for summary

judgment by submitting extrinsic materials with the motion. See

also Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011).

Appendix A

RANDOLPH, Senior Circuit Judge, dissenting in part and

concurring in the judgment in part:

There are two basic and related reasons why I believe the

majority errs in deciding that the defendants violated the Fourth

Amendment when they allegedly executed a daytime search

warrant at night. The first reason should have been conclusive.

It is that collateral estoppel bars Jones’ claim about the timing

of the search. In the criminal proceedings leading to Jones’

conviction that very issue was decided against him, not once but

several times, because his allegation turned out to be false. The

second reason is that the majority’s determination to reach out

and decide this constitutional issue despite that finding and

despite the defendants’ immunity from suit is an abuse of

discretion.

All that is before us in this case is Jones’ complaint, the

fourth civil suit he has filed during his imprisonment on a plea

of guilty for drug dealing. His latest action alleges that more

than a decade ago officers began searching his home at 4:45

a.m. although the search warrant authorized a search only

between 6:00 a.m. and 10:00 p.m. and that the defendant officers

therefore violated the Fourth Amendment to the Constitution.

In order to reach this constitutional issue, the majority

opinion decides two new and significant points of law for this

circuit: that alternative holdings do not give rise to collateral

estoppel and that suppression is not the proper remedy for

violation of a warrant’s timing requirement. Jones raised neither

of these issues in this court or in the district court, and yet the

majority opinion decides both of them in order to reach a

constitutional question that is irrelevant to the disposition of this

case because of the defendants’ immunity.

In coming to these conclusions, the majority opinion also

assumes the truth of Jones’ allegation. Yet in the criminal

proceedings against Jones, the district court made an evidentiary

2

finding that Jones’ allegation was false and that the search

actually occurred after 6:00 a.m.

The search of Jones’ home was part of a coordinated take-

down on the morning of October 24, 2005, in which FBI, Metro

Police, and other officers simultaneously searched several

different properties. More than half a dozen officers – including

defendants in this case – testified that at 6:00 a.m., the FBI

command center sent out the signal for all teams to execute their

warrants. At Jones’ Moore Street house, Agent Steven Naugle

– a defendant in this case – was team leader. Agent Naugle

testified that the call “went out over the radio . . . at 6:00 a.m. to

execute our search warrants.” Trial Transcript at 41, No. 1:05-

cr-00386-ESH (Feb. 11, 2013), ECF No. 739. The team, which

had been parked at a nearby shopping center, drove to Jones’

house and entered at approximately 6:15 a.m. Id. at 41, 75.

In his initial motion to suppress, Jones did not mention the

timing of the search. He later filed two “Motion[s] for

Reconsideration” of the motion to suppress, in which he raised

the issue. Attached to his motions were affidavits from his wife

and son claiming that agents had entered his home at 4:45 a.m.

See Motion for Reconsideration, No. 1:05-cr-00386-ESH

(D.D.C. May 22, 2012), ECF No. 619-3, No. 619-4, No. 619-5;

Motion to Reconsider at 34-44, No. 1:05-cr-00386-ESH (D.D.C.

Feb. 19, 2013), ECF No. 688. Judge Huvelle denied the first

motion in an oral bench ruling, stating that even if Jones had a

right to have the warrant executed at 6:00 a.m. rather than 4:45

a.m., “the remedy would not be suppression.” Trial Transcript

at 11, No. 1:05-cr-00386-ESH (D.D.C. Aug. 10, 2012), ECF No.

670-5. She denied the second motion in a minute order, which

stated that the motion was “denied for the reasons stated on the

record in open[] court.” Minute Entry, No. 1:05-cr-00386-ESH

(D.D.C. Feb. 19, 2013).

3

In giving those reasons, Judge Huvelle made a specific

factual finding that the search occurred after 6:00 a.m. Trial

Transcript at 3–4, No. 1:05-cr-00386-ESH (D.D.C. Feb. 19,

2013), ECF No. 780. Here is what she said from the bench:

I credit the testimony of Naugle and the many,

many, many other police officers, all of whom got the

go-ahead to start at 6 a.m.

I’m telling you that police do not – they go at the

same time. It will undercut the whole purpose of

executing a search warrant if half of them go at one

time and half go at another time.

The testimony is absolutely consistent. We heard

from Naugle that he went in to the Moore Street house

at 6 a.m. or shortly thereafter, consistent with

Magistrate Judge Charles Day’s order. And we find

that – listening to the testimony we know from the

people who executed the warrant at the co-conspirator’s

house from Detective Webb, he testified; Ashby

testified; somebody testified with respect to Demetrius

Johnson’s. Ms. Counts, special agent now retired

Counts, testified; Norma Horne testified; and Detective

Kirschner [sic] testified.

There’s consistent testimony that they went in at

6:00 when they got the word. Or after 6:00. So I find

no basis to credit Ms. Jones’s testimony. I find the

police officers to be totally consistent. I’ve already

ruled five times it’s legally irrelevant. And I still stand

by that. But to the extent I need to make findings of

fact, I find that this search was executed after 6 when

command center gave the go-ahead to all these officers

to take down this conspiracy.

4

The warrant itself, now reproduced in its entirety as an

addendum to the majority opinion, corroborates Judge Huvelle’s

finding. On page two of the warrant, under the heading “DATE

AND TIME EXECUTED,” is the notation “10/24/05 6:15 AM.”

This statement deserves great weight not only because it was

made contemporaneously but also because it was made in

compliance with Rule 41(f)(1)(A) of the Federal Rules of

Criminal Procedure1: “The officer executing the warrant must

enter on it the exact date and time it was executed.”

Under Allen v. McCurry, 449 U.S. 90, 94 (1980), rulings on

motions to suppress have preclusive effect in later civil suits.

See McClam v. Barry, 697 F.2d 366, 371 n.3 (D.C. Cir. 1983)

(“[C]ollateral estoppel should apply in Bivens-type actions as it

applies in section 1983 actions.”), overruled on other grounds

by Brown v. United States, 742 F.2d 1498 (D.C. Cir. 1984).

Jones has already litigated the issue about the timing of the

search, and he has lost.

This collateral estoppel issue has already been decided in

this circuit as a matter of federal law.2 Evanson v. United States,

1

On page 17 of the majority opinion there is, as an aside, the

statement that a statute restricting a federal court’s definition of the

limits of a reasonable search “would raise a serious constitutional

question.” This ill-considered dictum is troublesome. Rule

41(a)(2)(B) and (e)(2), for example, restrict the discretion of

magistrates to determine the limits of a reasonable search, with the

federal rules defining night and day without regard to seasons or time

zones. The notion that those provisions might be unconstitutional

strikes me as far-fetched.

2

Many other courts have come to the same conclusion on state

law grounds. See United States ex rel. DiGiangiemo v. Regan, 528 F.2d

1262, 1265 (2d Cir. 1975) (Friendly, J.); Donovan v. Thames, 105 F.3d

291, 298 (6th Cir. 1997); Simmons v. O’Brien, 77 F.3d 1093, 1096–97

5

84 F.3d 1452 (D.C. Cir. 1995), aff’g 878 F. Supp. 1 (D.D.C.

1995), was a civil damage action like this case alleging a

violation of the Fourth Amendment. The plaintiff in Evanson

had been convicted of gun crimes in federal court. He declined

to appeal his conviction and then filed a Bivens suit against

several of the federal officers who took part in the search. Judge

Friedman ruled that the plaintiff was collaterally estopped from

contesting the constitutionality of the search because “[a]t the

suppression hearing [in federal court in his criminal case], at

which he was represented by counsel, plaintiff had a full and fair

opportunity to litigate the Fourth Amendment issues he

presented.” Id. at 3. We summarily affirmed, finding that “[t]he

merits . . . are so clear as to warrant summary action.” 84 F.3d

1452; see also Paolone v. Mueller, No. CIV A. 05-2300 (JDB),

2006 WL 2346448, at *6 (D.D.C. Aug. 11, 2006).

The majority opinion claims that Evanson is distinguishable

because the issue there was “necessary” to the judgment. Maj.

Op. at 14. In the majority’s view, Judge Huvelle’s factual

finding about the timing of the search was not necessary to

resolve the motion to suppress because it was an alternative

ruling. But the traditional rule, and the one most courts of

appeals follow, is that “an alternative ground upon which a

decision is based should be regarded as ‘necessary’ for purposes

of . . . res judicata or collateral estoppel . . ..” Winters v. Lavine,

574 F.2d 46, 67 (2d Cir.1978); see also Jean Alexander

Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 254 (3d Cir.

2006); Magnus Elecs., Inc. v. La Republica Argentina, 830 F.2d

(8th Cir. 1996); Ayers v. City of Richmond, 895 F.2d 1267, 1271 (9th

Cir. 1990); Rowley v. Morant, 631 F. App’x 651, 654 (10th Cir. 2015);

but see Heath v. Cast, 813 F.2d 254, 258 (9th Cir. 1987). See generally

Diane M. Allen, Res Judicata or Collateral Estoppel Effect of Prior

Criminal Proceedings, 68 A.L.R. FED. 861 (1984) (collecting cases).

6

1396, 1402 (7th Cir. 1987); In re Westgate-California Corp.,

642 F.2d 1174, 1176–77 (9th Cir. 1981); Deweese v. Town of

Palm Beach, 688 F.2d 731, 734 (11th Cir.1982); RESTATEMENT

(FIRST) OF JUDGMENTS § 68 comment n (1942).

The point of the “necessarily decided” prong of the

collateral estoppel inquiry is that a finding should have

preclusive effect only when the court making it took “sufficient

care in determining [the] issue” and when “appellate review is

available to ensure the quality of the initial decision.” 18

CHARLES ALLEN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 4421 (2d ed. 2002). Both of those

requirements are met here. Judge Huvelle carefully considered

the question – indeed, considered it several times – and her

findings against Jones were detailed, well-reasoned, solid and

irrefutable. No wonder that Jones decided not to appeal her

ruling even though he had several chances. He could have done

so either by not pleading guilty or by entering a conditional

guilty plea that would have allowed him to appeal Judge

Huvelle’s ruling against him. See FED. R. CRIM. P. 11(a)(2).

Jones undoubtedly knew this. He had already taken several

appeals on other matters, one of which resulted in the Supreme

Court reversing his conviction. Jones had a “full and fair

opportunity” to litigate and appeal the timing of the search in his

suppression motion. Allen, 449 U.S. at 95. It was his choice to

plead guilty and cut that opportunity short, just as it was the

plaintiff’s choice in Evanson not to appeal his conviction.

Jones never argued that Judge Huvelle’s factual finding was

not necessary to resolving his motion to suppress. But the

majority raises the argument anyway, and then decides with no

analysis that alternative holdings do not have preclusive effect.

I would not make new law based on arguments that the plaintiff

never made, especially if that ruling conflicted with the

decisions of other circuits.

7

Nor is this the only issue on which the majority invokes

arguments that Jones never made. The opinion also states that

collateral estoppel does not apply because Jones had no

incentive to appeal Judge Huvelle’s ruling. Why not? Because

even if Jones won on appeal, the remedy “probably would not

have been suppression.” Maj. Op. at 12. Notice that this is an

assertion about what Jones and his attorney were thinking at the

time. And how does the majority gain this insight? Jones never

even alleged, let alone argued, in his brief or in his reply brief,

that he thought a victory on appeal would not have resulted in

suppression3. The majority has simply made up this version of

Jones’ trial strategy, and has used it as the basis for making new

law on an issue that was never presented in this case.

3

One might also wonder how the majority can be so sure that

suppression would not have resulted if the search actually began

before 6 a.m. The majority opinion cites three circuit court decisions

holding that executing a daytime warrant at night violated the Fourth

Amendment. See Maj. Op. at 18 (citing O’Rourke v. City of Norman,

875 F.2d 1465 (10th Cir. 1989); United States v. Merritt, 293 F.2d 742

(3d Cir. 1961); Yanez-Marquez v. Lynch, 789 F.3d 434 (4th Cir.

2015)). Of these three cases, one – O’Rourke – did not even deal with

suppression of evidence; like this case, it was an action for damages.

The two other cases recognized that suppression was a proper remedy.

In Merritt, the Third Circuit case, the court held that the district court

should have suppressed the evidence. In Yanez-Marquez the Fourth

Circuit held that suppression was available as a remedy if the

constitutional violation was “egregious.” 789 F.3d at 467–69. (This

was a civil deportation case, not a criminal proceeding, and the Fourth

Circuit determined that under INS v. Lopez-Mendoza, 468 U.S. 1032

(1984), the exclusionary rule therefore could be invoked only for

egregious constitutional transgressions. 789 F.3d at 447–51.). The

majority’s decision that suppression is not available in such cases may

therefore put us in conflict with the Fourth Circuit.

8

Ironically, even though it makes new law on two issues that

Jones never raised, the majority opinion tries to avoid the

preclusive effect of Judge Huvelle’s factual findings with the

astonishing assertion that the defendants have forfeited the

argument. Maj. Op. at 12. The assertion is astonishing because

the defendants clearly and forcefully made the argument, both

here and in the district court. More than that, Jones – in his

reply brief – responded to their argument. Here is a sample

from the defendants’ brief: “Jones previously litigated . . . the

timing of the search in his criminal proceeding . . .. Having

already litigated these claims unsuccessfully in the criminal

proceeding as part of a motion to suppress, Jones cannot now re-

litigate them in a civil proceeding under Bivens or section

1983.” Appellees’ Brief 41. In reply, Jones acknowledged that

Judge Huvelle found “that the search occurred within the

warrant’s terms. Tr. of Proceedings Held Feb. 19, 2013, ECF

780 at 4.” Jones Reply Brief 24. Jones’ citation is to the very

portion of Judge Huvelle’s ruling I quoted above.

Now to the arguments Jones actually made. In attempting

to ward off collateral estoppel, Jones’ only claim is that after he

pled guilty, he lacked an “adequate incentive to litigate” or

appeal those issues. Appellant Reply Br. 25. For that

proposition he cites Haring v. Prosise, 462 U.S. 306 (1983), but

the portion of Haring he cites is not a holding. It is instead a

summary of the holding of the lower court.4 462 U.S. at 311.

(The majority opinion repeats Jones’ mistake. Maj. Op. at

11–12). Additionally, whatever incentive Jones had was

4

The substance of Haring does not help him either. That case

held only that criminal defendants are not estopped from contesting

issues that they could have, but did not, raise in a motion to suppress

during their criminal proceedings. 462 U.S. at 318. Haring did not

address what happens when the defendant does raise the issue in a

motion to suppress and the court rules against him.

9

obviously enough – he repeatedly litigated the issue before the

district court in the criminal case, even after the court told him to

stop. Trial Transcript at 5, No. 1:05-cr-00386-ESH (D.D.C. Aug.

10, 2012), ECF No. 670-5 (“[E]very one of [the motions] I ruled

on before. I am not going to reverse myself. They are the law of

the case.”); Trial Transcript at 3–4, No. 1:05-cr-00386-ESH (Feb.

19, 2013), ECF No. 780 (“I’ve already ruled five times . . ..”).

Jones also seeks to derive this requirement of an “adequate

incentive to litigate” from the broader principle that courts

should not estop defendants if doing so would “work a basic

unfairness.” Martin v. Dep’t of Justice, 488 F.3d 446, 454 (D.C.

Cir. 2007). Bringing “fairness” into the mix does not help him.

He has already been involved in four criminal trials and several

civil complaints, and he has raised this issue multiple times. He

has managed to spin this single, baseless allegation into a large

expenditure of judicial and attorney resources. Jones had his

day in court, in fact more than a day, and there is nothing unfair

in denying him still another.

Jones cites three cases in which he claims criminal

defendants were not estopped in “analogous circumstances”

because they lacked adequate incentive to litigate or appeal

issues decided in a criminal case. Talarico v. Dunlap, 685

N.E.2d 325, 332 (Ill. 1997); Johnson v. Watkins, 101 F.3d 792,

796 (2d Cir. 1996); United States v. Levasseur, 699 F. Supp.

965, 981 (D. Mass.1988), rev’d in part on other grounds, 846

F.2d 786 (1st Cir. 1988). The first case did not involve a motion

to suppress. Talarico, 177 Ill.2d at 196. And in the other two

cases, the defendants could not appeal because they had either

been acquitted or granted a mistrial, not because they had pled

guilty. Johnson, 101 F.3d at 796; Levasseur, 699 F. Supp. at

971; compare Jenkins v. City of New York, 478 F.3d 76, 91–92

(2d Cir. 2007); Sornberger v. City of Knoxville, 434 F.3d 1006,

1020–23 (7th Cir. 2006); Dixon v. Richer, 922 F.2d 1456, 1459

10

(10th Cir. 1991). That is a crucial difference. When a defendant

is acquitted, neither he nor the government can appeal the

decision. See Martinez v. Hooker, 601 F. App’x 644, 648–49

(10th Cir. 2015). In contrast, here Jones had the opportunity to

go to trial and appeal if he was convicted; he simply decided he

would rather plead guilty.

The short of the matter is that the Fourth Amendment issue

regarding the timing of the search is not presented in this case

and the majority opinion erred in deciding that issue.5

5

I also have doubts about the majority’s analysis of the statute of

limitations question. There are twelve defendants in this case. Eleven

of them are or were FBI agents. The action against them rests not on a

federal statute but, under Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971), directly on the

Fourth Amendment. The majority opinion borrows the limitations

period of the District of Columbia. Although the search, and thus the

cause of action, arose in Maryland, the majority rejects as “dictum”

Justice Scalia’s statement for the Court in Wallace v. Kato, 549 U.S.

384, 387 (2007), that in § 1983 actions the limitation statute of the state

in which the cause of action arose controls. Maj. Op. at 8.

But there is now an analogous federal limitations statute – 28

U.S.C. § 1658, which provides a four year period without any tolling

provision like the District of Columbia’s. (Section1658 applies only by

analogy because it governs causes of action under statutes enacted after

December 1, 1990.) The Supreme Court has recognized that in the

interest of uniformity and in light of the potential multi-state geographic

nature of some federal actions, the courts should adopt an analogous

federal limitations period rather than a state law, which itself would

apply only by analogy. See Lampf, Pleva, Lipkind, Prupis & Petigrow

v. Gilbertson, 501 U.S. 350, 357 (1991); 19 CHARLES A. WRIGHT &

ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 4519 (2d

ed.).

11

Even if Judge Huvelle’s rulings did not preclude Jones from

raising the same issues in a civil lawsuit, there is no good reason

to decide whether the search in this case violated the Fourth

Amendment. I would hold that because the officers did not

violate a clearly established right they had qualified immunity

from Jones’ suit and be done with it. In Pearson v. Callahan,

555 U.S. 223 (2009), the Supreme Court reversed its decision in

Saucier v. Katz, 533 U.S. 194 (2001), and held that although

courts may decide constitutional questions in qualified immunity

cases, it is often unwise to expend “scarce judicial resources on

difficult questions that have no effect on the outcome . . ..” 555

U.S. at 236–37.

Ever since Pearson, this court has developed not a page, but

a volume of history following the Supreme Court’s decision. In

these cases, we have almost invariably declined to decide

constitutional questions in qualified immunity cases when it was

unnecessary to do so. The majority has made no attempt to

distinguish the cases embodying our established practice. See

Lash v. Lemke, 786 F.3d 1, 5 (D.C. Cir. 2015); Fenwick v.

The majority objects that this is not “a valid reason to ignore the

clear text of § 1988.” Maj. Op. at 9 n.6. But the “clear text” of § 1988

refers to “the common law, as modified and changed by the constitution

and statutes of the State” where the court sits. 42 U.S.C. § 1988(a)

(emphasis added). It makes no mention of the District of Columbia.

The Supreme Court has held that similar – indeed, even broader –

language originally in 42 U.S.C. § 1983 did not apply to the District of

Columbia. See District of Columbia v. Carter, 409 U.S. 418, 432

(1973). In response to that case, Congress amended § 1983 to cover the

District of Columbia. See Pub. L. No. 96–170, 93 Stat. 1284 (1979).

Congress has never made such a change to § 1988.

The problem is that the defendants did not make this argument or

anything like it.

12

Pudimott, 778 F.3d 133, 137 (D.C. Cir. 2015); Dukore v.

District of Columbia, 799 F.3d 1137, 1144 (D.C. Cir. 2015); Fox

v. District of Columbia, 794 F.3d 25, 29 (D.C. Cir. 2015);

Bamdad v. DEA, 617 F. App’x 7, 8 (D.C. Cir. 2015); Doe v.

District of Columbia, 796 F.3d 96, 105 (D.C. Cir. 2015); Mpoy

v. Rhee, 758 F.3d 285, 295 (D.C. Cir. 2014); Atherton v. D.C.

Office of Mayor, 706 F.3d 512, 515 (D.C. Cir. 2013); Johnson

v. District of Columbia, 734 F.3d 1194, 1202 (D.C. Cir. 2013);

Taylor v. Reilly, 685 F.3d 1110, 1113 (D.C. Cir. 2012); Bame v.

Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011), as amended (Mar.

29, 2011); Jones v. Horne, 634 F.3d 588, 597, 599 (D.C. Cir.

2011); Ali v. Rumsfeld, 649 F.3d 762, 773 (D.C. Cir. 2011);

Rasul v. Myers, 563 F.3d 527, 530 (D.C. Cir. 2009). It is no

answer to say that this is a matter within the court’s discretion.

In the words of Chief Justice Marshall, “This is true. But a

motion to [the court’s] discretion is a motion, not to its

inclination, but to its judgment; and its judgment is to be guided

by sound legal principles.” United States v. Burr, 25 F. Cas. 30,

35 (C.C.D. Va. 1807). The nearly uniform practice of this court

has established such sound legal principles, and the majority has

offered no reason to depart from them.

I repeat that we are deciding this case on a complaint alone.

The defendant officers have yet to file their answer to the

complaint. As the Supreme Court recognized in Pearson, courts

should not proceed to a constitutional question if the answer

depends on undeveloped facts. 555 U.S. at 239. Still less

should a court decide a constitutional question when developed

facts show that the question is not presented. The evidence in

the criminal proceedings proved that the search of Jones’

premises eleven years ago complied with the warrant’s timing

requirement. Compare Bradley v. Reno, 749 F.3d 553, 558 (6th

Cir. 2014) (“[I]n gauging the reasonableness of an officer’s acts,

a . . . court should of course consider what a . . . trial court

thought of them.”).

13

Judge Leval has explained that when a case can easily be

decided on the “clearly established” prong alone, “neither the

judge nor the defendant has any practical interest in the

theoretical question of constitutionality. Both know it can have

no effect on the inevitable dismissal of the case.” Pierre N.

Leval, Judging Under the Constitution: Dicta About Dicta, 81

N.Y.U. L. REV. 1249, 1278 (2006); see also Pearson, 555 U.S.

at 234, 239–40 (discussing Judge Leval’s article). The

defendants in this case have won a dismissal on this Fourth

Amendment issue; they have no reason to seek rehearing en

banc or certiorari in the Supreme Court on that issue. See Lyons

v. City of Xenia, 417 F.3d 565, 582 (6th Cir. 2005) (Sutton, J.,

concurring).6

The answer to the constitutional question here is by no

means certain7. And it is hardly pressing. The majority cites not

6

Given our unanimous ruling that the defendants have qualified

immunity, we could not send the case back to the district court for still

another evidentiary hearing on the timing question, a question that no

longer affects the defendants’ liability.

7

In crossing out the day or night box on the warrant, the issuing

magistrate in this case may not have realized that rather than Rule

41(e)(2) & (a)(2), the timing authority for searches in drug cases is 21

U.S.C. § 879. In the Fourth Circuit at least, no special showing is

needed in a drug case to justify a nighttime search rather than a search

during the day. United States v. Rizzi, 434 F.3d 669, 674 (4th Cir.

2006), so holds: “At bottom, we hold that when a search warrant

involves violation of drug crimes, the warrant can be served day or

night so long as the warrant itself is supported by probable cause.”

The warrant here was supported by probable cause and so under

Rizzi the question is not the simple one about whether a nighttime

search pursuant to a daytime warrant violates the Fourth Amendment.

The question is rather more involved. One way to frame the question

is whether what occurred here was just a ministerial error on the part

14

a single reported case in this jurisdiction in which officers,

federal or local, executed a daytime warrant at night. And this

is not such a case, in light of Judge Huvelle’s findings and the

evidence supporting her findings.

The majority opinion concludes on this note: “Although

well-founded doubt about the veracity of a plaintiff’s factual

allegations might steer us toward constitutional avoidance . . .

the Defendants have not submitted contrary evidence nor even

filed an answer denying Jones’s allegations.” Maj. Op. at 20-

21.

I am tempted to place an exclamation point, or maybe two

or three, at the end of that quotation. Instead I will insert several

here: “well-founded doubt,” “not submitted contrary

of the magistrate that the officers could disregard given § 879 (see

Judge Friendly’s opinion in Ravich cited below).

I have found no cases directly on point. But there are some

analogous federal decisions involving searches pursuant to state court

warrants. In these cases the state warrant authorized only a daytime

search but the officers executed the warrant at night. United States v.

Ravich, 421 F.2d 1196 (2d Cir. 1970) (Friendly, J.), is such a case.

Judge Friendly held for the court that the search at night was the

equivalent of a harmless error, not a Fourth Amendment violation. Id.

at 1202. United States v. Williams, 570 F. App’x 137 (3d Cir. 2014),

is a more recent example. There the state court warrant authorized

only a daytime search but the officers executed it at night. Judge

Scirica, writing for the court, held that the search did not violate the

Fourth Amendment. Id. at 141–42. See also United States v. Keene,

915 F.2d 1164, 1168 (8th Cir. 1990) (relying on § 879); Sibrian v. San

Bernardino County, 526 F. App’x 752, 753 (9th Cir. 2013) (holding

that police officers’ violation of state law prohibiting execution of

search warrants at night did not violate the Fourth Amendment); see

generally Claudia G. Catalano, Propriety of Execution of Search

Warrant at Nighttime, 41 A.L.R. 5th 171 (1996).

15

evidence”!!!! Judge Huvelle pointed out – made a factual

finding – that the officers, now defendants in Jones’ case,

testified under oath that they entered Jones’ home after 6:00 a.m.

and that they were telling the truth. That strikes me as a “well-

founded” denial of Jones’ “factual allegations.” All the

evidence, the overwhelming evidence, supported Judge

Huvelle’s findings. The defendants testified that Jones’ claim

that they entered at 4:45 a.m. was a lie. FBI Agent Naugle, one

of the defendants in this civil case, made a contemporaneous

entry on the warrant stating that the entry occurred at 6:15 a.m.

And the defendants, in their brief in this court, maintained that

Judge Huvelle’s findings precluded Jones from claiming to the

contrary in his civil suit against the officers who helped put him

away. As for not filing an answer, the whole point of qualified

immunity is that officers have “immunity from suit rather than

a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511,

526 (1985). Such cases should be resolved “at the earliest

possible stage in litigation,” even if that is before defendants file

their answer. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per

curiam). “Not submitted contrary evidence,” “well-founded

doubt.” Whatever case the majority is writing about, it is not

this one.