Dorsey v. District of Columbia

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

NIKA DORSEY, et al., )

)

Plaintiffs, )

)

v. ) Case No. 15-cv-1462 (RMC)

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DISTRICT OF COLUMBIA, et al., )

)

Defendants. )

____________________________________ )

MEMORANDUM AND OPINION

On the evening of June 7, 2013, officers of the Washington, D.C. Metropolitan

Police Department (MPD) executed a search warrant at 4701 Alabama Avenue S.W., Apartment

31. Without announcing their presence, the officers breached the door of the apartment and then

handcuffed and detained most of its occupants: a husband and wife, a sixteen-year-old boy, and

a grandmother. Only a three-year-old was left without handcuffs but frightened and in tears; the

officers refused to remove the mother’s handcuffs so that she could comfort him. The search

was aimed at recovering several Burberry purses stolen from a Virginia store, but no purses were

located. The officer who obtained the warrant had sworn that he was likely to find evidence of

the crime at the home because it was an address at which the get-away car was registered and the

car’s primary driver was reported to live; based on his “training and experience,” the officer also

sought to search for and seize all electronic devices.

Nika Dorsey and her two children, occupants of Apt. 31 on June 7, sue for alleged

violations of their constitutional rights under the Fourth and Fifth Amendments. Defendants are:

(1) William Dempster, the MPD officer who swore out the affidavit for the search warrant; (2)

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the MPD officers who, in addition to Officer Dempster, executed the search warrant (“Defendant

Officers” 1); and (3) the District of Columbia. See 2d Am. Compl. [Dkt. 24] ¶¶ 16–18. Plaintiffs

assert that Officer Dempster relied on his “training and experience” to obtain the warrant despite

knowing that D.C. warrants based on “training and experience,” without specific facts, rarely

find what is sought. Plaintiffs also claim that the officers who executed the search warrant acted

in an unconstitutional manner, breaching the door without announcing their presence, using

unreasonable force in their search, and overstepping the scope of the warrant. They allege that

these constitutional violations occurred as a result of a pattern and practice of faulty training by

the District of Columbia.

All Defendants have moved to dismiss except William Dempster, who has left

MPD and has not been served. 2 See Def. District of Columbia’s Mot. to Dismiss Pls.’ 2d Am.

Compl. [Dkt. 27] (DC MTD); Def. Officers’ Partial Mot. to Dismiss Counts I, II and V of Pls.’

2d Amended Compl. [Dkt. 28] (Officers’ MTD). 3 The Court will grant the Motions to Dismiss

in part and deny them in part.

I. Background

On June 3, 2013, two people stole nine Burberry purses from a Leesburg, Virginia

outlet store and fled in a dark BMW with the license plate EE0674. Two days later, MPD

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Specifically, the Defendant Officers are: Michael Pulliam; Johnathan Lauderdale; Gregory

Shiffer; Emma B. Deoleo; Brock Virgil; Anthony T. Campanale III; Nicholas Smith; Christopher

Eckhert; and Robert Ranck.

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Over 90 days have passed since Plaintiffs filed their Second Amended Complaint on June 10,

2016. To date, the Court has no record that Officer Dempster has been served with the

complaint. Accordingly, the Court will issue an order simultaneously with this Opinion

addressing the lack of service.

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Of course, Defendant Officers did not file a “partial motion.” To the contrary, theirs is a

complete motion to dismiss in part.

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officers spotted the same dark BMW in Northeast DC, when they attempted a traffic stop and the

car sped away. Notified of this occurrence, Officer William Dempster, a specialist in auto theft,

ran the plates, and learned that title to the BMW was held by two people, one of whom was

Francis Taylor. Mr. Taylor carried the insurance on the car and was identified as its primary

driver. His driver’s license indicated that he lived at 4701 Alabama Ave. S.W., Apt. 31.

Several unnamed sources confirmed to Officer Dempster that Mr. Taylor’s

current address was Apt. 31, 4701 Alabama Ave. S.W. Armed with these pieces of information,

Officer Dempster prepared an affidavit and applied for a search warrant to authorize MPD to

search the apartment. While he had no direct information that evidence of the theft would be

found in Apt. 31, Officer Dempster swore that his “training and experience” led him to conclude

that thieves typically stash stolen items in their homes until they can sell them safely. 2d Am.

Compl. Ex. 1 (Affidavit for Search Warrant) (Affidavit) at 1. The Affidavit also contained

boilerplate paragraphs to the effect that thieves typically take photos of themselves with their

stolen goods and otherwise document their activities using cell phones and personal computers;

thus, Officer Dempster sought authorization to seize all personal electronic devices and

computers located during the search of Apt. 31. Id. A judicial officer of the District of

Columbia Superior Court issued the requested search warrant (Warrant). Id. at 5.

Plaintiffs allege that Francis Taylor did not reside at Apt. 31, 4701 Alabama Ave.,

S.W., at the time of the search and that he had not hidden any Burberry purses there. When the

Warrant was executed, the only occupants of the apartment were Mr. Taylor’s cousin, Nika

Dorsey, her husband, mother, and her two youngest children, 16-year-old Jonte Watts and three-

year old J.C. Plaintiffs assert that none of these persons had any connection to, or knowledge of,

the crime. Without knocking or announcing their presence, the MPD officers breached the

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apartment’s door, trained weapons on the family inside, detained them, and handcuffed everyone

except three-year-old J.C., who was terrified and screamed and cried. The officers refused to

release Ms. Dorsey from handcuffs at any time during the search so that she could comfort J.C.

As part of their search, the officers confiscated all cell phones and a laptop computer. After two

hours of searching, the officers left without any purses.

Plaintiffs cite statistics that indicate that a large majority of D.C. warrants that

rely on “training and experience” to establish probable cause find no evidence at the residence

searched; thus, they contend, the unsuccessful outcome of this particular search was both typical

and totally predictable. Given the widespread use of such allegedly-flawed affidavits, Plaintiffs

contend that D.C. has a pattern and practice of insufficient training of MPD officers that

frequently results in constitutional violations of the City’s residents. Accordingly, Plaintiffs sue

Officer Dempster, the Defendant Officers, and the District of Columbia.

II. Legal Standards

The Complaint advances five separate “Claims:” (1) that the Affidavit was so

lacking in probable cause that no reasonable officer could have relied on it; (2) that the Affidavit

contained statements that were knowingly and recklessly false and omitted material information;

(3) that the false and reckless statements and omissions in the Affidavit robbed the Warrant of

probable cause and were the result of a pattern and practice by MPD; (4) that the Officers

violated Plaintiffs’ constitutional rights when they failed to knock and announce their presence

before entering the apartment; and (5) that the Officers violated Plaintiffs’ constitutional rights

when they exceeded the scope of the Warrant, used excessive force, and made unnecessary and

unreasonable seizures not authorized by the Warrant. See 2d Am. Compl. at 19–22.

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The Defendant Officers move to dismiss, asserting that they are entitled to

qualified immunity for their good faith reliance on what they believed was a valid warrant

properly executed. See Officer’s MTD at 1. The District of Columbia also moves to dismiss,

arguing that Plaintiffs have fail to state any constitutional violations and therefore cannot sue

D.C. See DC MTD at 1.

A. Motion to Dismiss

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).

To survive a motion to dismiss, a complaint must contain sufficient factual information, accepted

as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A court must

assume the truth of all well-pleaded factual allegations and construe reasonable inferences from

those allegations in favor of the plaintiff. Sissel v. Dep’t of Health & Human Servs., 760 F.3d 1,

4 (D.C. Cir. 2014). A court need not accept inferences drawn by a plaintiff if such inferences are

not supported by the facts set out in the complaint. Kowal v. MCI Commc’ns Corp., 16 F.3d

1271, 1276 (D.C. Cir. 1994). Further, a court does not need to accept as true legal conclusions

set forth in a complaint. Iqbal, 556 U.S. at 678. In deciding a motion under Rule 12(b)(6), a

court may consider the facts alleged in the complaint, documents attached to the complaint as

exhibits or incorporated by reference, and matters about which the court may take judicial notice.

Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).

B. Qualified Immunity

In assessing whether Plaintiffs have pleaded sufficient factual information to state

a plausible claim for relief, the Court must additionally consider whether the Defendant Officers

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are entitled to qualified immunity for their alleged actions. “Although government officials may

be sued in their individual capacities for damages . . . qualified immunity protects officials from

liability ‘insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Atherton v. D.C. Office of Mayor, 567

F.3d 672, 689 (D.C. Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818–19 (1982)).

“When determining whether a right was ‘clearly established,’ ‘the contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing violates that

right.’” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “The relevant,

dispositive inquiry in determining whether a right is clearly established is whether it would be

clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”

Saucier v. Katz, 533 U.S. 194, 202 (2001). It is the Plaintiffs’ “burden to show that the particular

right in question—narrowly described to fit the factual pattern confronting the officers—was

clearly established.” Dukore v. District of Columbia, 799 F.3d 1137, 1145 (D.C. Cir. 2015).

C. Monell Liability

If Plaintiffs have adequately pled a violation of their constitutional rights (whether

or not the Defendant Officers are entitled to qualified immunity), they can only sue the District

of Columbia if they can further show that a custom or policy of the District caused the violation.

“[W]hen execution of a government’s policy or custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent official policy, inflicts the injury” then

“the government as an entity is responsible.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436

U.S. 658, 694 (1978). “[I]n considering whether a plaintiff has stated a claim for municipal

liability, the district court must conduct a two-step inquiry. First, the court must determine

whether the complaint states a claim for a predicate constitutional violation. Second, if so, then

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the court must determine whether the complaint states a claim that a custom or policy of the

municipality caused the violation.” Zaker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.

Cir. 2003) (citing Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992)); see also Monell,

436 U.S. at 694.

III. Analysis

The Court will proceed chronologically through Plaintiffs’ Claims, beginning

with the Affidavit and then addressing its execution. Finally, the Court will assess the Monell

claim against the District.

A. Claim 2: The Affidavit

Claim 2 is directed against Officer Dempster and alleges that his reliance on

“training and experience” to assert that he was likely to find evidence of the purse theft in Apt.

31, 4701 Alabama Ave., S.W., violated the Fourth Amendment in two ways: (1) it was

knowingly and recklessly false and misleading; and (2) it omitted known material facts, i.e.,

Officer Demptster’s knowledge of another residence occupied by Mr. Taylor and the statistical

failures of such general warrants, that, if presented, would have undermined a finding of

probable cause. 2d Am. Compl. ¶ 75. Officer Dempster has not been served. The Court

summarizes the applicable law and allegations in Claim 2 only for the purpose of assessing

below whether Plaintiffs have sufficiently plead a cause of action against the District.

The Supreme Court has stated that “[w]hen the Fourth Amendment demands a

factual showing sufficient to comprise ‘probable cause,’ the obvious assumption is that there will

be a truthful showing.” Franks v. Delaware, 438 U.S. 154, 164 (1978). The information “is to

be ‘truthful’ in the sense that the information put forth is believed or appropriately accepted by

the affiant as true.” Id. at 165. The Fourth Amendment is therefore violated when “a false

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statement knowingly and intentionally, or with reckless disregard for the truth, was included by

the affiant, if the allegedly false statement is necessary to the finding of probable cause.” Id. at

155–56. The question presented here is whether Plaintiffs have adequately pleaded that Officer

Dempster knowingly or recklessly included false information or failed to include necessary

information.

That the Affidavit did not rely on more particularized evidence is not itself

dispositive that a constitutional violation occurred. The United States Court of Appeals for the

District of Columbia Circuit (hereinafter the D.C. Circuit) has held that “observations of illegal

activity occurring away from the suspect’s residence can support a finding of probable cause to

issue a search warrant for the residence, if there is a reasonable basis to infer from the nature of

the illegal activity observed, that relevant evidence will be found in the residence.” United

States v. Thomas, 989 F.2d 1252, 1255 (D.C. Cir. 1993). Thomas ruled that an officer’s

“experience investigating narcotics trafficking” served as a reasonable basis to establish probable

cause. Id. at 1254–55. In a series of further cases involving drug crimes, the D.C. Circuit has

repeatedly held that such “training and experience” warrants suffice to establish probable cause

to search the houses of drug traffickers; as the Circuit has stated, “[c]ommon experience suggests

that drug dealers must mix and measure the merchandise, protect it from competitors, and

conceal evidence of their trade [and f]or the vast majority of drug dealers, the most convenient

location to secure items is the home.” United States v. Spencer, 530 F.3d 1003, 1007 (D.C. Cir.

2008); see also United States v. Washington, 775 F.3d 405, 409 (D.C. Cir. 2014) (holding that an

affiant’s observations that, in his “extensive experience in drug enforcement,” drug traffickers

typically keep much of their drug supply at home or in a stash house, was sufficient to establish

probable cause); United States v. Johnson, 437 F.3d 69, 72 (D.C. Cir. 2006) (holding that

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probable cause to search a home was established where affiant testified that “in the affiant’s

experience, drug dealers frequently keep business records, narcotics, proceeds from sales and

firearms in their houses”).

Plaintiffs contend that these drug cases do not control here. Indeed, Thomas

allows “training and experience”-based warrants where “there is a reasonable basis to infer from

the nature of the illegal activity observed” that evidence of a crime will be found in an alleged

perpetrator’s home. The Circuit has accepted such warrants during drug trafficking

investigations and/or arrests, but has not ruled on their applicability to the much broader range of

alleged criminal conduct as to which Plaintiffs assert D.C. has extended the practice.

Officer Dempster cited his thirteen years as a law enforcement officer to establish

his reasonable basis to believe that evidence of the purse theft (and the thief’s clothing) might be

found in Apt. 31. However, the current record is silent as to what specific training and

experience was relied upon when Officer Dempster prepared the Affidavit. As another court in

this District put the issue: “A talismanic invocation of [an officer’s] ‘training and experience’

will not inoculate an affiant’s statement against the basic scrutiny that normally attends claims of

probable cause in warrant applications.” Davis v. District of Columbia, 156 F. Supp. 3d 194, 201

(D.D.C. 2016)(JEB).

Plaintiffs allege that statistical data show that well more than half of D.C. search

warrants that are based on “information and experience” to support probable cause, rather than

case-specific facts, discover no criminal evidence. See 2d Am. Compl. ¶¶ 8, 41. They further

allege that Officer Dempster knew this fact and omitted it from the Affidavit. Id. ¶ 75. The

District of Columbia counters that the statistical data is irrelevant, since Officer Dempster was

not required to include every known fact in his Affidavit. See DC MTD at 14. While all facts

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need not be included in an affidavit, the Affidavit suggests that Officer Dempster relied on his

aggregate experiences and training as a police officer, mostly in auto theft, to aver that non-auto

thieves keep stolen goods in their homes.

In fact, probable cause existed to support the Warrant insofar as it sought to

search Apt. 31 for evidence of the purse theft or suspicious clothing. Officer Dempster had

located official records that tied the BMW, License EE0674, to Francis Taylor, its half-owner

and the holder of its auto insurance. Mr. Taylor’s driver’s license identified Apt. 31, 4701

Alabama Ave., S.W., as his residence. Plaintiffs argue that the police knew of, and had already

searched on that day, a different address thought to be where Mr. Taylor lived. Police suspicion

of this other address was omitted from the Affidavit. However, it is not entirely unusual for

persons in D.C. to have multiple locations at which they might sleep, particularly moving

between relatives and girlfriends. Having failed to locate evidence of the theft at the first

address, the Court finds nothing untoward about going on to an alternate, likely, location.

The Court is more troubled by the Affidavit’s request, granted by the Warrant, to

seize telephones not belonging to Mr. Taylor and to seize other electronic equipment with no

connection to Mr. Taylor. Without further information, the Court finds it difficult to credit that

grab-and-run purse thieves actually maintain electronic records of their criminal activity. The

relevant paragraphs of the Affidavit are pure boilerplate and show no particular relationship to

the crime under investigation.

These boilerplate, catch-all provisions raise questions as to MPD’s training of its

officers, and whether MPD had a custom and practice of instructing officers to cite general

“training and experience” for probable cause in multiple kinds of cases, without case-specific

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facts, presumably based on D.C. Circuit approval of such warrants in drug cases—and whether

such instruction, if given, were proper or led to constitutional violations.

B. Claim 1: Reliance on the Warrant

Plaintiffs assert that, even after the Warrant was signed by a Superior Court

judicial officer, it was so lacking in probable cause that no reasonable police officer could have

relied on it. “It is incumbent on the officer executing a search warrant to ensure the search is

lawfully authorized and lawfully conducted,” although an officer who “himself prepared the

affidavit . . . may not argue that he reasonably relied on the Magistrate’s assurance that the

warrant contained an adequate description of the things to be seized and was therefore valid.”

Groh v. Ramirez, 540 U.S. 551, 563 (2004).

As to the Defendant Officers, “the protection of qualified immunity is available if

“a reasonable officer could have believed that [his actions] were lawful, in light of clearly

established law and the information the officers possessed.” Youngbey v. March, 676 F.3d 1114,

1117 (D.C. Cir. 2012) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)). “In the ordinary

case, an officer cannot be expected to question the magistrate’s probable-cause determination or

his judgment that the form of the warrant is technically sufficient.” United States v. Leon, 468

U.S. 897, 921 (1984). “Only where the warrant application is so lacking in indicia of probable

cause as to render official belief in its existence unreasonable will the shield of immunity be

lost.” Malley v. Briggs, 475 U.S. 335, 344–45 (1986). Where a warrant is “not facially invalid,”

law enforcement officers executing it are entitled to qualified immunity. Elkins v. District of

Columbia, 690 F.3d 554, 565 (D.C. Cir. 2012).

Plaintiffs make no allegation of fact that would undercut the legitimacy of the

Defendant Officers’ reliance on a Warrant signed by an appropriate judicial officer. As

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discussed supra, the D.C. Circuit has held that search warrants based on “training and

experience” are valid, at least in certain cases. The distinction that might be made among search

warrants investigating different kinds of crimes would not reasonably be expected to be forecast

by the Defendant Officers. Plaintiffs allege no bad faith on their parts in accepting the Warrant

for what it was: authority to conduct a search for stolen purses (or thief’s clothes) in Apt. 31.

Claim I will be dismissed as to the Defendant Officers. 4

C. Claim 4: Failure to Knock and Announce

Claim 4 is directed at Officer Dempster and the Defendant Officers. The latter do

not move to dismiss it at this time and the District of Columbia has expressly disavowed any

intention to do so, except to the extent that Plaintiffs assert municipal liability for the no-knock

entry. D.C. Reply at 1–2 (“[T]o the extent that the District has argued for dismissal of Plaintiffs’

claim the Defendant Officers failed to knock and announce their presence before making forcible

entry into Plaintiffs’ home that argument is withdrawn.”). The Court reads Claim 4 to allege

violations of the Fourth Amendment only by Officer Dempster and/or the Defendant Officers.

The Court will not dismiss Claim 4 as to these Defendants. Since Claim 4 does not allege any

illegal conduct by the District of Columbia, the District’s arguments are moot.

D. Claim 5: Officers’ Behavior Incident to the Search

Police have wide authority to take steps necessary to conduct searches in a safe

and efficient manner. In Muehler v. Mena, 544 U.S. 93 (2005), the Supreme Court held that

“[a]n officer’s authority to detain incident to a search” is “categorical” because “the character of

the additional intrusion caused by detention is slight and because the justifications for detention

4

As Claim 1 remains against Officer Dempster, it accordingly survives against the District for

any municipal liability stemming from his theoretical actions.

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are substantial,” in particular “preventing flight in the event that incriminating evidence is found;

minimizing the risk of harm to the officers; and facilitating the orderly completion of the search.”

544 U.S. at 98.

Mena recognized that handcuffing residential occupants during a search “was

undoubtedly a separate intrusion in addition to detention,” but held that it was appropriate in the

circumstances of that case, which “was no ordinary search.” Id. at 99, 100. The police in Mena

were seeking evidence, including deadly weapons, related to a drive-by shooting. The Supreme

Court instructed that “the governmental interests in not only detaining, but using handcuffs, are

at their maximum where . . . a warrant authorizes a search for weapons.” Joining the majority in

Mena, Justice Kennedy wrote separately to emphasize that “if, at any point during the search, it

would be readily apparent to any objectively reasonable officer that removing the handcuffs

would not compromise the officers’ safety or risk interference or substantial delay in the

execution of the search” then “the restraint should . . . be removed.” Id. at 102; see also LaFave,

Wayne R., 2 Search & Seizure § 4.9(e) (5th ed.) (“While it seems clear on the facts of Mena that

the detention in handcuffs was . . . ‘reasonable as an initial matter,’ whether such force was

justified for the entirety of the 2-3 hour search is another matter.” (quoting Mena, 544 U.S. at

100)). Some Judges in this District have found that Mena does not give law enforcement officers

a categorical right to handcuff occupants during all residence searches. See Nelson v. District of

Columbia, 953 F. Supp. 2d 128, 132 (D.D.C. 2013)(RCL) (declining to rule as a matter of law

that Mena permitted law enforcement to handcuff occupants during a search and upholding jury

verdict finding that MPD officers violated occupant’s Fourth Amendment rights for handcuffing

her during the entirety of two-hour search); see also Youngbey v. District of Columbia, 766 F.

Supp. 2d 197, 213 (D.D.C. 2011)(JSG) (allowing Fourth Amendment claims to proceed when

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police handcuffed and trained weapons on home occupants for entirety of search), rev’d on other

grounds sub nom. Youngbey v. March, 676 F.3d 1114 (D.C. Cir. 2012).

It is very clear that Mena authorized the detention of Plaintiffs during the entirety

of the search of Apt. 31 without any violation of the Fourth Amendment. However, the

watchword of the Fourth Amendment is “reasonable” and Mena gives pause as to whether its

categorical detention rule extends to handcuffing occupants for hours when none is under

criminal suspicion, none is alleged to have been aggressive or obstructionist, and the underlying

crime involved an unarmed theft of purses with no violence. When all facts are known,

Defendant Officers may be entitled to qualified immunity or a jury can evaluate the

reasonableness of their use of handcuffs throughout the search. Such a decision cannot be made

on this limited record.

However, Plaintiffs’ allegations that the Defendant Officers violated the Fourth

Amendment when one or more searched 16-year-old Jonte Watts are without merit; they will be

dismissed. Ybarra v. Illinois, 44 U.S. 85 (1979) long ago held that a law enforcement officer

may frisk individuals in the course of executing a search warrant “to find weapons [the officer]

reasonably believes or suspects are then in the possession of the person he has accosted.” Id. at

100. The search of Jonte Watts’ person, equivalent to a Terry search, 5 is permitted to ensure the

safety and security of the officers. There is no allegation that the search of Jonte was unusually

intrusive or inappropriate; Plaintiffs only argue that he was a young person watching television

on his own in an upstairs bedroom. 2d Am. Compl. ¶ 61. A 16-year-old is not too young to

submit to a Terry search. Notably, Jonte Watts was released from handcuffs before the adults in

the apartment, and, in light of the law, Plaintiffs make no allegation that the Defendant Officers

5

Terry v. Ohio, 392 U.S. 1 (1968).

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engaged in any unconstitutional conduct in the course of their search beyond that already

articulated supra.

The Court will also dismiss the allegations in Claim 5 that Defendant Officers

exceeded the scope of the Warrant. While the constitutionality of the entirety of the Warrant

may be subject to further litigation, there is no doubt that it facially authorized the Defendant

Officers to seize electronic devices. Compare 2d Am. Compl. Claim 5, ¶ 81 (alleging seizure of

a laptop and cellular devices) & Affidavit at 5. For that reason, Defendant Officers are entitled

to qualified immunity.

E. Fifth Amendment

The Second Amended Complaint alleges that the conduct of Officer Dempster

and the Defendant Officers in entering, searching and handcuffing the Plaintiffs “shocks the

conscience” in violation of the Fifth Amendment. 2d Am. Compl. (Claim 5, ¶ 81 (“Officers

Raiding the Home Exceeded the Scope of the Warrant, Used Excessive Force, Made

Unnecessary and Unreasonable Seizures Not Authorized by the Warrant, and Engaged in

Conduct that Shocks the Conscience in Violation of the Fourth and Fifth Amendments.”). The

Court will dismiss the allegation that Officer Dempster or the Defendant Officers violated their

Fifth Amendment rights to due process. The allegation confuses rights under the different

Amendments. The Supreme Court has ruled that “[w]here a particular Amendment ‘provides an

explicit textual source of constitutional protection’ against a particular sort of government

behavior, ‘that Amendment, not the more generalized notion of substantive due process, must be

the guide for analyzing” those claims. Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting

Graham v. Connor, 490 U.S. 386, 395 (1989)). More clearly, the D.C. Circuit has held that a

plaintiff cannot “use the search of her home . . . as grounds for a claim under the Fifth

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Amendment” because a search is explicitly governed by Fourth Amendment protections. Elkins

v. District of Columbia, 690 F.3d 554, 562 (D.C. Cir. 2012). Accordingly, the Court will grant

the Defendant Officers’ Motion to Dismiss the Fifth Amendment allegation in Claim 5.

F. Claim 3: Municipal Liability

Claim 3 asserts that the alleged constitutional violations by the MPD stem from a

policy, practice or custom for which the District of Columbia is liable due to a failure to train its

officers properly. 2nd Am. Compl. (Dkt 24) ¶ 77. When a motion to dismiss is pending, courts

read complaint allegations and their reasonable inferences in the light most favorable to the non-

moving party. See Sissel v. Dep’t of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014).

Doing so, the Court finds that the Second Amended Complaint is sufficient to make out a claim

for municipal liability under Monell and its progeny.

The District largely predicates its argument against liability on the ground that no

constitutional violations occurred. See DC MTD at 1 (“Plaintiffs’ second amended complaint

fails to state a constitutional violation and, therefore, cannot support the Monell claim against the

District.”) However, the Court has already concluded that the Plaintiffs have adequately pleaded

a Fourth Amendment violation for the Affidavit’s reliance on “training and experience” to justify

search and seizure of electronics. 6 Therefore, the question is whether the Plaintiffs have

adequately pleaded that a custom or policy of the District caused the violation.

The District limits Monell-based argument to the assertion that “proof of a single

incident of alleged unconstitutional activity is not enough to impose liability on a municipality

unless proof of the incident includes proof that it was caused by an existing unconstitutional

6

As noted, Plaintiffs do not allege a custom or practice behind the officers’ no-knock entry or

the duration of handcuffs on one or more of the occupants of Apt. 31.

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policy.” DC MTD at 19. While undoubtedly accurate in some circumstances, the argument is

unavailing here. Plaintiffs have alleged that the statistical evidence they cite will demonstrate

that search warrants based on an officer’s “training and experience” consistently fail to produce

evidence of an alleged crime; if such statistics are proved and accepted, a jury might find that the

conduct at issue here was not limited to a “single incident.” See 2d Am. Compl. ¶¶ 8, 41. In

addition, Officer Dempster cited his “training,” presumably done at the behest of MPD and

offered to many MPD officers, to support the Warrant. See Affidavit at 1, 3. Claim 3 will not be

dismissed as it relates to those latter portions of the Affidavit that are reliant on “training and

experience.”

Plaintiffs’ Claims against the District are decidedly convoluted. Claim 3 is titled

“The Obvious Lack of Probable Cause and False and Reckless Statements and Omissions Were

the Result of a Policy, Pattern and Custom of Such Conduct by the MPD and the Result of the

MPD’s Failure to Properly Train and Supervise its Officers”; its supporting paragraph includes

only allegations relating to search warrants, thereby limiting its assertion of Monell liability

accordingly. 2d Am. Compl. ¶ 75. Similar language appears in Claim 5, where Plaintiffs assert

that the “seizures and searches reflect a pattern and practice of MPD officers . . . and reflect a

failure of the MPD properly to train, supervise and discipline its officers.” 2d Am. Compl. ¶ 81.

However, as discussed above, most of Claim 5 has no merit as a matter of law: the Affidavit

facially provided probable cause for the Defendant Officers to search for the stolen purses in

Apt. 31; seizure of the laptop and cell phones was authorized by the Warrant and the Defendant

Officers are entitled to immunity for seizing them; the search of Jonte Watts was lawful and for

officer protection; detention of the members of the family living in Apt. 31 for the duration of the

search was lawful under Mena; and the only question is whether Officer Dempster and/or the

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Defendant Officers should have released one or more of the occupants from handcuffs more

quickly. The Second Amended Complaint does not provide further evidence that this activity

was directed by the District. Accordingly, Plaintiffs can proceed according to the Claim against

the Defendant Officers, but it will be dismissed as to the District.

Claim 4 is short and sweet and contains no pattern-and-practice or custom-and-

policy allegations. It will be litigated as drafted.

IV.

For the reasons set forth above, the Court will GRANT in part and DENY in part

the District’s and Defendant Officers’ respective motions to dismiss. The following Claims

remain: (1) All claims as to Defendant Dempster; (2) Claim 3 as to the District relating to the

Affidavit’s reliance on training and experience; (3) Claim 4 (no-knock) as to the Defendant

Officers; (4) Claim 5 as to the Defendant Officers relating to handcuffing all Plaintiffs for the

duration of the search. A memorializing order accompanies this opinion.

Defendants shall file timely Answers to the Second Amended Complaint.

Date: January 11, 2017 /s/___________

ROSEMARY M. COLLYER

United States District Court

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