Corrigan v. District of Columbia

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MATTHEW CORRIGAN,

Plaintiff, Civil Action No. 12-173 (BAH)

v. Chief Judge Beryl A. Howell

ROBERT GLOVER, et al.

Defendants.

MEMORANDUM OPINION

The plaintiff, Matthew Corrigan, brought this lawsuit, pursuant to 42 U.S.C. § 1983,

against the District of Columbia and over twenty named and unnamed officers of the

Metropolitan Police Department (“MPD”), seeking damages for violation of his Fourth

Amendment rights arising from a warrantless search of his home on February 3, 2010. See

generally Compl., ECF No. 1; First Am. Compl. (“FAC”), ECF No. 11. During the ensuing

litigation, twenty-two of the individual defendants were dismissed voluntarily by the plaintiff or

their motions to dismiss or motions for summary judgment were granted. 1 This Court then

granted the motions for summary judgment by the four remaining defendants, the District of

Columbia, Lieutenant Robert Glover, Sergeant Kevin Pope, and Officer Mark Leone, ruling that

no violation of a clearly established right had occurred and that the officers were entitled to

qualified immunity. See Corrigan v. District of Columbia, Civil No. 12-173 (BAH), 2015 WL

1

The motions to dismiss of Defendants Mark Beach and Burt Henry were granted in November 2013. See

Memorandum and Order (Nov. 18, 2013), ECF No. 69. Defendant Fabian Ferrera’s motion for summary judgment

was granted, as conceded, on March 6, 2015. See Minute Order (March 6, 2015). The plaintiff voluntarily

dismissed the following named defendants: Wendell Cunningham, Joseph Dolan, Thomas Miller, Peter

Schumacher, Daryl Thompson, Joseph Williams, Charles Yarbaugh, James Greene, Dorian DeSantis, Jeffrey

Henderson, Darrell Isom, William Powell, Joy Preston, Paul Riggins, Hogan Samels, William Washington, Carlton

Wicker, Sr., William Wright, and Lawrence Heinz. See Minute Orders (Sept. 15, 2014; July 21 and 28, 2015; and

Aug. 13, 2015).

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5031364 (D.D.C. Aug. 25, 2015). This ruling was subsequently affirmed in part and reversed in

part by the D.C. Circuit. See Corrigan v. District of Columbia, 841 F.3d 1022 (D.C. Cir. 2016).

Although before this Court the parties, in examining the totality of the circumstances, see

Grady v. North Carolina, 135 S. Ct. 1368, 1371 (2015) (noting “reasonableness of a search

depends on the totality of the circumstances, including the nature and purpose of the search and

the extent to which the search intrudes upon reasonable privacy expectations”), treated the

challenged MPD search as a single, continuous incident, the D.C. Circuit delineated two distinct

searches based on the different purpose and scope of the searches conducted of the plaintiff’s

basement apartment by two separate MPD units, see Pl.’s Statement of Material Facts (“Pl.’s

SMF”), Ex. 2, Dep. of Lt. Robert Glover (“Glover Dep.”) at 38:13, ECF No. 87-1 (describing the

plaintiff’s home as an “English basement apartment”). Specifically, the D.C. Circuit concluded

that while the MPD officers involved in the first search, conducted by the MPD’s Emergency

Response Team (“ERT”), were entitled to qualified immunity, Corrigan, 841 F.3d at 1035 (“For

the brief and limited warrantless ERT ‘sweep’ of Corrigan’s home, the officers had a sufficiently

reasonable basis for believing there was probable cause to look for a potentially injured and

incapacitated person as to entitle them to qualified immunity.”), the MPD officers involved in the

second search, conducted by the MPD’s Explosive Ordinance Disposal unit (“EOD”), were not,

id. (“We therefore hold that the EOD search violated Corrigan’s rights under the Fourth

Amendment.”); id. at 1025 (“because no reasonable officer could have concluded such a basis

[an exigency] existed for the second more intrusive search, the officers were not entitled to

qualified immunity across the board”); id. at 1033 (“the extensive EOD search far exceeded the

bounds of reasonableness”). 2

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Although the panel was split on the question of whether the officers are entitled to qualified immunity, the

panel was unanimous that the EOD search violated the Fourth Amendment. See Corrigan, 841 F.3d at 1039

2

As the plaintiff points out, the defendants “did not appeal this ruling.” Pl.’s Reply Mem.

Supp. Mot. Part. Summ. J. and Mot. in Limine (“Pl.’s Reply”), at 4, ECF No. 147. The D.C.

Circuit remanded the plaintiff’s claim of municipal liability against the District of Columbia,

which is now moot in light of the plaintiff’s voluntary dismissal of the municipality, see Pl.’s

Opp’n Defs.’ Supp. Mot. Summ. J. (“Pl.’s Opp’n”), at 1, ECF No. 134, and the issue of whether

Ofc. Mark Leone is entitled to qualified immunity “because [he] reasonably relied on the

directive of [his] superior,” in conducting the EOD search, Corrigan, 841 F.3d at 1038. 3

The trial in this matter is scheduled to begin on the date the parties jointly suggested, on

July 10, 2017. See Consent Motion for New Trial Date (May 20, 2017), ECF No. 143; Minute

Order (May 22, 2017) (granting motion and scheduling trial for July 10, 2017). Pending before

the Court are (1) Ofc. Leone’s supplemental motion for summary judgment, Def.’s Supp. Mot.

Summ. J. (“Def.’s Supp. MSJ”), ECF No. 131; (2) the plaintiff’s motion in limine or for partial

summary judgment, Pl.’s Mot. In Limine or Partial Summ. J. (“Pl.’s Mot.”), ECF No. 138; and

(3) the defendants’ motions in limine, see Defs.’ Mot. In Limine, ECF No. 104; Defs.’ Mot. In

Limine, ECF No. 105, which motions were originally denied as moot in 2015, see Order, ECF

No. 125, but, on remand, have been reinstated, at the defendants’ request, Defs.’ Notice of Filing

Re: Mots. In Limine, at 1, ECF No. 137.

(Brown, J., dissenting) (“I agree with the conclusion that the second search of Corrigan’s apartment violated the

Fourth Amendment.”); id. at 1040 (noting that “[u]nder the circumstances of this case, the first search was

permissible; the second search was not; and the information the police garnered from the first search and further

investigation changed the calculus. However, on the question of how these issues impact the scope of qualified

immunity, we part company.”); id. at 1041 n.1 (“I agree with the court’s conclusion that the officers did violate

Corrigan’s Fourth Amendment rights during their second, intrusive search into his apartment.”).

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In response to this Court’s Order to Show Cause (“OTSC”) as to why former MPD Sergeant Pope, who led

the ERT search, should not be dismissed as a defendant, see Order, dated April 12, 2017, the plaintiff contended that

this defendant “authorized other police officers unrelated to the initial sweep to enter Mr. Corrigan’s home,” Pl.’s

Resp. OTSC at 2, ECF No. 132, and, consequently, was “a proximate cause of the second search—a search the

Court of Appeals recognized to have been patently unconstitutional,” id. at 1, and to which “qualified immunity

does not attach,” id. at 4. Subsequently, however, the plaintiff voluntarily dismissed Sgt. Pope. See Minute Entry

(May 17, 2017).

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I. BACKGROUND

The background of this case has been fully summarized in prior decisions in this case, see

generally Corrigan v. District of Columbia, 841 F.3d at 1025-28; Corrigan v. District of

Columbia, 2015 WL 5031364, at *1–4, and, thus, only those facts necessary for resolving the

instant motions are provided below.

On February 2, 2010, during a telephone call to the National Suicide Hotline, the

plaintiff informed the hotline operator that he was a military veteran and owned firearms. FAC

¶¶ 9. “After a short conversation, [the plaintiff] hung up, turned off [his] phone, took prescribed

sleeping medication, and went to bed.” Id. The hotline operator then called 911, Defs.' Suppl.

Statement of Material Facts as to which there is no Genuine Dispute in Further Supp. of Defs.'

Mot. Summ. J. (“Defs.' Suppl. SMF”) ¶ 1, ECF No. 119-1, and MPD officers were dispatched to

the plaintiff’s home based on a “report of an ‘Attempted Suicide,’” Def. District of Columbia's

Mot. Summ. J., Ex. 5 (“Barricade Report from 2408 N. Capitol St. NW (5D) on Wednesday,

February 3, 2010 (ERT # 10–11), Feb. 9, 2010 (“Incident Rep.”)) at 1, ECF No. 76-4. After an

odor of natural gas was detected, a barricade situation was declared and members of the MPD’s

ERT, part of the MPD’s “Special Operations Division” (“SOD”), were dispatched to the scene.

Id. at 1–2.

Around 2:30 A.M., approximately three-and-a-half hours after MPD officers first arrived

on the scene, defendant Lt. Robert Glover arrived. Incident Rep. at 2; Defs.' Suppl. SMF ¶ 3. At

approximately 4:00 A.M., the plaintiff awoke after hearing his name being called on a bullhorn

and around 4:50 A.M. the plaintiff peacefully exited the apartment and was taken into police

custody. FAC ¶¶ 10–11. The plaintiff did not give the MPD consent to enter his apartment, but

Lt. Glover nonetheless ordered the ERT to immediately break into the apartment and conduct a

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“sweep” of the apartment to determine whether any other individuals remained in the apartment.

Def. Glover's Statement of Material Facts as to which there is no Genuine Dispute (“Glover

SMF”) ¶ 27, ECF No. 79; see also Pl.’s Response to Defendants’ Statement of Material Facts

¶ 38, ECF No. 86-1. After no other individuals were found in the apartment, Lt. Glover ordered

the EOD to enter and search the plaintiff's apartment for explosives or other hazardous materials.

Glover SMF ¶ 32; see also Glover Dep. at 10:1–22 (“I directed the members of the [ERT] Entry

Team to enter and search for any human threats that remained or victims. And I also directed

members of the [EOD] to enter and check for any hazardous materials that could remain on the

scene and be dangerous to the public or anybody else in that block or area.”).

Ofc. Mark Leone conducted the EOD search. Pl.’s SMF, Ex. 5, Deposition of Officer

Mark Leone (“Leone Dep.”), at 19:7, ECF No. 87-1. Ofc. Leone was informed of a “barricade

situation in reference somebody [sic] had a military background and that they were requesting

that we cleared [sic] the apartment for any hazardous materials.” Id. at 18:13–17. Before he

conducted the search, Ofc. Leone had been told that ERT had already been in the apartment and

that they had searched to “make sure there that there wasn’t any other people in the apartment.”

Id. at 20:9–12. Thus, Ofc. Leone knew when he entered the apartment that no other people were

inside. Id. at 20:13–15. Ofc. Leone “didn’t know one way or another” if there was probable

cause to believe that there were hazardous materials in the apartment. Id. at 21:21–22; see also

id. at 101:11–15; 109:11–13. Nonetheless, Ofc. Leone then “performed a search on the

apartment to clear for any booby traps or explosive devices, [or] hazardous materials.” Id. at

19:1–4. This search was performed despite the fact that he had not been told that any MPD

officer had seen explosives or that anyone heard that explosives were in the apartment. Id. at

22:2–7; see also id. at 101:16–21. Instead, he was merely advised that “due to the [plaintiff’s]

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military background [MPD] believed that the [sic] possibility of explosives could be in the

apartment.” Id. at 91:18–22. During Ofc. Leone’s search, he “cut open every zipped bag,

dumped onto the floor the contents of every box and drawer, broke into locked boxes under the

bed and in the closet, emptied shelves into piles in each room, and broke into locked boxes

containing Corrigan's three firearms,” Corrigan, 841 F.3d at 1028 (citing Pl.'s Answers to

Interrogs., ¶ 8; FAC ¶ 22), resulting in the seizure from “[i]nside the locked boxes, . . . an assault

rifle, two handguns, a military smoke grenade, a military "whistler" device, fireworks, and

ammunition,” id.

II. LEGAL STANDARD

A. Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving party bears the

burden of demonstrating the “absence of a genuine issue of material fact” in dispute, Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present specific

facts supported by materials in the record that would be admissible at trial and that could enable

a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477

U.S. 242, 256 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on

summary judgment, the appropriate inquiry is “whether, on the evidence so viewed, a reasonable

jury could return a verdict for the nonmoving party” (internal quotation marks omitted)); see

also FED. R. CIV. P. 56(c), (e)(2)–(3). In making this evaluation, “courts may not resolve

genuine disputes of fact in favor of the party seeking summary judgment,” Tolan v. Cotton, 134

S. Ct. 1861, 1866 (2014) (per curiam), and “[t]he evidence of the nonmovant is to be believed,

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and all justifiable inferences are to be drawn in his favor,” id. at 1863 (quoting Liberty Lobby,

477 U.S. at 255 (alteration in original)).

B. Motions In Limine

The Supreme Court has recognized that “[a]lthough the Federal Rules of Evidence do not

explicitly authorize in limine rulings, the practice has developed pursuant to the district court's

inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4,

(1984); see id. at 40 n.2 (defining motion in limine “in a broad sense to refer to any motion,

whether made before or during trial, to exclude anticipated prejudicial evidence before the

evidence is actually offered”). Indeed, Rule 103(d) of the Federal Rules of Evidence mandates

that the court must conduct a jury trial to the extent practicable so that inadmissible evidence is

not suggested to the jury by any means. FED. R. EVID. 103(d). Pretrial motions in limine are an

important mechanism to effectuate this goal of insulating the jury from inadmissible evidence

and further the purpose of the rules, generally, to administer the proceedings “fairly . . . to the

end of ascertaining the truth and securing a just determination.” FED. R. EVID. 102; see Banks v.

Vilsack, 958 F. Supp. 2d 78, 82 (D.D.C. 2013) (citing FED. R. EVID. 103(d)). Moreover, “[a]

pretrial ruling, if possible, may generally be the better practice, for it permits counsel to make the

necessary strategic determinations.” United States v. Jackson, 627 F.2d 1198, 1209 (D.C. Cir.

1980).

In evaluating the admissibility of proffered evidence on a pretrial motion in limine the

court must assess whether the evidence is relevant and, if so, whether it is admissible, pursuant to

Federal Rules of Evidence 401, 402 and 403. “[T]he burden is on the introducing party to

establish relevancy,” Dowling v. United States, 493 U.S. 342, 351 n. 3 (1990), as well as

admissibility. Even relevant evidence may be deemed inadmissible and subject to exclusion on

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multiple grounds, including that “its probative value is substantially outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, or needlessly presenting cumulative evidence.” FED. R. EVID. 403.

“Assessing the probative value of [the proffered evidence], and weighing any factors counseling

against admissibility is a matter first for the district court's sound judgment under Rules 401 and

403.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (alteration in original)

(quoting United States v. Abel, 469 U.S. 45, 54 (1984)).

Depending upon the nature of the evidentiary issue presented in a pretrial motion in

limine, the court must also assess whether a ruling is appropriate in advance of trial or, instead,

should be deferred until trial “‘[when] decisions can be better informed by the context,

foundation, and relevance of the contested evidence within the framework of the trial as a

whole.’” Herbert v. Architect of the Capitol, 920 F.Supp.2d 33, 38 (D.D.C. 2013) (alteration in

original) (quoting Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D. Ill. 2011)). The timing of a

decision on the admissibility of contested evidence is a matter within a trial judge's discretion.

Banks, 958 F. Supp. 2d at 81–82 (citing authorities); Barnes v. District of Columbia, 924 F.

Supp. 2d 74, 78–79 (D.D.C. 2013) (citing authorities).

III. DISCUSSION

The Court first addresses Ofc. Leone’s motion for summary judgment on the explicit

issue remanded by the D.C. Circuit: whether he is entitled to qualified immunity for following

his superior’s order to conduct the warrantless EOD search. Def.’s Mem. Supp. Summ. J.

(Def.’s MSJ”) at 5–8, ECF No. 131. Then the plaintiff’s motion in limine and for partial

summary judgment to exclude evidence, argument, or reference by defendants that the search of

plaintiff’s home was constitutional, Pl.’s Mem. Supp. Pl.’s Mot. at 1–2, is addressed, before

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turning finally to the defendants’ motions in limine seeking exclusion of argument or evidence

relating to the plaintiff’s arrest, incarceration, and prosecution in his underlying criminal

proceedings.

A. Ofc. Leone’s Supplemental Motion for Summary Judgment

Ofc. Leone argues that he is entitled to qualified immunity because he relied on an order

from Lt. Robert Glover. Def.’s MSJ at 5–6 (“Once Officer Leone arrived at the scene, based on

the directive given to him by Lt. Glover, he joined other MPD officers already present in

Plaintiff’s apartment.”). He posits that his conduct must be measured not by the reasonableness,

or lack thereof, of the EOD search but by the reasonableness of him following the order of his

superior officer. Id. at 7 (framing “the relevant question [as] whether an officer in this

Defendants’ position could have reasonably relied on the judgment of Lt. Glover” and urging

that “[t]he facts here show such reasonable reliance”). Citing the “paramilitary” nature of the

police department, Ofc. Leone argues he “was not in a position to disregard Lt. Glover’s order

which he believed to be lawful.” Id.

At the outset, the factual record is murky regarding how Lt. Glover’s order was

communicated to Ofc. Leone. Although Lt. Glover testified that he directed the EOD to enter

the apartment, Ofc. Leone, who actually conducted the EOD search, could not recall “who

exactly” the order “came down from.” Leone Dep. at 102:22–103:1. Instead, Ofc. Leone

testified that he spoke with a colleague on the EOD, Officer William Powell, who “had spoken

with higher ups” and “Officer Powell told [Leone] that he or [Leone] were supposed to go in and

conduct a search.” Id. at 103:4–8. 4 At oral argument on this motion, plaintiff’s counsel

indicated that he does not “have it in the record that [Leone] said Glover told him to go in.”

4

On July 28, 2015, the plaintiff voluntarily dismissed Ofc. Powell as a defendant in this matter. See Joint

Stipulation of Dismissal (July 28, 2015), ECF No. 118.

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Motions Hearing (May 17, 2017). At the same time, in his supplemental responses to plaintiff’s

first set of interrogatories, Ofc. Leone stated that “[o]nce on the scene, I was advised by Lt.

Glover that they needed the residence cleared on an EOD aspect due to the fact that the Plaintiff

had a military background.” Leone Mot. Summ. J., Ex 21, Leone Supp. Resp. Pl’s 1st Set

Interrogs., at 3, ECF No. 81-21. Thus, Ofc Leone has indicated both that he received the order

from Lt. Glover and that he received the order from Ofc. Powell, who in turn received the order

from unnamed superiors. In any event, no dispute exists that Lt. Glover gave the order for the

EOD search and that Ofc. Leone executed that order, so any issue about precisely how that order

was communicated to Ofc. Leone is immaterial and, therefore, does not require resolution at trial

of a predicate factual issue before determination of whether qualified immunity applies.

The D.C. Circuit has expressly held that “the EOD search violated Corrigan’s rights

under the Fourth Amendment.” Corrigan, 841 F.3d at 1035. Just because a search is found to

violate the Fourth Amendment does not mean civil liability automatically attaches, however.

Instead, when an officer “engages in constitutionally deficient conduct,” qualified immunity

provides a liability shield “if, in doing so, she did not violate ‘clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Brosseau v. Haugen,

543 U.S. 194, 205 (2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified

immunity ‘gives government officials breathing room to make reasonable but mistaken

judgments' and ‘protects all but the plainly incompetent or those who knowingly violate the

law.’” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting Ashcroft v. al-Kidd, 131

S.Ct. 2074, 2085 (2011)). Consequently, whether qualified immunity applies “‘generally turns

on the objective legal reasonableness of the [official's] action, assessed in light of the legal rules

that were clearly established at the time.’” Id. at 546 (quoting Anderson v. Creighton, 483 U.S.

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635, 639 (1987)). In other words, while an officer’s subjective state of mind is not relevant to

the qualified immunity inquiry, the officer’s perceptions of the objective facts animating the

challenged conduct are. See White v. Pauly, 137 S. Ct. 548, 550 (2017) (instructing that in

evaluating qualified immunity defense, “the Court considers only the facts that were knowable to

the defendant officers”); Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (noting that

determination of objective reasonableness must be made “from the perspective of a reasonable

officer on the scene, including what the officer knew at the time, not with the 20/20 vision of

hindsight”) (internal quotations and citations omitted).

Mindful of these principles, Ofc. Leone’s reliance on Lt. Glover’s order for EOD to

search the plaintiff’s apartment is not dispositive of whether Ofc. Leone is entitled to qualified

immunity since the “objective reasonableness” of his actions must be assessed based on what

was known to him at the time. Indeed, the D.C. Circuit has emphasized that it “has never held

that qualified immunity permits an officer to escape liability for his unconstitutional conduct

simply by invoking the defense that he was ‘just following orders.’” Wesby v. District of

Columbia, 765 F.3d 13, 29 (D.C. Cir. 2014); see also Messerschmidt, 565 U.S. at 554–55 (2012)

(approval of a warrant by a magistrate, along with review by an officers’ superior and deputy

district attorney, was “pertinent” but not “dispositive” as to whether an officer could have

reasonably believed that a warrant was supported by probable cause). Two D.C. Circuit

decisions, Elkins v. District of Columbia and Wesby v. District of Columbia, instruct that an

officer’s claimed entitlement to qualified immunity for following orders turns on a number of

different factors. See, e.g., Elkins, 690 F.3d 554, 569 (D.C. Cir. 2012) (“Whether an official's

reliance [on her supervisor] is reasonable will always turn on several factors . . . .”).

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In Elkins, the D.C. Circuit held that an inspector from the Historic Preservation Office

(“HPO”) was protected by qualified immunity for an unlawful seizure of the plaintiff’s notebook.

The inspector was just one among MPD officers, other HPO officials and personnel from the

District of Columbia’s Department of Consumer and Regulatory Affairs (“DCRA”), who

participated in the search of the plaintiff’s home. Id. at 568. After the search began, the

inspector was asked to come inside and photograph the interior of the home. Id. When the

inspector noticed other officials searching through drawers, she asked her supervisor whether

that was permitted. Id. The supervisor “conferred with an MPD officer within earshot” of the

inspector, and the officer stated that “anything related to construction, including documents,

could be seized.” Id. When the plaintiff produced the notebook, the inspector “took it from

her.” Id. The D.C. Circuit concluded that although the seizure was unlawful because it was

outside the scope of the warrant, id. at 564, the inspector was entitled to qualified immunity,

noting that the inspector was a “junior member of the search team,” and she specifically asked

her “superiors about the permissible scope of the search and relied upon the judgment of her

supervisor and the police officer in charge,” id. at 568. Although none of these factors were

“dispositive,” the D.C. Circuit held that “viewing them together,” the inspector’s actions,

“though mistaken, were not unreasonable.” Id.

In contrast to Elkins, the D.C. Circuit found the officers involved in the Wesby case not to

be entitled to qualified immunity. In Wesby, the MPD dispatched officers to investigate a

complaint of “illegal activities taking place at a house in Washington, D.C.” Wesby, 765 F.3d at

17. Hearing loud music as they approached the house, the officers entered the home and saw

acts consistent “with activity being conducted in strip clubs for profit.” Id. After interviewing

everyone present in the house and learning that a woman referred to as “Peaches” gave

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permission to be in the house, the officers learned from speaking to Peaches via telephone, that

she had told the individuals present the house that they could use it for a bachelor party but

Peaches did not, in fact, have permission to use the house. Id. at 18. On that basis, “and

notwithstanding the undisputed statements of both the guests and Peaches that she had given

them permission to be at the house,” the supervising sergeant ordered the other officers to arrest

everyone for unlawful entry. Id.

The D.C. Circuit first concluded that the officers did not have probable cause to arrest the

individuals for unlawful entry because “[a] reasonably prudent officer aware that the Plaintiffs

gathered pursuant to an invitation from someone with apparent (if illusory) authority could not

conclude that they had entered unlawfully.” Id. at 21. The D.C. Circuit then assessed whether

the officers were entitled to qualified immunity for following the orders of a superior officer.

Comparing the officers’ conduct to that of the housing inspector in Elkins, the D.C. Circuit

concluded that the officers were not entitled to qualified immunity. Specifically, the D.C. Circuit

observed that the officers at issue in Wesby were “police officers with the independent authority

to make arrests while on patrol,” and as such, “expected to know the limitations on their

authority.” Wesby, 765 F.3d at 28. The Wesby court also found it significant that unlike Elkins,

the officers in Wesby were “actively involved in surveying the scene and gathering information

regarding the Plaintiffs’ knowledge and reason for being in the house” and “[b]oth

officers . . . were aware of the key uncontroverted facts in th[e] case” that undermined the

legality of the conduct. Id. at 28–29. Despite this awareness, neither officer raised any question

about the legality of the order to arrest before they carried out the order. Id. at 29 (noting that

another factor in Elkins but missing in Wesby was that the officers in Wesby never “raised the

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question . . . whether there was evidence that the Plaintiffs knew or should have known that their

presence in the house was unauthorized”).

Elkins and Wesby illustrate that when determining whether an officer should be afforded

qualified immunity for following orders, a fact-intensive and multi-factored inquiry is required.

At least four factors may be distilled from Elkins and Wesby as relevant to this inquiry: (1)

whether it would have been clear to a reasonable officer that the act in question was in violation

of the Fourth Amendment; (2) whether the officer made any effort to obtain clarity about the

legality of the search; (3) the experience of the officer, whose conduct is at issue; and (4) the

officer’s role in the investigation in terms of familiarity with the circumstances.

Ofc. Leone’s conduct differs somewhat from that of the inspector in Elkins and the

officers in Wesby, and presents a close call. Application of the factors drawn from Elkins and

Wesby, however, show that Ofc. Leone’s actions are closer to those of the officers in Wesby.

The first factor—whether it would have been clear to a reasonable officer that the act in

question was in violation of the Fourth Amendment—is easily resolved by the D.C. Circuit’s

holding in this case that “no reasonable officer could have concluded . . . a basis existed for the

second more intrusive search.” Corrigan, 841 F.3d at 1025. Indeed, the D.C. Circuit’s opinion

is replete with references to the initiation and scope of the EOD search as “patent[ly]

unreasonable[.]” Id. at 1036; see also id. at 1025 (noting that the “scope of the second search far

exceeded what [the community caretaking] exception would allow”); id. (“[N]o reasonable

officer could have concluded . . . a basis existed for the second more intrusive search[.]”); id. at

1029 (“At the very least, any search must be tailored to the exigent need, and the EOD's broad

and vigorous search was unreasonable because it was not [so] tailored.”) (internal quotation

marks and citation omitted); id. at 1032 (“[T]he second warrantless break in of Corrigan's home

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by the EOD was based on nothing more than a bare possibility, that he might have explosives

that would ignite, a possibility the evidence shows was based on runaway speculation.”) (internal

quotation marks and citation omitted; alteration adopted); id. (“[T]he scope of the ‘exhaustive

and intrusive’ search was unreasonably broad, with EOD officers rifling through every concealed

space in Corrigan's home and breaking open closed containers.”); id. (“Such a top-to-bottom

search falls far outside the bounds of reasonableness given what the officers knew at the time and

the Supreme Court's clear admonition that warrantless searches pursuant to an exigent

circumstances exception be strictly circumscribed by the exigencies which justify its initiation.”)

(internal quotation marks and citation omitted). Indeed, the D.C. Court underscored that “[n]o

precedent, even in the context of potentially explosive devices, supports the officers tearing open

containers and prying open locked boxes when conducting a warrantless search based on

conjecture that hazardous substances might be present.” Id. This Court is bound by this

conclusion of law and, thus, the first factor weighs heavily against the grant of qualified

immunity to Ofc. Leone.

Second, Ofc. Leone made no apparent effort to clarify the legal basis for the search to

assure himself that the search was permissible. To the contrary, as the plaintiff notes, Ofc. Leone

testified that no one actually told him they had seen explosives in the apartment or heard that

such incendiary material was present. Pl.’s SMF ¶ 181; Leone Dep. at 101:16-21. Further, Ofc.

Leone also testified that he did not have probable cause to believe that there were explosive

devices in the apartment. Leone Dep. at 101:11-15. Instead, Ofc. Leone was aware that other

officers had been at the location for some time and that ERT’s sweep had already found that no

person was present in the apartment. Leone Dep. at 20:9–12. He was merely advised that “due

to the subject’s military background they believed that the [sic] possibility of explosives could be

15

in the apartment.” Id. at 91:19–22; 101:22. Thus, Ofc. Leone lacked any information

whatsoever that would have given him minimal comfort that the search was legally permissible

and he made no effort to ask basic questions to determine whether probable cause or an exigency

existed to conduct an extensive search of the apartment. In fact, Ofc. Leone testified that he did

not do “anything to second guess the officers already on the scene” with respect to the

“determination of probable cause.” Id. at 92:9–12. Ofc. Leone appears to have “blindly

follow[ed] . . . orders,” Wesby, 765 F.3d at 28, and proceeded to conduct “‘an exhaustive and

intrusive search,’” Corrigan, 841 F.3d at 1036 (quoting Mincey v. Arizona, 437 U.S. 385, 389

(1978)), without assuring himself of a minimal understanding of its legal basis. This factor, too,

weighs against the granting of qualified immunity to Ofc. Leone.

Third, although Ofc. Leone was a “rookie tech,” see Leone Dep. at 103:11, like the

officers involved in Wesby, he is a law enforcement officer who is expected to be trained in the

limits of his authority, see Wesby, 765 F.3d at 28 (“Police officers charged with enforcing the

criminal statutes are expected to know the limitations on their authority . . . .”); see also Harlow

v. Fitzgerald, 457 U.S. 800, 819 (1982) (“Where an official could be expected to know that

certain conduct would violate statutory or constitutional rights, he should be made to hesitate;

and a person who suffers injury caused by such conduct may have a cause of action.”). As an

EOD member, in particular, he is focused on dealing with explosives and hazardous materials,

which as the D.C. Circuit pointed out, means that “the purpose of the EOD search cannot be

characterized as altogether divorced from ‘the detection, investigation, or acquisition of evidence

relating to’ a crime,” and “[b]ased on their own statements, the officers acted not solely to ensure

public safety as community caretakers, but to investigate whether Corrigan had left explosive or

hazardous materials set to explode — activity that would have been criminal.” Corrigan, 841

16

F.3d at 1034-35. Moreover, given the D.C. Circuit’s conclusion that the second search was

“patently unreasonable[], both in terms of its scope and the lack of a reasonable basis for it,”

Corrigan, 841 F.3d at 1036, “a reasonably competent officer faced with the information the

officers had gathered in this case should have known that he lacked” a legal basis to perform the

intrusive second search, Wesby, 765 F.3d at 28. This factor, albeit mixed, weighs against the

granting of qualified immunity.

Finally, Ofc. Leone’s role in the investigation was limited but not insignificant. The

defendants argue Ofc. Leone is unlike the officers in Wesby, who were denied qualified

immunity, because unlike those officers, Ofc. Leone was not the “hub of the investigation.”

Defs.’ Reply Supp. Defs.’ MSJ, at 3, ECF No. 135 (quoting Wesby, 765 F.3d at 262). The

defendants note that the officers in Wesby “gathered evidence” and “actively participated in

questioning the Plaintiffs and other key witnesses” before the arrest that was deemed unlawful.

Id. (quoting Wesby, 765 F.3d at 262). To be sure, Ofc. Leone’s role is more limited than that of

the officers in Wesby. That said, Ofc. Leone was responsible for conducting the entirety of the

second EOD search, Leone Dep. at 19:7, a search which, according to the D.C. Circuit, “far

exceeded the bounds of reasonableness,” Corrigan, 841 F. 3d 1033. Indeed, aside from Lt.

Glover, who ordered the EOD search, Ofc. Leone appears to be the only other individual who

played any role in the search. 5 Further, Ofc. Leone had sufficient familiarity with the

circumstances of the ERT search to know that a sweep of the premises had already occurred,

with no further exigency at stake. By the time he conducted his own search, Ofc. Leone had

been informed that ERT had already been in the apartment and that officers had “ma[d]e sure

there that there wasn’t any other people in the apartment.” Leone Dep. at 20:9–12. Thus,

5

Although Officer Powell, another member of the EOD, was also on the scene, Ofc. Leone testified that

Powell did not actually go into the apartment. See Leone Dep. at 92:13–18.

17

although Ofc. Leone arrived late on the scene and had the limited role of eliminating explosive

or other hazardous materials from the apartment, he had been apprised of sufficient information

undermining the legality of the warrantless search and nonetheless then conducted the extensive

search found to be a clear violation of the Fourth Amendment by the D.C. Circuit.

In considering these factors, the Court is mindful of the Supreme Court’s recent decision

in White v. Pauly, 137 S. Ct. 548, 550 (2017), reversing the Tenth Circuit’s denial of qualified

immunity on an excessive force claim to a police officer, who arrived late to an armed

confrontation involving other officers and witnessed one of two armed men inside a house fire

two shotgun blasts, prompting the officer to make a “quick choice to use deadly force,” by

shooting and killing the man firing the shotgun, without giving a warning to drop his weapon.

The Supreme Court concluded that in these particular “circumstances,” “[c]learly established

federal law does not prohibit a reasonable officer who arrives late to an ongoing police

action . . . from assuming that proper procedures . . . have already been followed,” and that “[n]o

settled Fourth Amendment principle requires that officer to second-guess the earlier steps already

taken by his or her fellow officers.” Id. at 552. While Ofc. Leone was also “late to an ongoing

police action,” and was not required “to second-guess the earlier steps taken” by fellow officers,

the holding in White is expressly limited to the “unique set of facts and circumstances” presented

in the case, which involved the imminent threat of deadly force, id. (emphasizing that clearly

established law did not prohibit the officer’s acts in the particular “circumstances” and “instances

like the one [the officer] confronted here”). Moreover, the White Court “reiterate[d] the

longstanding principle” in qualified immunity cases that “clearly established law should not be

defined at a high level of generality,” "must be 'particularized' to the facts of the case," and must

give "fair and clear warning" to officers that their conduct is unlawful under the Fourth

18

Amendment. Id. The binding D.C. Circuit decision in this case that clearly established law

rendered the EOD search “patently unreasonable,” based on the information available to the

officers, including Ofc. Leone, plainly distinguishes White.

In sum, after weighing all four factors, Ofc. Leone has not shown that his reliance on the

order of Lt. Glover was objectively reasonable under these circumstances to entitle him to

qualified immunity based on following an order to conduct a warrantless search. Accordingly,

Ofc. Leone’s motion for summary judgment is denied.

B. The Plaintiff’s Motion in limine and for Partial Summary Judgment

On May 12, 2017, the plaintiff filed a motion in limine to preclude defendants from

arguing at trial that their search of the plaintiff’s apartment was constitutional, or alternatively,

for partial summary judgment on the remaining defendants’ liability, in light of the D.C.

Circuit’s holding that the search “has now been held unconstitutional as a matter of law.” Pl.’s

Mem. Supp. Mot. In Limine or Partial Summ. J., at 1 (“Pl.’s Mem.”), ECF No. 138-1. Indeed,

the D.C. Circuit explicitly held that the MPD’s second search, by EOD, violated the plaintiff’s

Fourth Amendment rights. Corrigan, 841 F.3d at 1039. As this issue is now law of the case,

partial summary judgment is warranted and the defendants may not argue that the EOD search

comported with the Fourth Amendment.

Under the mandate rule, this Court is bound by the holding of the D.C. Circuit. See

Indep. Petroleum Ass'n of Am. v. Babbitt, 235 F.3d 588, 596–97 (D.C. Cir. 2001) (“Under the

mandate rule, ‘an inferior court has no power or authority to deviate from the mandate issued by

an appellate court.’” (quoting Briggs v. Pa. R.R. Co., 334 U.S. 304, 306 (1948)). “The mandate

rule is a 'more powerful version' of the law-of-the-case doctrine, which prevents courts from

reconsidering issues that have already been decided in the same case.” Id. at 597 (citations

19

omitted). “Unlike the doctrine of res judicata, however, the ‘law of the case’ doctrine does not

seek to sweep under its coverage all possible issues arising out of the facts of the case.” U.S. on

Behalf of Dep't of Labor v. Ins. Co. of N. Am. (“ICNA”), 131 F.3d 1037, 1041 (D.C. Cir. 1997).

“Rather, the scope of the ‘law of the case’ doctrine is limited to issues that were decided either

explicitly or by necessary implication—‘[t]he mere fact that [an issue] could have been decided

is not sufficient to foreclose the issue on remand.’” Id. (quoting Maggard v. O'Connell, 703 F.2d

1284, 1289 (D.C. Cir. 1983)). “[I[t is entirely appropriate—and, in most cases in this circuit,

necessary—to consult the opinion to interpret the mandate.” Id. at 1041 n.7; see also United

States ex rel. Miller v. Bill Harbert Int'l Constr., Inc., 865 F. Supp. 2d 1, 6 (D.D.C. 2011)

(“When a district court is considering proceedings on remand, a circuit court's opinion ‘may be

consulted to ascertain what was intended by its mandate.’” (quoting In re Sanford Fork & Tool

Co., 160 U.S. 247, 256 (1895)).

Review of the D.C. Circuit’s opinion makes clear that the D.C. Circuit held that “the

MPD's second search, by the EOD, violated [the plaintiff’s] Fourth Amendment rights.”

Corrigan, 841 F.3d at 1039. The D.C. Circuit expressed this holding repeatedly and with

unambiguous language. See id. at 1025 (“Because it was (and is) clearly established that law

enforcement officers must have an objectively reasonable basis for believing an exigency

justifies a warrantless search of a home, and because no reasonable officer could have concluded

such a basis existed for the second more intrusive search, the officers were not entitled to

qualified immunity across the board.”); id. at 1036 (“The unfocused nature of the EOD search

underscores its patent unreasonableness, both in terms of its scope and the lack of a reasonable

basis for it.”); id. (“[N]o reasonable officer could have believed that an exigency continued to

20

exist as would justify a second warrantless break in of Corrigan's home to search for

explosives.”).

The defendants suggest that this interpretation of the D.C. Circuit’s decision is “too

broad, and is inaccurate.” Defs.’ Opp’n Pl.’s Mot. In Limine or Partial Summ. J. (“Def.’s

Opp’n”), at 8, ECF No. 145. Although acknowledging that the D.C. Circuit held that the second

EOD search was unconstitutional, the defendants aver that in reaching this conclusion, the D.C.

Circuit was viewing the issue through the lens of the defendants’ motion for summary judgment.

See Defs.’ Opp’n at 9. According to the defendants, “[w]hether the defendants were entitled to

summary judgment—the issue in the appeal—is a different issue than whether the plaintiffs are

entitled to summary judgment.” Id. 6 At first blush, the defendants’ argument is plausible, but in

the context of the D.C. Circuit’s opinion and mandate here, is not persuasive. When, for

example, a Court of Appeals reverses a grant of summary judgment by finding genuine disputes

as to material facts, remand to the district court effectively “restarts” the litigation in the district

court. In Johnson v. District of Columbia, 528 F.3d 969 (D.C. Cir. 2008), for example, the D.C.

Circuit concluded that granting summary judgment on the basis of qualified immunity was

“premature” because there was a “genuine issue of material fact” that precluded summary

6

The defendants reliance on United States ex rel. DOL v. Ins. Co. of N. Am. (“DOL”), 131 F.3d 1037 (D.C.

Cir. 1997), for this proposition is misplaced since that case did not address the effect of the summary judgment

standard on the scope of the mandate but rather the occasional difficulty presented in discerning the scope of an

ambiguous mandate. In DOL, the D.C. Circuit construed the defendant’s obligation to pay covered claims under

indemnity bonds obtained by a coal mine operator to fulfill its self-insurance responsibilities under the Black Lung

Benefits Act. Id. The D.C. Circuit held that, according to the bond’s language, the defendant “was liable only for

those claims that accrued during the bond period, rejecting the district court’s conclusion that [the defendant] was

liable for all claims outstanding during the bond period.” Id. On remand, the district court interpreted the mandate

to hold that a miner’s last year of employment with the coal mine operator, rather than his or her first year, had to

fall within the bond period for the claim to “accrue” during the bond period. Id. On appeal for the second time, the

D.C. Circuit held that the previous opinion “did not address the issue of which year should be considered to mark

the accrual point” and therefore vacated the district court’s judgment and remanded for a second time for the district

court to decide “the trigger year intended by the parties to the bond agreement.” Id. This case, then, simply stands

for the proposition that a district court can misinterpret the mandate of the Court of Appeals. If the D.C. Circuit’s

opinion here were in any way ambiguous as to the constitutionality of the search, DOL might be useful precedent.

As the D.C. Circuit unambiguously held that the EOD search was unconstitutional, however, DOL is of little help.

21

judgment. Id. at 977–78. Although the district court’s finding of qualified immunity was

reversed, the D.C. Circuit cautioned that the plaintiff was “not home free,” because “[h]is victory

on appeal c[a]me[] from our having viewed the facts most favorably to him.” Id. at 978; see also

DeGraff v. District of Columbia, 120 F.3d 298, 302 (D.C. Cir. 1997) (reversing district court’s

grant of summary judgment in favor of district and officers on claims that these defendants

violated the Fourth Amendment, concluding that insufficient facts were in the record to

determine whether officers were entitled to qualified immunity); Edwards v. Shanley, 666 F.3d

1289, 1295 & n.3 (11th Cir. 2012) (reversing grant of summary judgment on qualified immunity

grounds at the summary judgment stage in light of clear factual dispute between the parties

whether the police dog bite lasted between five to seven minutes, as the plaintiff claimed, or

fifteen to twenty seconds, as the officers claimed, but stressing that conclusion regarding

violation of “clearly established federal law” was premised on accepting plaintiff’s account and

“that a jury would be free to make its own fact findings”); Rodriguez v. Passinault, 637 F.3d 675,

687 (6th Cir. 2011) (reversing district court’s grant of summary judgment on qualified immunity

grounds after finding that a genuine issue of material fact existed requiring remand); Fils v. City

of Aventura, 647 F.3d 1272, 1292 & n.24 (11th Cir. 2011) (affirming district court’s denial of

motions for summary judgment based on qualified immunity, but noting that the conclusion was

“driven by the stark contrast between [the plaintiff’s] version of events and that of Defendants”

and that “[a]t summary judgment, [the court had to] accept [the plaintiff’s] version of events, and

make all reasonable inferences in his favor.”); Howard v. Kansas City Police Department, 570

F.3d 984, 992 n.8, 997 (8th Cir. 2009) (affirming denial of summary judgment based on qualified

immunity to two police officers accused of forcing a shirtless shooting victim onto hot asphalt

street, resulting in second degree burns, due to “stark factual scenario posited by” plaintiff,

22

whose version of events was accepted over the officers’ contrary version at summary judgment

stage, and remanding for trial). 7 As these cases illustrate, when reversal of grants of summary

judgment (or affirmations of denials of summary judgment) to police officers asserting qualified

immunity are premised on disputed material facts, the appellate decisions will not result in

binding law of the case. Instead, on remand, the factfinder must determine the “actual” facts of

the case in order for the Court to assess whether those facts establish immunity from suit

precluding civil liability.

Not all mandates are so limited, however. The Court of Appeals may, in addition to

reversing a grant of summary judgment, reach legal conclusions governing the continuing

litigation on remand. The Court of Appeals might conclude that certain facts—irrespective of

making any factual inferences in either party’s favor—establish liability, which conclusions of

law may not be disregarded by the district court. See Babbitt, 235 F.3d at 596–97.

For example, in Guzman v. City of Chicago, a case from the Northern District of Illinois,

police officers “stormed the apartment” of the plaintiff, “gestured for her to lie down on the floor

and searched her apartment,” but unfortunately “searched the wrong apartment.” Guzman v. City

of Chicago, Civil No. 05-6617, Dkt. No. 191 (“Guzman Summ. J. Order”) (N.D. Ill. Feb. 25,

2010). In the plaintiff’s subsequent suit against the City of Chicago and two police officers

under § 1983 for, among other things, illegal search and false arrest, the Seventh Circuit reversed

the district court’s grant of summary judgment to the defendants on those two counts, concluding

that “there is no question that the search was illegal.” Guzman v. City of Chicago, 565 F.3d 393,

7

On remand, in the Howard v. Kansas City Police Department and Edwards v. Shanley cases, juries

ultimately found for the defendant officers. See Howard v. Kansas City Police Dep’t, Civil No. 06-00628 (DW),

Dkt. No. 111 (W.D. Mo. July 27, 2010); Edwards v. Shanley, Civil No. 10-554 (GKS-DAB), Dkt. No. 79 (M.D. Fla.

Mar. 5, 2003). The remaining cases all settled on remand. See Johnson v. District of Columbia, Civil No. 02-1452

(RMC), Dkt. No. 56 (D.D.C. Nov. 12, 2008); DeGraff v. District of Columbia, Civil No. 94-1949 (JLG), Dkt. No.

177 (D.D.C. Sept. 18, 1998); Rodriguez v. Passinault, Civil No. 07-14537 (LPZ-MKM), Dkt. No. 41 (E.D. Mich.

Feb. 28, 2012); Fils v. City of Aventura, Civil No. 05-22308 (WMH), Dkt. No. 264 (S.D. Fla. Nov. 14, 2011).

23

399 (7th Cir. 2009). On remand, the plaintiff moved for partial summary judgment on her illegal

search and false arrest claims based on the Seventh Circuit’s conclusion “that the search was

illegal.” Guzman Summ. J. Order. Recognizing that the Seventh Circuit’s “conclusion that the

search was illegal could not have been more explicit” and was law of the case, the district court

granted partial summary judgment on liability and proceeded to trial on damages. Id.; see also

Guzman v. City of Chicago (“Guzman II”), 689 F.3d 740, 742 (7th Cir. 2012) (explaining the

procedural history of the case).

Likewise, here, the D.C. Circuit reversed the grant of summary judgment, finding that,

based on existing precedent and the undisputed facts in the record, the second warrantless search

by EOD was unconstitutional. Corrigan, 841 F.3d at 1032 (explaining that “binding precedents

resolve[d] the Fourth Amendment issue”). 8 To be sure, the D.C. Circuit references the summary

judgment standard. See id. at 1029 (noting that appellate court "like the district court, [must]

examine the facts in the record and all reasonable inferences derived therefrom in a light most

favorable to the nonmoving party." (citations and internal quotes omitted; alteration in original));

id. at 1035 (“Consequently, upon viewing the evidence in the light most favorable to Corrigan as

the non-movant, we conclude that the officers fail to demonstrate that the extensive EOD search

of Corrigan's home was justified by any plausible exigency.” (citation omitted)). Nevertheless,

the D.C. Circuit did not reach its holding on the Fourth Amendment violation by finding

disputed material facts or colored by any inferences drawn in the light most favorable to the

plaintiff. To the contrary, the D.C. Circuit concluded, based on the undisputed facts in the

8

The mandate from the D.C. Circuit in this case states: “This cause came on to be heard on the record on

appeal from the United States District Court for the District of Columbia and was argued by counsel. On

consideration thereof, it is ORDERED and ADJUDGED that the judgment of the District Court appealed from in

this cause be reversed as to the grant of summary judgment on Corrigan’s Fourth Amendment claim, be reversed in

part as to the officers’ qualified immunity defenses, and the case be remanded for further proceedings, in accordance

with the opinion of the court filed herein this date.”

24

record, that the second EOD search was a violation of the Fourth Amendment as a matter of law.

This legal determination is binding on this Court.

In particular, the D.C. Circuit rejected the justification of exigent circumstances for the

EOD search, explaining first that, “the officers had no reasonable basis for believing that

imminently dangerous ‘hazardous materials,’ like an explosive device, were in Corrigan's home”

and after the ERT search had been conducted, the officers knew that no one was inside the home.

Corrigan, 841 F.3d at 1031. Thus, “the claimed basis for believing exigent circumstances

existed had abated.” Id. Second, “the officers’ own delay during the hours-long barricade

belie[d] the notion that another immediate break in was reasonable, much less urgently needed.”

Id. at 1032. Third, the D.C. Circuit concluded that the “scope of the ‘exhaustive and intrusive’

search was unreasonably broad, with EOD officers rifling through every concealed space in [the

plaintiff’s] home and breaking open closed containers.” Id. The Circuit held that “[s]uch a top-

to-bottom search falls far outside the bounds of reasonableness given what the officers knew at

the time and the Supreme Court's clear admonition that warrantless searches pursuant to an

exigent circumstances exception be ‘strictly circumscribed by the exigencies which justify its

initiation.’” Id. (quoting Mincey, 437 U.S. at 393). For these reasons, the D.C. Circuit

concluded that exigent circumstances no longer existed for the EOD search, which was also

unreasonably broad. Accordingly, the D.C. Circuit held that “[c]learly established law

foreclosed the broad and invasive search that was executed.” Id. at 1036. Unlike a reversal of a

grant of summary judgment that is premised on identified disputed material facts, the D.C.

Circuit’s reversal in this case was specifically based on a conclusion of law.

Despite this clear holding, the defendants enumerate a dozen facts which they contend

warrant presentation to a jury to consider in evaluating the reasonableness of the ERT and EOD

25

searches, including that: (1) the plaintiff “started the chain of events” by calling the National

Suicide Hotline; (2) the National Suicide Hotline was “concerned about the exchange with” the

plaintiff and called “the District and alerted its concern that Plaintiff was suicidal”; (3) the

District “was notified that Plaintiff had a gun and wants to kill himself”; (4) the hotline operator

warned that the plaintiff had “severe PTSD symptoms,” with a loaded gun “actually on his lap”;

(5) the plaintiff lied to the police about his whereabouts when he was first contacted by telephone

and “when he left his apartment, locked it as if he had something to hide”; (6) Lt. Glover was

told the plaintiff served in the U.S. Army and was an expert in improvised explosive devices; (7)

Lt. Glover was told the plaintiff’s apartment was serviced by a gas line; (8) Lt. Glover “could not

confirm whether or not the reported gas leak was resolved because Plaintiff lived in a basement

apartment where the gas could have been heavier”; (9) Lt. Glover “considered the current state of

Plaintiff’s mental health before he ordered [EOD] to search Plaintiff’s apartment”; (10)

defendant Glover “believed exigent circumstances still existed and directed members of the EOD

to enter and search Plaintiff’s apartment for explosives because of ‘the potential threat to the

community at large, those that still remained on the scene, and anyone who would come after we

departed the scene’ to encounter any hazardous materials or devices”; (11) “Officer Leone had

less seniority than Officer William Powell and therefore he went into Plaintiff’s apartment based

on Defendant Glover’s call for EOD to search for explosives within the apartment”; 9 and (12)

the plaintiff was taken to a VA hospital and “admitted himself because he knew he needed

treatment.” Defs.’ Opp’n at 9–11. 10

9

Ofc. Leone’s low seniority may be relevant to his entitlement to qualified immunity, but is immaterial to

whether the search itself was unconstitutional. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 527–28 (1985) (a

determination of qualified immunity is “conceptually distinct from the merits of the plaintiff’s claim that his rights

have been violated”).

10

The defendants provide no citations for the third or fourth factual assertions regarding what the hotline

operator told the District about the plaintiff, including his alleged possession of a gun and desire to commit suicide.

26

The D.C. Circuit, however, considered most of these facts in finding the EOD search

violative of the Fourth Amendment. As the D.C. Circuit observed: “The evidence shows only

that the MPD officers were presented with a potentially suicidal military veteran who possessed

‘military items’ and had IED training, but no information about actual or reported threats by him

to others, much less that he had IED materials at home or would commit suicide in a manner that

threatened others.” Corrigan, 841 F.3d at 1036. Further, the D.C. Circuit found that

“[n]umerous witnesses, including Officer Leone who led the EOD search, confirmed that if there

was ever a gas smell, it had dissipated well before either search,” noting that “[t]he gas to the

row house had been turned off upon MPD's arrival, and no one reported smelling gas in the

hours leading up to the EOD search, or during the ERT ‘sweep.’” Id. at 1038. Finally, the D.C.

Circuit noted that Ofc. Leone “had not even been told of any concern about gas when he entered

Corrigan's home.” Id. (citing Leone Dep. 60:2–4). Thus, the facts the defendants deem relevant

to the determination of whether the second search was constitutional were considered, but were

found by the D.C. Circuit to be patently insufficient to justify the second “exhaustive and

intrusive” search. As the Court explained, “[t]o reasonably conclude a second break in of

Corrigan's home was necessary to resolve an imminently dangerous situation, the officers would

have had to engage in conjecture that [the plaintiff], in his suicidal state, had intentionally set and

hidden an explosive device in his home, or that he possessed an explosive device that he stored

so negligently as to pose an imminent threat.” Id. Concluding that the officers would have had

to “overcome the inferential chasm between the circumstances presented to the officers and the

explosive consequences that the officers might have feared,” the D.C. Circuit found that the

In any event, these facts, even if proven, would not affect the analysis of the EOD search, which occurred after the

plaintiff had already peacefully surrendered to police custody.

27

officers “engaged in raw speculation unsupported by either precedent or the information they

had.” Id.

In any event, the defendants fail to explain how these facts, even if viewed in a light most

favorable to them, would lead to a different conclusion. Nor can they do so. The D.C. Circuit

held that the undisputed facts in the record led to the conclusion that, as a matter of law, the

second search by EOD violated the plaintiff’s Fourth Amendment rights. The defendants chose

not to appeal this ruling and, thus, it is now law of the case binding on this Court. See Crocker v.

Piedmond Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995) (when the Court of Appeals

"affirmatively decide[s an] issue, be it explicitly or by necessary implication," that holding

becomes law of the case).

This does not entirely resolve the best path forward. The plaintiff argues that

“Defendants Glover and Leone are bound by the D.C. Circuit’s determination that Defendants

violated Plaintiff’s Fourth Amendment rights, and thus, the trial should proceed exclusively on

the issue of damages.” Pl.’s Supp. Br. Supp. Pl.’s Opp’n Defs.’ Mot. in Limine (“Pl.’s Supp.

Opp’n.”), at 2, ECF No. 144. This was the general approach taken by the Guzman district court.

The Guzman district court, however, made errors that must be avoided, including by allowing the

defendants to present “evidence and arguments tending to disclaim their liability” and “that the

defendants’ entire theory of the case was that the search and seizure were legal and reasonable,

and that if [the plaintiff] suffered harm it was caused by” other officers not named as defendants.

Id. at 746. The plaintiff was ultimately awarded one dollar in damages. Id. at 742. On appeal,

the Seventh Circuit held, among other things, that the “defendants’ theory of the case, the

evidence they introduced, and the liability instruction likely confused the jury.” Id.; id. at 747

(“the defense's theory and evidence, coupled with the liability instruction, likely confused the

28

jury by converting this damages-only trial into one about liability”). The Seventh Circuit

explained that in a damages-only trial, only “three issues need to be resolved: what injuries did

[the plaintiff] sustain, were they proximately caused by the unlawful search and seizure, and

what amount of damages would reasonably and fairly compensate her for those injuries.” Id. at

745–46 (citing Herzog v. Vill. of Winnetka, 309 F.3d 1041, 1044 (7th Cir. 2002) (“[T]he ordinary

rules of tort causation apply to constitutional tort suits.”); Henderson v. Sheahan, 196 F.3d 839,

848 (7th Cir. 1999) (“[A] plaintiff must demonstrate both that he has suffered an ‘actual’ present

injury and that there is a causal connection between that injury and the deprivation of a

constitutionally protected right caused by a defendant.”)). Thus, the Seventh Circuit explained

that “the question should have been whether [the plaintiff’s] injuries were proximately caused by

the unlawful search and seizure.” Id. at 747–48 (citing Carey, 435 U.S. at 264 (“[T]he basic

purpose of a § 1983 damages award should be to compensate persons for injuries caused by the

deprivation of constitutional rights.”); Herzog v. Vill. of Winnetka, 309 F.3d 1041, 1044 (7th Cir.

2002) (“[W]hen an illegal arrest sets off a chain of indignities . . . [the victim] is entitled to

obtain damages for these indignities . . . [f]or they are foreseeable consequences of the illegal

arrest, and the ordinary rules of tort causation apply to constitutional tort suits.”)).

This case differs from Guzman, where only a single unconstitutional search was at issue,

in that the D.C. Circuit has held here that officers were entitled to qualified immunity from

claims arising out of the first ERT search, whereas officers were not entitled to qualified

immunity from claims arising out of the second EOD search. See Corrigan, 841 F.3d at 1035.

As a result, in this case, determining whether the plaintiff’s alleged injuries “were proximately

caused by the unlawful search and seizure” might turn on which search, by ERT or EOD,

proximately caused those injuries. For this reason, the Court will take certain steps to ensure that

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this remains a “damages-only trial” with respect to the EOD search, while permitting defendants

to provide the full context of the two searches so that the jury can decide which injuries, if any,

were proximately caused by the EOD search. First, because the plaintiff is correct that the law of

the case precludes argument that the second search by EOD was constitutional, the plaintiff is

entitled to an instruction from the Court that the second search by EOD was a violation of the

plaintiff’s Fourth Amendment rights. Second, because argument regarding the constitutionality

of the EOD search is no longer “of consequence in determining the action,” such argument is

irrelevant under Rule 401 of the Federal Rules of Evidence. FED. R. EVID. 401. Third, because

the jury will be charged with determining whether the plaintiff’s injuries were proximately

caused by the second search, defendants will not be precluded from presenting evidence

regarding the circumstances of both the ERT and EOD searches in order to provide the jury with

the full context of the incident for purposes of assessing damages. As the Supreme Court has

made clear, “§ 1983 creates a species of tort liability,” Heck v. Humphrey, 512 U.S. 477, 483

(1994), and “the rules governing compensation for injuries caused by the deprivation of

constitutional rights should be tailored to the interests protected by the particular right in

question.” Carey, 435 U.S. at 258–59; see also Hector v. Watt, 235 F.3d 154, 157 (3d Cir. 2000)

(“Victims of unreasonable searches or seizures may recover damages directly related to the

invasion of their privacy . . . .”). Accordingly, in order to give the jury the necessary context of

the damages caused by the second unconstitutional search so that damages may be properly

tailored to that particular violation of the plaintiff’s constitutional rights, defendants are free to

present evidence regarding the circumstances of both searches.

For these reasons, the plaintiff’s motion for partial summary judgment as to the

unconstitutionality of the second search by EOD is granted. Moreover, the defendants may not

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argue that the EOD search of the plaintiff’s home was constitutional. 11 The defendants may,

however, present evidence regarding the full circumstances of the ERT and EOD searches so that

the jury may accurately determine whether and which damages are proximately caused by the

second EOD search.

C. The Defendants’ Motions In Limine

The defendants move in limine to exclude all evidence or argument regarding (1) the

plaintiff’s arrest and/or the alleged unlawfulness of his arrest; (2) that he was criminally

prosecuted; (3) the disposition of those charges; and (4) damages which stem from the arrest,

prosecution, or incarceration. See Defs.’ Mot. In Limine, ECF No. 104; Defs.’ Mot In Limine,

ECF No. 105. The defendants further argue that the plaintiff should be precluded from

introducing at trial that some of his guns and ammunition were returned to him by court order.

See Defs.’ Mot. In Limine, ECF No. 104. Each of these arguments are addressed in turn.

1. The Admissibility of Arguments or Evidence Regarding the Plaintiff’s

Arrest, Incarceration, or Prosecution

The defendants assert that any argument or evidence with respect to the plaintiff’s arrest,

prosecution, or incarceration is irrelevant to his sole claim against defendants for unlawful search

and seizure. In response, the plaintiff argues that the evidence is relevant to the damages the

plaintiff seeks for his arrest, prosecution, and incarceration “that flow directly from the

Defendants’ violation of his Fourth Amendment privacy liberty interests.” Pl.’s Supp. Opp’n

Defs.’ Mots. In Limine (“Pl.’s Supp. Opp’n”), at 2, ECF No. 144. In the plaintiff’s view, the

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The plaintiff moved in limine for an order to “exclude any evidence, argument, or reference concerning

evidence Defendants recovered in their unconstitutional search of Plaintiff’s home.” Pl.’s Mot. at 9. In his reply,

however, the plaintiff “agree[d] with Defendants that evidence the Defendants secured from” the search of the

plaintiff’s home “is relevant to the issue of damages at trial.” Pl.’s Reply Supp. Pl.’s Mot., at 5, ECF No. 147.

Accordingly, the plaintiff’s motion in limine is denied. The defendants may present evidence of the items recovered

during the search, including “an assault rifle, two handguns, a military smoke grenade, a military ‘whistler’ device,

fireworks, and ammunition.” Corrigan, 841 F.3d at 1028.

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unlawful arrest and prosecution of the plaintiff was a “direct consequence” of the search of the

plaintiff’s apartment which has now been held to be unlawful by the D.C. Circuit. Id. at 2–3.

The Supreme Court has instructed that in the context of § 1983, “the rules governing

compensation for injuries caused by the deprivation of constitutional rights should be tailored to

the interests protected by the particular right in question.” Carey v. Piphus, 435 U.S. 247, 258–

59 (1978). “[T]he elements and prerequisites for recovery of damages appropriate to compensate

injuries caused by the deprivation of one constitutional right are not necessarily appropriate to

compensate injuries caused by the deprivation of another.” Id. at 264–65. For this reason, courts

have often held that plaintiffs pleading a violation of unlawful search and seizure may not

necessarily seek damages for subsequent prosecution, conviction, or incarceration premised on

that search and seizure absent a claim for false arrest or malicious prosecution.

For example, in Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999), the Second

Circuit considered an unlawful search of a taxicab in which the plaintiff was a passenger. Id. at

141. The search recovered handguns which led to the plaintiff’s arrest and a search incident to

the arrest discovered cocaine. Id. Although the trial court did not suppress the evidence, on

appeal, a New York state court held that the initial search was unlawful and the evidence had to

be excluded, leading to the dismissal of the plaintiff’s indictment and his release. Id. at 142. The

plaintiff subsequently filed a § 1983 suit, seeking damages not for the invasions of his privacy,

“but rather for injuries derivative of these invasions—his arrest, conviction, and incarceration.”

Id. at 141. The Townes court held that the plaintiff was entitled only to damages for injuries

caused by the violation of his constitutional rights, explaining that neither the “fruit of the

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poisonous tree doctrine” nor “traditional common law tort principles of causation” provided a

basis for the damages claimed by the plaintiff. Id.

The plaintiff argues that Townes is distinguishable, pointing out that the Townes court

found that the plaintiff in that case could not recover damages for his criminal defense fees and

incarceration because the trial court’s failure to suppress the evidence was an intervening and

superseding cause of those damages. See Pl.’s Supp. Opp’n at 3. Indeed, in Townes, the Second

Circuit held that “the trial court's failure to suppress the evidence concerning Townes's own

criminal acts constituted a superseding cause of Townes's conviction and imprisonment.”

Townes, 176 F.3d at 146–47. The plaintiff argues that unlike Townes, the D.C. Superior Court in

this case suppressed the evidence at the outset, and thus no intervening and superseding cause

exists which cuts off the chain of causation from the unlawful search and seizure to the plaintiff’s

arrest, prosecution, and incarceration. Pl.’s Supp. Opp’n at 3. 12

The plaintiff errs by ignoring the alternative holding of the Townes court: “the injury [the

Townes plaintiff] plead[ed] (a violation of his Fourth Amendment right to be free from

unreasonable searches and seizures) d[id] not fit the damages he s[ought] (compensation for his

conviction and incarceration).” Townes, 176 F.3d at 147. As the Townes court recognized, the

Supreme Court’s § 1983 jurisprudence has sought to “tailor liability to fit the interests protected

by the particular constitutional right in question.” Id. at 148 (citing Carey, 435 U.S. at 258–59).

“In other words, § 1983 damages should be made available only for risks that are

‘constitutionally relevant.’” Id. (citation omitted). At bottom, “[t]he evil of an unreasonable

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The plaintiff suggests that this Court should follow the reasoning of Train v. City of Albuquerque, 629 F.

Supp. 2d 1243 (D.N.M. 2009), which held that “a plaintiff who establishes liability for deprivations of constitutional

rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a

consequence of those deprivations,” assuming that the constitutional deprivation at issue proximately caused the

asserted damages. Id. at 1251. The plaintiff correctly acknowledges, however, that “case law citing to Train has

developed indicating that the holding in Train is not widely accepted across circuits.” Pl.’s Supp. Opp’n. at 3.

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search or seizure is that it invades privacy, not that it uncovers crime, which is no evil at all.” Id.

(footnote omitted).

In Hector v. Watt, 235 F.3d 154 (3d Cir. 2000), the Third Circuit agreed with the Second

Circuit’s analysis in Townes, reasoning that because the Supreme Court’s decision in Carey v.

Piphus “instructs that we should assess liability in terms of the risks that are constitutionally

relevant, then damages for an unlawful search should not extend to post-indictment legal

process, for the damages incurred in that process are too unrelated to the Fourth Amendment's

privacy concerns.” Id. at 157. The Third Circuit agreed with the Second Circuit that “[v]ictims

of unreasonable searches or seizures may recover damages directly related to the invasion of

their privacy—including (where appropriate) damages for physical injury, property damage,

injury to reputation, etc.; but such victims cannot be compensated for injuries that result from the

discovery of incriminating evidence and consequent criminal prosecution.” Id. (quoting Townes,

176 F.3d at 148).

To be sure, a cause of action for false arrest would allow a plaintiff to “seek damages

from the time of detention up until issuance of process or arraignment.” Townes, 176 F.3d at

149. Similarly, a claim of malicious prosecution would permit damages for “confinement

imposed pursuant to legal process.” Id. (quoting Heck v. Humphrey, 512 U.S. 477, 484 (1994));

see Heck, 512 U.S. at 488 (“[A] successful malicious prosecution plaintiff may recover, in

addition to general damages, ‘compensation for any arrest or imprisonment, including damages

for discomfort or injury to his health, or loss of time and deprivation of the society.” (internal

quotation marks and citation omitted)). The plaintiff, however, never brought a claim for false

arrest or malicious prosecution, claiming only unlawful search and seizure. Accordingly, he can

be compensated only for those damages “directly related to the invasion of [his] privacy.”

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Townes, 176 F.3d at 148; see also Silver v. D.C. Metro. Police Dep't, 939 F. Supp. 2d 20, 22–23

(D.D.C. 2013) (concluding a § 1983 plaintiff alleging unlawful search and seizure could not

recover for “damages for the mental and emotional injuries he allegedly suffered as a result of

his arrest and detention”); Hampton v. District of Columbia, 764 F. Supp. 2d 147, 150 (D.D.C.

2011) (“There is no legally cognizable causal relationship [ ] between an officer's search of a

plaintiff's belongings and the arrest and detainment that may result from the fruits of that

search.”). Accordingly, because evidence regarding the plaintiff’s arrest, prosecution, and

incarceration would not be relevant to the plaintiff’s damages, the plaintiff may not present any

such argument or evidence.

2. The Admissibility of Evidence Regarding the Court’s Order Instructing

that the Plaintiff’s Property Be Returned

In his criminal case, the plaintiff moved to suppress the evidence seized from his

apartment, and Judge Ryan granted the plaintiff’s motion and ordered that the evidence be

returned pursuant to Rule 41(g) of the D.C. Superior Court Rules of Criminal Procedure. See

District of Columbia v. Corrigan, Case No. 2010-CDC-2483, Order Granting Mot. Return of

Property (D.C. Sup. Ct. Apr. 10, 2013). The defendants assert that any evidence or argument

regarding this order would be unduly prejudicial, would usurp the role of the jury and the Court,

and would confuse the jury. See Defs.’ Mot In Limine, at 9–11, ECF No. 104. The plaintiff

argues the evidence of the return of the plaintiff’s guns and ammunition is necessary for the jury

to assess the plaintiff’s damages.

As neither of the defendants were parties to the underlying criminal matter, the evidence

regarding the Superior Court’s order would be unduly prejudicial and thus may not be admitted.

See FED. R. EVID. 403. To the extent the return of the guns and ammunition is relevant to the

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computation of the plaintiff’s damages, the fact that the items were returned may be admitted

through stipulation or testimony without reference to the Superior Court’s order.

IV. CONCLUSION

For the foregoing reasons, at trial, the defendants are precluded from presenting any

argument that the EOD search was constitutional and the plaintiff may seek an instruction from

the Court that the EOD search was in violation of the plaintiff’s Fourth Amendment rights.

Evidence regarding the items seized during or directly after the EOD search may be admitted.

The plaintiff, for his part, is precluded from presenting evidence or argument regarding his

arrest, incarceration, or prosecution, including any reference to the Superior Court’s order

returning certain seized items.

An appropriate Order accompanies this Memorandum Opinion.

Date: June 8, 2017

__________________________

BERYL A. HOWELL

Chief Judge

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