The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2018 Decided June 25, 2019
No. 15-5207
MICHAEL ROY JOHNSON,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01127)
Stephen S. Gilstrap, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on
the brief were Zachary J. Howe and Jeremy C. Marwell,
appointed by the court.
Michael R. Johnson, pro se, was on the briefs for
appellant.
James M. Burnham, Senior Counsel, U.S. Department of
Justice, argued the cause for federal appellees. With him on
the brief were Jessie K. Liu, U.S. Attorney, and R. Craig
Lawrence and Jane M. Lyons, Assistant U.S. Attorneys.
2
Karl A. Racine, Attorney General, Office of the Attorney
General for the District of Columbia, Loren L. AliKhan,
Solicitor General, Stacy L. Anderson, Acting Deputy Solicitor
General, and Mary L. Wilson, Senior Assistant Attorney
General, were on the brief for appellee The District of
Colombia.
Before: HENDERSON and SRINIVASAN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
SRINIVASAN, Circuit Judge: In 1990, Michael Roy
Johnson pleaded guilty to an armed rape he committed while
out on bond for another alleged rape. He became eligible for
parole in 2000. At his parole hearings in 2000, 2005, and 2008,
the U.S. Parole Commission denied him parole. Each time, the
Commission applied parole guidelines promulgated in 2000
rather than the 1987 guidelines in effect at the time of his
offense.
Johnson brought an action claiming that the retroactive
application of the 2000 guidelines in his parole hearings
violated the Ex Post Facto Clause and Fifth Amendment Due
Process Clause. He also alleged that his arrest had violated the
Fourth Amendment because it was unsupported by probable
cause. The district court granted a dismissal in favor of the
defendants, and we affirm.
I.
A.
Because the district court dismissed Johnson’s complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim, we “accept[] the allegations in the complaint as
3
true” and grant him “the benefit of all inferences that can be
derived from the facts alleged.” Vila v. Inter-Am. Inv. Corp.,
570 F.3d 274, 284 (D.C. Cir. 2009) (citation omitted). And
because Johnson brings his action pro se, we consider the
complaint “in light of all filings, including filings responsive to
a motion to dismiss.” Brown v. Whole Foods Mkt. Grp., Inc.,
789 F.3d 146, 152 (D.C. Cir. 2015) (per curiam) (internal
quotation marks omitted). The following facts thus are taken
from his complaint, supplemented as necessary by his other
filings.
On December 27, 1989, Johnson was arrested by John
Burke, a detective in the D.C. Metropolitan Police Department,
and charged with armed rape. The alleged victim of the rape
was Johnson’s then-girlfriend. She had identified Johnson as
the perpetrator and described the episode in detail, after which
the police contacted him for an interview. Johnson provided a
handwritten statement in which he said that he and his
girlfriend had spent time together on the day in question and
engaged in consensual intercourse. He described an altercation
over accusations of infidelity that culminated with his
girlfriend grabbing a knife to prevent him from leaving the
apartment. He was eventually able to wrest the knife from her.
Detective Burke described the victim’s allegations in an
affidavit supporting his application for an arrest warrant, in
which he stated that Johnson had “admitted to arming himself
with a knife and to engaging the Complainant in sexual
intercourse.” Johnson Compl. ¶ 22, App. 18. Burke obtained
an arrest warrant for Johnson based on the affidavit.
On March 17, 1990, Johnson was released on bond. While
on release, he raped a different woman. Johnson eventually
pleaded guilty to the second rape, and prosecutors dropped the
first charge as part of the plea deal. Under the District of
4
Columbia’s indeterminate sentencing scheme, Johnson
received a sentence of 15 years to life imprisonment.
B.
The National Capital Revitalization and Self-Government
Improvement Act vests responsibility for parole
determinations for D.C. Code offenders in the U.S. Parole
Commission. See D.C. Code § 24-131. From 1987 to 2000,
the Parole Commission (and its predecessor, the D.C. Board of
Parole) applied a point system prescribed by municipal law to
guide its parole determinations. See D.C. Mun. Regs. tit. 28
§ 204.1–.22 (1987). In 2000, the Parole Commission replaced
the 1987 guidelines with an updated system for assessing
putative parolees. See 28 C.F.R. §§ 2.70–.107.
Johnson first became eligible for parole in 2000. In three
successive parole hearings—in 2000, 2005, and 2008—the
Commission applied the parole guidelines promulgated in 2000
rather than the 1987 guidelines in effect at the time of his
offense of conviction.
The 1987 and 2000 guidelines differ in various respects.
Under the 1987 guidelines, once a D.C. offender has served his
minimum court-imposed sentence, he becomes “eligible” for
parole. Sellmon v. Reilly, 551 F. Supp. 2d 66, 69 (D.D.C.
2008). At the offender’s first parole hearing, the Commission
makes an initial determination whether he is “suitable” for
parole—i.e., whether he will receive parole. Id. The guidelines
prescribe an intricate scheme to determine suitability. See D.C.
Mun. Regs. tit. 28, § 204.4–.22 (1987). The scheme assigns an
offender a score of zero to five, based on several factors meant
to account for an offender’s risk of recidivism and his conduct
while incarcerated. Id. At an initial hearing, scores of two and
below signify someone presumptively suitable for parole,
whereas scores of three and above signify someone
5
presumptively unsuitable for parole. See id. § 204.19. If the
offender does not receive parole after an initial hearing, a
rehearing will be scheduled by the parole commissioners. At
rehearings, the cutoff for the presumption of suitability is three
rather than two. See id. § 204.21.
In “unusual circumstances,” the 1987 guidelines allow
departure from the presumption of suitability for an offender to
whom it applies. Id. § 204.22. To invoke a departure, the
Commission must “specify in writing those factors which it
used to depart.” Id. The guidelines contain a worksheet setting
forth certain enumerated reasons for departure. See id. app.
2-1. One of those reasons is an “[u]nusually extensive and
serious prior record,” described as “at least five felony
convictions.” Id. In addition to the enumerated grounds for
departure, the 1987 guidelines enable the Commission to
“depart from [the guidelines’] numerical system anytime it
wishes, as long as it specifies in writing those factors which it
used.” Ford v. Massarone, 902 F.3d 309, 321 (D.C. Cir. 2018)
(alteration in original) (internal quotation marks omitted).
The 2000 guidelines, like the 1987 guidelines, use a point
system to help identify when an offender merits a grant of
parole. See 28 C.F.R. §§ 2.20, 2.80. At the initial parole
hearing, the Commission calculates a base score based on
factors meant to measure the offender’s risk of recidivism and
adjusted for several other considerations. The base score is
then converted into a “base guideline range.” The lowest base
guideline range, for offenders with a score of three or less, is
zero months; and the highest range, for offenders with a score
of ten, is 156 to 192 months. Id. At the last step of the
calculation, the maximum and minimum of the range can be
adjusted upward and downward based on “superior program
achievement,” id. § 2.80(k), and disciplinary infractions, see id.
§ 2.80(j). Those adjustments yield an adjusted guideline range,
6
which is then added to the offender’s minimum court-imposed
sentence to produce a “total guideline range.” Id. § 2.80(l).
The total guideline range represents the amount of time the
Commission presumes an offender must serve before he
becomes suitable for parole. See id. At each subsequent
rehearing, the Commission takes the total guideline range from
the prior hearing and readjusts the range for superior
achievement or infractions in the intervening period. See id.
The 2000 guidelines permit the Commission to depart
from the guideline range. See id. § 2.80(n). A departure is
justified in “unusual circumstances,” based on “case-specific
factors that are not fully taken into account in the guidelines,
and that are relevant to the grant or denial of parole.” Id.
§ 2.80(n)(1). The 2000 guidelines provide a list of potential
factors justifying departure that is, by its own terms,
non-exhaustive. See id. § 2.80(n)(2).
C.
At Johnson’s initial parole hearing in 2000, the Parole
Commission questioned him about his 1989 arrest and the
underlying allegation of rape. Despite Johnson’s denial of the
underlying conduct, the Commission found him guilty of the
1989 rape for the purposes of parole, based solely on the
contemporaneous police report. The Commission applied the
2000 guidelines, determined that Johnson was presumptively
unsuitable for parole, and calculated a recommended guideline
range of twelve to eighteen months. Had the Commission
applied the 1987 guidelines, Johnson would have been
presumptively suitable for parole.
The Commission departed upward from the
twelve-to-eighteen-month range, citing its assessment of the
risk Johnson posed. The Commission gave him a sixty-month
7
reconsideration date, which made him eligible for rehearing in
2005. In each of his next two hearings, in 2005 and 2008, the
Commission again departed upward from the guidelines for
similar reasons.
In 2010, following litigation challenging the application of
the 2000 guidelines to parole applicants who, like Johnson,
were convicted before promulgation of the 2000 guidelines,
Johnson received a parole hearing under the 1987 guidelines
for the first time. The Commission determined that he was
presumptively suitable for parole but opted to depart from the
guidelines to deny him parole.
Johnson later filed the present action. The action includes
a claim against Parole Commission members alleging that the
application of the 2000 guidelines in his first three parole
hearings violated his rights under the Ex Post Facto Clause and
Fifth Amendment Due Process Clause. His action also
includes a claim against Detective Burke and the District of
Columbia contending that his original arrest for rape violated
the Fourth Amendment. The complaint seeks damages as well
as declaratory and injunctive relief, including expungement of
his arrest record and parole file.
The district court rejected Johnson’s claims and dismissed
his complaint. The Commission subsequently granted Johnson
parole, and he was released from prison in 2018.
Johnson now appeals. We appointed an amicus to present
arguments in support of his position, and we consider both the
amicus’s arguments and Johnson’s own arguments.
8
II.
A.
We first address the argument of Johnson and his amicus
that the Parole Commission’s retroactive application of the
2000 guidelines at his first three hearings violated the Ex Post
Facto Clause and Johnson’s argument that it violated the Due
Process Clause. While Johnson sought various forms of relief
in connection with that argument in the district court, the only
remaining claim before us is his claim against members of the
Parole Commission for damages. He does not dispute that his
claim for a new parole hearing has become moot now that he
has received a parole hearing under the 1987 guidelines and
been released from custody. And while he initially sought
expungement of the references to his first alleged rape from his
parole file, the district court held that his sole avenue for
expungement is the Privacy Act, and his briefing in our court
contains no challenge to that holding.
The district court dismissed Johnson’s Ex Post Facto
damages claim because it was barred by qualified immunity
and dismissed the Due Process claim on the merits. We affirm
the district court’s dismissal of those claims for substantially
similar reasons.
1.
We initially consider the argument of Johnson and amicus
that the application of the 2000 guidelines at his first three
hearings violated the Ex Post Facto Clause. “[P]arole
authorities violate the Ex Post Facto Clause when (i) they apply
parole guidelines promulgated after an offender was convicted,
and (ii) that retroactive application . . . creates a significant risk
of prolonging [the offender’s] incarceration as compared to
application of the prior guidelines.” Ford, 902 F.3d at 320
9
(alterations in original) (internal quotation marks omitted).
Here, there is no dispute that the first condition is satisfied: the
2000 guidelines were promulgated after Johnson’s conviction.
The sole issue is whether the retroactive application of those
guidelines created a “significant risk” of prolonging his
incarceration as compared to application of the 1987
guidelines.
A party can establish a “significant risk” by identifying
“facial distinctions between the old and new” regulations that
demonstrate the requisite risk or by “introducing evidence
drawn from the rule’s practical implementation by the agency
charged with exercising discretion.” Fletcher v. Reilly, 433
F.3d 867, 877 (D.C. Cir. 2006) (formatting modified). “At the
motion to dismiss stage . . . a plaintiff need only show that his
ex post facto claim—like any other claim—is ‘plausible.’”
Daniel v. Fulwood, 766 F.3d 57, 61–62 (D.C. Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Johnson initially contends that the Parole Commission, in
departing upwards under the 2000 guidelines, relied on certain
factors on which it could not have relied under the 1987
guidelines. Namely, the Commission departed upward based
on the dismissed rape charge; Johnson’s failure to obtain
psychological or behavioral treatment for sex offenders; and
“offense accountability,” meaning the severity of the
underlying crime. Consideration of each of those factors is
explicitly permitted under the 2000 guidelines but not the 1987
guidelines.
That difference does not create a “significant risk” per our
decision in Ford v. Massarone, 902 F.3d 309. There, we
rejected a virtually identical argument concerning the
Commission’s use of unenumerated departure factors.
Assessing the relationship between the same two guidelines,
10
we explained that “when the Commission applies the 1987
guidelines, it can depart from [the guidelines’] numerical
system anytime it wishes, as long as it specifies in writing those
factors which it used.” Id. at 321 (alteration in original)
(internal quotation marks omitted). As a result, “the retroactive
application of the 2000 guidelines” to permit consideration of
departure factors not enumerated in the 1987 guidelines
generally does “not pose a significant risk of increasing [an
offender’s] prison term.” Id.
True, the Supreme Court has cautioned that “[t]he
presence of discretion does not displace the protections of the
Ex Post Facto Clause.” Garner v. Jones, 529 U.S. 244, 253
(2000). But our decision in Ford establishes that, under the
1987 guidelines, the enumerated factors are merely illustrative
and have no privileged position relative to unenumerated
factors. All are potential bases for a departure, and whether
enumerated or unenumerated, their invocation requires no
more than a written explanation. Indeed, in a letter to the court
submitted after we decided Ford, amicus acknowledged that
the decision governed this issue. Consequently, the facial
differences in departure factors cannot support Johnson’s Ex
Post Facto challenge.
Johnson and his amicus next contend that the Parole
Commission, by applying the 2000 guidelines, deprived
Johnson of a presumption of parole suitability to which he
would have been entitled under the 1987 guidelines. In
particular, although Johnson would have received a score
qualifying him for a presumption of suitability at each of his
parole hearings under the 1987 guidelines, his total guideline
range under the 2000 guidelines mandated that he serve an
additional twelve to eighteen months above his minimum
court-imposed sentence before he could be considered
presumptively suitable for parole.
11
That argument finds support in our decisions. Considering
the relationship between the 2000 guidelines and an earlier
iteration, the 1972 guidelines, we wrote that it was “reasonable
to infer that the presumption of extended unsuitability
contained in the 2000 Guidelines would prolong a prisoner’s
period of incarceration as compared to the [earlier]
guidelines—in which no such presumption existed—even if
the same factors could have been considered under the earlier
regime.” Daniel, 766 F.3d at 63.
That “focus on the effect of a presumption” of suitability
is consistent with decisions assessing the Ex Post Facto
implications of revised sentencing guidelines. Id. at 63. In
both Miller v. Florida, 482 U.S. 423 (1987), and Peugh v.
United States, 569 U.S. 530 (2013), the Supreme Court
affirmed that advisory sentencing guidelines can give rise to an
Ex Post Facto claim even if the sentencing court retains
discretion to depart or vary from those guidelines. See Peugh,
569 U.S. at 541. Even merely advisory guidelines, the Court
explained, anchor discretion. See id. at 549.
The same reasoning is applicable here. Though the 1987
guidelines do not substantively limit the Commission’s
discretion, they provide decisional scaffolding that structures
the Commission’s evaluation of an offender seeking parole.
The guidelines do not oblige the Commission to hew to the
presumption, but they do require the Commission to begin with
it. The presumption of suitability, when it applies, is thus the
kind of facial difference that could support a plausible Ex Post
Facto claim.
Nonetheless, Johnson’s claim for damages fails for a
different reason: the parole officials named as defendants are
entitled to qualified immunity. The doctrine of qualified
immunity shields officials from civil liability if their conduct
12
“does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). The result is that
qualified immunity essentially “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’”
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley
v. Briggs, 475 U.S. 335, 341 (1986)).
“Although the Supreme Court’s decisions do ‘not require
a case directly on point for a right to be clearly established,’ for
purposes of qualified immunity, ‘existing precedent must have
placed the statutory or constitutional question beyond debate.’”
Hedgpeth v. Rahim, 893 F.3d 802, 806 (D.C. Cir. 2018)
(quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (per
curiam)). Much turns, then, on the level of generality at which
the relevant decisions establish the pertinent right. See id. A
plaintiff may be unable to overcome qualified immunity if the
precedents define the right abstractly rather than in a manner
“particularized to the [pertinent] facts.” Id. (quoting White, 137
S. Ct. at 552).
Johnson’s claim falls short on that ground. Months before
his initial parole hearing, the Supreme Court recognized that
“[t]he presence of discretion does not displace the protections
of the Ex Post Facto Clause.” Garner, 529 U.S. at 253. But
that broadly framed principle would not have put a reasonable
officer on adequate notice that the specific violation alleged
here—denying a presumption of suitability in the face of
essentially unfettered discretion to depart from the
presumption—would entail a significant risk of a longer term
of incarceration so as to violate the Ex Post Facto Clause.
Indeed, Garner itself acknowledged that determining the
Ex Post Facto consequences of any particular change is a
“question of particular difficulty when the discretion vested in
13
a parole board is taken into account.” Id. at 250. Neither
Johnson nor his amicus identifies any contemporaneous
precedent establishing the contours of the claimed right with
the requisite specificity. And because Johnson’s Ex Post Facto
claim for damages fails on that basis, we do not need to address
the government’s contention that the denial of parole under the
1987 guidelines in the 2010 hearing necessarily means that the
application of the 2000 guidelines in his three prior hearings
could not have created a “significant risk of prolonging [his]
incarceration.” Id. at 251.
2.
Johnson contends that the Commission’s applications of
the 2000 guidelines to deny him parole based on the risk he
posed, including the Commission’s reliance on the 1989 rape
allegations, violated the Due Process Clause. We disagree.
“Parole authorities deprive an offender of due process only
if their decisions are ‘either totally lacking in evidentiary
support or [are] so irrational as to be fundamentally unfair.’”
Ford, 902 F.3d at 321 (alteration in original) (quoting Duckett
v. Quick, 282 F.3d 844, 847 (D.C. Cir. 2002)); cf. Ellis v.
District of Columbia, 84 F.3d 1413, 1420 (D.C. Cir. 1996)
(“[W]e hold that the regulations do not give any prisoners a
liberty interest in parole.”). Here, there was evidence before
the Parole Commission that Johnson had committed two rapes.
Even assuming the evidence supporting Johnson’s guilt of the
first rape was insufficient to support the denial of parole, it is
undisputed that the second rape—his offense of conviction—
occurred while he was out on bond. That alone suffices to
suggest a risk of recidivism and to support a rational
determination that his relatively low guidelines range
inadequately accounted for the risk he posed.
14
B.
Johnson next seeks damages from the District of Columbia
and Detective Burke for his 1989 arrest for armed rape.
Johnson contends that the arrest warrant was unsupported by
probable cause in violation of the Fourth Amendment. He also
seeks declaratory relief and expungement of his arrest record.
We conclude that the district court properly dismissed these
claims.
“Probable cause is an objective standard to be met by
applying a totality-of-the-circumstances analysis.” United
States v. Burnett, 827 F.3d 1108, 1114 (D.C. Cir. 2016)
(internal quotation marks omitted). It is “more than bare
suspicion but is less than beyond a reasonable doubt, and,
indeed, is less than a preponderance of the evidence.” Id.
Johnson argues that the warrant for his arrest in 1989 was
unsupported by probable cause because Detective Burke’s
affidavit in support of the warrant application had
mischaracterized the content of Johnson’s statement. Johnson
alleges that he informed police he had engaged in consensual
sexual intercourse with his then-girlfriend (the alleged victim)
on the day in question, that they then had an altercation over
accusations of infidelity, and that he was able to seize from her
a knife she had grabbed when she tried to keep him in the
apartment. According to Johnson, Burke misrepresented
Johnson’s statement by stating in the affidavit that Johnson had
“admitted to arming himself with a knife and to engaging the
Complainant in sexual intercourse.” Johnson Compl. ¶ 22,
App. 18. He thus contends that Burke “made material
misrepresentations” without which the arrest “would have . . .
been without probable cause in violation of Plaintiff’s Fourth
Amendment right to be free from unreasonable seizure.”
Id. ¶ 64, App. 24.
15
Johnson’s claim fails because the allegedly false
statements were unnecessary to the finding of probable cause.
See Miller v. Prince George’s Cty., 475 F.3d 621, 627–28 (4th
Cir. 2007) (holding that a falsehood in an application for an
arrest warrant does not violate the Constitution if it is not
necessary to the finding of probable cause); Vakilian v. Shaw,
335 F.3d 509, 517–18 (6th Cir. 2003) (same); Burke v. Town of
Walpole, 405 F.3d 66, 82 (1st Cir. 2005) (same); Wilson v.
Russo, 212 F.3d 781, 789–90 (3d Cir. 2000) (same). Even
according to Johnson’s own complaint, subtracting the
allegedly falsified admission from the affidavit would have left
in place a detailed victim statement identifying Johnson as the
perpetrator. See Johnson Compl. ¶¶ 17–23, App. 17–18. Aside
from Johnson’s own protestations of innocence and his claims
that the allegations against him had been fabricated by the
alleged victim for reasons of jealousy, he has identified no
independent reason the police officer might have doubted her
credibility. And “probable cause does not require officers to
rule out a suspect’s innocent explanation for suspicious facts.”
District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018); cf.
Wayne LaFave et al., 2 Search & Seizure § 3.4(a) (5th ed.
2018) (“[W]hen information comes from one who claims to
have witnessed a crime or to have been the victim of a crime,
the information carries with it indicia of reliability and is
presumed to be reliable.” (internal quotation marks omitted)).
The victim’s allegations sufficed to support probable cause for
the arrest warrant.
Johnson argues that Burke failed to investigate the
conflicts between Johnson’s and the alleged victim’s accounts.
Yet “[o]nce a police officer has a reasonable basis for believing
there is probable cause, he is not required to explore and
eliminate every theoretically plausible claim of innocence
before making an arrest.” Amobi v. D.C. Dep’t of Corr., 755
F.3d 980, 990 (D.C. Cir. 2014) (citation omitted); see also
16
Wesby, 138 S. Ct. at 588. The same logic holds when an officer
seeks an arrest warrant. Johnson’s assertions of innocence do
not vitiate probable cause.
Finally, Johnson’s claims against the District of Columbia
also cannot prevail. As the district court held, Johnson has not
alleged that Detective Burke acted pursuant to a municipal
policy or custom. As a result, there is no basis for municipal
liability under § 1983. See Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978); see also Los Angeles Cty. v. Humphries,
562 U.S. 29, 30–31 (2010).
Johnson does not challenge that holding, but instead
“clarif[ies]” that he seeks only the expungement of the
government’s files relating to his 1989 arrest. Johnson Br. 53.
This court can order expungement of government records—
including arrest records—as a remedy for certain violations of
statutory or constitutional rights. See Sullivan v. Murphy, 478
F.2d 938, 968 (D.C. Cir. 1973); see also Livingston v. U.S.
Dep’t of Justice, 759 F.2d 74, 78 (D.C. Cir. 1985); Doe v.
Webster, 606 F.2d 1226, 1230 (D.C. Cir. 1979). But Johnson
has not demonstrated any violation of his Fourth Amendment
rights—let alone the kind of flagrant violation that typically
supports expungement of arrest records, see Webster, 606 F.2d
at 1230—and he thus has shown no entitlement to any
expungement. See Abdelfattah v. U.S. Dep’t of Homeland Sec.,
787 F.3d 524, 536–37 (D.C. Cir. 2015).
* * * * *
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.