Opposition Brief — Dist. of Columbia v. Wesby, 138 S. Ct. 42 (2017) (No. 15-1485)

No. 15-1485

IN THE

Supreme Court of the United States

DISTRICT OF COLUMBIA, ET AL.,

Petitioners,

Vv.

THEODORE WESBY, ET AL..,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

TED J. WILLIAMS

(Counsel of Record)

LAW OFFICES ©F C \2GORY L.

LATTIMER

1200 G Street, N.W.

Suite 800

Washington, DC 20005

Telephone: +1.202.434.4513

Facsimile: +1.866.764.6442

lattlaw@aol.com

Counsel for Respondents

QUESTIONS PRESENTED

Metropolitan Police Department officers

arrested for unlawful entry over _ sixteen

individuals (Respondents here) who had

gathered at a home in the District of Columbia.

Under District of Columbia law, the offense of

unlawful entry requires a culpable mental state.

Specifically, an individual is guilty of the crime

only if he knew or should have known that he

entered a property “against the will of the

lawful occupant or of the person lawfully in

charge thereof’ and intended to act in the face

of that knowledge. D.C. Code § 22-3302; see

Ortberg v. United States, 81 A.3d 303, 305 (D.C.

2013); Artisst v. United States, 554 A.2d 327,

330 (D.C. 1989). At the scene, Respondents

informed the responding officers that they had

been invited to the house by a woman whom

they reasonably believed to be its lawful

occupant. That woman confirmed to the officers

by telephone that she had invited them. The

officers, however, subsequently learned that she

was not in fact a lawful resident of the

premises.

The questions presented are:

1. Whether the officers had probable cause

to arrest Respondents for unlawful entry under

District of Columbia law when the available

facts indicated that Respondents believed they

had lawful authority to enter the premises.

2. Whether the officers were appropriately

denied qualified immunity because it was

clearly established at the time of arrest that

ii

police lack probable cause to arrest for unlawful

entry when there is no evidence the arrestee

has the requisite culpable mental state.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED...............0..c0cseseseeeeceseeeceeee i

TABLE OF AUTHORITIESG................. ubindccensensinisinmiel Vv

ETT TT Aaa aT NDCC 1

EI EEE IE ES ene CNT E DS men 2

a ei iicicicmenccinnnnmnpnneninens 2

B. District Court Proceedings .........................-. 4

C. Court of Appeals Proceedings....................... 5

REASONS FOR DENYING THE PETITION ............ 7

I. PETITIONERS ASK THIS COURT TO

ENGAGE IN MERE ERROR

CORRECTION OF THE COURT OF

APPEALS’ FACTBOUND PROBABLE

CAUSE DETERMINATION .............2..-...00.0..c000087

A. The Court of Appeals Applied the

Correct Probable Cause Standard................ 7

B. The Court of Appeals’ Determination

That There Was No Probable Cause

Was Correct; In Any _ Event,

Petitioners Do No More Than

Challenge the Application of Settled

Law to the Facts of This Case .................... 16

C. The Petition Does Not Present a

Question of Nationwide Importance .......... 25

lv

TABLE OF CONTENTS

(continued)

Page

Il. THE COURT OF APPEALS APPLIED

THE CORRECT QUALIFIED

IMMUNITY ANALYSIS, AND ITS

DENIAL OF QUALIFIED IMMUNITY

IIT cadsnocesctsentresvoctersnmmunenntoncstncseens 26

SI pic ctecicstericanscimusvtntineesimmncecsnenecnsepeiéntimnia 35

Vv

TABLE OF AU SHORITIES

CASES

Alabama v. White,

Se Se CE ED ccccccccsccccsssocssencsncisssnens

Anderson v. Creighton,

ee ID ectiicciccssccadieccrescsosvneiene

Artisst v. United States,

564 A.2d 327 (D.C. 1989) .........1........00c0r0

Ashcroft v. al-Kidd,

Es, HUE ED cinncsacocciccevensovevesesseanees

Baptiste v. J.C. Penney Co.,

147 F.3d 1252 (10th Cir. 1998)................

Beauchamp v. City of Noblesville, Ind.,

320 F.3d 733 (7th Cir. 2003) .............0000+

BeVier v. Hucal,

ee Be CPUee Ce, BED ohne cccccvcoscsccsccccosseeseses

Bigford v. Taylor,

834 F.2d 1213 (5th Cir. 1988)..................

Brosseau v. Haugen,

IPOD ccccccccedincisiesessetocenecnense

Criss v. Kent,

867 F.2d 259 (6th Cir. 1988)................268.

Culp v. United States,

486 A.2d 1174 (D.C. 1985) ...........cccccceeees

Page(s)

vi

TABLE OF AUTHORITIES

(continued)

Finigan v. Marshall,

574 F.3d 57 (2d Cir. 2009).............ceeeceeees

Florida v. Harris,

133 &. Cl. 1060 CO1S) .....2......ccccecssssessceees

Garcia v. Does,

779 F.3d 84 (2d Cir. 2014).............cceeeeeeee

Gasho v. United States,

39 F.3d 1420 (9th Cir. 1994)...............08

Griffin v. Sirva Inc.,

No. 15-1307, --- F.3d ---, 2016 WL

4524466 (2d Cir. Aug. 30, 2016) ..............

Groh v. Ramirez,

BOD UB, SBE GEG) ccccccccccscccccvcccscsscceseseees

Henry v. United States,

ee Oe Ee ID conccescccovccscenssessensanvsossses

Hope v. Pelzer,

BD BF FIND GED cisccccecccvccnccssssecncccescovees

Hunter v. Bryant,

502 U.S. 224 (1991).................. osummibensnests

Illinois v. Gates,

GBB UB. BIS (AGBB) occccccscccrcesscveccessscscccsees

Kozlovska v. United States,

30 A.3d 799 (D.C. 2011) ...........ecceseeeeeeeenes

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Logsdon v. Hains,

463 F.Ba SB4 Gths Civ. BOOT) ...cccccccsseccccccccccoccssecsee i)

Marks v. Carmody,

234 F.3d 1006 (7th Cir. 2O0O)............ccrsccccssscccces. 13

Maryland v. Pringle,

alia 7,8

McGloin v. United States,

Be ee as ITD cicisceccceeccvccsessccocsuccrocnesecss 32

Nichols v. Woodward & Lothrop, Inc.,

IIIS SI oi ass ccdnvevapasccossovecatncesases 14

Ohio v. Robinette,

EEE II iy a Ri ee ema AIO DT 15

Ortberg v. United States,

81 A.3d 303 (D.C. 2013)...................

Paff v. Kaltenbach,

204 F.3d 425 (3d Cir. 2000)..............

Pearson v. Callahan,

Ss IED civctesctecesisesevteeeses

Prieto v. May Dep’t Stores Co.,

216 A.2d 577 (D.C. 1966) .................

Ramirez v. City of Buena Park,

560 F.3d 1012 (9th Cir. 2009)..........

vill

TABLE OF AUTHORITIES

(continued)

Page(s)

Reichle v. Howards,

a elcineipnienieninage 27

Royster v. Nichols,

698 F.3d 681 (8th Cir. 2012) ........... ce ccccccce cece eee 14

Safford Unified Sch. Dist. No. 1 v. Redding,

a isilntodbancianenl 31

Sennett v. United States,

Gy Fe ee Ce Gey BERD once cccccccccescccvccosecescees 14

Smith v. United States,

ek ee)! ne een 29

State v. Newcomb,

5 5 Ce ne 13

Tillman v. Wash. Metro. Area Transit Auth.,

UIE TI oo css ccoceccdnnnnsenacccneressocisa 14

Tolan v. Cotton,

ee ondbensienenscubsomeninate 31

United States v. Christian,

187 F.3d 663 (D.C. Cir. 1999)........ ae eee 17, 28, 31

United States v. Joseph,

Fee re ee le Be inns nds cv ccccecenccccecccensessee 8

United States v. Lanier,

SRS REE: SC EE ee ER ERE 31

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Navedo,

694 F.3d 468 (Sd Cir. 2012)...........c00.00......sccccsceeces 24

United States v. Pack,

GES F.Be BEL GEE Ce. BOO) ..2...ccccceccccccccocecceccccese 22

Williams v. City of Alexander, Ark.,

repre Be &) -§ Vo XS | : Renee 8

Wilson v. Layne,

oa da sacabsbanensaaune 27, 31

Wright v. City of Philadelphia,

408 F.3d 606 (Gd Cir. 2008)............00..00..20.00.200.20. 13

STATUTES & CONSTITUTIONAL PROVISIONS

I acral canada 4

os pieaesteemenibi 17

ns ccnsnseduciinnspeewtneoniions 17

| a dnsahsebedanienienia 7,18

OTHER AUTHORITIES

BLACK’S LAW DICTIONARY (10th ed. 2014)........... 19, 20

a tlsatncsncichiubntunignttenimsiaiie sipaniteninadediacsvasiie 15, 25

INTRODUCTION

This case presents the question whether officers

lack probable cause to arrest under District of

Columbia law for unlawful entry—a crime that

requires that an individual knew, or should have

known, that he was on the premises against the will

of the lawful occupant—when the arrestees uniformly

state they were invited by a specific individual who

confirms to the officers that she invited them, but the

police discover that she did not in fact possess lawful

authority to extend the invitation.

The district court and the court of appeals held

that Petitioners lacked probable cause to arrest

Respondents because there was no_ evidence

Respondents knew, or should have known, that their

invitation was deficient. The district court and court

of appeals further held that Petitioners were not

entitled to qualified immunity because it was

objectively unreasonable under clearly established

law to arrest Respondents for unlawful entry in the

absence of any evidence of wrongful intent. Nothing

in Petitioners’ petition for certiorari calls the

correctness of the courts below into question, let

alone warrants this Court’s extraordinary review.

Petitioners claim the court of appeals created a

conflict with other jurisdictions by applying a

“heightened probable cause _ standard” that

supposedly requires police officers to credit claims of

an innocent mental state whenever made by suspects.

Pet. 11-22. This overblown claim does not stand up

to scrutiny. The court of appeals simply applied the

familiar totality-of-the-circumstances test established

by this Court and consistently applied by lower

2

courts. While Petitioners attempt to show a division

of authority among jurisdictions, the cases they cite

all involve other courts applying the same test to

different facts. Petitioners’ disagreement with the

court of appeals’ decision is in reality over how it

applied this well-worn test to the facts of this case.

The court of appeals’ factual analysis is correct. But

in any event, this factbound controversy does not

merit this Court’s review.

Similarly, the court of appeals applied the proper

analysis to determine whether Petitioners are

entitled to qualified immunity. Focusing its inquiry

at a granular level of specificity, the court of appeals

found it well-established that probable cause to

arrest requires at least some evidence that the

arrestee’s conduct meets each of the necessary

elements of the offense, including any state-of-mind

element. Applying that standard, the court of

appeals’ conclusion that Petitioners are not entitled

to qualified immunity is correct. In arguing to the

contrary, Petitioners seek to relitigate the facts of

this case rather than raise any substantial legal issue

that merits this Court’s attention.

The petition for certiorari should be denied.

STATEMENT

A. Factual Background.

In the early morning hours of Saturday, March 15,

2008, Respondents attended a party at a home in

Northeast Washington, D.C. Pet. App. 47a. Officers

from the D.C. Metropolitan Police Department (MPD)

arrived at the house at approximately 1:30 a.m. in

response to a call about the property. Jd. After

entering the residence, officers observed several

3

women who were “scantily dressed and had currency

tucked into their garments.” Jd. at 48a. The home

had folding chairs, a mattress, and working

electricity and plumbing. /d. at 4a, 49a, 53a. One

officer reported smelling marijuana, “but did not find

any illegal narcotics and observed no illegal activity.”

Id. at 53a, 57a. Other officers similarly testified that

they did not observe any illegal conduct. Jd. at 57a,

58a, 60a.

Several Respondents told the officers “that a

woman named ‘Peaches’ had invited [them] to the

house for a bachelor party.” Jd. at 48a. Peaches was

not at the home, but when reached by phone, told

officers that she had just left the house and given

Respondents permission to hold the bachelor party.

Id. at 48a, 54a.

Peaches told officers that she had permission to

occupy the property from the deceased property

owner’s grandson, Damion Hughes, Pet. App. 54a &

n.7. Petitioner Andre Parker then spoke with

Hughes, who stated that “he and Peaches were in the

process of working out a leasing arrangement, but

they never reached an agreement.” Jd. Based on

that information, a sergeant on the scene directed

Petitioners Parker and Anthony Campanale to arrest

Respondents for unlawful entry. Jd.

The MPD sergeant did not consider Respondents’

subjective intent in ordering the arrests, erroneously

believing that probable cause existed so long as

Respondents, as an objective legal matter, lacked the

right to be in the house. Pet. App. 51a, 56a-57a.

At the police station, the supervising leutenant,

upon consultation with upper level officers, disagreed

4

with the decision to arrest Respondents for unlawful

entry and ordered their release. Pet. App. 5la-52a.

However, after consulting with a representative of

the District of Columbia Office of the Attorney

General, the supervising lieutenant ordered that

Respondents be charged with disorderly conduct. Id.

at 52a. The disorderly conduct charge was made over

the objection of the arresting sergeant, who

complained that “there was no evidence [Respondents]

had become loud or boisterous causing people to wake

up, turn on their lights, and/or come outside to

investigate a commotion.” Jd. The other officers at

the scene likewise did not observe any activities

consistent with a disorderly conduct charge. Id. at

49a.

The disorderly conduct charges were later dropped

(id.), and this action followed.

B. District Court Proceedings.

Sixteen of the arrestees, Respondents here, sued

five officers for false arrest under 42 U.S.C. § 1983,

the officers and the District of Columbia for false

arrest under common law, and the District of

Columbia for negligent supervision, in the United

States District Court for the District of Columbia.

Pet. App. 6a. The parties filed cross-motions for

partial summary judgment: Respondents moved for

judgment on _ Petitioners’ liability, whereas

Petitioners moved for judgment based on qualified

immunity. Id.

The district court granted Respondents’ motion in

part and denied Petitioners’ motion in part. The

district court concluded that “the officers did not have

probable cause to support the unlawful entry arrest,”

5

and that “the arrests for disorderly conduct were

made without probable cause.” Pet. App. 66a-67a.

The district court further concluded that Petitioners

Parker and Campanale “failed to show, by

undisputed facts, that it was objectively reasonable

for these officers to rely on the information

communicated by others at the scene to support the

arrests.” Jd. at 78a. Accordingly, the district court

concluded that those officers were “not entitled to

qualified immunity... and, furthermore, that

[Respondents] are entitled to summary judgment

with respect to these two officers.” Jd. at 79a.

The district court, however, denied Respondents’

summary judgment motion as to the disorderly

conduct false arrest claims, which became the only

claim on which lability was not determined. Pet.

App. 99a. Following entry of the district court’s

summary judgment order, Respondents waived that

claim, and the case proceeded to a damages-only trial

as to Respondents’ remaining claims against Officers

Campanale and Parker, and against the District

itself for negligent supervision. Jd. at 12la. A jury

awarded Respondents $680,000, and Petitioners

appealed both the verdict and the summary judgment

order to the United States Court of Appeals for the

District of Columbia. Jd.

C. Court of Appeals Proceedings.

The court of appeals, Judges Pillard and Edwards,

affirmed. The court held that “Peaches’ invitation

vitiates the necessary element of [Respondents’]

intent to enter against the will of the lawful owner.

A reasonably prudent officer aware that

[Respondents] gathered pursuant to an invitation

6

from someone with apparent (if illusory) authority

could not conclude that they had entered unlawfully.”

Pet. App. lla. The court of appeals also affirmed the

district court’s denial of qualified immunity, finding

that “[t]he controlling case law in _ this

jurisdiction .. . made perfectly clear at the time of the

events in this case that probable cause required some

evidence that [Respondents] knew or should have

known that they were entering against the will of the

lawful owner.” TJd. at 24a. Finally, the court of

appeals affirmed the district court’s award of

summary judgment to Respondents on their common-

law negligent supervision claim against the District

itself. Jd. at 30a. Judge Brown dissented from the

majority opinion. Id. at 32a.

Petitioners then petitioned for rehearing en banc,

which the court of appeals denied. Pet. App. 104a.

Judges Pillard and Edwards filed an opinion

concurring in that denial, and Judge Kavanaugh,

joined by Judges Henderson, Brown, and Griffith,

filed an opinion dissenting from the denial of

rehearing en banc. 7/d. at 105a, 116a. The dissent

argued that the panel majority erred because the

officers could reasonably have disbelieved

Respondents’ explanation “that they thought they

had permission to use the house.” /d. at 125a. In

response, the concurrence expressed agreement “with

virtually everything the dissent says about the law.

Our disagreement is about the facts.” Jd. at 105a.

7

REASONS FOR DENYING THE PETITION

I. PETITIONERS ASK THIS COURT TO

ENGAGE IN MERE ERROR

CORRECTION OF THE COURT OF

APPEALS’ FACTBOUND PROBABLE

CAUSE DETERMINATION.

A. The Court of Appeals Applied the Correct

Probable Cause Standard.

In determining that the officers lacked probable

cause to arrest Respondents for unlawful entry, the

court of appeals, like the district court before it,

applied the well-established totality-of-the-

circumstances test for probable cause. The petition

misconstrues the D.C. Circuit’s reasoning in an

unpersuasive attempt to manufacture a _ circuit

split—but none of the cases relied upon by

Petitioners applied a different legal standard. Rather,

they all applied the familiar probable cause standard

to different facts.

1. Under this Court’s well-established Fourth

Amendment jurisprudence, probable cause to arrest

exists if “at the moment the arrest was made[,] the

facts and circumstances within [the officers’

knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a

prudent man in believing that” the suspects

committed a crime. Hunter v. Bryant, 502 U.S. 224,

228 (1991) (quoting Beck v. Ohio, 379 U.S. 89, 91

(1964)). This standard “depends on the totality of the

circumstances.” Maryland v. Pringle, 540 U.S. 366,

371 (2003) (citations omitted). The touchstone of any

probable cause analysis is whether there exists “a

reasonable ground for belief of guilt.” Jd. (quoting

8

Brinegar v. United States, 338 U.S. 160, 175 (1949)).

“(T]he belief of guilt must be particularized with

respect to the person to be searched or seized.” Id.

(citing Ybarra v. Illinois, 444 U.S. 85, 91 (1979)).

“(C]ommon rumor or report, suspicion, or even ‘strong

reason to suspect’ [are] not adequate to support” an

arrest. Henry v. United States, 361 U.S. 98, 101

(1959).

The evidence necessary to support a finding of

probable cause is less than what would be necessary

to support a conviction. See Illinois v. Gates, 462 U.S.

213, 235 (1983). At the same time, however, because

the evidence available to the arresting officers must

support the conclusion that the suspect committed a

crime, probable cause does not exist where there is no

evidence establishing one of the elements of the

offense. See Williams v. City of Alexander, Ark., 772

F.3d 1307, 1312 (8th Cir. 2014) (“For probable cause

to exist, there must be probable cause for all

elements of the crime.”); United States v. Joseph, 730

F.3d 336, 342 (3d Cir. 2013) (“To make an arrest

based on probable cause, the arresting officer must

have probable cause for each element of the offense.”);

Beauchamp v. City of Noblesville, Ind., 320 F.3d 733,

745-46 (7th Cir. 2003) (probable cause to arrest exists

“fo}nce an officer has established probable cause on

every element of a crime”).

Importantly, the totality-of-the-circumstances test

requires that “the whole picture” be taken into

account. Alabama v. White, 496 U.S. 325, 330 (1990)

(quoting United States v. Cortez, 449 U.S. 411, 417

(1981)). As the courts of appeals have consistently

recognized, this means that facts showing that

behavior is innocent must be considered and may

9

negate facts that, in isolation, would otherwise

suggest guilt. Officers cannot “simply turn a blind

eye toward potentially exculpatory evidence.”

Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007)

(citations omitted); see also Garcia v. Does, 779 F.3d

84, 93 (2d Cir. 2014) (“[P]robable cause may be

defeated if the officer deliberately disregards facts

known to him which establish justification”) (citation

omitted) (emphasis in original); Ramirez v. City of

Buena Park, 560 F.3d 1012, 1023-24 (9th Cir. 2009)

(“As a corollary of the rule that the police may rely on

the totality of facts available to them in establishing

probable cause, they also may not disregard facts

tending to dissipate probable cause.”) (emphasis

added) (alteration omitted) (quoting United States v.

Lopez, 482 F.3d 1067, 1073 (9th Cir. 2007)); Bigford v.

Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988) (same);

Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1259

(10th Cir. 1998) (“While officers may weigh the

credibility of witnesses in making a yrobable cause

determination, they may not ignore available and

undisputed facts.”) (emphasis added).

2. The D.C. Circuit faithfully applied this familiar

probable cause standard. The court began by noting

that “[a]n arrest is supported by probable cause if, ‘at

the moment the arrest was made,...the facts and

circumstances within [the arresting officers’)

knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a

prudent man in believing’ that the suspect has

committed or is committing a crime.” Pet. App. 8a

(quoting Beck, 379 U.S. at 91). The court noted that

it must ““giv[e] due weight to the inferences drawn by

the officers.” Jd. (quoting Ornelas v. United States,

10

517 U.S. 690, 697, 699 (1996)). And it noted that

while “[p]robable cause ‘does not require the same

type of specific evidence of each element of the

offense as would be needed to support a

conviction[,]’... the police cannot establish probable

cause without at least some evidence supporting the

elements of a particular offense, including the

requisite mental state.” Jd. at QYa-10a (quoting

Adams v. Williams, 407 U.S. 143, 149 (1972)).

In keeping with these principles, the court of

appeals recognized that under D.C. law, officers who

make an arrest for unlawful entry “must have

reasonable grounds to believe” that the suspects

knew or should have known that they entered

against the owner’s express will. Pet. App. 10a

(quoting Carr uv. District of Columbia, 587 F.3d 401,

410-11 (D.C. Cir. 2009)). The court therefore

examined “whether a reasonable officer with the

information that the officers had at the time of the

arrests could have concluded that Plaintiffs knew or

should have known that they had entered the house

‘against the will of the lawful occupant or of the

person lawfully in charge thereof,’ and intended to

act in the face of that knowledge.” /d. at 9a (quoting

D.C. Code § 22-3302). In holding that a reasonable

officer could not have so concluded, the court

observed that: (1) Respondents uniformly stated that

they had been invited to a party at the house; (2) the

officers had uncontroverted statements from both

Peaches and another attendee that Peaches told

Respondents they could be there; and (3) the owner of

the home was negotiating a lease with Peaches. Id.

at 10a. In short, “[a] reasonably prudent officer

aware that [Respondents] gathered pursuant to an

11

invitation from someone with apparent (if illusory)

authority could not conclude that they had entered

unlawfully.” Jd. at lla.

Nothing about the court of appeals’ analysis

departed from the _ well-worn _ totality-of-the-

circumstances test established by this Court and

applied over decades by i:ower courts. Petitioners

claim the court of appeals created a “heightened”

probable cause requirement by ruling that officers

must accept a suspect’s claim of an innocent state of

mind even when there is reason to doubt the

credibility of the claim. Pet. 11. But the court of

appeals expressly rejected that rule, holding that “if

the facts of which officers are aware and the

reasonable inferences that arise from those facts cast

doubt on a suspect’s story, officers need not credit the

suspect.” Pet. App. 105a. The court simply found

that on the facts of this case, all of the evidence

available to the arresting officers indicated that

Respondents had “gathered pursuant to an invitation

from someone with apparent (if illusory) authority”

and therefore did not possess the requisite mental

state for unlawful entry under District of Columbia

law. Id. at 6a. This is entirely consistent with this

Court’s totality-of-the-circumstances test and the

requirement that a suspect cannot be arrested if

there is insufficient evidence supporting an element

of the offense.

3. Petitioners attempt to manufacture a division of

authority by citing a number of supposedly analogous

cases where other courts have found that probable

cause for arrest existed despite a suspect’s innocent

explanation for his or her conduct. All of the cases

upon which Petitioners rely, however, involved

12

application of the same probable cause standard to

distinguishable facts. Specifically, Petitioners’ cited

cases all involved suspects whose credibility was

undermined by significant circumstantial evidence of

guilt and who lacked corroborating evidence

supporting their proffered innocent explanation.

None of Petitioners’ cited cases involve circumstances

similar to those presented here, where the suspects’

consistent statements negating the requisite mens

rea were independently corroborated at the scene.

Petitioners’ cases merely demonstrate that probable

cause determinations—in keeping with the totality-

of-the-circumstances test—turn on the particular

facts of each case.

For example, in Finigan v. Marshall, 574 F.3d 57

(2d Cir. 2009), the suspect was arrested after using a

locksmith to access her former home. Id. at 59. The

suspect entered the home without her separated

husband’s consent or knowledge, but told authorities

that “her divorce attorney told her she could do so.”

Id. at 60. Given the suspect’s surreptitious entry into

the house, that a report of burglary at the address

had been made, that the husband had changed the

locks, and that New York law prohibits a titled

spouse from entering a residence without the

resident spouse’s permission, the Second Circuit

reasonably concluded the officer had valid grounds

for believing the suspect had committed a crime. See

id. at 62-63 (“[U]nder New York law, a non-resident

spouse who is a titled owner of a house and enters

without the permission of the resident spouse may be

convicted of burglarizing his or her own property.”)

(citations omitted).

13

In Wright v. City of Philadelphia, 409 F.3d 595 (8d

Cir. 2005), the Third Circuit found probable cause for

police to arrest a suspect who broke a window to

enter a house even though the suspect claimed she

entered the residence to “retrieve her clothes and

evidence of’ a sexual assault. Jd. at 603. There,

however, the police were entitled to disbelieve the

suspect's explanation because the retrieved items

“were unlikely to help the police identify her

attackers,” and because she turned over the evidence

“only after her mother alerted the polixe as to her

possession of them.” /d. Accordingly, the police

officers’ belief “was not unreasonable in light of the

information the officers possessed at the time.” Id.

Wright thus differs from the present situation in that

there were facts on the ground contravening the

suspect’s proffered explanation, and like Finigan,

there was no independent corroboration of the

suspect’s intent.

Petitioners’ remaining cases are all of a piece.

Each contains similar distinctions—either the officers

knew facts at the time of the arrest that contravened

the suspect’s proffered intent, or there was a lack of

corroborating evidence of such intent, or both. See

State v. Newcomb, 20 A.3d 881 (N.H. 2011) (suspect’s

innocent explanation for unlawful trespass was not

supported by corroborating evidence, and explanation

belied by nervous appearance and by actions

inconsistent with innocent intent); Criss v. Kent, 867

F.2d 259 (6th Cir. 1988) (suspect’s innocent

explanation for receipt of stolen street sign was not

supported by corroborating evidence and belied by

the nature of the property); Marks v. Carmody, 234

F.3d 1006 (7th Cir. 2000) (suspect’s proffered

14

explanation for why he wrote a bad check was not

supported by any other evidence); Royster v. Nichols,

698 F.3d 681 (8th Cir. 2012) (officer entitled to

disregard suspect's stated reason for refusing

payment where other witnesses disputed the

explanation); Sennett v. United States, 667 F.3d 531,

536 (4th Cir. 2012) (photojournalist’s innocent

explanation for why she was at the scene of a

criminal protest was both belied by other facts and

not corroborated by other evidence); Ramirez, 560

F.3d at 1023-24 (police entitled to disregard suspect’s

innocent explanation where other facts, such as

suspect’s pulse rate and failures on sobriety field

tests, belied explanation).

Nor, contrary to Petitioners’ claims, is there any

conflict between the rule applied by the D.C. Circuit

and the rule applied by the District of Columbia

Court of Appeals. See Pet. 16. Petitioners’ cited

cases all apply the same probable cause standard to

distinguishable facts—specifically, to circumstances

in which the suspects’ innocent explanations were

uncorroborated or unknown to the police at the time

of the arrest. See Tillman v. Wash. Metro. Area

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

alleged fare-skipper offered an innocent explanation,

it was uncorroborated and he became agitated when

confronted by police); Nichols v. Woodward &

Lothrop, Inc., 322 A.2d 283, 285 n.2, 286 n.6 (D.C.

1974) (arresting officer did not know, at the time of

the arrest, of the evidence corroborating the suspect’s

explanation); Prieto v. May Dep’t Stores Co., 216 A.2d

577, 578 (D.C. 1966) (alleged shoplifter’s explanation

that she had “forgotten” that she had the stolen

merchandise was uncorroborated).

15

In sum, the petition does not identify precedent

from any other court “in conflict” with the decision

below “on the same important matter.” S. Ct. R.

10(a). Like the dissenting opinion below, Petitioners

merely disagree with the panel majority over

whether the officers were presented with sufficient

circumstantial evidence to overcome Respondents’

proffered explanation for their presence and the

evidence corroborating it. As the majority put it,

“fojur disagreement ... comes down to our case-

specific assessment of the circumstantial evidence in

the record.” Pet. App. 113a; see also id. at 105a (“The

panel agrees with virtually everything the dissent

says about the law. Our disagreement is about the

facts.”). Nothing in the petition for certiorari

warrants this Court’s review of that fact-bound

determination.

4. If anything, it is Petitioners who seek to distort

the probable cause standard. They effectively argue

for a rule that arresting officers are permitted to

ignore exculpatory evidence that is known to them.

Under Petitioners’ view, officers should always be

able to claim that their “experience” and “judgment”

establishes that a suspect who proffers an innocent

explanation is lying so that probable cause for arrest

exists—even where the innocent explanation is

corroborated by the available evidence and no

contrary evidence exists. Pet. 23-24. But that is

inconsistent with the approach to probable cause

established by this Court.

“In applying [the probable cause] test, [this Court]

ha[s] consistently eschewed bright-line rules, instead

emphasizing the fact-specific mature of the

reasonableness inquiry.” Ohio v. Robinette, 519 U.S.

16

33, 39 (1996). Just as it would have been improper

for the court of appeals to hold—which it did not—

that suspects’ innocent explanations must always be

believed, it would be improper to hold that police may

always discredit suspects’ innocent explanations even

when those explanations are corroborated by other

available evidence. Such an approach would not only

establish a bright-line rule, contrary to this Court’s

precedents, it would give police license to arrest

citizens engaged in innocent conduct and then justify

the arrest after the fact through the bare assertion

that they found the suspect not to be “credible.”

B. The Court of Appeals’ Determination That

There Was No Probable Cause Was

Correct; In Any Event, Petitioners Do No

More Than Challenge the Application of

Settled Law to the Facts of This Case.

Lacking any genuine discrepancy between the

court of appeals’ decision in this case and precedent

from other circuits, Petitioners urge the Court to

reverse the D.C. Circuit because they had probable

cause to arrest under the facts. Pet. 17-22. Even

putting aside the fact that this Court does not

generally expend its resources to engage in error

correction, the court of appeals correctly determined

that Petitioners did not possess the necessary

probable cause to arrest Respondents for unlawful

entry.

At the time of the arrest, D.C. law made it a

misdemeanor for a person “without lawful authority”

to “enter, or attempt to enter, any public or private

dwelling, building, or other property ... against the

will of the lawful occupant or of the person lawfully

17

in charge thereof.” D.C. Code § 22-3302 (2008).! To

establish a violation of the statute, the government

must prove that “(1) the accused entered or

attempted to enter public or private premises or

property; (2) he did so without lawful authority; (3)

he did so against the express will of the lawful

occupant or owner; and (4) general intent to enter.”

Culp v. United States, 486 A.2d 1174, 1176 (D.C.

1985). To satisfy the requisite mental state, the

government must prove “that a defendant knew or

should have known that his entry was unwanted.”

Ortberg v. United States, 81 A.38d 303, 308 (D.C.

2013).

The court of appeals recognized that the quantum

of proof needed to sustain probable cause is less than

to succeed at trial, but correctly held that “the police

cannot establish probable cause without at least some

evidence supporting the elements of a particular

offense, including the requisite mental state.” Pet.

App. 9a-10a; see United States v. Christian, 187 F.3d

663, 667 (D.C. Cir. 1999) (holding that officers lacked

probable cause to arrest suspect for possessing

dagger with intent to use unlawfully “[gliven the

possibility of a lawful purpose, and the absence of any

evidence whatsoever that [the suspect] possessed the

knife for an unlawful one”); cf. Paff v. Kaltenbach,

204 F.3d 425, 437 (38d Cir. 2000) (to have probable

cause on mens rea element of trespass offense, officer

must obtain “information supporting a conclusion

that the potential defendant in a trespass case was

1 D.C.’s unlawful entry statute has since been amended. See

D.C. Code § 22-3302. The court of appeals considered the

previous version of the statute in conducting its analysis. Pet.

App. 9a n.3.

18

not licensed or privileged and that he was so advised

by the custodian of the property’).

Petitioners lacked any evidence that Respondents

intended to enter the house without lawful authority.

Respondents uniformly stated that Peaches had

invited them to a party at the house, and Peaches

confirmed that understanding. Based on these facts,

“[mjultiple officers on the scene testified that they did

not observe anything leading them to believe that

[Respondents] had any reason to think they lacked

the right to be in the house.” Pet. App. 12a n.4. This

was not a situation where the suspects provided

conflicting accounts, or where there was any

indication that Respondents made up their

explanations; rather, it was a situation where

arresting officers refused to consider corroborated,

exculpatory evidence because they believed

(erroneously) that intent is not an element of the

crime.

In the courts below, Petitioners argued that

Respondents’ Fourth Amendment claim failed

because social guests cannot challenge constitutional

violations relating to seizures of their persons (Pet.

App, 75a), because Petitioners were entitled to arrest

on a showing less than probable cause (id. at 75a

n.14), and because Respondents’ bona fide belief that

they had permission to enter the house is relevant

only as a defense to a criminal prosecution (Pet. App.

10a-1la). Abandoning those meritless arguments,

Petitioners now seek reversal on the sole ground that

a reasonable officer could have _ disbelieved

Respondents (even if Petitioners did not do so here).

19

Petitioners’ factual arguments fail. Although

innocent activity may form the basis of a probable

cause finding, the requisite “degree of suspicion” to do

sO is missing in the present case. Gates, 462 U.S. at

243 n.13. Thus, Petitioners point to several facts that

purportedly “discredited” Respondents’ claim of a

bona fide invitation. Pet. 17-18. Yet none of the

evidence on which Petitioners rely indicates that

Respondents entered the house against the will of the

lawful owner.

First, Petitioners contend Respondents “were in a

vacant home late at night.” Pet. 17. Under D.C. law,

however, the presence of a person in a vacant

dwelling is not prima facie evidence that entry into

the building was against the will of the owner unless

the property is “boarded up or otherwise secured in a

manner that conveys that it is vacant and not to be

entered.” Pet. App. 65a (quoting D.C. Code § 22-

3302(a)(1) (2007)). In any event, the district court

reasonably concluded that the house was not “vacant,

i.e., “completely empty.” Vacant, BLACK’s LAW

DICTIONARY (10th ed. 2014). “[I]t is undisputed that

the electricity was working, the property contained a

mattress, candles, chairs, food, and the bathrooms

were functional.” Pet. App. 65a; see also id. at 16a

(“[T]here is nothing in the record suggesting that the

condition of the house...should have alerted

[Respondents] that they were unwelcome’).

Second, Petitioners contend Respondents were

engaged in “illicit behavior.” Pet. 17. Because the

officers uniformly testified that they did not observe

illegal activity (Pet. App. 15a), Petitioners must mean

20

“illicit” in its alternative sense of “improper.”? Tilicit,

BLACK’S LAW DICTIONARY (10th ed. 2014). But

regardless of whether Petitioners’ moral sensibilities

are offended by the presence of “scantily dressed”

women, the officers’ observations provided no reason

to doubt Respondents’ explanation of lawful entry.

Certainly, common sense does not suggest, and

Petitioners proffered no evidence establishing, that

trespassers are more likely to attend parties

involving exotic dancing than non-trespassers.

Third, Petitioners suggest Respondents could be

disbelieved because an unidentified number of

partygoers told officers they were present for a

birthday party whereas others claimed it was a

bachelor party (as Peaches reported). Pet. 17; see

Joint App’x 372. As an initial matter, the testimony

upon which Petitioners rely was introduced at the

trial on damages—after the district court decided

Respondents’ summary judgment motion—and

therefore cannot be relied upon to cast doubt on the

district court’s liability determination. See, e.g.,

Griffin v. Sirva Inc., No. 15-1307, --- F.3d ---, 2016

WL 4524466, at *3 (2d Cir. Aug. 30, 2016) (collecting

cases holding that district court’s grant of summary

judgment must be examined independently of

evidence resented at trial). There was no evidence

in the summary judgment record that any of the

partygoers told police they were present for a

birthday party:

e Respondents uniformly testified that they

were at the home for a bachelor party. See

2 Officers testified that they neither found illegal drugs in the

home, nor observed any drug-related activity. Pet. App. 4a n.1.

21

Hunt Dep., Dist. Ct. Doc. No. 25-2, at 3 (Jan.

11, 2011) (“We went there to do a bachelor

party.”); Chittams Dep., Dist. Ct. Doc. No.

31-10, at 3 (Apr. 1, 2011) (“Tasty said she

knew a guy that was having a bachelor

party.”); Taylor Dep., Dist. Ct. Doc. No. 31-

14, at 3 (Apr. 1, 2011) (“A bachelor’s party,

yes, sir.”); Cole Dep., Dist. Ct. Doc. No. 31-

15, at 3 (Apr. 1, 2011) (“I was going to a

bachelor party.”).

The arresting sergeant testified that

Peaches said “she gave the people who were

inside the place, told them they could have

the bachelor party.” Suber Dep., Dist. Ct.

Doc. No. 33-3, at 4 (Apr. 18, 2011).

The arrest report contained no mention of

conflicting statements. Arrest Rep., Dist. Ct.

Doc. No. 31-4 (Apr. 1, 2011).

Multiple officers, including the officer who

testified during the trial about the

conflicting statements, did not mention any

conflicting statements during their

depositions or in their interrogatory

responses when asked to justify their

arrests of Respondents. See Campanale

Interrog., Dist. Ct. Doc. No. 31-19 (Apr. 1,

2011); Campanale Dep., Dist. Ct. Doc. No.

31-16, at 4 (Apr. 1, 2011) (“Q: And what

was your basis for arresting somebody for

unlawful entry? A: That they did not have

permission to be inside the residence.”);

Newman Dep., Dist. Ct. Doc. No. 33-7, at 6

(Apr. 18, 2011) (“The facts that led me to

22

believe that [there was probable cause] was

[sic] that no one knew who the owner was.”).

e Petitioners never presented their

conflicting-statements theory in either their

summary judgment briefing, see Defs.’

Opp’n to Pls.’ Mot. for Summ. J., Dist. Ct.

Doc. No. 30, (Apr. 1, 2011); Defs.’ Mem. in

Supp. of Mot. for Summ. J., Dist. Ct. Doc.

No. 31-1 (Apr. 1, 2011); Defs.’ Reply in Supp.

of Mot. for Summ. J., Dist. Ct. Doc. No. 36

(May 12, 2011), or in their statements of

fact, see Defs.’ Opp’n to Pls.’ Stmt. of Facts,

Dist. Ct. Doc. No. 30-1 (Apr. 1, 2011); Defs.’

Stmt. of Facts, Dist. Ct. Doc. No. 31-2 (Apr.

1, 2011).

In any event, this evidence does not present

grounds to disbelieve the partygoers’ consistent

statements that they were invitees. Given that some

partygoers were invited by Peaches directly and

others by another guest (Pet. App. 4a), it is hardly

surprising the twenty-one suspects failed to give a

uniform answer. Critically, nothing Respondents told

the officers gave any reason to doubt they believed

their invitation to attend a party—of whatever sort—

was extended by an individual without lawful

authority. The inconsistency identified by Petitioners

is “simply too minor and insignificant to give rise to

any reasonable suspicion of any criminal activity.”

United States v. Pack, 612 F.3d 341, 360 (5th Cir.

2010).

Fourth, Petitioners claim that because “Peaches”

was evasive when officers reached her by phone, the

officers could have inferred that she invited

23

Respondents “in a manner that alerted or suggested

that she was without actual authority to do so.” Pet.

18. Petitioners’ argument, however, is wholly

divorced from the facts of the case, as testified to by

the arresting officers. When the officers spoke to

Peaches on the phone and asked whether she had

permission to use the house, she had every reason to

disclaim having authorized the party. She was

absent from the scene, after all, and implicated only

because the partygoers had stated she invited them.

Instead, she confirmed to the officers “that she gave

the people who were inside the place, told them they

could have the bachelor party.” Pet. App. 50a

(quoting testimony of Sergeant Andre Suber). Only

when the officers pressed Peaches on the lawfulness

of her own use of the house did she “beci[o]me evasive

and h[aJng up the phone.” Jd. “[T]here is simply no

evidence in the record that [Respondents] had any

reason to think the invitation was invalid.” Jd. at 12a.

Indeed, Petitioners did not even ask Peaches or the

house’s owner whether Respondents knew Peaches

had no right to be in the house. Jd. at 12a n.4.

Probable cause to arrest cannot be predicated on

“(t]he bare, unsupported’ possibility’ that

Respondents were invited to use the house in a

manner that alerted them to Peaches’ lack of

authority in the absence of any facts suggesting that

to be the case. Jd. at 112a.

Finally, Petitioners state that probable cause

existed because the partygoers “scattered and hid

when uniformed officers” entered the home. Pet. 17.

The evidence is that when an individual opened the

door, one officer “could see people in the house

scattering into different rooms.” Joint App’x 150.

24

Even headlong flight, however, though it “may be

‘suggestive’ of wrongdoing,...is not sufficient

standing alone to create probable cause.” Pet. App.

16a (quoting Illinois v. Wardlow, 528 U.S. 119, 124

(2000)); see also United States v. Navedo, 694 F.3d

463, 474 (3d Cir. 2012) (“unprovoked flight, without

more, can not [sic] elevate reasonable suspicion to

detain and investigate into the probable cause

required for an arrest”). That a group of partygoers

engaged in observing semi-nude dancing in a house

in Northeast D.C. at 1:30 a.m. left the room rather

than talk to the police is hardly surprising. Many

citizens do not have confidence that even routine

interactions with the police will end well. If

“headlong flight” from police, without more, does not

establish probable cause for an arrest, the “scattering”

of a group of partygoers under these circumstances

does not establish that they were at the house

unlawfully. And because none of the other facts

highlighted by Petitioners gave the officers reason to

doubt Respondents’ state of mind, Petitioners are not

aided by the principle that probable cause is a

“totality of the circumstances” test. Florida v. Harris,

133 S. Ct. 1050, 1055 (2013).

That leaves Petitioners to rely on their post-hoc

claim that a reasonable officer could have

concluded—on the basis of nothing more than

hypothesized indicia of untruthfulness not testified to

by any of the officers present at the scene—that

Respondents’ statements were not credible. In

rejecting this argument, the court of appeals did not,

contrary to Petitioners’ claim, require “direct,

affirmative proof’ that Respondents had the requisite

mens rea. Pet. 19. On the contrary, the court of

25

appeals expressly allowed that “circumstantial

evidence may ‘make it reasonable to infer’ that a

suspect has a culpable state of mind.” Pet. App. 106a;

see also id. at 14a. But the court of appeals did quite

properly require some _ circumstantial evidence

grounding such an inference. And as the record

establishes, “nothing about what the police learned at

the scene”—circumstantial or otherwise—‘“suggest|ed]

that [Respondents] ‘knew or should have known that

[they were] entering against the [owner’s] will.” Jd.

at 64a.

C. The Petition Does Not Present a Question

of Nationwide Importance.

At root, the petition for certiorari asks this Court

to review the D.C. Circuit’s application of well-settled

law to the particular facts of this case. But this

Court does not normally engage in error correction.

See Sup. Ct. R. 10 (“A petition for a writ of certiorari

is rarely granted when the asserted error consists of

erroneous factual findings or the misapplication of a

properly stated rule of law.”).

Petitioners and their amici claim that this Court’s

intervention is necessary to avoid chilling police

activities. Pet. 23-24; States’ Amicus Br. 6-9. But

these claims are overblown. This case does not

involve, as Petitioners urge, the question whether

police officers must credit a suspect’s naked excuse

for unlawful conduct. See Pet. 23 (“The drugs in my

locker aren’t mine.”) (quoting Pet. App. 126a); see also

States’ Amicus Br. 11. As the court of appeals

explained, nothing about its decision requires officers

“to accept suspects’ implausible protestations of

innocence and ignore other, circumstantial evidence

26

of culpability.” Pet. App. 105a. Rather, the opinion

below merely addresses whether officers have

probable cause to arrest for unlawful entry under D.C.

law—an offense with a well-established mens rea

requirement—when the suspects’ statements that

they believed they entered lawfully are fully

corroborated by facts known to the arresting officers.

Moreover, a case such as this one—where

individuals provide a corroborated claim to have

authorization for an action, and the authorization

renders their conduct innocent, but the ultimate

basis for the authorization proves flawed for reasons

of which they are unaware—is unlikely to recur often

in the future, making review by this Court

unnecessary.

Il. THE COURT OF APPEALS APPLIED THE

CORRECT QUALIFIED IMMUNITY

ANALYSIS, AND ITS DENIAL OF

QUALIFIED IMMUNITY WAS CORRECT.

The court of appeals held that Respondents are not

entitled to qualified immunity because it is well

established that probable cause to arrest requires at

least some evidence that the arrestee’s conduct meets

each of the necessary elements of the offense,

including any state-of-mind element. The court of

appeals’ holding was both formulated at an

appropriate level of specificity and correct on the

facts. Petitioners attempt to manufacture

uncertainty by relying on a series of factually

distinguishable cases. Reduced to its essence,

Petitioners’ argument is that the court of appeals

misinterpreted the facts of this case. That argument

does not justify a grant of certiorari.

27

A. The doctrine of qualified immunity shields

officials from civil liability only if their conduct “does

not violate clearly established statutory or

constitutional rights of which a reasonable person

would have known.” Pearson v. Callahan, 555 U.S.

223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). A clearly established right is

one that is “sufficiently clear that every reasonable

official would have understood that what he is doing

violates that right.” Reichle v. Howards, 132 S. Ct.

2088, 2093 (2012) (alteration omitted). Whether the

violative nature of particular conduct is clearly

established must be assessed “in light of the specific

context of the case, not as a broad general

proposition.” Brosseau v. Haugen, 543 U.S. 194, 198

(2004) (citation omitted). At the same time, this

Court has rejected the idea that “an official action is

protected by qualified immunity unless the very

action in question has previously been held unlawful.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Instead, what is required is that “in the light of pre-

existing law[,] the unlawfulness must be apparent.”

Wilson v. Layne, 526 U.S. 603, 615 (1999). The crux

of the qualified immunity test is whether officers

have “fair notice” that they are acting

unconstitutionally. Hope v. Pelzer, 536 U.S. 730, 739

(2002).

The court of appeals’ qualified immunity analysis

conforms to this Court’s precedents. Recognizing

that “[iJt is not enough to reiterate that the Fourth

Amendment’s restrictions against arrest without

probable cause are clearly established,” the court

focused its inquiry “at a finer level of specificity.” Pet.

App. 22a. The court of appeals stated the applicable

28

constitutional rule as follows: “The law in this

jurisdiction has been well established for decades

that probable cause to arrest requires at least some

evidence that the arrestee’s conduct meets each of the

necessary elements of the offense that the officers

believe supports arrest, including any state-of-mind

element.” Pet. App. 23a. As the court of appeals

explained, this rule is firmly established in decisions

announced by the District of Columbia Court of

Appeals, the Court of Appeals for the District of

Columbia Circuit, and by courts of appeals for other

circuits.

First, the D.C. Circuit has clearly held that there

must be some evidence of the suspect’s mental state

to arrest an individual when the crime of arrest

contains a state-of-mind element. In United States v.

Christian, the D.C. Circuit held that officers lacked

probable cause to arrest an individual for possessing

a dagger with the intent for unlawful use in the

absence of creditable evidence of the suspect’s intent.

187 F.3d at 667. The Christian court found that the

circumstances of the dagger’s supposed lack of

utilitarian purpose and the suspect’s presence in a

high-crime neighborhood were insufficient to ground

an inference that the suspect possessed the requisite

mens rea. These circumstances, the court found, did

not negate the obvious lawful use of the dagger—self-

defense. “[T]he officers did not simply lack the ‘type

of specific evidence of [the suspect’s] intent ‘as would

be needed to support conviction,” the D.C. Circuit

held, “they lacked any evidence at all that [the

suspect] intended to use the dagger unlawfully.

Without such evidence, there was no probable cause

for arrest.” Jd. (quoting Adams, 407 U.S. at 149).

29

This decision squares with decisions from other

courts of appeals finding that officers need evidence

of the suspect’s mental state to have probable cause

to arrest for a crime with a mens rea requirement.

See, e.g., Gasho v. United States, 39 F.3d 1420, 1428

(9th Cir. 1994) (““[W]hen specific intent is a required

element of the offense, the arresting officer must

have probable cause for that element in order to

reasonably believe that a crime has occurred.”);

BeVier v. Hucal, 806 F.2d 123, 126 (7th Cir. 1986)

(holding that to have probable cause under a statute

requiring knowing or willful conduct, officers “needed

some evidence” to satisfy this element).

Second, there is no ambiguity in District of

Columbia law that the crime of unlawful entry

possesses a mens rea requirement. “[I|jt has been

long understood” in the District of Columbia that the

crime of uniawful entry requires the government to

prove the suspect intended to be on the property

“contrary to the will of the lawful owner.” Ortberg, 81

A.3d at 307. Accordingly, the government must prove

“that a defendant knew or should have known that

his entry was unwanted.” Jd. at 308. As the Ortberg

court further recognized, it is well established that “a

defendant ‘lacks the requisite criminal intent for

unlawful entry’ ‘when a person enters a place with a

good purpose and a bona fide belief in his or her right

to enter.” Jd. (quoting Darab v. United States, 623

A.2d 127, 136 (D.C. 1993)) (alterations omitted); see

also Smith v. United States, 281 A.2d 438, 439 (D.C.

1971) (“Where a person enters a place with a good

purpose and with a bona fide belief of his right to

enter, he lacks the element of criminal intent

required ... and is not guilty of unlawful entry.”).

30

As Petitioners “perform their functions in a single

jurisdiction,” they “reasonably can anticipate when

their conduct may give rise to liability for damages’

and so are expected to adjust their behavior in

accordance with local precedent.” Ashcroft v. al-Kidd,

563 U.S. 731, 746 (2011) (Kennedy, J., concurring)

(quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)).

Accordingly, the court of appeals properly asked

whether, under these precedents, “it was objectively

reasonable” for the arresting officers “to conclude

that there was probable cause to believe Plaintiffs

were engaging in... unlawful entry.” Pet. App. 21a.

And the court determined, in light of the absence of

facts indicating that Respondents knew that Peaches’

invitation was not grounded in actual authority to

invite them, that it was not.

B. Contrary to the claims of Petitioners and their

amici, the court did not apply a rule formulated at an

improperly high level of generality or a rule that was

not clearly established.

First, Petitioners contend that even if it is clearly

established that there must be some evidence of the

suspect’s mental state to arrest for a crime containing

a state-of-mind element, “this is not the level of

specificity this Court requires.” Pet. 25. According to

Petitioners, the proper question is whether probable

cause to arrest exists when officers confront “persons

behaving suspiciously inside a vacant home, late at

night, where the lawful owner disclaims their right to

be there, but the suspects claim that they were

31

invited by someone who is not present and is

uncooperative and untruthful with police.” Jd. at 26.3

Petitioners frame the question far too narrowly.

Although courts should not define “clearly

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

563 U.S. at 742, it does not follow that police officers

are entitled to qualified immunity whenever a novel

factual situation arises, Safford Unified Sch. Dist. No.

1 v. Redding, 557 U.S. 364, 377 (2009). Thus, this

Court has rejected Petitioners’ position that “the very

action in question [have] previously been held

unlawful.” Wilson, 526 U.S. at 615. Given cases such

as Christian, as well as the long-standing

jurisprudence recognized by the District of Columbia

Court of Appeals in Ortberg, Respondents had “fair

and clear warning” that Respondents could not be

arrested for unlawful entry in the face of their

corroborated exculpatory statements absent evidence

that Respondents knew or had reason to know their

inviter was not a legal resident of the premises.

United States v. Lanier, 520 U.S. 259, 271 (1997).

Second, Petitioners erect a straw man, arguing

that the rule applied by the court of appeals is not

clearly established because a number of circuit courts

and state supreme courts, in addition to courts within

the District of Columbia, have purportedly “held (and

3 Petitioners’ framing of the question relies on improper factual

inferences. For purposes of qualified immunity, the facts must

be viewed in the light most favorable to Respondents (the non-

moving party on this issue). Tolan v. Cotton, 134 S. Ct. 1861,

1866 (2014). As explained above, the evidence in the record

established that the home was not vacant. And Petitioners’

contention that Respondents were “behaving suspiciously” is a

conclusory statement unsupported by the evidence.

32

continue to hold) that probable cause exists to arrest

for trespassing, even though the suspect asserted a

good-faith claim of right.” Pet. 26. The court of

appeals, however, did not hold that officers may

never arrest for unlawful entry when the suspect

offers an innocent explanation. And none of

Petitioners’ cited cases conflicts with the court of

appeals’ actual holding that some evidence of mens

rea is required to arrest for a crime that possesses a

mental-state element.

As already explained, none of Petitioners’ federal

authorities address a good-faith claim of right where

that good faith is corroborated by independent,

uncontroverted evidence. See supra at Part I.A.3.

Petitioners’ argument that the court of appeals’

opinion runs contrary to established District of

Columbia law is similarly unpersuasive. None of the

cited cases involve a situation where the suspect’s

explanation for being in the premises was

corroborated by independent evidence. In McGloin v.

United States, 232 A.2d 90 (D.C. 1967), for example,

the suspect’s stated explanations—looking for a cat,

or looking for a friend—were contradictory and

lacked any corroboration. Jd. at 90-91. Likewise, in

Ortberg, 81 A.3d 303, the suspect’s uncorroborated

explanation—that he did not know the fundraiser

was a private event—was belied by the presence of a

registration table, and the suspect’s attempts to stall

his ejection. And in Artisst v. United States, 554 A.2d

327 (D.C. 1989), a prominently-posted warning

obviated the suspect’s innocent explanation; even if it

were true that a resident had invited the suspect in,

that invitation would not have justified entry in the

33

face of the warning requiring presentation of

identification to a security guard.

The only other citation Petitioners provide in

support of this argument is Kozlovska v. United

States, 30 A.3d 799 (D.C. 2011), which, Petitioners

say, upheld the “conviction of a woman previously

barred from a building despite her unrebutted

testimony that the superintendent permitted her to

use the building.” Pet. 27. The suspect’s explanation,

while unrebutted, was not corroborated by the

superintendent who purportedly gave the defendant

permission to enter. In fact, the lack of corroboration

is part of the reason that the trial court found the

suspect not credible. Kozlovska, 30 A.3d at 803.

Here, Respondents’ explanations were both

unrebutted and corroborated.

Third, the claim of Petitioners’ amici that the court

of appeals created a new rule and retroactively

applied it to the officers in this case is based on a

blatant misreading of the opinion below. Relying

primarily on citations to a concurrence in denial of

rehearing en banc that does not embody the holding

below, the States misconstrue the court of appeals’

holdin as turning on the subjective mental state of

the arresting officers. States’ Amicus Br. 14-21. But

the court’s holding does no such thing.

The court specifically rejected the argument that

the officers’ subjective assessment of the facts was

relevant to the probable cause determination,

stressing that “[a]s long as the arresting officers had

an objectively valid ground upon which to make an

arrest, ... the subjective knowledge and intent of the

officers is irrelevant.” Pet. App. 18a. Instead, the

34

court held that the probable cause inquiry focuses on

“whether a reasonable officer with the information

that the officers had at the time of the arrests could

have concluded that Plaintiffs knew or should have

known that they had entered the house ‘against the

will of the lawful occupant or of the person lawfully

in charge thereof,’ and intended to act in the face of

that knowledge.” Pet. App. 9a. The court accordingly

focused on whether the facts known to the officers

indicated that Respondents entered the house

without the express consent of someone they believed

to be the lawful occupant. Pet. App. 12a.

At bottom, the States—like Petitioners—simply

disagree with what the facts show. Indeed, the

States concede that the court of appeals’ assessment

of the evidence “if true, would have eliminated

probable cause for the arrest.” States’ Amicus Br. 15.

But this Court does not ordinarily grant review to

determine if disputed facts are “true” or not.

Fourth, because the court of appeals applied a well-

established rule, Petitioners’ assertion that affirming

the district court will punish officers who lacked “fair

warning’ of an “obvious” constitutional principle is

misguided. Pet. 28. As both the district court and

the court of appeals noted, officers at the scene of the

investigation admitted that the facts known to them

at the time did not establish probable cause to effect

an arrest. See Pet. App. 6a explaining that both the

commanding lheutenant and a representative from

the District of Columbia’s Attorney General’s office

agreed to change the charge from unlawful entry to

disorderly conduct); id. at 12a n.4 (“Multiple officers

on the scene testified that they did not observe

anything leading them to believe that [Respondents]

35

had any reason to think they lacked the right to be in

the house.”); see also id. at 52a. Petitioners’

argument that the lack of probable cause was not

obvious falls flat in the face of their own agents’

contrary testimony.

Finally, this Court should not reverse merely

because four judges on the court of appeals found

that probable cause existed, as Petitioners suggest.

Pet. 28. Taken to its logical extreme, Petitioners’

argument would require courts to afford qualified

immunity to officers any time any jurist believed that

a constitutional violation had not occurred.

Petitioners’ argument is unsupported by this Court’s

precedent. See, e.g., Groh v. Ramirez, 540 U.S. 551,

576 (2004) (denying qualified immunity even though

three Justices believed that “despite the invalid

warrant, the resulting search was reasonable and

hence constitutional”) (Thomas, J., dissenting). The

dissenting judges below, like Petitioners here, merely

disagree that the record supports probable cause.

That factbound disagreement does not warrant this

Court’s review.

CONCLUSION

The Petition for a Writ of Certiorari should be

denied.

September 16, 2016

36

Respectfully submitted,

TED J. WILLIAMS

(Counsel of Record)

LAW OFFICES OF GREGORY L.

LATTIMER

1200 G Street, N.W.

Suite 800

Washington, DC 20005

Telephone: +1.202.434.4513

Facsimile: +1.866.764.6442

lattlaw@aol.com

Counsel for Respondents