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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0669%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2017

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0669%3A03. Public record. Not legal advice.